================================================================================
LDK SOLAR CO., LTD.
and
THE BANK OF NEW YORK
as Trustee and Securities Agent
----------
INDENTURE
Dated as of April 15, 2008
----------
$400,000,000 Principal Amount
4.75% CONVERTIBLE SENIOR NOTES DUE 2013
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TABLE OF CONTENTS
PAGE
----
I. DEFINITIONS AND INCORPORATION BY REFERENCE......................... 1
1.01 Definitions................................................ 1
1.02 Other Definitions.......................................... 6
1.03 Incorporation by Reference of Trust Indenture Act.......... 8
1.04 Rules of Construction. .................................... 8
II. THE SECURITIES..................................................... 9
2.01 Form and Dating............................................ 9
2.02 Execution and Authentication............................... 9
2.03 Registrar, Paying Agent and Conversion Agent............... 10
2.04 Money Held by Paying Agent................................. 10
2.05 Securityholder Lists....................................... 11
2.06 Transfer and Exchange...................................... 11
2.07 Replacement Securities..................................... 11
2.08 Outstanding Securities..................................... 12
2.09 Securities Held by the Company or an Affiliate............. 13
2.10 Temporary Securities....................................... 13
2.11 Cancellation............................................... 13
2.12 Defaulted Interest......................................... 14
2.13 CUSIP Numbers.............................................. 14
2.14 Deposit of Moneys.......................................... 14
2.15 Book-Entry Provisions for Global Securities................ 14
2.16 Special Transfer Provisions................................ 16
2.17 Restrictive Legends........................................ 17
2.18 Ranking.................................................... 17
III. REDEMPTION AND REPURCHASE.......................................... 17
3.01 Right Of Redemption........................................ 17
3.02 Notice To Trustee And The Securities Agent................. 18
3.03 Selection Of Securities To Be Redeemed..................... 19
3.04 Notice Of Redemption....................................... 19
3.05 Effect Of Notice of Redemption............................. 20
3.06 Deposit Of Redemption Price. .............................. 21
3.07 Securities Redeemed In Part. .............................. 21
3.08 Repurchase Of Securities At Option Of The Holder........... 22
3.09 Repurchase at Option of Holder Upon a Fundamental Change... 26
3.10 Conversion Arrangement On Call For Redemption. ............ 33
i
IV. COVENANTS.......................................................... 34
4.01 Payment of Securities...................................... 34
4.02 Maintenance of Office or Agency............................ 35
4.03 Rule 144A Information and Annual Reports................... 35
4.04 Compliance Certificate..................................... 36
4.05 Stay, Extension and Usury Laws............................. 36
4.06 Corporate Existence........................................ 37
4.07 Notice of Default.......................................... 37
4.08 Further Instruments and Acts............................... 37
4.09 Delivery of Ordinary Shares................................ 37
4.10 Listing of ADSs............................................ 37
V. SUCCESSORS......................................................... 38
5.01 When Company May Merge, etc. .............................. 38
5.02 Successor Substituted...................................... 38
VI. DEFAULTS AND REMEDIES.............................................. 38
6.01 Events of Default.......................................... 38
6.02 Acceleration............................................... 40
6.03 Other Remedies............................................. 42
6.04 Waiver of Past Defaults.................................... 42
6.05 Control by Majority........................................ 42
6.06 Limitation on Suits........................................ 43
6.07 Rights of Holders to Receive Payment....................... 43
6.08 Collection Suit by Trustee................................. 43
6.09 Trustee May File Proofs of Claim........................... 44
6.10 Priorities................................................. 44
6.11 Undertaking for Costs...................................... 44
VII. TRUSTEE AND SECURITIES AGENT....................................... 45
7.01 Duties of Trustee and the Securities Agent................. 45
7.02 Rights of Trustee and the Securities Agent................. 46
7.03 Individual Rights of Trustee and the Securities Agent...... 48
7.04 Disclaimer of the Trustee and the Securities Agent......... 48
7.05 Notice of Defaults......................................... 48
7.06 Reports by Trustee to Holders.............................. 49
7.07 Compensation and Indemnity................................. 49
7.08 Replacement of Trustee or the Securities Agent............. 50
7.09 Successor Trustee by Merger, etc. ......................... 51
7.10 Eligibility; Disqualification.............................. 51
7.11 Preferential Collection of Claims Against Company.......... 52
7.12 Force Majeure.............................................. 52
ii
VIII. DISCHARGE OF INDENTURE............................................. 52
8.01 Termination of the Obligations of the Company.............. 52
8.02 Application of Trust Money................................. 53
8.03 Repayment to Company....................................... 53
8.04 Reinstatement.............................................. 53
IX. AMENDMENTS......................................................... 53
9.01 Without Consent of Holders................................. 53
9.02 With Consent of Holders.................................... 54
9.03 Compliance with Trust Indenture Act........................ 55
9.04 Revocation and Effect of Consents.......................... 56
9.05 Notation on or Exchange of Securities...................... 56
9.06 Trustee and Securities Agent Protected..................... 56
9.07 Effect of Supplemental Indentures.......................... 57
X. CONVERSION......................................................... 57
10.01 Conversion Privilege; Restrictive Legends.................. 57
10.02 Conversion Procedure and Payment Upon Conversion........... 57
10.03 Taxes on Conversion........................................ 62
10.04 Company to Provide Ordinary Shares And ADSs................ 64
10.05 Adjustment of Conversion Rate.............................. 64
10.06 No Adjustment.............................................. 74
10.07 Other Adjustments.......................................... 75
10.08 Adjustments for Tax Purposes............................... 76
10.09 Notice of Adjustment....................................... 76
10.10 Notice of Certain Transactions............................. 76
10.11 Effect of Reclassifications, Business Combinations, Asset
Sales And Other Corporate Events on Conversion Privilege... 77
10.12 Disclaimer of the Trustee, the Conversion Agent and the
Securities Agent........................................... 79
10.13 Rights Distributions Pursuant To Anti-Takeover Provisions.. 79
10.14 Increased Conversion Rate Applicable to Certain Securities
Surrendered in Connection With Make-Whole Fundamental
Changes.................................................... 80
XI. TAX TREATMENT...................................................... 83
11.01 Tax Treatment.............................................. 83
11.02 Tax Withholding Obligations................................ 83
XII. MISCELLANEOUS...................................................... 84
12.01 Trust Indenture Act Controls............................... 84
12.02 Notices.................................................... 84
12.03 Communication by Holders with Other Holders............... 86
12.04 Certificate and Opinion as to Conditions Precedent......... 86
iii
12.05 Statements Required in Certificate or Opinion.............. 86
12.06 Rules by Trustee and Agents................................ 87
12.07 Legal Holidays............................................. 87
12.08 Duplicate Originals........................................ 87
12.09 Governing Law.............................................. 87
12.10 Submission to Jurisdiction................................. 87
12.11 Judgment Currency.......................................... 88
12.12 No Adverse Interpretation of Other Agreements.............. 88
12.13 Successors................................................. 88
12.14 Separability............................................... 89
12.15 Table of Contents, Headings, Etc. ......................... 89
12.16 Calculations in Respect of the Securities.................. 89
12.17 No Personal Liability of Directors, Officers, Employees or
Shareholders............................................... 89
Exhibit A - Form of Global Security
Exhibit B-1 - Form of Private Placement Legend
Exhibit B-2 - Form of Legend for Global Security
Exhibit C - Form of Notice of Transfer Pursuant to Registration Statement
Exhibit D - Form of Opinion of Counsel in Connection With Registration of
Securities
iv
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------------------------------------------------------------ -----------------
310(a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... N.A.
(a)(4)................................................... N.A.
(a)(5)................................................... N.A.
(b)...................................................... 7.08; 7.10; 12.02
(c)...................................................... N.A.
311(a)...................................................... 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
312(a)...................................................... 2.05
(b)...................................................... 12.03
(c)...................................................... 12.03
313(a)...................................................... 7.06
(b)(1)................................................... N.A.
(b)(2)................................................... 7.06
(c)...................................................... 7.06; 12.02
(d)...................................................... 7.06
314(a)...................................................... 4.03
(b)...................................................... N.A.
(c)(1)................................................... 12.04
(c)(2)................................................... 12.04
(c)(3)................................................... N.A.
(d)...................................................... N.A.
(e)...................................................... 12.05
(f)...................................................... N.A.
315(a)...................................................... 7.01(B)
(b)...................................................... 7.05; 12.02
(c)...................................................... 7.01(A)
(d)...................................................... 7.01(C)
(e)...................................................... 6.11
316(a) (last sentence)...................................... 2.09
(a)(1)(A)................................................ 6.05
(a)(1)(B)................................................ 6.04
(a)(2)................................................... N.A.
(b)...................................................... 6.07
(c)...................................................... N.A.
317(a)(1)................................................... 6.08
(a)(2)................................................... 6.09
(b)...................................................... 2.04
318(a)...................................................... 12.01
V
INDENTURE, dated as of April 15, 2008, between LDK Solar Co., Ltd., a
company incorporated under the laws of the Cayman Islands (the "COMPANY") and
The Bank of New York, as trustee (the "TRUSTEE") and securities agent (the
"SECURITIES AGENT").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Company's 4.75% Convertible
Senior Notes due 2013 (the "SECURITIES").
I DEFINITIONS AND INCORPORATION BY REFERENCE
1.01 DEFINITIONS.
The term "ADDITIONAL INTEREST" has the meaning ascribed to it in the
Registration Rights Agreement.
"ADS" means the Company's American depositary shares, each representing one
Ordinary Share.
"ADS DEPOSITARY" means JPMorgan Chase Bank, N.A., as the depositary under
the Deposit Agreement.
"ARTICLES OF ASSOCIATION" means the Fourth Amended and Restated Memorandum
and Articles of Association of the Company that became effective upon
consummation of the Company's initial public offering, as amended from time to
time.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
this purpose, "control" shall mean the power to direct the management and
policies of a person through the ownership of securities, by contract or
otherwise.
"ASSET SALE MAKE-WHOLE FUNDAMENTAL CHANGE" means a sale, transfer, lease,
conveyance or other disposition (other than a Permitted Transfer) of all or
substantially all of the property or assets of the Company to any "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act), including any group acting for the purpose of acquiring, holding, voting
or disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or any
committee thereof authorized to act for it hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee and the Securities Agent.
"CLOSING SALE PRICE" means the price per ADS on the relevant date,
determined (a) on the basis of the closing sale price per ADS (or if no closing
sale price per ADS is reported, the average of the bid and ask prices per ADS
or, if more than one in either case, the average of the average bid and the
average ask prices per ADS) on such date on the New York Stock Exchange or other
U.S. principal national securities exchange on which the ADSs are listed; or (b)
if the ADSs are not listed on a U.S. national securities exchange, as reported
by the National Association of Securities Dealers Automated Quotation System; or
(c) if not so quoted, as reported by National Quotation Bureau, Incorporated or
a similar organization. In the absence of a quotation, the Closing Sale Price
shall be such price as the Company shall reasonably determine on the basis of
such quotations as most accurately reflecting the price that a fully informed
buyer, acting on his own accord, would pay to a fully informed seller, acting on
his own accord in an arm's-length transaction, for each such ADS.
"COMPANY" means the party named as such above until a successor replaces it
pursuant to the applicable provision hereof and thereafter means the successor.
The foregoing sentence shall likewise apply to any such successor or subsequent
successor.
"COMPANY ORDER" or "COMPANY REQUEST" means a written request or order
signed on behalf of the Company by any one Officer.
"CONVERSION PRICE" means, as of any date of determination, the dollar
amount derived by dividing one thousand dollars ($1,000) by the Conversion Rate
in effect on such date.
"CONVERSION RATE" shall initially be 25.4534 ADSs per $1,000 principal
amount of Securities, subject to adjustment as provided in ARTICLE X.
"CORPORATE TRUST OFFICE" shall mean with respect to the Trustee and the
Securities Agent, The Bank of New York, 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, XX
00000, Xxxxxx Xxxxxx of America, Fax: 0-000-000-0000/5803, Attention: Global
Trust Services; or any other address that the Trustee or the Securities Agent
may designate with respect to itself from time to time by notice to the Company
and the Securityholders.
"DEFAULT" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"DEPOSITARY" means The Depository Trust Company, its nominees and
successors.
"DEPOSIT AGREEMENT" means the Deposit Agreement, dated as of May 31, 2007,
among the Company, JPMorgan Chase Bank N.A., as ADS Depositary, and the holders
and beneficial owners from time to time of the ADSs issued thereunder, as
supplemented by the Restricted Issuance Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC thereunder.
2
"HOLDER" or "SECURITYHOLDER" means a person in whose name a Security is
registered on the Registrar's books.
"INDEBTEDNESS" of a person means the principal of, premium, if any, and
interest on, and all other obligations in respect of (a) all indebtedness of
such person for borrowed money (including all indebtedness evidenced by notes,
bonds, debentures or other securities), (b) all obligations (other than trade
payables) incurred by such person in the acquisition (whether by way of
purchase, merger, consolidation or otherwise and whether by such person or
another person) of any business, real property or other assets, (c) all
reimbursement obligations of such person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
person, (d) all capital lease obligations of such person, (e) all net
obligations of such person under interest rate swap, currency exchange or
similar agreements of such person, (f) all obligations and other liabilities,
contingent or otherwise, under any lease or related document, including a
purchase agreement, conditional sale or other title retention agreement, in
connection with the lease of real property or improvements thereon (or any
personal property included as part of any such lease) which provides that such
person is contractually obligated to purchase or cause a third party to purchase
the leased property or pay an agreed-upon residual value of the leased property,
including such person's obligations under such lease or related document to
purchase or cause a third party to purchase such leased property or pay an
agreed-upon residual value of the leased property to the lessor, (g) guarantees
by such person of indebtedness described in CLAUSES (A) THROUGH (F) of another
person, and (h) all renewals, extensions, refundings, deferrals, restructurings,
amendments and modifications of any indebtedness, obligation, guarantee or
liability of the kind described in CLAUSES (A) THROUGH (G).
"INDENTURE" means this Indenture as amended or supplemented from time to
time.
"REPRESENTATIVES" means Xxxxxx Xxxxxxx & Co. International plc, UBS AG, and
X.X. Xxxxxx Securities Inc., as representatives of the initial purchasers named
in Schedule I to the Purchase Agreement.
"ISSUE DATE" means April 15, 2008.
"MAKE-WHOLE FUNDAMENTAL CHANGE" means an Asset Sale Make-Whole Fundamental
Change, an Ordinary Share Change Make-Whole Fundamental Change or a Voting Share
Change Make-Whole Fundamental Change that occurs before the Maturity Date or a
Hedge Illiquidity Event.
"MARKET DISRUPTION EVENT" means the occurrence or existence during the
one-half hour period ending on the scheduled close of trading on any trading day
for the ADSs of any material suspension or limitation imposed on trading (by
reason of movements in price exceeding limits permitted by the stock exchange or
otherwise) in the ADSs or in any options contracts or futures contracts relating
solely to the ADSs.
"MATURITY DATE" means April 15, 2013.
3
"OFFICER" means the Chairman of the Board, the Chief Executive Officer, the
Chief Operating Officer, the Chief Financial Officer, any Executive Vice
President or the Secretary of the Company.
"OFFICER'S CERTIFICATE" means a certificate signed by any one Officer of
the Company.
"OPINION OF COUNSEL" means a written opinion from legal counsel who may be
an employee of or counsel for the Company, and such opinion shall be reasonably
acceptable to the Trustee.
"ORDINARY SHARE" means the ordinary shares, $0.10 par value per share, of
the Company, or such other Share Capital of the Company into which the Company's
Ordinary Share is reclassified or changed.
"ORDINARY SHARE CHANGE MAKE-WHOLE FUNDAMENTAL CHANGE" means any transaction
or series of related transactions (other than a Listed Share Business
Combination), in connection with which (whether by means of an exchange offer,
liquidation, dissolution, winding up, tender offer, consolidation, merger,
reconstruction, amalgamation, combination, reclassification, recapitalization,
asset sale, lease of assets or otherwise) all or substantially all of the
Ordinary Shares (including Ordinary Shares represented by ADSs) are exchanged
for, converted into, acquired for or constitutes solely the right to receive
other securities, other property, assets or cash.
"PERMITTED TRANSFER" shall mean any transfer of property or assets between
or among one or more Subsidiaries or from one or more Subsidiaries to the
Company.
"PERSON" or "PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
"PURCHASE AGREEMENT" means the Purchase Agreement dated April 9, 2008
between the Company and the Representatives.
"REDEMPTION DATE" means the date specified for Redemption of the Securities
in accordance with the terms of the Securities and this Indenture.
"REDEMPTION PRICE" means, with respect to a Security to be redeemed by the
Company in accordance with Article III, one hundred percent (100%) of the
outstanding principal amount of such Security to be redeemed.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
dated as of the date hereof between the Company and the Representatives.
"REPURCHASE NOTICE" means a Repurchase Notice in the form set forth in the
Securities.
4
"RESPONSIBLE OFFICER" shall mean, when used with respect to the Trustee or
the Securities Agent, any officer within the corporate trust department of the
Trustee or the Securities Agent, including any managing director, director, vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee or the Securities Agent, as
applicable, who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who shall in each case have direct
responsibility for the administration of this Indenture.
"RESTRICTED ISSUANCE AGREEMENT" means the letter agreement dated as of
April 15, 2008 between the Company and JPMorgan Chase Bank, N.A., as ADS
Depository.
"RESTRICTED SECURITY" means a Security that constitutes a "restricted
security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Security
constitutes a Restricted Security.
"RULE 144" means Rule 144 under the Securities Act.
"RULE 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"SCHEDULED TRADING DAY" means a day that is scheduled to be a Trading Day
on the principal U.S. national securities exchange on which the ADSs are listed.
"SECURITIES" means the 4.75% Convertible Senior Notes due 2013 issued by
the Company pursuant to this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder.
"SECURITIES AGENT" means The Bank of New York, in its capacity as
Registrar, Paying Agent or Conversion Agent.
"SHARE CAPITAL" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of share capital of
such Person and all warrants or options to acquire such share capital.
"SIGNIFICANT SUBSIDIARY" with respect to any person means any subsidiary of
such person that constitutes a "significant subsidiary" within the meaning of
Rule 1-02(w) of Regulation S-X under the Securities Act, as such regulation is
in effect on the date of this Indenture.
5
"SUBSIDIARY" means (i) a corporation a majority of whose Share Capital with
voting power, under ordinary circumstances, to elect directors is at the time,
directly or indirectly, owned by the Company, by one or more subsidiaries of the
Company or by the Company and one or more of its subsidiaries or (ii) any other
person (other than a corporation) in which the Company, one or more of its
subsidiaries, or the Company and one or more of its subsidiaries, directly or
indirectly, at the date of determination thereof, own at least a majority
ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as amended and in effect from time to time.
"TRADING DAY" means any day during which all of the following conditions
are satisfied: (i) trading in the ADSs generally occurs; (ii) there is no Market
Disruption Event; and (iii) a closing sale price for the ADSs is provided on the
New York Stock Exchange or, if the ADSs are not then listed on the New York
Stock Exchange, on the principal other U.S. national securities exchange on
which the ADSs are then listed.
"TRUSTEE" means the party named as such in this Indenture until a successor
replaces it in accordance with the provisions hereof and thereafter means the
successor serving hereunder.
"VOTING SHARE" of any Person means the total voting power of all classes of
the Share Capital of such Person.
"VOTING SHARE CHANGE MAKE-WHOLE FUNDAMENTAL CHANGE" means any "person" or
"group" (as those terms are used in Sections 13(d) and 14(d) of the Exchange
Act), other than Xx. Xxxxxxxx Xxxx, is or becomes the "beneficial owner" (as
that term is used in Rule 13d-3 under the Exchange Act), directly or indirectly,
of 50% or more of the Voting Shares of the Company, or if Xx. Xxxxxxxx Xxxx or
any "group" (as that term is used in Sections 13(d) or 14(d) of the Exchange
Act) of which he is a part is or become the "beneficial owner" (as that term is
used in Rule 13d-3 under the Exchange Act), directly or indirectly, of 85% or
more of the Voting Shares of the Company.
1.02 OTHER DEFINITIONS.
Term Defined In Section
---- ------------------
"ADDITIONAL AMOUNTS"............................. 10.03
"ADJUSTMENT DETERMINATION DATE".................. 10.05
"ADJUSTMENT EVENT"............................... 10.05
"ADS CUSTODIAN".................................. 4.09
"APPLICABLE PRICE"............................... 10.14
"BANKRUPTCY LAW"................................. 6.01
"BCF ADJUSTMENT CAP"............................. 10.06
"BCF MAKE-WHOLE CAP"............................. 10.14
"BUSINESS DAY"................................... 12.07
6
"CASH AMOUNT".................................... 10.02
"CASH SETTLEMENT AVERAGING PERIOD"............... 10.02
"CHANGE IN CONTROL".............................. 3.09
"CONVERSION AGENT"............................... 2.03
"CONVERSION AMOUNT".............................. 10.02
"CONVERSION DATE"................................ 10.02
"CONVERSION OBLIGATION".......................... 10.02
"CONVERSION SETTLEMENT DATE"..................... 10.02
"CONVERSION SETTLEMENT DISTRIBUTION"............. 10.02
"CONVERSION NOTICE".............................. 4.09
"CUSTODIAN"...................................... 6.01
"DAILY VWAP"..................................... 10.02
"DISTRIBUTED PROPERTY"........................... 10.05
"EVENT OF DEFAULT"............................... 6.01
"EX DATE"........................................ 10.05
"EXTENSION RIGHT"................................ 6.02
"FUNDAMENTAL CHANGE"............................. 3.09
"FUNDAMENTAL CHANGE NOTICE"...................... 3.09
"FUNDAMENTAL CHANGE REPURCHASE DATE"............. 3.09
"FUNDAMENTAL CHANGE REPURCHASE PRICE"............ 3.09
"FUNDAMENTAL CHANGE REPURCHASE RIGHT"............ 3.09
"GLOBAL SECURITY"................................ 2.01
"HEDGE ILLIQUIDITY EVENT"........................ 3.09
"INTEREST"....................................... 1.04
"JUDGMENT CURRENCY".............................. 12.11
"LEGAL HOLIDAY".................................. 12.07
"LISTED SHARE BUSINESS COMBINATION".............. 3.09
"MAKE-WHOLE APPLICABLE INCREASE"................. 10.14
"MAKE-WHOLE CONVERSION PERIOD"................... 10.14
"MAKE-WHOLE CONSIDERATION"....................... 10.14
"MAKE-WHOLE REFERENCE DATE"...................... 10.14
"NOTICE OF DEFAULT".............................. 6.01
"OPTIONAL REPURCHASE DATE"....................... 3.08
"OPTIONAL REPURCHASE NOTICE"..................... 3.08
"OPTIONAL REPURCHASE PRICE"...................... 3.08
"PARTICIPANTS"................................... 2.15
"PAYING AGENT"................................... 2.03
"PHYSICAL SECURITIES"............................ 2.01
"PRIVATE PLACEMENT LEGEND"....................... 2.17
"RECORD DATE".................................... 10.05
"REDEMPTION"..................................... 3.01
"REFERENCE PROPERTY"............................. 10.11
"RELEVANT DATE".................................. 10.05
"RELEVANT TAXING JURISDICTION"................... 10.03
7
"REGISTRAR"...................................... 2.03
"REPURCHASE AT HOLDER'S OPTION".................. 3.01
"REPURCHASE UPON FUNDAMENTAL CHANGE"............. 3.01
"RESALE RESTRICTION TERMINATION DATE"............ 2.17
"SETTLEMENT NOTICE PERIOD"....................... 10.02
"SPIN-OFF"....................................... 10.05
"TERMINATION OF TRADING"......................... 3.09
"VWAP MARKET DISRUPTION EVENT"................... 10.02
"VWAP TRADING DAY"............................... 10.02
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.
All terms used in this Indenture that are defined by the TIA, defined by
the TIA by reference to another statute or defined by SEC rule under the TIA and
not otherwise defined herein have the meanings so assigned to them.
1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with U.S. generally accepted accounting principles in
effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means "including without limitation";
(v) words in the singular include the plural and in the plural include
the singular;
(vi) provisions apply to successive events and transactions;
(vii) the term "interest" includes additional interest, unless the
context otherwise requires or the terms of the Registration Rights
Agreement provide otherwise;
(viii) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision of this Indenture; and
8
(ix) references to currency shall mean the lawful currency of the
United States of America, unless the context requires otherwise.
II. THE SECURITIES
2.01 FORM AND DATING.
The Securities and the Trustee's certificate of authentication shall be
substantially in the form set forth in EXHIBIT A, which is incorporated in and
forms a part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage, provided such
notations, legends or endorsements are in form reasonably acceptable to the
Company. Each Security shall be dated the date of its authentication.
Securities offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more Global Securities, substantially in the
form set forth in EXHIBIT A (the "GLOBAL SECURITY"), deposited with the Trustee,
as custodian for the Depositary, registered in the name of the Depositary or a
nominee thereof, duly executed by the Company and authenticated by the Trustee
as hereinafter provided and bearing the legends set forth in EXHIBITS B-1 and
B-2. The aggregate principal amount of the Global Security may from time to time
be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, as hereinafter provided; provided, that in no
event shall the aggregate principal amount of the Global Security or Securities
exceed $400,000,000.
Securities issued in exchange for interests in a Global Security pursuant
to SECTION 2.15 may be issued in the form of permanent certificated Securities
in registered form in substantially the form set forth in EXHIBIT A (the
"PHYSICAL SECURITIES") and, if applicable, bearing any legends required by
SECTION 2.17.
2.02 EXECUTION AND AUTHENTICATION.
One duly authorized Officer shall sign the Securities for the Company by
manual or facsimile signature.
A Security's validity shall not be affected by the failure of an Officer
whose signature is on such Security to hold, at the time the Security is
authenticated, the same office at the Company.
A Security shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
Upon receipt of a Company Order, the Trustee shall authenticate Securities
for original issue in the aggregate principal amount of $400,000,000. The
aggregate principal amount of the Securities outstanding at any time may not
exceed $400,000,000.
9
Upon receipt of a Company Order, the Trustee shall authenticate Securities
not bearing the Private Placement Legend to be issued to the transferee when
sold pursuant to an effective registration statement under the Securities Act as
set forth in SECTION 2.16(B).
The Trustee shall act as the initial authenticating agent. Thereafter, the
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such authenticating
agent. An authenticating agent so appointed has the same rights as the Trustee
to deal with the Company and its Affiliates.
The Securities shall be issuable only in registered form without interest
coupons and only in denominations of $1,000 principal amount and any integral
multiples thereof.
2.03 REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
The Company shall maintain, or shall cause to be maintained, (i) an office
or agency in the Borough of Manhattan, The City of New York, where Securities
may be presented for registration of transfer or for exchange ("REGISTRAR"),
(ii) an office or agency in the Borough of Manhattan, The City of New York,
where Securities may be presented for payment ("PAYING AGENT") and (iii) an
office or agency in the Borough of Manhattan, The City of New York, where
Securities may be presented for conversion ("CONVERSION AGENT"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may appoint or change one or more co-Registrars, one or more additional
paying agents and one or more additional conversion agents without notice and
may act in any such capacity on its own behalf. The term "REGISTRAR" includes
any co-Registrar; the term "PAYING AGENT" includes any additional paying agent;
and the term "CONVERSION AGENT" includes any additional conversion agent.
The Company shall enter into an appropriate agency agreement with any agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall notify the Trustee
and the Securities Agent of the name and address of any such agent not a party
to this Indenture. If the Company fails to maintain a Registrar, Paying Agent or
Conversion Agent, the Trustee shall act as such.
The Company initially appoints the Securities Agent as Paying Agent,
Registrar and Conversion Agent.
The Company initially appoints The Depositary Trust Company to act as
Depositary with respect to the Securities.
2.04 MONEY HELD BY PAYING AGENT.
Each Paying Agent shall hold for the benefit of the Securityholders or the
Trustee all moneys held by the Paying Agent for the payment of the Securities,
and shall notify the Trustee
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of any Default by the Company in 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 and account for any funds so paid by it. Upon payment
over to the Trustee, the Paying Agent shall have no further liability for such
money. If the Company acts as Paying Agent, it shall segregate and hold as a
separate trust fund all money held by it as Paying Agent.
2.05 SECURITYHOLDER LISTS.
The Securities Agent shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Securities Agent is not the Registrar, the Company shall
furnish, or shall cause to be furnished, to the Trustee and the Securities Agent
on or before each interest payment date and at such other times as the Trustee
or the Securities Agent may request in writing a list, in such form and as of
such date as the Trustee or the Securities Agent, as the case may be, may
reasonably require, of the names and addresses of Securityholders appearing in
the security register of the Registrar.
2.06 TRANSFER AND EXCHANGE.
Subject to SECTIONS 2.15 and 2.16 hereof, where Securities are presented to
the Registrar with a request to register their transfer or to exchange them for
an equal principal amount of Securities of other authorized denominations, the
Registrar shall register the transfer or make the exchange if its requirements
for such transaction are met. To permit registrations of transfer and exchanges,
the Trustee shall authenticate Securities upon the Trustee's receipt of a
Company Order therefor. The Company or the Securities Agent, as the case may be,
shall not be required to register the transfer of or exchange any Security (i)
for a period of twenty (20) days before selecting, pursuant to Section 3.03,
Securities to be redeemed or (ii) during a period beginning at the opening of
business twenty (20) days before the mailing of a notice of redemption of the
Securities selected for Redemption under Section 3.04 and ending at the close of
business on the day of such mailing or (iii) that has been selected for
Redemption or for which a Repurchase Notice has been delivered, and not validly
withdrawn, in accordance with this Indenture, except the unredeemed or
unrepurchased portion of Securities being redeemed or repurchased in part or
unless the Company defaults in the payment of the Fundamental Change Repurchase
Price.
No service charge shall be made for any transfer or exchange of Securities,
except that the Company, the Trustee or the Securities Agent may require payment
of a sum sufficient to cover any tax or similar governmental charge that may be
imposed in connection with any transfer, exchange or conversion of Securities,
other than exchanges pursuant to SECTIONS 2.10, 9.05 or 10.02 or ARTICLE III,
not involving any transfer.
2.07 REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been mutilated,
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall, upon receipt of a Company Order, authenticate a replacement Security upon
surrender to the Trustee of the mutilated
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Security, or upon delivery to the Trustee of evidence of the loss, destruction
or theft of the Security satisfactory to the Trustee and the Company. In the
case of a lost, destroyed or wrongfully taken Security, if required by the
Trustee or the Company, an indemnity bond must be provided by the Holder that is
reasonably satisfactory to the Securities Agent, the Trustee and the Company to
indemnify and hold harmless the Company, the Trustee and the Securities Agent
from any loss which any of them may suffer if such Security is replaced. The
Securities Agent, Trustee and the Company may charge such Holder for their
expenses in replacing a Security.
In case any such mutilated, lost, destroyed or wrongfully taken Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security when due.
Every replacement Security is an additional obligation of the Company only
as provided in SECTION 2.08.
2.08 OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities authenticated by
the Trustee except for those converted, those cancelled by it, those delivered
to it for cancellation and those described in this SECTION 2.08 as not
outstanding. Except to the extent provided in SECTION 2.09, a Security does not
cease to be outstanding because the Company or one of its Subsidiaries or
Affiliates holds the Security.
If a Security is replaced pursuant to SECTION 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it, or a court
holds, that the replaced Security is held by a protected purchaser.
If the Paying Agent (other than the Company) holds on the Optional
Repurchase Date, Redemption Date, Fundamental Change Repurchase Date or Maturity
Date, money sufficient to pay the aggregate Optional Repurchase Price,
Redemption Price, Fundamental Change Repurchase Price or principal amount, as
the case may be, with respect to all Securities to be redeemed, purchased or
paid upon Repurchase At Holder's Option, Redemption, Repurchase Upon Fundamental
Change or maturity, as the case may be, in each case plus, if applicable,
accrued and unpaid interest, if any, payable as herein provided upon Repurchase
At Holder's Option, Redemption, Repurchase Upon Fundamental Change or maturity,
then (unless there shall be a Default in the payment of such aggregate Optional
Repurchase Price, Redemption Price, Fundamental Change Repurchase Price or
principal amount, or of such accrued and unpaid interest), except as otherwise
provided herein, on and after such date such Securities shall be deemed to be no
longer outstanding, interest on such Securities shall cease to accrue, and such
Securities shall be deemed paid whether or not such Securities are delivered to
the Paying Agent. Thereafter, all rights of the Holders of such Securities shall
terminate with respect to such Securities, other than the right to receive the
Optional Repurchase Price, Redemption Price, Fundamental Change Repurchase Price
or principal amount, as the case may be, plus, if applicable, such accrued and
unpaid interest, in accordance with this Indenture. Notwithstanding
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the foregoing, a Holder shall be entitled to convert a Security on the Maturity
Date, provided such Security has not been surrendered for payment upon maturity.
If a Security is converted in accordance with ARTICLE X, then, from and
after the time of such conversion on the Conversion Date, such Security shall
cease to be outstanding, and interest, if any, shall cease to accrue on such
Security unless there shall be a Default in the payment or delivery of the
consideration payable hereunder upon such conversion.
2.09 SECURITIES HELD BY THE COMPANY OR AN AFFILIATE.
In determining whether the Holders of the required aggregate principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or any of its Subsidiaries or Affiliates shall
be considered as though not outstanding, except that, for the purposes of
determining whether a Responsible Officer of the Trustee or the Securities
Agent, as applicable, shall be protected in relying on any such direction,
waiver or consent, only Securities which the Trustee or the Securities Agent, as
applicable, knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be considered to be outstanding for
purposes of this SECTION 2.09 if the pledgee establishes, to the satisfaction of
the Trustee or the Securities Agent, as applicable, the pledgee's right so to
concur with respect to such Securities and that the pledgee is not, and is not
acting at the direction or on behalf of, the Company, any other obligor on the
Securities, an Affiliate of the Company or an affiliate of any such other
obligor. In the event of a dispute or uncertainty as to whether the pledgee has
established the foregoing, the Trustee and the Securities Agent may rely on the
advice of counsel or on an Officer's Certificate.
2.10 TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall, upon receipt of a Company Order, authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee, upon receipt of a Company Order, shall
authenticate definitive Securities in exchange for temporary Securities. Until
so exchanged, each temporary Security shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities, and such temporary
Security shall be exchangeable for definitive Securities in accordance with the
terms of this Indenture.
2.11 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, Paying Agent and Conversion Agent shall forward to
the Trustee any Securities surrendered to them for transfer, exchange, payment
or conversion. The Trustee shall promptly cancel all Securities surrendered for
transfer, exchange, payment, conversion or cancellation in accordance with its
customary procedures. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation or that
any
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Securityholder has converted pursuant to ARTICLE X. All cancelled Securities
held by the Trustee shall be destroyed, and certification of their destruction
shall be delivered by the Trustee to the Company unless the Company shall, by a
Company Order, direct that cancelled Securities be returned to it.
2.12 DEFAULTED INTEREST.
If and to the extent the Company defaults in a payment of interest on the
Securities, the Company shall pay in cash the defaulted interest in any lawful
manner plus, to the extent not prohibited by applicable statute or case law,
interest on such defaulted interest at the rate provided in the Securities. The
Company may pay the defaulted interest (plus interest on such defaulted
interest) to the persons who are Securityholders on a subsequent special record
date. The Company shall fix such record date and payment date. At least fifteen
(15) calendar days before the record date, the Company shall mail to the Trustee
and Securityholders a notice that states the record date, payment date and
amount of interest to be paid. Upon the due payment in full, interest shall no
longer accrue on such defaulted interest pursuant to this SECTION 2.12.
2.13 CUSIP NUMBERS.
The Company in issuing the Securities may use one or more "CUSIP" numbers,
and, if so, the Trustee and the Securities Agent shall use the CUSIP numbers in
notices of redemption or exchange as a convenience to Holders; provided,
however, that no representation is hereby deemed to be made by the Trustee or
the Securities Agent as to the correctness or accuracy of the CUSIP numbers
printed on the notice or on the Securities; provided further, that reliance may
be placed only on the other identification numbers printed on the Securities,
and the effectiveness of any such notice shall not be affected by any defect in,
or omission of, such CUSIP numbers. The Company shall promptly notify the
Trustee and the Securities Agent of any change in the CUSIP numbers.
2.14 DEPOSIT OF MONEYS.
Prior to 10:00 A.M., New York City time, at least one (1) Business Day
prior to each interest payment date, Maturity Date, Redemption Date, Optional
Repurchase Date or Fundamental Change Repurchase Date, the Company shall have
deposited with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust in accordance with SECTION 2.04) money, in
funds immediately available on such date, sufficient to make cash payments, if
any, due on such interest payment date, Maturity Date, Redemption Date, Optional
Repurchase Date or Fundamental Change Repurchase Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to the Holders on
such interest payment date, Maturity Date or Fundamental Change Repurchase Date,
as the case may be.
2.15 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
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(A) The Global Securities initially shall (i) be registered in the name of
the Depositary or the nominee of the Depositary, (ii) be delivered to the
Trustee as custodian for the Depositary and (iii) bear legends as set forth in
SECTION 2.17.
Members of, or participants in, the Depositary ("PARTICIPANTS") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary, or the Trustee as its custodian, or under the Global
Security, and the Depositary may be treated by the Company, the Trustee and the
Securities Agent and any agent of the Company, the Trustee and the Securities
Agent as the absolute owner of the Global Security for all purposes whatsoever
and the beneficial owners of the Securities will be entitled only to those
rights and benefits afforded to them in accordance with the Depositary's regular
operating procedures. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee, the Securities Agent or any agent of the
Company, the Trustee or the Securities Agent from giving effect to any written
certification, proxy or other authorization furnished by the Depositary, or its
nominee, as the case may be, or impair, as between the Depositary and
Participants, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.
(B) Transfers of Global Securities shall be limited to transfers in whole,
but not in part, to the Depositary, its successors or their respective nominees.
In addition, Physical Securities shall be transferred to all beneficial owners,
as identified by the Depositary, in exchange for their beneficial interests in
Global Securities only if (i) the Depositary notifies the Company that the
Depositary is unwilling or unable to continue as depositary for any Global
Security (or the Depositary ceases to be a "clearing agency" registered under
Section 17A of the Exchange Act) and a successor Depositary is not appointed by
the Company within ninety (90) days of such notice or cessation or (ii) an Event
of Default has occurred and is continuing and the Registrar has received a
written request from the Depositary to issue Physical Securities.
(C) In connection with the transfer of a Global Security in its entirety to
beneficial owners pursuant to SECTION 2.15(B), such Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall upon receipt of a Company Order authenticate and
deliver, to each beneficial owner identified by the Depositary in exchange for
its beneficial interest in such Global Security, an equal aggregate principal
amount of Physical Securities of authorized denominations.
(D) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in a Global Security pursuant to SECTION 2.15(B) shall,
except as otherwise provided by SECTION 2.16, bear the Private Placement Legend.
(E) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
(F) Notwithstanding any other provisions in this Indenture, so long as a
security is a Global Security, the parties hereto will be bound at all times by
the applicable procedures of the Depositary with respect to such Security.
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2.16 SPECIAL TRANSFER PROVISIONS.
(A) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
Notwithstanding any other provisions of this Indenture, but except as provided
in SECTION 2.15(B), a Global Security may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
(B) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or replacement of
Securities not bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar or co-Registrar shall deliver only
Securities that bear the Private Placement Legend unless (i) the requested
transfer is after the Resale Restriction Termination Date, (ii) there is
delivered to the Trustee, the Securities Agent and the Company an opinion of
counsel reasonably satisfactory to the Company and addressed to the Company to
the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act or (iii) such Security has been sold pursuant to an effective registration
statement under the Securities Act and the Holder selling such Securities has
delivered to the Registrar or co-Registrar a notice in the form of EXHIBIT C
hereto. Upon the effectiveness, under the Securities Act, of the "Shelf
Registration Statement" (as defined in the Registration Rights Agreement), the
Company shall deliver to the Trustee and the Securities Agent a notice of
effectiveness, a Global Security or Global Securities, which do not bear the
Private Placement Legend, a Company Order and an Opinion of Counsel in the form
of EXHIBIT D hereto, and, if required by the Depositary, the Company shall
deliver to the Depositary a letter of representations in a form reasonably
acceptable to the Depositary. Upon the effectiveness of any post-effective
amendment to the "Shelf Registration Statement" (as defined in the Registration
Rights Agreement) and upon the effectiveness, under the Securities Act, of any
"Subsequent Shelf Registration Statement" (as defined in the Registration Rights
Agreement), the Company shall deliver to the Trustee and the Securities Agent a
notice of effectiveness and an Opinion of Counsel in the form of EXHIBIT D
hereto. Upon any sale, pursuant to a Shelf Registration Statement, of a
beneficial interest in a Global Security that theretofore constituted a
Restricted Security and delivery of appropriate evidence thereof to the Trustee
and the Securities Agent, and upon any sale or transfer of a beneficial interest
in connection with which the Private Placement Legend will be removed in
accordance with this Indenture, the Trustee shall increase the principal amount
of the Global Security that does not constitute a Restricted Security by the
principal amount of such sale or transfer and likewise reduce the principal
amount of the Global Security that does constitute a Restricted Security.
(C) GENERAL. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture and as permitted by applicable law.
16
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to SECTION 2.15 or this SECTION 2.16. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
(D) TRANSFERS OF SECURITIES HELD BY AFFILIATES. Any certificate (i)
evidencing a Security that has been transferred to an Affiliate within one (1)
year after the Issue Date, as evidenced by a notation on the assignment form for
such transfer or in the representation letter delivered in respect thereof or
(ii) evidencing a Security that has been acquired from an Affiliate (other than
by an Affiliate) in a transaction or a chain of transactions not involving any
public offering, shall, until one (1) year after the last date on which the
Company or any Affiliate was an owner of such Security (or such longer period of
time as may be required under the Securities Act or applicable state securities
laws), in each case, bear the Private Placement Legend, unless otherwise agreed
by the Company (with written notice thereof to the Trustee and the Securities
Agent).
2.17 RESTRICTIVE LEGENDS.
Each Global Security and Physical Security that constitutes a Restricted
Security shall bear the legend (the "PRIVATE PLACEMENT LEGEND") as set forth in
EXHIBIT B-1 on the face thereof until after the first anniversary of the later
of (i) the Issue Date and (ii) the last date on which the Company or any
Affiliate was the owner of such Security (or any predecessor security) (or such
longer period of time as may be required under the Securities Act or applicable
state securities laws, as set forth in an Opinion of Counsel, unless otherwise
agreed between the Company and the Holder thereof) (such date, the "RESALE
RESTRICTION TERMINATION DATE").
Each Global Security shall also bear the legend as set forth in EXHIBIT
B-2.
2.18 RANKING.
The indebtedness of the Company arising under or in connection with this
Indenture and every outstanding Security issued under this Indenture from time
to time constitutes and will constitute a senior unsecured obligation of the
Company, ranking equally with other existing and future senior unsecured
indebtedness of the Company and ranking senior to any existing or future
subordinated indebtedness of the Company.
III. REDEMPTION AND REPURCHASE
3.01 RIGHT OF REDEMPTION.
(A) Redemption of the Securities, as permitted by any provision of this
Indenture, shall be made:
17
(i) with respect to a repurchase at the Company's option, in
accordance with PARAGRAPHS 6 AND 7 of the Securities (a "REDEMPTION"),
(ii) with respect to a repurchase at the Holder's option, in
accordance with PARAGRAPH 8 of the Securities (a "REPURCHASE AT HOLDER'S
OPTION"), and
(iii) with respect to any repurchase upon a Fundamental Change, in
accordance with PARAGRAPH 9 of the Securities (a "REPURCHASE UPON
FUNDAMENTAL CHANGE"), in each case in accordance with the applicable
provisions of this ARTICLE III.
(B) The Company will comply with all federal and state securities laws, and
the applicable laws of any foreign jurisdiction, in connection with any offer to
sell or solicitations of offers to buy Securities pursuant to this ARTICLE III.
(C) The Company shall have the right, at the Company's option, at any time,
and from time to time, on a Redemption Date on or after April 15, 2011, to
redeem all or any part of the Securities at a price payable in cash equal to the
Redemption Price plus accrued and unpaid interest, if any, to, but excluding,
the Redemption Date; provided, however, that (1) the Closing Sale Price for at
least twenty (20) Trading Days in the thirty (30) consecutive Trading Day period
ending on the date one (1) Trading Day prior to any day the Company gives a
notice of Redemption is greater than one hundred and thirty percent (130%) of
the applicable Conversion Price of the Securities, on the date of such notice
and (2) that in no event shall any Redemption Date be a Legal Holiday; provided
further, that if the Redemption Date with respect to a Security is after a
record date for the payment of an installment of interest and on or before the
related interest payment date, then accrued and unpaid interest to, but
excluding, such interest payment date shall be paid, on such interest payment
date, to the Holder of record of such Security at the close of business on such
record date, and the Holder surrendering such Security for Redemption shall not
be entitled to any such interest unless such Holder was also the Holder of
record of such Securities at the close of business on such record date.
(D) Securities in denominations larger than $1,000 principal amount may be
redeemed in part but only in integral multiples of $1,000 principal amount.
3.02 NOTICE TO TRUSTEE AND THE SECURITIES AGENT.
If the Company elects to redeem Securities pursuant to PARAGRAPH 6 of the
Securities, it shall notify the Trustee and the Securities Agent of the
Redemption Date, the applicable provision of this Indenture pursuant to which
the Redemption is to be made and the aggregate principal amount of Securities to
be redeemed, which notice shall be provided to the Trustee and the Securities
Agent by the Company at least fifteen (15) days prior to the mailing, in
accordance with SECTION 3.04, of the notice of Redemption (unless a shorter
notice period shall be satisfactory to the Trustee and the Securities Agent).
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3.03 SELECTION OF SECURITIES TO BE REDEEMED.
If the Company has elected to redeem less than all of the Securities
pursuant to PARAGRAPH 6 of the Securities, the Securities Agent shall, promptly
after receiving the notice specified in SECTION 3.02, select the Securities to
be redeemed by lot, on a pro rata basis or in accordance with any other method
the Trustee considers fair and appropriate. The Trustee shall make such
selection from Securities then outstanding and not already to be redeemed by
virtue of having been previously called for Redemption. The Trustee may select
for Redemption portions of the principal amount of the Securities that have
denominations larger than $1,000 principal amount. Securities and portions of
them the Trustee selects for Redemption shall be in amounts of $1,000 principal
amount or integral multiples of $1,000 principal amount. The Trustee shall
promptly notify the Company in writing of the Securities selected for Redemption
and the principal amount thereof to be redeemed.
The Registrar need not register the transfer of or exchange any Securities
that have been selected for Redemption, except the unredeemed portion of the
Securities being redeemed in part.
If the Securities are held in global form and cleared through a clearing
system, the rules and regulations of such clearing system shall apply to the
selection of Securities for Redemption.
3.04 NOTICE OF REDEMPTION.
At least thirty (30) days but not more than sixty (60) days before a
Redemption Date, the Company shall mail, or cause to be mailed, by first-class
mail a notice of Redemption to each Holder whose Securities are to be redeemed,
at the address of such Holder appearing in the security register.
The notice shall identify the Securities and the aggregate principal amount
thereof to be redeemed pursuant to the Redemption and shall state:
(i) the Redemption Date;
(ii) the Redemption Price plus accrued and unpaid interest, if any,
to, but excluding, the Redemption Date;
(iii) the Conversion Rate and the Conversion Price;
(iv) the names and addresses of the Paying Agent and the Conversion
Agent;
(v) that the right to convert the Securities called for Redemption
will terminate at the close of business on the third (3rd) Business Day
immediately preceding the Redemption Date, unless there shall be a Default
in the payment of the Redemption Price or accrued and unpaid interest, if
any, payable as herein provided upon Redemption;
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(vi) that Holders who want to convert Securities must satisfy the
requirements of ARTICLE X;
(vii) the paragraph of the Securities pursuant to which the Securities
are to be redeemed;
(viii) that Securities called for Redemption must be surrendered to
the Paying Agent to collect the Redemption Price plus accrued and unpaid
interest, if any, payable as herein provided upon Redemption;
(ix) that, unless there shall be a Default in the payment of the
Redemption Price or accrued and unpaid interest, if any, payable as herein
provided upon Redemption (including, where the Redemption Date is after a
record date for the payment of an installment of interest and on or before
the related interest payment date, the payment, on such interest payment
date, of accrued and unpaid interest to, but excluding, such interest
payment date to the Holder of record at the close of business on such
record date), interest on Securities called for Redemption ceases to accrue
on and after the Redemption Date, except as otherwise provided herein, such
Securities will cease to be convertible after the close of business on the
third (3rd) Business Day immediately preceding the Redemption Date, and all
rights of the Holders of such Securities shall terminate on and after the
Redemption Date, other than the right to receive, upon surrender of such
Securities and in accordance with this Indenture, the amounts due hereunder
on such Securities upon Redemption (and the rights of the Holder(s) of
record of such Securities to receive, on the applicable interest payment
date, accrued and unpaid interest in accordance herewith in the event the
Redemption Date is after a record date for the payment of an installment of
interest and on or before the related interest payment date); and
(x) the CUSIP number or numbers, as the case may be, of the
Securities.
The right, pursuant to Article X, to convert Securities called for
Redemption shall terminate at the close of business on the third (3rd) Business
Day immediately preceding the Redemption Date, unless there shall be a Default
in the payment of the Redemption Price or accrued and unpaid interest, if any,
payable as herein provided upon Redemption.
At the Company's request, upon reasonable prior written notice, the Trustee
shall mail the notice of Redemption in the Company's name and at the Company's
expense; provided, however, that the form and content of such notice shall be
prepared by the Company.
3.05 EFFECT OF NOTICE OF REDEMPTION.
Once notice of Redemption is mailed, Securities called for Redemption
become due and payable on the Redemption Date at the consideration set forth
herein, and, on and after such Redemption Date (unless there shall be a Default
in the payment of such consideration), except
20
as otherwise provided herein, such Securities shall cease to bear interest, and
all rights of the Holders of such Securities shall terminate, other than the
right to receive such consideration upon surrender of such Securities to the
Paying Agent.
If any Security shall not be fully and duly paid in accordance herewith
upon Redemption, the principal of, and accrued and unpaid interest on, such
Security shall, until paid, bear interest at the rate borne by such Security on
the principal amount of such Security, and such Security shall continue to be
convertible pursuant to ARTICLE X.
Notwithstanding anything herein to the contrary, there shall be no purchase
of any Securities pursuant to a Redemption if there has occurred (prior to, on
or after, as the case may be, the mailing of the notice of Redemption specified
in SECTION 3.04) and is continuing an Event of Default (other than a Default in
the payment of the consideration payable as herein provided upon Redemption).
The Paying Agent will promptly return to the respective Holders thereof any
Securities held by it during the continuance of such an Event of Default.
3.06 DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 A.M., New York City time, at least one (1) Business Day
prior to the Redemption Date, the Company shall deposit with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust in
accordance with SECTION 2.04) money, in funds immediately available on the
Redemption Date, sufficient to pay the consideration payable as herein provided
upon Redemption on all Securities to be redeemed on that date. The Paying Agent
shall return to the Company, as soon as practicable, any money not required for
that purpose.
3.07 SECURITIES REDEEMED IN PART.
Any Security to be submitted for Redemption only in part shall be delivered
pursuant to SECTION 3.05 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or its attorney
duly authorized in writing, with a medallion guarantee), and the Company shall
execute, and the Trustee shall, upon receipt of a Company Order, authenticate
and make available for delivery to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, of the same tenor and in aggregate principal amount
equal to the portion of such Security not submitted for Redemption.
If any Security selected for partial Redemption is converted in part, the
principal of such Security subject to Redemption shall be reduced by the
principal amount of such Security that is converted.
21
3.08 REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER.
(A) At the option of the Holder thereof, the Securities (or portions
thereof that are integral multiples of $1,000 in principal amount) shall be
repurchased by the Company pursuant to PARAGRAPH 8 of the Securities on April
15, 2011 (the "OPTIONAL REPURCHASE DATE"), at a repurchase price, payable in
cash, equal to one hundred percent (100%) of the principal amount of the
Securities (or such portions thereof) to be so repurchased (the "OPTIONAL
REPURCHASE PRICE"), plus accrued and unpaid interest, if any, to, but excluding,
the Optional Repurchase Date (provided, that such accrued and unpaid interest
shall be paid to the Holder of record of such Securities at the close of
business on the record date immediately preceding the Optional Repurchase Date),
upon:
(i) delivery to the Company (if it is acting as its own Paying Agent),
or to a Paying Agent designated by the Company for such purpose in the
Optional Repurchase Notice, by such Holder, at any time from the opening of
business on the date that is twenty (20) Business Days prior to the
Optional Repurchase Date until the close of business on the third (3rd)
Business Day immediately preceding the Optional Repurchase Date, of a
Repurchase Notice, in the form set forth in the Securities or any other
form of written notice substantially similar thereto, in each case, duly
completed and signed, with appropriate signature guarantee, stating:
(a) the certificate number(s) of the Securities that the Holder
will deliver to be purchased, if such Securities are in certificated
form;
(b) the principal amount of Securities to be purchased, which
must be $1,000 or integral multiples thereof; and
(c) that such principal amount of Securities are to be purchased
as of the Optional Repurchase Date pursuant to the terms and
conditions specified in PARAGRAPH 8 of the Securities and in this
Indenture; and
(ii) delivery to the Company (if it is acting as its own Paying
Agent), or to a Paying Agent designated by the Company for such purpose in
the Optional Repurchase Notice, at any time after delivery of such
Repurchase Notice, of such Securities (together with all necessary
endorsements), such delivery being a condition to receipt by the Holder of
the Optional Repurchase Price therefore plus accrued and unpaid interest,
if any, payable as herein provided upon Repurchase at Holder's Option
(provided, however, that the Holder of record of such Securities on the
record date immediately preceding the Optional Repurchase Date need not
surrender such Securities in order to be entitled to receive, on the
Optional Repurchase Date, the accrued and unpaid interest due thereon).
If such Securities are held in book-entry form through the Depositary, the
Repurchase Notice shall comply with the then-applicable procedures of the
Depositary.
22
Upon such delivery of Securities to the Company (if it is acting as its own
Paying Agent) or such Paying Agent, such Holder shall be entitled to receive,
upon request, from the Company or such Paying Agent, as the case may be, a
nontransferable receipt of deposit evidencing such delivery.
Notwithstanding anything herein to the contrary, any Holder that has
delivered the Repurchase Notice contemplated by this SECTION 3.08(A) to the
Company (if it is acting as its own Paying Agent) or to a Paying Agent
designated by the Company for such purpose in the Optional Repurchase Notice
shall have the right to withdraw such Repurchase Notice by delivery, at any time
prior to the close of business on the third (3rd) Business Day immediately
preceding the Optional Repurchase Date, of a written notice of withdrawal to the
Company (if acting as its own Paying Agent) or the Paying Agent, which notice
shall contain the information specified in SECTION 3.08(B)(VII).
The Paying Agent shall promptly notify the Company of the receipt by it of
any Repurchase Notice or written notice of withdrawal thereof.
(B) The Company shall give notice (the "OPTIONAL REPURCHASE NOTICE") on a
date not less than twenty (20) Business Days prior to the Optional Repurchase
Date to each Holder at its address shown in the register of the Registrar and to
each beneficial owner as required by applicable law. Such notice shall state:
(i) the Optional Repurchase Price plus accrued and unpaid interest, if
any, to, but excluding, the Optional Repurchase Date and the Conversion
Rate;
(ii) the names and addresses of the Paying Agent and the Conversion
Agent;
(iii) that Securities with respect to which a Repurchase Notice is
given by a Holder may be converted pursuant to ARTICLE X, if otherwise
convertible in accordance with ARTICLE X, only if such Repurchase Notice
has been withdrawn in accordance with this SECTION 3.08 or if there shall
be a Default in the payment of such Optional Repurchase Price or in accrued
and unpaid interest, if any, payable as herein provided upon Repurchase at
Holder's Option;
(iv) that Securities (together with any necessary endorsements) must
be surrendered to the Paying Agent to collect payment of the Optional
Repurchase Price plus (if such Holder was the Holder of record of the
applicable Security at the close of business on the record date immediately
preceding the Optional Repurchase Date) accrued and unpaid interest, if
any, payable as herein provided upon Repurchase at Holder's Option;
(v) that the Optional Repurchase Price, plus accrued and unpaid
interest, if any, to, but excluding, the Optional Repurchase Date, for any
Security as to which a Repurchase Notice has been given and not withdrawn
will be paid as promptly as
23
practicable, but in no event later than the third (3rd) Business Day after
the later of the Optional Repurchase Date or the time of delivery of the
Security as described in CLAUSE (IV) above; provided, however, that such
accrued and unpaid interest shall be paid, on the applicable interest
payment date, to the Holder of record of such Security at the close of
business on the record date immediately preceding the Optional Repurchase
Date;
(vi) the procedures the Holder must follow to exercise rights under
this SECTION 3.08 (including the name and address of the Paying Agent) and
a brief description of those rights;
(vii) that a Holder will be entitled to withdraw its election in the
Repurchase Notice if the Company (if acting as its own Paying Agent) or the
Paying Agent receives, at any time prior to the close of business on the
third (3rd) Business Day immediately preceding the Optional Repurchase
Date, or such longer period as may be required by law, a letter or
facsimile transmission (receipt of which is confirmed and promptly followed
by a letter) setting forth (I) the name of such Holder, (II) a statement
that such Holder is withdrawing its election to have Securities repurchased
by the Company on the Optional Repurchase Date pursuant to a Repurchase at
Holder's Option, (III) the certificate number(s) of such Securities to be
so withdrawn, if such Securities are in certificated form, (IV) the
principal amount of the Securities of such Holder to be so withdrawn, which
amount must be $1,000 or integral multiples thereof and (V) the principal
amount, if any, of the Securities of such Holder that remain subject to the
Repurchase Notice delivered by such Holder in accordance with this SECTION
3.08, which amount must be $1,000 or integral multiples hereof;
(viii) that on and after the Optional Repurchase Date (unless here
shall be a Default in the payment of the consideration payable s herein
provided upon a Repurchase at Holder's Option), interest on securities
subject to Repurchase at Holder's Option will cease to accrue, and all
rights of the Holders of such Securities shall terminate, other than the
right to receive, in accordance herewith, the consideration payable as
herein provided upon a Repurchase at Holder's Option; and
(ix) the CUSIP number or numbers, as the case may be, of the
Securities.
At the Company's request, upon reasonable prior written notice, the Trustee
shall mail such Optional Repurchase Notice in the Company's name and at the
Company's expense; provided, however, that the form and content of such Optional
Repurchase Notice shall be prepared by the Company.
No failure of the Company to give an Optional Repurchase Notice shall limit
any Holder's right pursuant hereto to exercise its rights to require the Company
to purchase such Holder's Securities pursuant to a Repurchase at Holder's
Option.
24
(C) Subject to the provisions of this SECTION 3.08, the Company shall pay,
or cause to be paid, the Optional Repurchase Price, plus accrued and unpaid
interest, if any, to, but excluding, the Optional Repurchase Date, with respect
to each Security subject to Repurchase at Holder's Option to the Holder thereof
as promptly as practicable, but in no event later than the third (3rd) Business
Day after the later of the Optional Repurchase Date and the time such Security
(together with all necessary endorsements) is surrendered to the Paying Agent;
provided, however, that such accrued and unpaid interest shall be paid, on the
applicable interest payment date, to the Holder of record of such Security at
the close of business on the record date immediately preceding the Optional
Repurchase Date.
(D) Prior to 10:00 A.M., New York City time, at least one (1) Business Day
prior to the Optional Repurchase Date, the Company shall deposit with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust in accordance with SECTION 2.04) money, in funds immediately available
on the Optional Repurchase Date, sufficient to pay the Optional Repurchase
Price, plus accrued and unpaid interest, if any, to, but excluding, the Optional
Repurchase Date, of all of the Securities that are to be purchased by the
Company on the Optional Repurchase Date pursuant to a Repurchase at Holder's
Option. The Paying Agent shall return to the Company, as soon as practicable,
any money not required for that purpose.
(E) Once the Repurchase Notice has been duly delivered in accordance with
this SECTION 3.08, the Securities to be repurchased pursuant to the Repurchase
at Holder's Option shall, on the Optional Repurchase Date, become due and
payable in accordance herewith, and, on and after such date (unless there shall
be a Default in the payment of the consideration payable as herein provided upon
a Repurchase at Holder's Option), such Securities shall cease to bear interest,
and all rights of the Holders or such Securities shall terminate, other than the
right to receive, in accordance herewith, the such consideration.
(F) Securities with respect to which a Repurchase Notice has been duly
delivered in accordance with this SECTION 3.08 may be converted pursuant to
ARTICLE X, if otherwise convertible in accordance with ARTICLE X, only if such
Repurchase Notice has been withdrawn in accordance with this SECTION 3.08 or if
there shall be a Default in the payment of the consideration payable as herein
provided upon a Repurchase at Holder's Option.
(G) If any Security subject to Repurchase at Holder's Option shall not be
paid in accordance herewith, the principal of, and accrued and unpaid interest
on, such Security shall, until paid, bear interest, payable in cash, at the rate
borne by such Security on the principal amount of such Security, and such
Security shall continue to be convertible pursuant to ARTICLE X.
(H) Any Security that is to be submitted for Repurchase at Holder's Option
only in part shall be delivered pursuant to this SECTION 3.08 (with, if the
Company or the Securities Agent so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or its attorney duly authorized
25
in writing, with a medallion guarantee), and the Company shall execute, and the
Trustee shall, upon receipt of a Company Order, authenticate and make available
for delivery to the Holder of such Security, without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, of the same tenor and in aggregate principal amount equal to the portion
of such Security not submitted for Repurchase at Holder's Option.
(I) Notwithstanding anything herein to the contrary, there shall be no
purchase of any Securities pursuant to this SECTION 3.08 if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such
Securities, of the required Repurchase Notice) and is continuing an Event of
Default (other than a Default in the payment of the consideration payable as
herein provided upon a Repurchase at Holder's Option or a Default arising from
the Company's failure to provide the applicable Optional Repurchase Notice). The
Paying Agent will promptly return to the respective Holders thereof any
Securities held by it during the continuance of an Event of Default (other than
a Default in the payment of such consideration or arising from the Company's
failure to provide the applicable Optional Repurchase Notice).
(J) Notwithstanding anything herein to the contrary, if the option granted
to Holders to require the purchase of the Securities on the Optional Repurchase
Date is determined to constitute a tender offer, the Company shall comply with
all applicable tender offer rules under the Exchange Act, including Rule 13e-4
and Regulation 14E thereunder, and with all other applicable laws, and will file
a Schedule TO or any other schedules required under the Exchange Act or any
other applicable laws.
3.09 REPURCHASE AT OPTION OF HOLDER UPON A FUNDAMENTAL CHANGE.
(A) In the event any Fundamental Change (as defined below) shall occur,
each Holder of Securities shall have the right (the "FUNDAMENTAL CHANGE
REPURCHASE RIGHT"), at such Holder's option, to require the Company to
repurchase all of such Holder's Securities (or portions thereof that are
integral multiples of $1,000 in principal amount), on a date selected by the
Company (the "FUNDAMENTAL CHANGE REPURCHASE DATE"), which Fundamental Change
Repurchase Date shall be no later than thirty five (35) days, nor earlier than
twenty (20) days, after the date the Fundamental Change Notice (as defined
below) is mailed in accordance with SECTION 3.09(B), at a price, payable in
cash, equal to one hundred percent (100%) of the principal amount of the
Securities (or portions thereof) to be so repurchased (the "FUNDAMENTAL CHANGE
REPURCHASE PRICE"), plus accrued and unpaid interest, if any, to, but excluding,
the Fundamental Change Repurchase Date, upon:
(i) delivery to the Company (if it is acting as its own Paying Agent),
or to a Paying Agent designated by the Company for such purpose in the
Fundamental Change Notice, no later than the close of business on the third
(3rd) Business Day immediately preceding the Fundamental Change Repurchase
Date, of a Repurchase Notice, in the form set forth in the Securities or
any other form of written notice substantially similar thereto, in each
case, duly completed and signed, with appropriate signature guarantee,
stating:
26
(a) the certificate number(s) of the Securities that the Holder
will deliver to be repurchased, if such Securities are in certificated
form;
(b) the principal amount of Securities to be repurchased, which
must be $1,000 or integral multiples thereof; and
(c) that such principal amount of Securities is to be repurchased
pursuant to the terms and conditions specified in PARAGRAPH 9 of the
Securities and in this Indenture; and
(ii) delivery to the Company (if it is acting as its own Paying
Agent), or to a Paying Agent designated by the Company for such purpose in
the Fundamental Change Notice, at any time after the delivery of such
Repurchase Notice, of such Securities (together with all necessary
endorsements) with respect to which the Fundamental Change Repurchase Right
is being exercised;
provided, however, that if such Fundamental Change Repurchase Date is after a
record date for the payment of an installment of interest and on or before the
related interest payment date, then the accrued and unpaid interest, if any, to,
but excluding, such interest payment date will be paid on such interest payment
date to the Holder of record of such Securities at the close of business on such
record date (without any surrender of such Securities by such Holder), and the
Holder surrendering such Securities for repurchase will not be entitled to any
such accrued and unpaid interest unless such Holder was also the Holder of
record of such Securities at the close of business on such record date.
If such Securities are held in book-entry form through the Depositary, the
Repurchase Notice shall comply with the then-applicable procedures of the
Depositary.
Upon such delivery of Securities to the Company (if it is acting as its own
Paying Agent) or such Paying Agent, such Holder shall be entitled to receive,
upon request, from the Company or such Paying Agent, as the case may be, a
nontransferable receipt of deposit evidencing such delivery.
Notwithstanding anything herein to the contrary, any Holder that has
delivered the Repurchase Notice contemplated by this SECTION 3.09(A) to the
Company (if it is acting as its own Paying Agent) or to a Paying Agent
designated by the Company for such purpose in the Fundamental Change Notice
shall have the right to withdraw such Repurchase Notice by delivery, at any time
prior to the close of business on the third (3rd) Business Day immediately
preceding the Fundamental Change Repurchase Date, of a written notice of
withdrawal to the Company (if acting as its own Paying Agent) or the Paying
Agent, which notice shall contain the information specified in SECTION
3.09(B)(XI).
The Paying Agent shall promptly notify the Company of the receipt by it of
any Repurchase Notice or written notice of withdrawal thereof.
27
(B) Within twenty (20) Business Days after the occurrence of a Fundamental
Change, the Company shall mail, or cause to be mailed, to all Holders of the
Securities at their addresses shown in the register of the Registrar, and to
beneficial owners as required by applicable law, a notice (the "FUNDAMENTAL
CHANGE NOTICE") of the occurrence of such Fundamental Change and the Fundamental
Change Repurchase Right arising as a result thereof. The Company shall deliver a
copy of the Fundamental Change Notice to the Trustee and the Securities Agent
and shall publicly announce, through a reputable national newswire service in
the United States, and publish on the Company's website, such Fundamental Change
Notice.
Each Fundamental Change Notice shall state:
(i) the events causing the Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the Fundamental Change Repurchase Date;
(iv) the date by which the Fundamental Change Repurchase Right must be
exercised;
(v) the Fundamental Change Repurchase Price plus accrued and unpaid
interest, if any, to, but excluding, the Fundamental Change Repurchase
Date;
(vi) the names and addresses of the Paying Agent and the Conversion
Agent;
(vii) a description of the procedures which a Holder must follow to
exercise the Fundamental Change Repurchase Right;
(viii) that, in order to exercise the Fundamental Change Repurchase
Right, the Securities (together with all necessary endorsements) must be
surrendered for payment of the Fundamental Change Repurchase Price plus
accrued and unpaid interest, if any, payable as herein provided upon
Repurchase Upon Fundamental Change;
(ix) that the Fundamental Change Repurchase Price, plus accrued and
unpaid interest, if any, to, but excluding, the Fundamental Change
Repurchase Date, for any Security as to which a Repurchase Notice has been
given and not withdrawn will be paid as promptly as practicable, but in no
event more than the third (3rd) Business Day after the later of such
Fundamental Change Repurchase Date and the time of delivery of the Security
(together with all necessary endorsements) as described in CLAUSE (VIII)
above; provided, however, that if such Fundamental Change Repurchase Date
is after a record date for the payment of an installment of interest and on
or before the related interest payment date, then the accrued and unpaid
interest, if any, to, but excluding, such interest payment date will be
paid on such interest payment date to the Holder of record of such Security
at the close of business on such record date (without any surrender of such
Securities by such Holder), and the Holder surrendering such Security for
repurchase will
28
not be entitled to any such accreted and unpaid interest unless such Holder
was also the Holder of record of such Security at the close of business on
such record date;
(x) that, except as otherwise provided herein with respect to a
Fundamental Change Repurchase Date that is after a record date for the
payment of an installment of interest and on or before the related interest
payment date, on and after such Fundamental Change Repurchase Date (unless
there shall be a Default in the payment of the consideration payable as
herein provided upon Repurchase Upon Fundamental Change), interest on
Securities subject to Repurchase Upon Fundamental Change will cease to
accrue, and all rights of the Holders of such Securities shall terminate,
other than the right to receive, in accordance herewith, the consideration
payable as herein provided upon Repurchase Upon Fundamental Change;
(xi) that a Holder will be entitled to withdraw its election in the
Repurchase Notice if the Company (if acting as its own Paying Agent), or
the Paying Agent receives, prior to the close of business on the third
(3rd) Business Day immediately preceding the Fundamental Change Repurchase
Date, or such longer period as may be required by law, a letter or
facsimile transmission (receipt of which is confirmed and promptly followed
by a letter) setting forth (I) the name of such Holder, (II) a statement
that such Holder is withdrawing its election to have Securities purchased
by the Company on such Fundamental Change Repurchase Date pursuant to a
Repurchase Upon Fundamental Change, (III) the certificate number(s) of the
Securities to be so withdrawn, if such Securities are in certificated form,
(IV) the principal amount of the Securities of such Holder to be so
withdrawn, which amount must be $1,000 or integral multiples thereof and
(V) the principal amount, if any, of the Securities of such Holder that
remain subject to the Repurchase Notice delivered by such Holder in
accordance with this SECTION 3.09, which amount must be $1,000 or integral
multiples thereof;
(xii) the Conversion Rate and any adjustments to the Conversion Rate
that will result from such Fundamental Change;
(xiii) that Securities with respect to which a Repurchase Notice is
given by a Holder may be converted pursuant to ARTICLE X, if otherwise
convertible in accordance with ARTICLE X, only if such Repurchase Notice
has been withdrawn in accordance with this SECTION 3.09 or if there shall
be a Default in the payment of the Fundamental Change Repurchase Price or
in the accrued and unpaid interest, if any, payable as herein provided upon
Repurchase Upon Fundamental Change; and
(xiv) the CUSIP number or numbers, as the case may be, of the
Securities.
At the Company's request, upon reasonable prior written notice, the Trustee
shall mail such Fundamental Change Notice in the Company's name and at the
Company's expense; provided, however, that the form and content of such
Fundamental Change Notice shall be prepared by the Company.
29
No failure of the Company to give a Fundamental Change Notice shall limit
any Holder's right pursuant hereto to exercise a Fundamental Change Repurchase
Right.
(C) Subject to the provisions of this SECTION 3.09, the Company shall pay,
or cause to be paid, the Fundamental Change Repurchase Price, plus accrued and
unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase
Date, with respect to each Security as to which the Fundamental Change
Repurchase Right shall have been exercised to the Holder thereof as promptly as
practicable, but in no event later than the third (3rd) Business Day after the
later of the Fundamental Change Repurchase Date and the time such Security is
surrendered to the Paying Agent; provided, however, that if such Fundamental
Change Repurchase Date is after a record date for the payment of an installment
of interest and on or before the related interest payment date, then the accrued
and unpaid interest, if any, to, but excluding, such interest payment date will
be paid on such interest payment date to the Holder of record of such Security
at the close of business on such record date, and the Holder surrendering such
Security for repurchase will not be entitled to any such accrued and unpaid
interest unless such Holder was also the Holder of record of such Security at
the close of business on such record date.
(D) Prior to 10:00 A.M., New York City time, at least one (1) Business Day
prior to a Fundamental Change Repurchase Date, the Company shall deposit with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust in accordance with SECTION 2.04) money, in funds immediately
available on the Fundamental Change Repurchase Date, sufficient to pay the
consideration payable as herein provided upon Repurchase Upon Fundamental Change
for all of the Securities that are to be repurchased by the Company on such
Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental
Change. The Paying Agent shall return to the Company, as soon as practicable,
any money not required for that purpose.
(E) Once the Fundamental Change Notice and the Repurchase Notice have been
duly given in accordance with this SECTION 3.09, the Securities to be
repurchased pursuant to a Repurchase Upon Fundamental Change shall, on the
Fundamental Change Repurchase Date, become due and payable in accordance
herewith, and, on and after such date (unless there shall be a Default in the
payment of the consideration payable as herein provided upon Repurchase Upon
Fundamental Change), except as otherwise provided herein with respect to a
Fundamental Change Repurchase Date that is after a record date for the payment
of an installment of interest and on or before the related interest payment
date, such Securities shall cease to bear interest, and all rights of the
Holders of such Securities shall terminate, other than the right to receive, in
accordance herewith, such consideration.
(F) Securities with respect to which a Repurchase Notice has been duly
delivered in accordance with this SECTION 3.09 may be converted pursuant to
ARTICLE X, if otherwise convertible in accordance with ARTICLE X, only if such
Repurchase Notice has been withdrawn in accordance with this SECTION 3.09 or if
there shall be a Default in the payment of the consideration payable as herein
provided upon Repurchase Upon Fundamental Change.
30
(G) If any Security shall not be paid upon surrender thereof for Repurchase
Upon Fundamental Change, the principal of and accrued and unpaid interest on,
such Security shall, until paid, bear interest, payable in cash, at the rate
borne by such Security on the principal amount of such Security, and such
Security shall continue to be convertible pursuant to ARTICLE X.
(H) Any Security that is to be submitted for Repurchase Upon Fundamental
Change only in part shall be delivered pursuant to this SECTION 3.09 (with, if
the Company or the Securities Agent so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Securities Agent duly executed by, the Holder thereof or its attorney duly
authorized in writing, with a medallion guarantee), and the Company shall
execute, and the Trustee shall, upon receipt of a Company Order, authenticate
and make available for delivery to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, of the same tenor and in aggregate principal amount
equal to the portion of such Security not duly submitted for Repurchase Upon
Fundamental Change.
(I) Notwithstanding anything herein to the contrary, there shall be no
purchase of any Securities pursuant to this Section 3.09 if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such
Securities, of the required Repurchase Notice) and is continuing an Event of
Default (other than a Default in the payment of the consideration payable as
herein provided upon Repurchase Upon Fundamental Change or a Default arising
from the Company's failure to provide the applicable Fundamental Change Notice).
The Paying Agent will promptly return to the respective Holders thereof any
Securities held by it during the continuance of an Event of Default (other than
a Default in the payment of such consideration or arising from the Company's
failure to provide the applicable Fundamental Change Notice).
(J) Notwithstanding anything herein to the contrary, if the option granted
to Holders to require the repurchase of the Securities upon the occurrence of a
Fundamental Change is determined to constitute a tender offer, the Company shall
comply with all applicable tender offer rules under the Exchange Act, including
Rule 13e-4 and Regulation 14E thereunder, and with all other applicable laws,
and will file a Schedule TO or any other schedules required under the Exchange
Act or any other applicable laws.
(K) As used herein and in the Securities, a "FUNDAMENTAL CHANGE" shall be
deemed to have occurred upon the occurrence of a "Change in Control," a
"Termination of Trading" or a "Hedge Illiquidity Event."
(i) A "CHANGE IN CONTROL" shall be deemed to have occurred at such
time as:
(a) any "person" or "group" (as those terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than Xx. Xxxxxxxx Xxxx, is
or becomes the "beneficial owner" (as that term is used in Rule 13d-3
under the Exchange Act), directly or indirectly, of 50% or more of the
Voting Shares of the Company, or if Xx. Xxxxxxxx Xxxx or any "group"
(as that term is used in Sections 13(d) or 14(d)
31
of the Exchange Act) of which he is a part is or become the
"beneficial owner" (as that term is used in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 85% or more of the Voting
Shares of the Company; or
(b) there occurs a sale, transfer, lease, conveyance or other
disposition (other than a Permitted Transfer) of all or substantially
all of the property or assets of the Company to any "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), including any group acting for the purpose of
acquiring, holding, voting or disposing of securities within the
meaning of Rule 13d-5(b)(1) under the Exchange Act; or
(c) the Company consolidates or amalgamates with, merges with or
into, or are reconstructed into another person or any person
consolidates or amalgamates with, or merges with or into, or is
reconstructed into the Company, unless either:
(1) the persons that "beneficially owned" (as such term is
used in Rule 13d-3 under the Exchange Act), directly or
indirectly, the shares of the Company's Voting Share immediately
prior to such transaction, "beneficially own," directly or
indirectly, immediately after such transaction, shares of the
surviving or continuing corporation's Voting Share representing
at least a majority of the total outstanding voting power of all
outstanding classes of the Voting Share of the surviving or
continuing corporation in substantially the same proportion as
such ownership immediately prior to such transaction; or
(2) at least ninety percent (90%) of the consideration
(other than cash payments for fractional shares or pursuant to
statutory appraisal rights) in such transaction consists of
common stock, shares or American depositary shares representing
such shares and any associated rights traded on a U.S. national
securities exchange (or which will be so traded or quoted when
issued or exchanged in connection with such transaction), and, as
a result of such transaction, the Securities become convertible
solely (except as to any cash in lieu of fractional ADSs due upon
conversion) into such common stock, shares or American depositary
shares representing such shares, and associated rights (such a
transaction that satisfies the conditions set forth in this
CLAUSE (2), a "LISTED SHARE BUSINESS COMBINATION"), subject to
the full or partial cash settlement of the Company's Conversion
Obligation; or
(d) the following persons cease for any reason to constitute a
majority of the Company's Board of Directors:
(1) individuals who on the Issue Date constituted the
Company's Board of Directors; and
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(2) any new directors whose election to the Company's Board
of Directors or whose nomination for election by the Company's
shareholders was approved by at least a majority of the directors
of the Company then still in office either who were directors of
the Company on the Issue Date or whose election or nomination for
election was previously so approved; or
(e) the Company is liquidated, dissolved or wound up or the
holders of the Company's Share Capital approve any plan or proposal
for the liquidation, dissolution or winding up of the Company.
(ii) A "TERMINATION OF TRADING" shall be deemed to occur when neither
the ADSs of the Company (or other securities into which the Securities are
then convertible) nor the Ordinary Shares represented by the ADSs are
listed for trading on a U.S. national securities exchange.
(iii) A "HEDGE ILLIQUIDITY EVENT" shall be deemed to occur on any day
between June 7, 2008 and June 27, 2008 if LDK New Energy Holding Limited, a
company incorporated in the British Virgin Islands ("LDK NEW ENERGY"),
defaults or has defaulted in its obligations under the agreement dated
April 9, 2008 between LDK New Energy and affiliates of the Representatives
(the "SALES PLAN"), and, as a result of such default, the agent (as defined
in the Sales Plan) is not able, pursuant to the Sales Plan, to make the
sales of the ADSs owned by LDK New Energy and concurrently enter into
prepaid forward contract with LDK New Energy relating to such sold ADSs, as
specified in the Sales Plan, or if the agent is otherwise unable to
complete the sale of the total sales amount, other than as a result of the
termination of the Sales Plan by the affiliates of the Representatives.
3.10 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
In connection with a Redemption of Securities, the Company may arrange, in
lieu of Redemption, for the purchase and conversion of any Securities called for
Redemption by an agreement with one or more investment banks or other purchasers
to purchase all or a portion of such Securities by paying, on or before 10:00
A.M., New York City time, at least one (1) Business Day prior to the Redemption
Date, to the Paying Agent for the Holders whose Securities are to be so
repurchased, an amount of money, in funds immediately available on the
Redemption Date, that, together with any amounts deposited with the Paying Agent
by the Company for Redemption of such Securities, is not less than the aggregate
Redemption Price, together with accrued and unpaid interest, if any, to, but
excluding, the Redemption Date, of such Securities. Notwithstanding anything to
the contrary contained in this ARTICLE III, the obligation of the Company to pay
the Redemption Price of such Securities, including all accrued interest, if any,
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers, but no such agreement shall relieve the Company of its
obligation to pay such Redemption Price or such accrued and unpaid interest, if
any. If such an agreement is entered into, any Securities not duly surrendered
for conversion by the Holders thereof may, at the option
33
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 X) surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the Redemption Date, subject to
payment of the above amount as aforesaid. The Paying Agent shall hold and pay to
the Holders whose Securities are selected for Redemption any such amount paid to
it for purchase and conversion in the same manner as it would moneys deposited
with it by the Company for the Redemption of Securities. Without the prior
written consent of the Trustee, the Securities Agent and the Paying Agent, no
arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, rights, immunities, responsibilities or obligations of the
Trustee, the Securities Agent, or the Paying Agent as set forth in this
Indenture, and the Company agrees to indemnify the Trustee, the Securities Agent
and the Paying Agent from, and hold them harmless against, any and all loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Company and such
purchasers, including the costs and expenses (including counsel fees and
expenses) incurred by the Trustee, the Securities Agent or the Paying Agent in
the defense of any claim or liability arising out of or in connection with the
exercise or performance of any of their powers, duties, responsibilities or
obligations under this Indenture except to the extent arising from their bad
faith, willful misconduct or negligence, as determined by a court with competent
jurisdiction in a final decision.
IV. COVENANTS
4.01 PAYMENT OF SECURITIES.
The Company shall pay all amounts due with respect to the Securities on the
dates and in the manner provided in the Securities and this Indenture. All such
amounts shall be considered paid on the date due if the Paying Agent holds (or,
if the Company is acting as Paying Agent, the Company has segregated and holds
in trust in accordance with SECTION 2.04) on that date money sufficient to pay
the amount then due with respect to the Securities (unless there shall be a
Default in the payment of such amounts to the respective Holder(s)). The Company
will pay, in money of the United States that at the time of payment is legal
tender for payment of public and private debts, all amounts due in cash with
respect to the Securities, which amounts shall be paid (A) in the case of a
Security that is in global form, by wire transfer of immediately available funds
to the account designated by the Depositary or its nominee; (B) in the case of a
Security that is held, other than global form, by a Holder of more than five
million dollars ($5,000,000) in aggregate principal amount of Securities, by
wire transfer of immediately available funds to the account specified by such
Holder or, if such Holder does not specify an account, by mailing a check to the
address of such Holder set forth in the register of the Registrar; and (C) in
the case of a Security that is held, other than global form, by a Holder of five
million dollars ($5,000,000) or less in aggregate principal amount of
Securities, by mailing a check to the address of such Holder set forth in the
register of the Registrar.
34
The Company shall pay, in cash, interest on any overdue amount (including,
to the extent permitted by applicable law, overdue interest) at the rate borne
by the Securities.
4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain, or cause to be maintained, in the Borough of
Manhattan, the City of New York, an office or agency (which may be an office of
the Securities Agent or an affiliate of the Securities Agent, Registrar or
co-Registrar) where Securities may be surrendered for registration of transfer
or exchange, payment or conversion. The Company will give prompt written notice
to the Trustee and the Securities Agent of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain, or fail to cause to maintain, any such required office or agency or
shall fail to furnish the Trustee and the Securities Agent with the address
thereof; such presentations and surrenders may be made or served at the
applicable Corporate Trust Office of the Securities Agent. The Company will
maintain, or cause to be maintained, in the Borough of Manhattan, the City of
New York, an office or agency where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served, provided that
such office or agency may instead be at the principal office of the Company
located in the United States.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company will give prompt
written notice to the Trustee and the Securities Agent of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the applicable Corporate Trust Office of the
Securities Agent as an agency of the Company in accordance with SECTION 2.03.
4.03 RULE 144A INFORMATION AND ANNUAL REPORTS.
(A) At any time when the Company is not subject to, or is in violation of,
Sections 13 or 15(d) of the Exchange Act, the Company shall promptly provide to
the Securities Agent and shall, upon request, provide to any Holder, beneficial
owner or prospective purchaser of Securities or ADSs issued upon conversion of
any Securities, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act to facilitate the resale of such Securities
or ADSs pursuant to Rule 144A; provided, however, that the Company shall not be
obligated to provide such information if none of the outstanding Securities
constitute "restricted securities" within the meaning of Rule 144(a)(3) under
the Securities Act. The Company shall take such further action as any Holder or
beneficial holder of such Securities or ADSs may reasonably request in writing
to the extent required from time to time to enable such Holder or beneficial
holder to sell its Securities or ADSs in accordance with Rule 144A, as such rule
may be amended from time to time.
35
(B) The Company shall deliver to the Trustee and the Securities Agent, no
later than the time such report is required to be filed with the SEC pursuant to
the Exchange Act, a copy of each report the Company is required to file with the
SEC pursuant to Section 13 or 15(d) or the Exchange Act; provided, however, that
the Company shall not be required to deliver to the Trustee or the Securities
Agent any material for which the Company has sought and received confidential
treatment by the SEC; provided further, each such report will be deemed to be so
delivered to the Trustee and the Securities Agent if the Company files such
report with the SEC through the SEC's XXXXX database no later than the time such
report is required to be filed with the SEC pursuant to the Exchange Act. In the
event the Company is at any time no longer subject to the reporting requirements
of Section 13 or Section 15(d) of the Exchange Act, the Company shall continue
to provide the Trustee and the Securities Agent and each Holder, within thirty
(30) calendar days after the date the Company would have been required to file
such reports with the SEC, annual and quarterly consolidated financial
statements substantially equivalent to financial statements that would have been
included in reports filed with the SEC if the Company were subject to the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act,
including, with respect to annual information only, a report thereon by the
Company's certified independent public accountants as such would be required in
such reports filed with the SEC and, in each case, together with a management's
discussion and analysis of financial condition and results of operations which
would be so required. The Company also shall comply with the other provisions of
TIA Section 314(a).
4.04 COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within ninety (90) calendar days
after the end of each fiscal year of the Company, or, if earlier, by the date
the Company is, or would be, required to file with the SEC the Company's annual
report (whether on Form 20-F under the Exchange Act or another appropriate form)
for such fiscal year, a certificate of two (2) or more Officers as required by
TIA Section 314(a)(4), stating whether or not the signatories to such
certificate have actual knowledge of any Default or Event of Default by the
Company in performing any of its obligations under this Indenture or the
Securities (without regard to any period of grace or requirement of notice
hereunder or thereunder). If such signatories do know of any such Default or
Event of Default, then such certificate shall describe the Default or Event of
Default and its status.
4.05 STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will 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 in force, which may affect the covenants
or the performance of this Indenture; and the Company (in each case, to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, 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.
36
4.06 CORPORATE EXISTENCE.
Subject to ARTICLE V, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate existence of each of its Subsidiaries, in accordance with the
respective organizational documents of the Company and of each Subsidiary, and
the rights (charter and statutory), licenses and franchises of the Company and
its Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate existence of any
Subsidiary, if in the good faith judgment of the Board of Directors (i) such
preservation or existence is not material to the conduct of business of the
Company and (ii) the loss of such right, license or franchise or the dissolution
of such Subsidiary does not have a material adverse impact on the Holders.
4.07 NOTICE OF DEFAULT.
Upon the Company becoming aware of the occurrence of any Default or Event
of Default, the Company shall give prompt written notice of such Default or
Event of Default, and any remedial action proposed to be taken, to the Trustee
and the Securities Agent.
4.08 FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee or the Securities Agent, the Company shall
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
4.09 DELIVERY OF ORDINARY SHARES.
The Company will deliver to the Custodian (as defined in the Deposit
Agreement) (the "ADS CUSTODIAN"), such Ordinary Shares required for the issuance
of the ADSs by the ADS Depositary upon conversion of the Securities, plus
written delivery instructions (if requested by the ADS Custodian) for such ADSs,
a notice in substantially the form set forth in EXHIBIT A hereto (the
"CONVERSION NOTICE") duly completed and executed by each Holder surrendering
such Securities for conversion certifying its status as an affiliate or
non-affiliate, as the case may be, of the Company within the meaning of Rule 144
and any other information or documentation required by the ADS Depositary or the
ADS Custodian in connection with each deposit of the Ordinary Shares and
issuance and delivery of the ADSs.
4.10 LISTING OF ADSS
The Company shall use its best efforts to cause the ADSs issuable upon
conversion of the Securities, other than any ADSs issuable upon the conversion
of Restricted Securities, to be listed on the New York Stock Exchange not later
than, and to maintain such listing after, the earlier of (i) the effective date
of a shelf registration statement registering resales of the Registrable
Securities (as defined in the Registration Rights Agreement), and (ii) the date
that is six (6) months after the Issue Date.
37
V. SUCCESSORS
5.01 WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate or amalgamate with, or merge with or into
or reconstruct into or enter into other similar arrangements with, or sell,
transfer, lease, convey or otherwise dispose of all or substantially all of the
property or assets of the Company to, another person, whether in a single
transaction or series of related transactions, unless (i) such other person is a
corporation organized and existing under the laws of the Cayman Islands, the
British Virgin Islands, Bermuda, Hong Kong, the United States, any State thereof
or the District of Columbia; (ii) such person expressly assumes, by a
supplemental indenture reasonably satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture; and (iii)
immediately after giving effect to such transaction or series of transactions,
no Default or Event of Default shall exist.
The Company shall deliver to the Trustee and the Securities Agent prior to
the consummation of the proposed transaction an Officer's Certificate to the
foregoing effect and an Opinion of Counsel (which may rely upon such Officer's
Certificate as to the absence of Defaults and Events of Default) stating that
the proposed transaction and such supplemental indenture will, upon consummation
of the proposed transaction, comply with this Indenture.
5.02 SUCCESSOR SUBSTITUTED.
Upon any consolidation, amalgamation, merger, reconstruction or any sale,
transfer, lease, conveyance or other disposition of all or substantially all of
the property or assets of the Company, the successor person formed by such
consolidation or into which the Company is merged or to which such sale,
transfer, lease, conveyance or other disposition is made shall succeed to, and,
except in the case of a lease, be substituted for, and may exercise every right
and power of, and shall assume every duty and obligation of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein. When the successor assumes all obligations of the Company
hereunder, except in the case of a lease, all obligations of the predecessor
shall terminate.
VI. DEFAULTS AND REMEDIES
6.01 EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(i) the Company fails to pay the principal of, or premium, if any, on,
any Security when the same becomes due and payable, whether at maturity,
upon Redemption, on an Optional Repurchase Date with respect to a
Repurchase at Holder's Option, on a Fundamental Change Repurchase Date with
respect to a Repurchase Upon Fundamental Change or otherwise;
38
(ii) the Company fails to pay an installment of interest or additional
interest on any Security when due, if such failure continues for thirty
(30) days after the date when due;
(iii) the Company fails to satisfy its conversion obligations upon
exercise of a Holder's conversion rights pursuant hereto;
(iv) the Company fails to timely provide a Fundamental Change Notice
or an Optional Repurchase Notice, as required by the provisions of this
Indenture, or fails to timely provide any notice pursuant to, and in
accordance with, SECTION 10.14(D);
(v) the Company fails to comply with any other term, covenant or
agreement set forth in the Securities or this Indenture and such failure
continues for the period, and after the notice, specified below;
(vi) the Company or any of its Subsidiaries defaults in the payment
when due, after the expiration of any applicable grace period, of principal
of, or premium, if any, or interest on, Indebtedness for money borrowed, in
the aggregate principal amount then outstanding of fifteen million dollars
($15,000,000) or more, or the acceleration of Indebtedness of the Company
or any of its Subsidiaries for money borrowed in such aggregate principal
amount or more so that it becomes due and payable prior to the date on
which it would otherwise become due and payable and such default is not
cured or waived, or such acceleration is not rescinded, within sixty (60)
days after notice to the Company by the Trustee or to the Company and the
Trustee by Holders of at least twenty five percent (25%) in the aggregate
principal amount of the Securities then outstanding, each in accordance
with this Indenture;
(vii) the Company or any of its Subsidiaries fails, within sixty (60)
days, to pay, bond or otherwise discharge any judgments or orders for the
payment of money the total uninsured amount of which for the Company or any
of its Subsidiaries exceeds twenty-five million dollars ($25,000,000),
which are not stayed on appeal;
(viii) the Company or any of its Significant Subsidiaries or any group
of Subsidiaries that in the aggregate would constitute a Significant
Subsidiary of the Company, pursuant to, or within the meaning of, any
Bankruptcy Law, insolvency law, or other similar law now or hereafter in
effect or otherwise, either:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
39
(D) makes a general assignment for the benefit of its creditors;
or
(ix) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that in the aggregate would
constitute a Significant Subsidiary of the Company in an involuntary
case or proceeding, or adjudicates the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company
insolvent or bankrupt,
(B) appoints a Custodian of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that in the aggregate would
constitute a Significant Subsidiary of the Company for all or
substantially all of the property of the Company or any such
Significant Subsidiary or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company, as
the case may be, or
(C) orders the winding up or liquidation of the Company or any of
its Significant Subsidiaries or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company,
and, in the case of each of the foregoing clauses (A), (B) and (C) of this
SECTION 6.01(IX), the order or decree remains unstayed and in effect for at
least ninety (90) consecutive days.
The term "BANKRUPTCY LAW" means the bankruptcy laws of the respective
jurisdictions of incorporation of the Company and the Significant Subsidiaries
for the relief of debtors. The term "CUSTODIAN" means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
A Default under CLAUSE (V) above is not an Event of Default until (I) the
Trustee notifies the Company, or the Holders of at least twenty five percent
(25%) in aggregate principal amount of the Securities then outstanding notify
the Company and the Trustee in writing, of the Default and (II) the Default is
not cured within sixty (60) days after receipt of such notice. Such notice must
specify the Default, demand that it be remedied and state that the notice is a
"NOTICE OF DEFAULT." If the Holders of at least twenty five percent (25%) in
aggregate principal amount of the outstanding Securities request the Trustee to
give such notice on their behalf, the Trustee shall do so. When a Default is
cured, it ceases to exist for all purposes under this Indenture.
6.02 ACCELERATION.
If an Event of Default (excluding an Event of Default specified in SECTION
6.01(VIII) or (IX) with respect to the Company (but including an Event of
Default specified in
40
SECTION 6.01(VIII) or (IX) solely with respect to a Significant Subsidiary of
the Company or any group of Subsidiaries that in the aggregate would constitute
a Significant Subsidiary of the Company)) occurs and is continuing, the Trustee
by written notice to the Company, or the Holders of at least twenty five percent
(25%) in aggregate principal amount of the Securities then outstanding by
written notice to the Company and the Trustee, may declare the Securities to be
immediately due and payable in full. Upon such declaration, the principal of,
and any accrued and unpaid interest (including additional interest) on, all
Securities shall be due and payable immediately. If an Event of Default
specified in SECTION 6.01(VIII) or (IX) with respect to the Company (excluding,
for purposes of this sentence, an Event of Default specified in SECTION
6.01(VIII) or (IX) solely with respect to a Significant Subsidiary of the
Company or any group of Subsidiaries that in the aggregate would constitute a
Significant Subsidiary of the Company) occurs, the principal of, and accrued and
unpaid interest (including any additional interest) on, all the Securities shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder. The Holders of a majority in
aggregate principal amount of the Securities then outstanding by written notice
to the Trustee may rescind or annul an acceleration and its consequences if (A)
the rescission would not conflict with any order or decree, (B) all existing
Events of Default, except the nonpayment of principal or interest (including and
additional interest) that has become due solely because of the acceleration,
have been cured or waived and (C) all amounts due to the Trustee and the
Securities Agent under SECTION 7.07 have been paid.
Notwithstanding the foregoing, if the Company so selects, the sole remedy
of Holders for an Event of Default relating to any obligation the Company may
have or is deemed to have pursuant to TIA Section 314(a)(1) relating to the
failure of the Company to file any document or report that the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act or of the covenant in SECTION 4.03 shall for the first ninety (90) days
after the occurrence of such Event of Default consist exclusively of the right
(the "EXTENSION RIGHT") to receive additional interest on the Securities at an
annual rate equal to 0.25% of the principal amount of the Securities. Any such
additional interest shall be payable in the same manner and on the same dates as
the stated interest payable on the Securities. The additional interest shall
accrue on all outstanding Securities from and including the date on which an
Event of Default relating to a failure to comply with the reporting obligations
in this Indenture first occurs to but not including the ninetieth (90th) day
thereafter (or such earlier date on which such Event of Default shall have been
cured or waived). On such ninetieth (90th) day (or earlier, if such Event of
Default is cured or waived prior to such ninetieth (90th) day), such additional
interest shall cease to accrue and the Securities shall be subject to
acceleration as provided in the preceding paragraph if such Event of Default is
continuing. For the avoidance of doubt, the additional interest shall not begin
to accrue until the Company fails to perform the covenant in SECTION 4.03 for a
period of sixty (60) days after notice of such failure to the Company by the
Trustee or to the trustee and the Company by Holders of at least twenty-five
percent (25%) in aggregate principal amount of the Securities then outstanding
in accordance with this Indenture.
Notwithstanding the preceding paragraph, if an event of default under any
other series of debt securities of the Company occurs as a result of the failure
of the Company to file any such document or report and such event of default
results in the principal amount of such other debt
41
securities becoming due and payable, then the Extension Right shall no longer
apply and the Securities shall be subject to acceleration as provided in the
first paragraph of this Section 6.02.
6.03 OTHER REMEDIES.
Notwithstanding any other provision of this Indenture, if an Event of
Default occurs and is continuing, and a Responsible Officer of the Trustee has
actual knowledge of such Event of Default, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of amounts due
with respect to the Securities or to enforce the performance of any provision of
the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative.
6.04 WAIVER OF PAST DEFAULTS.
Subject to SECTIONS 6.07 and 9.02, the Holders of a majority in aggregate
principal amount of the Securities then outstanding may, by notice to the
Trustee, waive any past Default or Event of Default and its consequences, other
than (A) a Default or Event of Default in the payment of the principal of, or
premium, if any, or interest or additional interest on, any Security, or in the
payment of the Redemption Price, the Optional Repurchase Price or the
Fundamental Change Repurchase Price (or accrued and unpaid interest, if any,
payable as herein provided, xxxx Xxxxxxxxxx, Xxxxxxxxxx at Holder's Option or
Repurchase Upon Fundamental Change), (B) a Default or Event of Default arising
from a failure by the Company to convert any Securities in accordance with this
Indenture or (C) any Default or Event of Default in respect of any provision of
this Indenture or the Securities which, under SECTION 9.02, cannot be modified
or amended without the consent of the Holder of each outstanding Security
affected. When a Default or an Event of Default is waived, it is cured and
ceases to exist for all purposes under this Indenture. This SECTION 6.04 shall
be in lieu of TIA Section 316(a)(1)(B), and, as permitted by the TIA, TIA
Section 316(a)(l)(B) is hereby expressly excluded from this Indenture.
6.05 CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the Securities
then outstanding 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, is unduly prejudicial to the rights
of other Holders or would involve the Trustee in personal liability unless the
Trustee is offered indemnity satisfactory to it; provided, that the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction. This SECTION 6.05 shall be in lieu of TIA Section
316(a)(1)(A), and, as permitted by the TIA, TIA Section 316(a)(1)(A) is hereby
expressly excluded from this Indenture.
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6.06 LIMITATION ON SUITS.
Except as provided in SECTION 6.07, a Securityholder may not institute any
proceeding under this Indenture, or for the appointment of a receiver or a
trustee, or for any other remedy under this Indenture unless:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(ii) the Holders of at least twenty five percent (25%) in aggregate
principal amount of the Securities then outstanding make a written request
to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense to or of the Trustee in connection with pursuing such
remedy;
(iv) the Trustee does not comply with the request within sixty (60)
days after receipt of such notice, request and offer of indemnity; and
(v) during such sixty (60) day period, the Holders of a majority in
aggregate principal amount of the Securities then outstanding do not give
the Trustee a direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of all amounts due with respect to the Securities, on
or after the respective due dates as provided herein, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
Notwithstanding any other provision of this Indenture, the right of any
Holder to convert the Security in accordance with this Indenture, or to bring
suit for the enforcement of such right, shall not be impaired or affected
without the consent of the Holder.
6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in SECTION 6.01(I) or (II) 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 due with respect to
the Securities, including any unpaid and accrued interest.
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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, any
predecessor Trustee and the Securityholders allowed in any judicial proceedings
relative to the Company or its creditors or properties.
The Trustee may collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
SECTION 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
6.10 PRIORITIES.
If the Trustee collects any money pursuant to this ARTICLE VI, it shall pay
out the money in the following order:
First: to the Trustee and the Securities Agent for amounts due under
SECTION 7.07;
Second: to Securityholders for all amounts due and unpaid on the
Securities, without preference or priority of any kind, according
to the amounts due and payable on the Securities; and
Third: the balance, if any, to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment by it to Securityholders pursuant to this
Section 6.10. At least fifteen (15) days before each such record date, the
Trustee shall mail to each Holder and the Company a written notice that states
such record date and payment date and the amount of such payment.
6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
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
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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 6.11 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 ten percent
(10%) in aggregate principal amount of the outstanding Securities.
VII. TRUSTEE AND SECURITIES AGENT
7.01 DUTIES OF TRUSTEE AND THE SECURITIES AGENT.
(A) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(B) The Trustee, except during the continuance of an Event of Default, and
the Securities Agent:
(i) need perform only those duties that are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee or the Securities Agent; and
(ii) in the absence of bad faith, willful misconduct or negligence on
its part, may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee or the Securities Agent, as the case may
be, and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee or the Securities
Agent, the Trustee or the Securities Agent, as the case may be, shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(C) Neither the Trustee nor the Securities Agent may be relieved from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
(i) neither the Trustee nor the Securities Agent shall be liable for
any error of judgment made in good faith by a Responsible Officer thereof,
unless it is conclusively determined by a court of competent jurisdiction
that the Trustee or the Securities Agent, as the case may be, was negligent
in ascertaining the pertinent facts; and
(ii) the Trustee shall be not 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.
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(D) Every provision of this Indenture that in any way relates to the
Trustee or the Securities Agent is subject to the provisions of this SECTION
7.01.
(E) Neither the Trustee nor the Securities Agent shall be liable for
interest on any money received by it except as the Trustee or the Securities
Agent, as the case may be, may agree in writing with the Company. Money held in
trust by the Trustee or the Securities Agent shall be segregated from other
funds as directed in writing by the Company or as required by law and shall be
invested by the Trustee or the Securities Agent, as applicable, pursuant to the
written instructions of the Company reasonably satisfactory to the Trustee or
the Securities Agent, as applicable.
7.02 RIGHTS OF TRUSTEE AND THE SECURITIES AGENT.
(A) Subject to SECTION 7.01, each of the Trustee and the Securities Agent
may conclusively rely on any document believed by it to be genuine and to have
been signed or presented by the proper person. Neither the Trustee nor the
Securities Agent need investigate any fact or matter stated in the document; if,
however, the Trustee or the Securities Agent shall determine to make such
further inquiry or investigation, it shall be entitled during normal business
hours of the Company to examine the relevant books, records and premises of the
Company, personally or by agent or attorney upon reasonable prior notice.
(B) Before the Trustee or the Securities Agent acts or refrains from
acting, it may require an Officer's Certificate and/or an Opinion of Counsel.
Neither the Trustee nor the Securities Agent shall be liable for any action it
takes or omits to take in good faith in reliance on such Officer's Certificate
or Opinion of Counsel. No such Officer's Certificate or Opinion of Counsel shall
be at the expense of the Trustee or the Securities Agent.
(C) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution.
(D) Each of the Trustee and the Securities Agent may consult with counsel,
and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(E) Each of the Trustee and the Securities Agent may act through agents or
attorneys, and neither the Trustee nor the Securities Agent shall be responsible
for the misconduct or negligence of any agent or attorney appointed with due
care.
(F) Neither the Trustee nor the Securities Agent shall be liable for any
action it takes, suffers or omits to take in good faith, which it believes to be
authorized or within its discretion, rights or powers conferred upon it by this
Indenture.
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(G) Neither the Trustee nor the Securities Agent shall have any duty to
inquire as to the performance of the Company with respect to the covenants
contained in ARTICLE IV. In addition, neither the Trustee nor the Securities
Agent shall be deemed to have knowledge of a Default, Event of Default,
Fundamental Change or Make-Whole Fundamental Change except (i) with respect to
the Trustee, any Default or Event of Default occurring pursuant to SECTIONS
6.01(I) or 6.01(II) or (ii) any Default, Event of Default, Fundamental Change,
Make-Whole Fundamental Change of which a Responsible Officer of the Trustee or
the Securities Agent, as the case may be, shall have received written
notification from a Securityholder or the Company of the circumstances
constituting the same and stating so in such written notifications referring
this Indenture. Except as otherwise provided herein, the Trustee and the
Securities Agent may, in the absence of such actual knowledge or receipt of such
written notification, conclusively assume that there is no Default, Event of
Default, Fundamental Change or Make-Whole Fundamental Change. Delivery of
reports, information and documents to the Trustee or the Securities Agent under
ARTICLE IV (other than SECTIONS 4.04 and 4.07) is for informational purposes
only and the receipt by the Trustee or the Securities Agent of the foregoing
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which each of the Trustee
and the Securities Agent is entitled to rely on Officer's Certificates).
(H) Subject to SECTION 7.01(A), neither the Trustee nor the Securities
Agent shall be under any obligation to exercise any of the rights or powers
vested by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture unless such Holders shall have offered to the Trustee
or the Securities Agent, as applicable, security or indemnity reasonably
satisfactory to the Trustee or the Securities Agent, as applicable, against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(I) The rights, privileges, protections, immunities and benefits given to
the Trustee and the Securities Agent, including without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee or the
Securities Agent, as applicable, in each of its capacities hereunder, and each
agent, custodian and other person employed to act hereunder.
(J) The Trustee or the Securities Agent may request that the Company
deliver an Officer's Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to
this Indenture, which Officer's Certificate may be signed by any person
authorized to sign an Officer's Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded.
(K) Neither the Trustee nor the Securities Agent shall be required to
expend or risk its own funds or otherwise incur financial liability for the
performance of any of its duties hereunder or the exercise of any of its rights
or powers if there is reasonable ground for believing that the repayment of such
funds or reasonably adequate indemnity against such risk or liability is not
assured to it.
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(L) Neither the Trustee nor the Securities Agent shall have any duty (i) to
see to any recording, filing or depositing of this Indenture or any Indenture
referred to herein or any financing statement or continuation statement
evidencing a security interest, or to see to the maintenance of any such
recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof or (ii) to see to any insurance.
(M) The rights of the Trustee and the Securities Agent to perform any
discretionary act enumerated in this Indenture shall not be construed as a duty,
and neither the Trustee nor the Securities Agent shall be answerable other than
for its negligence or willful misconduct in the performance of such act.
(N) Neither the Trustee nor the Securities Agent shall be required to give
any bond or surety in respect of the execution of the powers granted hereunder.
7.03 INDIVIDUAL RIGHTS OF TRUSTEE AND THE SECURITIES AGENT.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or any of its
Affiliates with the same rights the Trustee would have if it were not Trustee.
Any Securities Agent may do the same with like rights. The Trustee, however,
must comply with SECTIONS 7.10 and 7.11.
7.04 DISCLAIMER OF THE TRUSTEE AND THE SECURITIES AGENT.
Neither the Trustee nor the Securities Agent makes any representation as to
the validity or adequacy of this Indenture or the Securities; neither the
Trustee nor the Securities Agent shall be accountable for the Company's use of
the proceeds from the Securities; the Trustee shall not be responsible for any
statement in the Securities other than its certificate of authentication; and no
representation, warranty or undertaking, express or implied, is made and no
responsibility or liability is accepted by the Trustee as to the accuracy or
completeness of the information included or incorporated by reference in the
offering memorandum or any other information supplied in connection with the
Securities.
7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing as to which the
Trustee has received notice pursuant to the provisions of this Indenture, or as
to which a Responsible Officer of the Trustee shall have actual knowledge, then
the Trustee shall mail to each Holder a notice of the Default or Event of
Default within thirty (30) days after receipt of such notice or after acquiring
such knowledge, as applicable, unless such Default or Event of Default has been
cured or waived; provided, however, that, except in the case of a Default or
Event of Default in payment of any amounts due with respect to any Security, the
Trustee may withhold such notice if, and so long as it in good faith determines
that, withholding such notice is in the best interests of Holders.
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7.06 REPORTS BY TRUSTEE TO HOLDERS.
Within sixty (60) days after each June 15, beginning with June 15, 2008,
the Trustee shall mail to each Securityholder if required by TIA Section 313(a)
a brief report dated as of such May 15 that complies with TIA Section 313(c). In
such event, the Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders shall
be mailed by first class mail to the Company and filed by the Trustee with the
SEC and each stock exchange, if any, on which the Securities are listed. The
Company shall promptly notify the Trustee of the listing or delisting of the
Securities on or from any stock exchange.
7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee and the Securities Agent from time to
time such compensation for their services as shall be agreed upon in writing.
Neither the Trustee's nor the Securities Agent's compensation shall be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee and the Securities Agent upon request for all
out-of-pocket expenses incurred by them pursuant to, and in accordance with, any
provision hereof. Such expenses shall include the compensation and out-of-pocket
expenses of the agents and counsel of the Trustee and the Securities Agent.
The Company shall indemnify each of the Trustee and the Securities Agent
(which in each case shall include the respective directors, officers, agents and
employees) against any and all loss, liability, damage, claim or expense
(including the fees and expenses of counsel and taxes other than franchise taxes
and taxes based upon, measured by or determined by the income of the Trustee or
the Securities Agent) incurred by it in connection with the acceptance or
administration of this trust and the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim (whether
asserted by the Company, any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers and duties
hereunder. The Company need not pay any settlement made without its consent,
which consent shall not be unreasonably withheld or delayed. Each of the Trustee
and the Securities Agent shall notify the Company promptly of any claim for
which it may seek indemnification. Failure by the Trustee and/or the Securities
Agent to so notify the Company shall not relieve the Company of its obligations
hereunder. The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee solely attributed to the negligence,
bad faith or willful misconduct of the Trustee, or by the Securities Agent
solely attributed to the gross negligence of the Securities Agent, as the case
may be, and as determined by a court of competent jurisdiction in a final
decision.
Notwithstanding anything herein to the contrary, to the extent permitted by
the TIA, in no event shall the Trustee or the Securities Agent be liable for
special, indirect or consequential losses or damages of any kind whatsoever
(including, without limitation, lost profits), even if the Trustee or the
Securities Agent, as applicable, has been advised of the likelihood of such
losses or damages and regardless of the form of action.
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To secure the Company's payment obligations in this SECTION 7.07, the
Trustee and the Securities Agent shall have a lien prior to the Securities on
all money or property held or collected by the Trustee or the Securities Agent,
except that held in trust to pay amounts due on particular Securities.
The indemnity obligations of the Company with respect to the Trustee and
the Securities Agent provided for in this SECTION 7.07 shall survive any
resignation or removal of the Trustee or the Securities Agent, as applicable.
When the Trustee or the Securities Agent incurs expenses or renders
services after an Event of Default specified in SECTION 6.01(VIII) or (IX)
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The Company agrees to pay on the Closing Date fees and expenses of counsel
to the Trustee and Securities Agent as agreed between the Company and the
Trustee and Securities Agent.
7.08 REPLACEMENT OF TRUSTEE OR THE SECURITIES AGENT.
A resignation or removal of the Trustee or the Securities Agent and
appointment of a successor Trustee or successor Securities Agent shall become
effective only upon such successor's acceptance of appointment as provided in
this SECTION 7.08.
Each of the Trustee and the Securities Agent may resign by so notifying the
Company in writing thirty (30) Business Days prior to such resignation. The
Holders of a majority in aggregate principal amount of the Securities then
outstanding may remove the Trustee or the Securities Agent by so notifying the
Trustee or the Securities Agent, as applicable, and the Company in writing and
may appoint a successor Trustee or successor Securities Agent with the Company's
consent. The Company may remove the Trustee or the Securities Agent if:
(i) the Trustee or the Securities Agent, as applicable, fails to
comply with SECTION 7.10; or
(ii) the Trustee or the Securities Agent, as applicable, is adjudged a
bankrupt or an insolvent; or
(iii) a receiver or other public officer takes charge of the Trustee
or the Securities Agent, as applicable, or its property; or
(iv) the Trustee or the Securities Agent, as applicable, becomes
incapable of acting.
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If the Trustee or the Securities Agent resigns or is removed or if a
vacancy exists in the office of Trustee or of the Securities Agent for any
reason, the Company shall promptly appoint a successor Trustee or Securities
Agent, as the case may be.
If a successor Trustee or successor Securities Agent, as applicable, does
not take office within thirty (30) days after the retiring Trustee or retiring
Securities Agent, as applicable, resigns or is removed, the retiring Trustee or
retiring Securities Agent, as applicable, may, at the Company's expense, and the
Company or the Holders of at least ten percent (10%) in aggregate principal
amount of the outstanding Securities may, petition any court of competent
jurisdiction for the appointment of a successor Trustee or successor Securities
Agent, as applicable.
If the Trustee or the Securities Agent fails to comply with SECTION 7.10,
the Company or any Holder may petition any court of competent jurisdiction for
the removal of the Trustee or the Securities Agent, as applicable, and the
appointment of a successor Trustee or successor Securities Agent, as applicable.
Each successor Trustee or successor Securities Agent shall deliver a
written acceptance of its appointment to the retiring Trustee or retiring
Securities Agent, as applicable, and to the Company. Thereupon, the resignation
or removal of the retiring Trustee or the retiring Securities Agent, as
applicable, shall become effective, and the successor Trustee or successor
Securities Agent, as applicable, shall have all the rights, powers and duties of
the Trustee or the Securities Agent, as applicable, under this Indenture. The
successor Trustee or successor Securities Agent, as applicable, shall mail a
notice of its succession to Securityholders. The retiring Trustee or retiring
Securities Agent, as applicable, shall promptly transfer all property held by it
as Trustee or Securities Agent, as applicable, to the successor Trustee or
successor Securities Agent, as applicable, subject to the lien provided for in
SECTION 7.07. Notwithstanding any replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 hereof shall continue
for the benefit of the retiring Trustee.
7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee or the Securities Agent consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee or successor Securities Agent, as applicable,
if such successor corporation is otherwise eligible hereunder.
7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee and a Securities Agent hereunder,
each of which (A) is an entity organized and doing business under the laws of
the United States of America or of any state thereof, (B) is authorized under
such laws to exercise corporate trustee power, (C) is subject to supervision or
examination by federal or state authorities and (D) has a combined capital and
surplus of at least $50 million as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA Section 310(b). Nothing
in this Indenture shall
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prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
7.12 FORCE MAJEURE.
In no event shall either the Trustee or the Securities Agent be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond its
control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being
understood that each of the Trustee and the Securities Agent shall use
reasonable efforts that are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
VIII. DISCHARGE OF INDENTURE
8.01 TERMINATION OF THE OBLIGATIONS OF THE COMPANY.
This Indenture shall cease to be of further effect if (a) either (i) all
outstanding Securities (other than Securities replaced pursuant to SECTION 2.07
hereof) have been delivered to the Securities Agent for cancellation or (ii) all
outstanding Securities have become due and payable at their scheduled maturity
or upon Repurchase at Holder's Option, Redemption or Repurchase Upon Fundamental
Change, and in either case the Company irrevocably deposits, prior to the
applicable due date, with the Paying Agent (if the Paying Agent is not the
Company or any of its Affiliates) cash sufficient to pay all amounts due and
owing on all outstanding Securities (other than Securities replaced pursuant to
SECTION 2.07 hereof) on the Maturity Date or an Optional Repurchase Date,
Redemption Date or Fundamental Change Repurchase Date, as the case may be; (b)
the Company pays to the Trustee and the Securities Agent all other sums payable
hereunder by the Company; (c) no Default or Event of Default with respect to the
Securities shall exist on the date of such deposit; (d) such deposit will not
result in a breach or violation of, or constitute a Default or Event of Default
under, this Indenture; and (e) the Company has delivered to the Trustee and the
Securities Agent an Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture have been complied with; provided,
however, that SECTIONS 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.15, 2.16,
2.17, 3.05, 3.08, 3.09, 4.01, 4.02, 4.05, 7.07 and 7.08 and ARTICLES VIII and X
shall survive any discharge of this Indenture until such time as the Securities
have been paid in full and there are no Securities outstanding.
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8.02 APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent, as applicable, shall hold in trust all money
deposited with it pursuant to SECTION 8.01 and shall apply such deposited money
through the Paying Agent and in accordance with this Indenture to the payment of
amounts due on the Securities.
8.03 REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the Company upon the
written request of the Company, any excess money held by them at any time. The
Trustee and the Paying Agent shall pay to the Company upon the written request
of the Company any money held by them for the payment of the principal of,
premium, if any, or any accrued and unpaid interest or additional interest on,
the Securities that remains unclaimed for two (2) years; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may, at the expense of the Company, cause to be published (in no
event later than five (5) days after the Company's written request for
repayment) once in a newspaper of general circulation in the City of New York or
cause to be mailed to each Holder, notice stating that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
thirty (30) days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Securityholders entitled to the money must look to the
Company for payment as general creditors, subject to applicable law, and all
liability of the Trustee and the Paying Agent with respect to such money and
payment shall, subject to applicable law, cease.
8.04 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money in accordance
with SECTIONS 8.01 and 8.02 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the obligations of the
Company under this Indenture and the Securities shall be revived and reinstated
as though no deposit had occurred pursuant to SECTIONS 8.01 and 8.02 until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with SECTIONS 8.01 and 8.02; provided, however, that if the Company
has made any payment of amounts due with respect to any Securities because of
the reinstatement of its obligations, then the Company shall be subrogated to
the rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent.
IX. AMENDMENTS
9.01 WITHOUT CONSENT OF HOLDERS.
The Company may amend or supplement this Indenture or the Securities
without notice to or the consent of any Securityholder:
(i) to comply with SECTIONS 5.01 and 10.11;
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(ii) to make any changes or modifications to this Indenture necessary
in connection with the registration of the public offer and sale of the
Securities under the Securities Act pursuant to the Registration Rights
Agreement or the qualification of this Indenture under the TIA;
(iii) to evidence and provide the acceptance to the appointment of a
successor Trustee under this Indenture;
(iv) to add guarantees with respect to, or to secure the obligations
of the Company in respect of, the Securities;
(v) to add to the covenants of the Company described in this Indenture
for the benefit of Securityholders or to surrender any right or power
conferred upon the Company;
(vi) to make provisions with respect to adjustments to the Conversion
Rate as required by this Indenture or to increase the Conversion Rate in
accordance with this Indenture;
(vii) to conform, as necessary, the Indenture and the form or terms of
the Securities to the "Description of the Notes" set forth in the final
offering memorandum relating to the Securities; and
(viii) to make any changes of a formal, minor or technical nature or
necessary to correct a manifest error or to comply with mandatory
provisions of applicable law as evidenced by an Opinion of Counsel as long
as such change does not adversely affect the rights of the Holders of the
Securities in any material respect.
In addition, the Company, the Trustee and the Securities Agent may enter
into a supplemental indenture without the consent of Holders of the Securities
to cure any ambiguity, defect, omission or inconsistency in this Indenture in a
manner that does not, individually or in the aggregate with all other
modifications made or to be made to the Indenture, adversely affect the rights
of any Holder in any material respect.
9.02 WITH CONSENT OF HOLDERS.
The Company may amend or supplement this Indenture or the Securities with
the written consent of the Holders of at least a majority in aggregate principal
amount of the outstanding Securities. Subject to SECTIONS 6.04 and 6.07, the
Holders of a majority in aggregate principal amount of the outstanding
Securities may, by notice to the Trustee, waive compliance by the Company with
any provision of this Indenture or the Securities without notice to any other
Securityholder. Notwithstanding anything herein to the contrary, without the
consent of each Holder of each outstanding Security affected, an amendment,
supplement or waiver, including a waiver pursuant to SECTION 6.04, may not:
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(i) change the stated maturity of the principal of, or the payment
date of any installment of interest or additional interest on any Security;
(ii) reduce the principal amount of, or any premium, interest or
additional interest on, any Security;
(iii) change the place, manner or currency of payment of principal of,
or any premium, interest or additional interest on, any Security;
(iv) impair the right to institute suit for the enforcement of any
payment on, or with respect to, or of the conversion of, any Security;
(v) modify, in a manner adverse to Holders, the provisions with
respect to the right of Holders pursuant to ARTICLE III to require the
Company to repurchase Securities on an Optional Repurchase Date or upon the
occurrence of a Fundamental Change;
(vi) modify the provisions of SECTION 2.18 in a manner adverse to
Holders;
(vii) adversely affect the right of Holders to convert Securities in
accordance with ARTICLE X;
(viii) reduce the percentage of the aggregate principal amount of the
outstanding Securities whose Holders must consent to a modification to or
amendment of any provision of this Indenture or the Securities;
(ix) reduce the percentage of the aggregate principal amount of the
outstanding Securities whose Holders must consent to a waiver of compliance
with any provision of this indenture or the Securities or a waiver of any
Default or Event of Default; or
(x) modify the provisions of this Indenture with respect to
modification and waiver (including waiver of a Default or an Event of
Default), except to increase the percentage required for modification or
waiver or to provide for consent of each affected Holder.
Promptly after an amendment, supplement or waiver under SECTION 9.01 or
this SECTION 9.02 becomes effective, the Company shall mail, or cause to be
mailed, to Securityholders a notice briefly describing such amendment,
supplement or waiver. Any failure of the Company to mail such notice shall not
in any way impair or affect the validity of such amendment, supplement or
waiver.
It shall not be necessary for the consent of the Holders under this SECTION
9.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
55
Every amendment, waiver or supplement to this Indenture or the Securities
shall comply with the TIA as then in effect.
9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to its Security or portion of a Security if the Trustee receives the notice
of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
After an amendment, supplement or waiver becomes effective with respect to
the Securities, it shall bind every Holder unless such amendment, supplement or
waiver makes a change that requires, pursuant to SECTION 9.02, the consent of
each Holder affected. In that case, the amendment, supplement or waiver shall
bind each Holder of a Security who has consented to it and, provided that notice
of such amendment, supplement or waiver is reflected on a Security that
evidences the same debt as the consenting Holder's Security, every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security.
Nothing in this SECTION 9.04 shall impair the Company's rights pursuant
Section 9.01 to amend this Indenture or the Securities without the consent of
any Securityholder in the manner set forth in, and permitted by, such SECTION
9.01.
9.05 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Security as directed and
prepared by the Company about the changed terms and return it to the Holder.
Alternatively, if the Company so determines, the Company in exchange for the
Security shall issue and the Trustee shall, upon receipt of a Company Order,
authenticate a new Security that reflects the changed terms.
9.06 TRUSTEE AND SECURITIES AGENT PROTECTED.
The Trustee and the Securities Agent shall sign any amendment, supplemental
indenture or waiver authorized pursuant to this ARTICLE IX; provided, however,
that neither the Trustee nor the Securities Agent need sign any amendment,
supplement or waiver authorized pursuant to this ARTICLE IX that adversely
affects the rights, duties, liabilities or immunities of the Trustee or the
Securities Agent, as applicable. Each of the Trustee and the Securities Agent
shall be entitled to receive and conclusively rely upon an Opinion of Counsel as
to legal matters and an Officer's
56
Certificate as to factual matters that any supplemental indenture, amendment or
waiver is permitted or authorized pursuant to this Indenture.
9.07 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the due execution and delivery of any supplemental indenture in
accordance with this ARTICLE IX, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture
for all purposes, and, except as set forth in SECTIONS 9.02 and 9.04, every
Holder of Securities shall be bound thereby.
X. CONVERSION
10.01 CONVERSION PRIVILEGE; RESTRICTIVE LEGENDS.
(A) Subject to the provisions of ARTICLE III the Securities shall be
convertible into cash, ADSs or a combination of cash and ADSs in accordance with
this ARTICLE X at any time prior to (and including) the third (3rd) Business Day
preceding the Maturity Date.
(B) A Security, or portion of a Security, that has been called for
Redemption pursuant to PARAGRAPH 6 of the Securities may be surrendered for
conversion into cash, ADSs or a combination of cash and ADSs; provided, however,
that such Security or portion thereof may be surrendered for conversion pursuant
to this ARTICLE X only until the close of business on the third (3rd) Business
Day immediately preceding the Redemption Date.
(C) The initial Conversion Rate shall be 25.4534 shares of ADSs per $1,000
principal amount of Securities. The Conversion Rate shall be subject to
adjustment in accordance with this ARTICLE X.
(D) A Holder may convert a portion of the principal amount of a Security if
such portion is $1,000 principal amount or integral multiples of $1,000
principal amount. Provisions of this Indenture that apply to conversion of all
of a Security also apply to conversion of a portion of such Security.
(E) Any ADSs that are issued upon conversion of a Security shall bear the
Private Placement Legend until the earlier of the first anniversary of the later
of the issue date and the last date on which the Company or any Affiliate was
the owner of such shares or the Security (or any predecessor security) from
which such shares were converted (or such longer period of time as may be
required under the Securities Act or applicable state securities laws, as set
forth in an Opinion of Counsel, unless otherwise agreed by the Company and the
Holder thereof).
10.02 CONVERSION PROCEDURE AND PAYMENT UPON CONVERSION.
(A) To convert a Security, a Holder must satisfy the requirements of
PARAGRAPH 10 of the Securities. The "CONVERSION DATE" with respect to a Security
means the date on which the Holder of the Security has complied with such
requirements to convert such Security. Upon
57
conversion of a Holder's Security, the Company shall deliver cash, ADSs or a
combination of cash and ADSs to such Holder as follows, provided that all
Holders' rights with respect to conversion of the Securities and the Company's
obligation to deliver ADSs at the Conversion Rate upon such conversion (the
"CONVERSION OBLIGATION"), are subject, in their entirety, to the Company' right,
in its sole and absolute discretion, to elect to satisfy such Conversion
Obligation in any manner permitted pursuant to this SECTION 10.02:
(i) the Company shall give notice, which shall be irrevocable, to
Holders through the Conversion Agent of the method it will choose to
satisfy its Conversion Obligation at any time on or before the date that is
the second (2nd) Scheduled Trading Day following the Conversion Date (such
period, the "SETTLEMENT NOTICE PERIOD"). If the Company fails to provide
notice within the Settlement Notice Period, the Company shall satisfy its
Conversion Obligation only in ADSs (and cash in lieu of fractional ADSs).
If the Company chooses to satisfy any portion of its Conversion Obligation
in cash, it will specify the amount to be satisfied in cash as a percentage
of the Conversion Obligation or as a fixed dollar amount for each $1,000
principal amount of the Securities. The Company shall treat all Holders
converting on the same calendar day in the same manner (other than in
respect of any Holder's election to convert under SECTION
10.02(A)(III)(E)); however, the Company shall not have any obligation to
settle Conversion Obligation arising on different calendar day as in the
same manner.
(ii) The Company may, in lieu of sending individual notices of its
election, send one notice, which shall be irrevocable, to all Holders (with
a copy to the Conversion Agent and the Trustee) of the method the Company
chooses to satisfy its Conversion Obligation with respect to (i) all
conversion of Securities that have been selected for redemption; and (ii)
all conversions of Securities that occur on the third (3rd) Business Day
prior to the Maturity Date.
(iii) The consideration to be paid upon the conversion of any Security
("CONVERSION SETTLEMENT DISTRIBUTION") shall consist of cash, ADSs or a
combination thereof, as selected by the Company, to be computed and
delivered as set forth below or in Section 10.02(A)(iii)(e):
(a) if the Company elects to satisfy the entire Conversion
Obligation in ADSs, the Conversion Settlement Distribution shall be a
number of ADSs equal to (A) the aggregate principal amount of the
Securities to be converted divided by $1,000, multiplied by (B) the
Conversion Rate, plus cash for any fractional shares pursuant to
SECTION 10.02(B);
(b) if the Company elects to satisfy the entire Conversion
Obligation in cash (other than cash in lieu of fractional ADSs), the
Conversion Settlement Distribution shall be cash in an amount equal to
the product of:
58
(1) a number equal to the product of (x) the aggregate
principal amount of Securities to be converted divided by $1,000,
multiplied by (y) the Conversion Rate; and
(2) the average Daily VWAP of the ADSs during the
twenty-five (25) consecutive VWAP Trading Day period beginning on
and including the second (2nd) VWAP Trading Day immediately after
the Conversion Date (such twenty-five (25) consecutive VWAP
Trading Day period being the "CASH SETTLEMENT AVERAGING PERIOD");
and
(c) if the Company elects to satisfy a percentage or a fixed
amount (other than 100%) of the Conversion Obligation per $1,000
principal amount of Securities in cash, the Conversion Settlement
Distribution shall consist of (1) the amount of cash so elected ("CASH
AMOUNT"), provided that if such Cash Amount exceeds the Conversion
Amount of the Securities being converted, then the Company shall
deliver such Conversion Amount in cash in lieu of such Cash Amount,
and (2) a number of ADSs per $1,000 principal amount of Securities
equal to the sum of, for each VWAP Trading Day of the Cash Settlement
Averaging Period, the greater of:
(x) zero, and
(y) a number of ADSs determined by the following formula:
(Daily VWAP of ADSs on such VWAP Trading Day x the Conversion Rate)
- Cash Amount
-------------------------------------------------------------------
Daily VWAP of ADSs on such VWAP Trading Day x 25
(d) Except as provided below in SECTION 10.02(A)(III)(E), the
Company shall settle its Conversion Obligation (1) on the fifth (5th)
Scheduled Trading Day following the final VWAP Trading Day of the
related Cash Settlement Averaging Period if it elects to satisfy its
Conversion Obligation partially or entirely in cash, or (2) as soon as
practicable but in no event later than the fifth (5th) Scheduled
Trading Day, after the last day of the Settlement Notice Period (each
date of settlement of the Company's Conversion Obligation under this
Section or under SECTION 10.02(A)(III)(E) being a "CONVERSION
SETTLEMENT DATE").
(e) If a Holder has designated in its Conversion Notice (as
specified in PARAGRAPH 10 of the Securities) that it has elected
staggered settlement and the Company elects to satisfy a percentage or
a fixed amount (other than 100%) of the Conversion Obligation per
$1,000 principal amount of Securities in cash, then, notwithstanding
Sections 10.01(A)(iii)(c) or 10.02(A)(iii)(d), the Conversion
Settlement Distribution shall consist of separate amounts calculated
in respect of each of the VWAP Trading Days in the Cash Settlement
Averaging Period, each such amount, a "STAGGERED SETTLEMENT CONVERSION
SETTLEMENT DISTRIBUTION,"
59
consisting of (1) the Staggered Settlement Cash Amount, provided that
if such Staggered Settlement Cash Amount exceeds the Staggered
Settlement Conversion Amount in respect of such VWAP Trading Day, then
the Company shall deliver the Staggered Settlement Conversion Amount
in respect of such VWAP Trading Day in cash in lieu of such Staggered
Settlement Cash Amount, and (2) a number of ADSs per $1,000 principal
amount of Securities equal to, for such VWAP Trading Day, the greater
of:
(x) zero, and
(y) a number of ADSs determined by the following formula:
(Daily VWAP of ADSs on such VWAP Trading Day x the Conversion Rate)
- Staggered Settlement Cash Amount
-------------------------------------------------------------------
Daily VWAP of ADSs on such VWAP Trading Day x 25
(f) The Company shall settle its Conversion Obligation in respect
of each Staggered Settlement Conversion Settlement Distribution on the
fifth (5th) Scheduled Trading Day following each VWAP Trading Day of
the related Cash Settlement Averaging Period.
(g) "CONVERSION AMOUNT" means the average of the products for
each VWAP Trading Day of the Cash Settlement Averaging Period of (i)
the Conversion Rate in effect on such day multiplied by (ii) the Daily
VWAP of the ADSs on such day multiplied by (iii) the aggregate
principal amount of Securities to be converted divided by $1,000.
"DAILY VWAP" of the ADSs means, for each of the 25 consecutive VWAP
Trading Days during each Cash Settlement Averaging Period, the per ADS
volume-weighted average price as displayed under the heading
"Bloomberg VWAP" on Bloomberg page LDK.N (equity) AQR (or any
equivalent successor page if such page is not available) in respect of
the period from the scheduled open of trading on the principal trading
market for our ADSs to the scheduled close of trading on such market
on such VWAP Trading Day, or if such volume-weighted average price is
unavailable, the market value of one ADS on such VWAP Trading Day as
the Board of Directors determines in good faith using a
volume-weighted average method.
"STAGGERED SETTLEMENT CASH AMOUNT" means 0.04 times the amount of cash
elected by the Company to satisfy the Conversion Amount if it elects
to satisfy a percentage or a fixed amount (other than 100%) of the
Conversion Obligation in cash.
"STAGGERED SETTLEMENT CONVERSION AMOUNT" means, in respect of each
VWAP Trading Day of the Cash Settlement Averaging Period, the product
of (i) 0.04 multiplied by (ii) the Conversion Rate in effect on such
day multiplied by (iii) the
60
Daily VWAP of the ADSs on such day multiplied by (iv) the aggregate
principal amount of Securities to be converted divided by $1,000.
"VWAP TRADING DAY" means a day during which (i) trading in the ADSs
generally occurs on the principal U.S. national securities exchange on
which the ADSs are listed and (ii) there is no VWAP Market Disruption
Event. If the ADSs are not so listed, then "VWAP Trading Day" means a
Business Day.
"VWAP MARKET DISRUPTION EVENT" means (i) a failure by the principal
U.S. national securities exchange or market on which the ADSs are
listed to open for trading during its regular trading session or (ii)
the occurrence or existence prior to 1:00 p.m. on any Scheduled
Trading Day for the ADSs for an aggregate one half-hour period of any
suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the stock exchange or otherwise)
in the ADSs or in any options contracts or futures contracts relating
to the ADSs.
(B) The Company shall not deliver a fractional ADS upon conversion of a
Security. However, if the Company elects to satisfy the entire Conversion
Obligation with ADSs, the Company shall pay cash for all fractional ADSs
(calculated on an aggregate basis for the Securities surrendered by a Holder for
conversion) based on the Closing Sale Price of the ADS on the last day of the
Settlement Notice Period. Similarly, if the Company elects to satisfy a
percentage or fixed amount of the Conversion Obligation in cash, the Company
shall pay cash for all fractional ADS (calculated on an aggregate basis for the
Securities surrendered by a Holder for conversion) based on the Daily VWAP of
the ADSs on the last VWAP Trading Day of the Cash Settlement Averaging Period.
(C) In the event that the Company elects to settle the Conversion
Obligation in accordance with SECTION 10.02(A)(III)(A), on and after the
Conversion Date for a Security, the person in whose name the ADSs, if any,
issuable upon conversion of such Security are to be registered shall be treated
as the holder of such ADSs, and all rights of the Holder of such Security shall
terminate, other than the right to receive the Conversion Settlement
Distribution deliverable as provided herein. A Holder of Securities is not
entitled, as such, to any rights of a holder of ADSs until such Holder has
converted its Securities into ADSs (to the extent such Securities are
convertible into ADSs) or is deemed to be a holder of ADSs, as provided in this
SECTION 10.02(C).
(D) Except as provided in the Securities or in this ARTICLE X, no payment
or adjustment will be made for accrued interest or additional interest on a
converted Security or for dividends on any Ordinary Shares represented by the
ADSs issued on or prior to conversion. If any Holder surrenders a Security for
conversion after the close of business on the record date for the payment of an
installment of interest and prior to the related interest payment date, then,
notwithstanding such conversion, the interest payable with respect to such
Security on such interest payment date shall be paid on such interest payment
date to the Holder of record of such Security at the close of business on such
record date; provided, however, that such Security,
61
when surrendered for conversion, must be accompanied by payment in cash to the
Conversion Agent on behalf of the Company of an amount equal to the interest
payable on such interest payment date on the portion so converted; provided
further, however, that, such payment to the Conversion Agent described in the
immediately preceding proviso in respect of a Security surrendered for
conversion shall not be required if (i) the related Conversion Date occurs on or
after April 1, 2013, or (ii) at the time of such conversion, the Company has
specified a Fundamental Change Repurchase Date that is after such record date
and on or prior to the related interest payment date, or (iii) such Security is
called for Redemption pursuant to SECTION 3.04 and PARAGRAPHS 6 AND 7 of the
Securities; provided further, that, if the Company shall have, prior to the
Conversion Date with respect to a Security, defaulted in a payment of interest
on such Security, then in no event shall the Holder of such Security who
surrenders such Security for conversion be required to pay such defaulted
interest or the interest that shall have accrued on such defaulted interest
pursuant to SECTION 2.12 or otherwise (it being understood that nothing in this
SECTION 10.02(D) shall affect the Company's obligations under SECTION 2.12).
(E) Accrued and unpaid interest (including additional interest, if any) to
the Conversion Date is deemed to be paid in full with the ADSs issued or cash
paid upon conversion rather than cancelled, extinguished or forfeited.
(F) If a Holder converts more than one Security at the same time, the
number of full ADSs issuable upon such conversion, if any, shall be based on the
total principal amount of all Securities converted.
(G) Upon surrender of a Security that is converted in part, the Trustee
shall, upon receipt of a Company order, authenticate for the Holder a new
Security equal in principal amount to the unconverted portion of the Security
surrendered.
(H) If the last day on which a Security may be converted is a Legal Holiday
in a place where a Conversion Agent is located, the Security may be surrendered
to that Conversion Agent on the next succeeding day that is not a Legal Holiday.
10.03 TAXES ON CONVERSION.
If a Holder converts its Security, the Company shall pay any documentary,
stamp or similar issue or transfer tax or duty due on the issue, if any, of ADSs
upon the conversion. However, such Holder shall pay any such tax or duty which
is due because the Holder requests the ADSs to be issued in a name other than
such Holder's name. The Conversion Agent may refuse to deliver any certificate
representing the ADSs to be issued in a name other than such Holder's name until
the Conversion Agent receives certification in writing that all taxes and duties
due because such shares are to be issued in a name other than such Holder's name
have been paid. Nothing herein shall preclude any tax withholding required by
law or regulation within any jurisdiction in which the Company or any successor
are organized or treated as a resident for tax purposes or through which payment
is made (each, as applicable, a "RELEVANT TAXING JURISDICTION"), if such
withholding or deduction is required by law or by regulation or governmental
policy having the effect of law. In the event that any such withholding or
62
deduction is so required, the Company shall pay to the Holder of each Security
such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure
that the net amount received by the Holder after such withholding or deduction
(and after deducting any taxes on the Additional Amounts) shall equal the
amounts which would have been received by such Holder had no such withholding or
deduction been required, except that no Additional Amounts shall be payable:
(A) for or on account of:
(i) any tax, duty, assessment or other governmental charge that would
not have been imposed but for:
(a) the existence of any present or former connection between the
Holder or beneficial owner of such Security, and the Relevant Taxing
Jurisdiction other than merely holding such Security or the receipt of
payments thereunder, including, without limitation, such Holder or
beneficial owner being or having been a national, domiciliary or
resident of such Relevant Taxing Jurisdiction or treated as a resident
thereof or being or having been physically present or engaged in a
trade or business therein or having or having had a permanent
establishment therein;
(b) the presentation of such Security (in cases in which
presentation is required) more than 30 days after the later of the
date on which the payment of the principal of, premium, if any, and
interest on, such Security became due and payable pursuant to the
terms thereof or was made or duly provided for; or
(c) the failure of the Holder or beneficial owner to comply with
a timely request from the Company or any successor, addressed to the
Holder or beneficial owner, as the case may be, to provide
certification, information, documents or other evidence concerning
such Holder's or beneficial owner's nationality, residence, identity
or connection with the Relevant Taxing Jurisdiction, or to make any
declaration or satisfy any other reporting requirement relating to
such matters, if and to the extent that due and timely compliance with
such request is required by law, regulation or administrative practice
of the Relevant Taxing Jurisdiction to reduce or eliminate any
withholding or deduction as to which Additional Amounts would have
otherwise been payable to such Holder;
(ii) any estate, inheritance, gift, sale, transfer, capital gains,
excise, personal property or similar tax, assessment or other governmental
charge;
(iii) any tax, duty, assessment or other governmental charge that is
payable otherwise than by withholding from payments under or with respect
to the Securities; or
(iv) any combination of taxes, duties, assessments or other
governmental charges referred to in the preceding clauses (i), (ii) or
(iii); or
63
(B) with respect to any payment of the principal of, or premium, if any, or
interest on, such Security to a Holder, if the Holder is a fiduciary,
partnership or person other than the sole beneficial owner of any payment to the
extent that such payment would be required to be included in the income under
the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary
or settlor with respect to the fiduciary, a member of that partnership or a
beneficial owner who would not have been entitled to such Additional Amounts had
that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
Whenever there is mentioned in any context the payment of principal of, and
any premium or interest on, any Security, such mention shall be deemed to
include payment of Additional Amounts provided for in this Indenture to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof.
10.04 COMPANY TO PROVIDE ORDINARY SHARES AND ADSS.
The Company shall at all times maintain out of its authorized but unissued
Ordinary Shares enough Ordinary Shares to permit the issuance of ADSs upon the
conversion, in accordance herewith, of all of the Securities. The ADSs, if any,
due upon conversion of a Global Security shall be delivered by the Company in
accordance with the Depositary's customary practices. All Ordinary Shares
represented by the ADSs which may be issued upon conversion of the Securities
shall be validly issued, fully paid and non-assessable and shall be free of
preemptive or similar rights and free of any lien or adverse claim.
The Company shall take all actions and obtain all approvals and
registrations required for the payment in accordance herewith of ADSs, if any,
deliverable upon the conversion of any Security, including the issuance of
Ordinary Shares represented by such ADSs, the deposit thereof in accordance with
the Deposit Agreement, the acceptance of such ADSs into the book-entry system
maintained by the Depositary and the listing of such ADSs on each national
securities exchange on which the ADSs are then listed.
The Company shall maintain, as long as the Securities are outstanding, the
effectiveness of a registration statement on Form F-6 relating to the ADSs and
an adequate number of ADSs available for issuance thereunder such that freely
tradeable ADSs can be delivered in accordance herewith upon conversion of the
Securities immediately following the earlier of (i) the effective date of the
Shelf Registration Statement (as defined in the Registration Rights Agreement)
or (ii) the first anniversary of the Issue Date. The Company shall comply with
all securities laws regulating the offer and delivery of ADSs upon conversion of
Securities.
10.05 ADJUSTMENT OF CONVERSION RATE.
The Conversion Rate shall be adjusted from time to time by the Company as
follows:
(A) In case the Company shall issue Ordinary Shares as a dividend or
distribution to holders of all or substantially all of the outstanding Ordinary
Shares, or shall effect a share split or share combination, the Conversion Rate
shall be adjusted based on the following formula:
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OS'
CR' = CR(0) X ------
OS(0)
where,
CR0 = the Conversion Rate in effect immediately prior to the Ex Date for
such dividend or distribution or immediately prior to the effective date of
such share split or combination, as the case may be;
CR' = the Conversion Rate in effect immediately after the Ex Date for such
dividend or distribution or immediately after the effective date of such
share split or combination, as the case may be;
OS(0) = the number of Ordinary Shares outstanding immediately prior to the
Ex Date for such dividend or distribution or immediately prior to the
effective date of such share split or combination, as the case may be; and
OS' = the number of Ordinary Shares outstanding immediately after giving
effect to such dividend or distribution or immediately after the effective
date of such share split or combination, as the case may be.
Such adjustment shall become effective immediately after 9:00 a.m., New
York City time, on the Ex Date fixed for such dividend or distribution, or the
effective date for such share split or share combination. If any dividend or
distribution of the type described in this SECTION 10.05(A) is declared but not
so paid or made, or the outstanding Ordinary Shares are not split or combined,
as the case may be, the Conversion Rate shall be immediately readjusted,
effective as of the date the Board of Directors determines not to pay such
dividend or distribution, or split or combine the outstanding Ordinary Shares,
as the case may be, to the Conversion Rate that would then be in effect if such
dividend, distribution, share split or share combination had not been declared.
(B) In case the Company shall distribute to all or substantially all
holders of its outstanding Ordinary Shares rights, warrants or options entitling
them (for a period expiring within 45 calendar days after the record date for
such distribution) to subscribe for or purchase Ordinary Shares (directly or in
the form of ADSs) at a price per share less than the Closing Sale Price of the
ADSs divided by the number of Ordinary Shares then represented by each ADS on
the Trading Day immediately preceding the declaration date of such distribution,
the Conversion Rate shall be adjusted based on the following formula:
OS(0) + X
CR' = CR(0) X ---------
OS(0) + Y
where,
65
CR(0) = the Conversion Rate in effect immediately prior to the Ex Date for
such distribution;
CR' = the Conversion Rate in effect immediately after the Ex Date for such
distribution;
OS(0) = the number of Ordinary Shares outstanding immediately prior to the
Ex Date for such distribution;
X = the total number of Ordinary Shares issuable (directly or in the form
of ADSs) pursuant to such rights, warrants or options; and
Y = the number of Ordinary Shares equal to (A) the aggregate price payable
to exercise such rights, warrants or options divided by (B) the quotient of
(i) the average of each of the Closing Sale Price of the ADSs divided by
(ii) the number of Ordinary Shares then represented by each ADS over the
10-consecutive-Trading-Day period ending on the Trading Day immediately
preceding the Ex Date for such distribution.
Such adjustment shall be successively made whenever any such rights,
warrants or options are distributed and shall become effective immediately after
the opening of business on the Ex Date for such distribution. The Company shall
not issue any such rights, warrants or options in respect of Ordinary Shares
held in treasury by the Company. To the extent that Ordinary Shares are not
delivered after the expiration of such rights, warrants or options, the
Conversion Rate shall be readjusted to the Conversion Rate that 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 Ordinary Shares
actually delivered (directly or in the form of ADSs). If such rights, warrants
or options are not so issued, the Conversion Rate shall again be adjusted to be
the Conversion Rate that would then be in effect if such Ex Date for such
distribution had not been fixed.
In determining whether any rights, warrants or options entitle the holders
to subscribe for or purchase Ordinary Shares (directly or in the form of ADSs)
at less than such Closing Sale Price (as divided by the number of Ordinary
Shares then represented by each ADS), and in determining the aggregate offering
price of such Ordinary Shares, there shall be taken into account any
consideration received by the Company for such rights, warrants or options and
any amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of Directors.
(C) In case the Company shall, by dividend or otherwise, distribute to all
or substantially all holders of its Ordinary Shares of any class of Share
Capital of the Company (other than Ordinary Shares as covered by SECTION
10.05(A)), evidences of its Indebtedness or other assets or property of the
Company (including securities, but excluding dividends and distributions covered
by SECTION 10.05(B) or 10.05(D) and distributions described below in this
subsection (c) with respect to Spin-Offs) (any of such shares of Share Capital,
Indebtedness, or other asset or property hereinafter in this SECTION 10.05(C)
called the "DISTRIBUTED PROPERTY"), then, in each such case the Conversion Rate
shall be adjusted based on the following formula:
66
SP(0)
CR' = CR(0) X -----------
SP(0) - FMV
where,
CR(0) = the Conversion Rate in effect immediately prior to the Ex Date for
such distribution;
CR' = the Conversion Rate in effect immediately after the Ex Date for such
distribution;
SP(0) = the average of each of the Closing Sale Price of the ADSs divided
by the number of Ordinary Shares then represented by each ADS over the
10-consecutive-Trading-Day period ending on the Trading Day immediately
preceding the Ex Date for such distribution; and
FMV = the fair market value as determined in good faith by the Board of
Directors of the shares of Share Capital, evidences of Indebtedness, or
other assets or property distributed with respect to each outstanding
Ordinary Share on the Ex Date for such distribution.
Such adjustment shall become effective immediately prior to the opening of
business on the Ex Date for such distribution; provided that if "FMV" as set
forth above is equal to or greater than "SP0" as set forth above, in lieu of the
foregoing adjustment, adequate provision shall be made so that each Holder of
Securities has the right to receive, for each $1,000 principal amount of
Securities, the amount of Distributed Property such holder would have received
had such holder owned a number of Ordinary Shares equal to the Conversion Rate
on the record date for such distribution multiplied by the number of Ordinary
Shares then represented by each ADS, without being required to convert the
Securities. If such distribution is not so paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate that would then be in effect
if such dividend or distribution had not been declared. If the Board of
Directors determines "FMV" for purposes of this SECTION 10.05(C) by reference to
the actual or when issued trading market for any securities, it must in doing so
consider the prices in such market over the same period used in computing the
Closing Sale Prices of the ADSs divided by the number of Ordinary Shares then
represented by each ADS over the ten consecutive Trading Day period ending on
the Trading Day immediately preceding the Ex Date for such distribution.
With respect to an adjustment pursuant to this SECTION 10.05(C) where there
has been a payment of a dividend or other distribution on the Ordinary Shares in
shares of any class or series, or similar equity interest, in the Share Capital
of or relating to a Subsidiary or other business unit (a "SPIN-OFF"), the
Conversion Rate in effect immediately before 5:00 p.m., New York City time, on
the 10th Trading Day immediately following, and including, the effective date of
the Spin-Off shall be increased based on the following formula:
FMV(0) + MP(0)
CR' = CR(0) X --------------
MP(0)
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where,
CR(0) = the Conversion Rate in effect immediately prior to the 10th Trading
Day immediately following the effective date of the Spin-Off;
CR' = the Conversion Rate in effect immediately after the 10th Trading Day
immediately following the effective date of the Spin-Off;
FMV(0) = the average of the Closing Sale Prices of the shares or similar
equity interest distributed to holders of Ordinary Shares applicable to one
Ordinary Share over the first 10-consecutive-Trading-Day period immediately
following, and including, the effective date of the Spin-Off; and
MP(0) = the average of each of the Closing Sale Price of the ADSs divided
by the number of Ordinary Shares then represented by each ADS on such
Trading Day over the first 10-consecutive-Trading-Day period immediately
following, and including, the effective date of the Spin-Off.
Such adjustment shall occur on the 10th Trading Day from, and including,
the effective date of the Spin-Off; provided that in respect of any conversion
within the 10 Trading Days immediately following, and including, the effective
date of any Spin-Off, references with respect to the Spin-Off to 10 Trading Days
shall be deemed replaced with such lesser number of Trading Days as have elapsed
between the effective date of such Spin-Off and the Conversion Date in
determining the applicable Conversion Rate.
Rights, warrants or options distributed by the Company to all holders of
Ordinary Shares, entitling the holders thereof to subscribe for or purchase ADSs
or shares of the Company's Share Capital, including Ordinary Shares (either
initially or under certain circumstances), which rights, warrants or options,
until the occurrence of a specified event or events ("TRIGGER EVENT"): (i) are
deemed to be transferred with such Ordinary Shares; (ii) are not exercisable;
and (iii) are also issued in respect of future issuances of Ordinary Shares,
shall be deemed not to have been distributed for purposes of this Section (and
no adjustment to the Conversion Rate under this Section shall be required) until
the occurrence of the earliest Trigger Event, whereupon such rights, warrants
and options shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
SECTION 10.05(C). If any such rights, warrants or options are subject to events,
upon the occurrence of which such rights, warrants or options become exercisable
to purchase different securities, evidences of Indebtedness or other assets,
then the date of the occurrence of any and each such event shall be deemed to be
the date of distribution and record date with respect to new rights, warrants or
options with such rights (and a termination or expiration of the existing
rights, warrants or options without exercise by any of the holders thereof). In
addition, in the event of any distribution (or deemed distribution) of rights,
warrants or options, or any Trigger Event or other event (of the type described
in the preceding sentence) with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to the Conversion Rate
under this Section was made, (1) in the case of any such rights, warrants or
options that shall all have been redeemed or repurchased without exercise by any
holders thereof,
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the Conversion Rate shall be readjusted upon such final redemption or repurchase
to give effect to such distribution or Trigger Event, as the case may be, as
though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder or holders of Ordinary Shares with respect
to such rights, warrants or options (assuming such holder had retained such
rights, warrants or options), made to all holders of Ordinary Shares as of the
date of such redemption or repurchase, and (2) in the case of such rights,
warrants or options that shall have expired or been terminated without exercise
by any holders thereof, the Conversion Rate shall be readjusted as if such
rights, warrants and options had not been issued.
For purposes of this SECTION 10.05(C) and SECTIONS 10.05(A) and 10.05(B),
any dividend or distribution to which this SECTION 10.05(C) is applicable that
also includes Ordinary Shares to which SECTION 10.05(A) applies or rights,
warrants or options to subscribe for or purchase Ordinary Shares (directly or in
the form of ADSs) to which SECTION 10.05(A) or 10.05(B) APPLIES (or both), shall
be deemed instead to be (1) a dividend or distribution of the evidences of
Indebtedness, assets or shares of capital stock other than such Ordinary Shares
or rights, warrants or options, to which this SECTION 10.05(C) applies (and any
Conversion Rate adjustment required by this SECTION 10.05(C) with respect to
such dividend or distribution shall then be made) immediately followed by (2) a
dividend or distribution of such Ordinary Shares or such rights, warrants or
options (and any further Conversion Rate adjustment required by SECTION 10.05(A)
and 10.05(B) of this Section with respect to such dividend or distribution shall
then be made), except (A) the Ex Date of such dividend or distribution shall
under this SECTION 10.05(C) be substituted as "the Ex Date" within the meaning
of SECTION 10.05(A) and SECTIONS 10.05(A) and 10.05(B) any Ordinary Shares
included in such dividend or distribution shall not be deemed "outstanding
immediately prior to the Ex Date for such dividend or distribution or
immediately prior to the effective date of such share split or combination, as
the case may be" within the meaning of SECTION 10.05(A) or "outstanding
immediately prior to the Ex Date for such distribution" within the meaning of
SECTION 10.05(B).
(D) In case the Company shall pay dividends or make distributions
consisting exclusively of cash to all or substantially all holders of its
Ordinary Shares, the Conversion Rate shall be adjusted based on the following
formula:
SP(0)
CR' = CR(0) X ---------
SP(0) - C
where,
CR(0) = the Conversion Rate in effect immediately prior to the Ex Date for
such distribution;
CR' = the Conversion Rate in effect immediately after the Ex Date for such
distribution;
SP(0) = the Closing Sale Price of the ADSs divided by the number of
Ordinary Shares then represented by each ADS on the Trading Day immediately
preceding the Ex Date for such distribution; and
69
C = the amount in cash per share distributed to holders of Ordinary Shares
in such distribution.
Such adjustment shall become effective immediately after the opening of
business on the Ex Date for such dividend or distribution; provided that if the
portion of the cash so distributed applicable to one Ordinary Share is equal to
or greater than SP0 as set forth above, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder of Securities shall receive
on the date on which such cash dividend is distributed to holders of Ordinary
Shares, for each $1,000 principal amount of Securities, the amount of cash such
holder would have received had such holder owned a number of Ordinary Shares
equal to the Conversion Rate on the Ex Date for such distribution multiplied by
the number of Ordinary Shares then represented by each ADS, without being
required to convert the Securities. If such dividend or distribution is not so
paid or made, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such dividend or distribution had not been
declared.
For the avoidance of doubt, for purposes of this SECTION 10.05(D), in the
event of any reclassification of the Ordinary Shares, as a result of which the
ADSs represent more than one class of Ordinary Shares, if an adjustment to the
Conversion Rate is required pursuant to this SECTION 10.05(D), references in
this Section to one Ordinary Share or the Closing Sale Price of one ADS (as
divided by the number of Ordinary Shares then represented by each ADS) shall be
deemed to refer to a unit or to the price of a unit consisting of the number of
shares of each class of Ordinary Shares equal to the numbers of shares of such
class issued in respect of one Ordinary Share in such reclassification. The
above provisions of this paragraph shall similarly apply to successive
reclassifications.
(E) In case the Company or any of its Subsidiaries make a payment in
respect of a tender offer or exchange offer for all or any portion of the
Ordinary Shares, or ADSs representing Ordinary Shares, to the extent that the
cash and value of any other consideration included in the payment per Ordinary
Share, or equivalent payment per Ordinary Share then represented by our ADSs,
exceeds the Closing Sale Price of the ADSs divided by the number of Ordinary
Shares then represented by each ADS on the Trading Day next succeeding the last
date on which tenders or exchanges may be made pursuant to such tender or
exchange offer (as it may be amended), the Conversion Rate shall be increased
based on the following formula:
AC + (SP' x OS')
CR' = CR(0) X ----------------
OS(0) x SP'
where,
CR(0) = the Conversion Rate in effect on the date such tender or exchange
offer expires;
CR' = the Conversion Rate in effect on the day next succeeding the date
such tender or exchange offer expires;
70
AC = the aggregate value of all cash and any other consideration as
determined by the Board of Directors paid or payable for the Ordinary
Shares purchased (directly or in the form of ADSs) in such tender or
exchange offer;
OS(0) = the number of Ordinary Shares outstanding immediately prior to the
date such tender or exchange offer expires;
OS' = the number of Ordinary Shares outstanding immediately after the date
such tender or exchange offer expires (after giving effect to such tender
offer or exchange offer); and
SP' = the Closing Sale Price of the ADSs divided by the number of Ordinary
Shares then represented by each ADS on the Trading Day next succeeding the
date such tender or exchange offer expires.
Such adjustment shall become effective immediately after close of business
on the Trading Day next succeeding the date such tender or exchange offer
expires. If the Company or its Subsidiary is obligated to purchase Ordinary
Shares pursuant to any such tender or exchange offer, but the Company or its
Subsidiary is permanently prevented by applicable law from effecting all or any
such purchases or all or any portion of such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such tender or exchange offer had not been made or had only
been made in respect of the purchases that had been effected.
No adjustment to the Conversion Rate shall be made if the application of
any of the foregoing formulas (other than in connection with a share
combination) would result in a decrease in the Conversion Rate.
For purposes of this SECTION 10.05 the term "RECORD DATE" shall mean, with
respect to any dividend, distribution or other transaction or event in which the
holders of Ordinary Shares have the right to receive any cash, securities or
other property or in which the Ordinary Shares (or other applicable security) is
exchanged for or converted into any combination of cash, securities or other
property, the date fixed for determination of shareholders 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).
The term "EX DATE," (i) when used with respect to any issuance or
distribution, means the first date on which the ADSs trades the regular way on
the relevant exchange or in the relevant market from which the Closing Sale
Price was obtained without the right to receive such issuance or distribution,
(ii) when used with respect to any share split or combination of shares of
Ordinary Shares, means the first date on which the ADSs trades the regular way
on such exchange or in such market after the time at which such share split or
combination becomes effective, and (iii) when used with respect to any tender
offer or exchange offer means the first date on which the ADSs trades the
regular way on such exchange or in such market after the expiration time of such
tender offer or exchange offer (as it may be amended or extended).
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(F) In addition to those required by SECTION 10.05(A) through SECTION
10.05(E), and to the extent permitted by applicable law and the continued
listing requirements of the New York Stock Exchange, the Company from time to
time may increase the Conversion Rate by any amount for a period of at least
twenty (20) calendar days or any longer period permitted by law if the Board of
Directors determines that such increase would be in the Company's best interest.
Whenever the Conversion Rate is increased pursuant to the preceding sentence,
the Company shall mail to the Holder of each Security at his last address
appearing on the Register provided for in SECTION 2.05 a notice of the increase
at least fifteen (15) calendar days prior to the date the increased Conversion
Rate takes effect, and such notice shall state the increased Conversion Rate and
the period during which it will be in effect. In addition, the Company may also
(but is not required to) increase the Conversion Rate to avoid or diminish any
tax to holders of Ordinary Shares or ADSs or rights to purchase Ordinary Shares
or ADSs in connection with any dividend or distribution of shares (or rights to
acquire shares) or similar event.
(G) Without limiting the foregoing, no adjustment to the Conversion Rate
need be made
(i) upon the issuance of any ADSs or Ordinary Shares pursuant to any
future plan providing for the reinvestment of dividends or interest payable
on securities of the Company and the investment of additional optional
amounts in Ordinary Shares under any plan;
(ii) upon the issuance of any ADSs or Ordinary Shares, or any option,
warrant, right or exercisable, exchangeable or convertible security to
purchase ADSs or Ordinary Shares, pursuant to any future agreements entered
into with the Company's suppliers of raw materials or machinery as
consideration or inducement to enter into such supply agreement;
(iii) upon the issuance of any ADSs or Ordinary Shares or options or
rights to purchase ADSs or Ordinary Shares pursuant to any present or
future employee, director or consultant benefit plan or program of or
assumed by the Company or any of its Subsidiaries;
(iv) upon the issuance of any ADSs or Ordinary Shares pursuant to any
option, warrant, right, or exercisable, exchangeable or convertible
security not described in clause (iii) above and outstanding as of the date
of this Indenture (unless explicitly otherwise provided for in this
Section);
(v) for a change in the par value of the Ordinary Shares; or
(vi) for accrued and unpaid Interest (including any Additional
Interest).
(H) No adjustment shall be made for the Company's issuance of Ordinary
Shares (directly or in the form of ADSs) or convertible or exchangeable
securities or rights to purchase
72
Ordinary Shares (directly or in the form of ADSs) or convertible or exchangeable
securities, other than as provided in this Section.
(I) In any case in which this Section provides that an adjustment shall
become effective immediately after (1) the Ex Date for an event or (2) the last
date on which tenders or exchanges may be made pursuant to any tender or
exchange offer pursuant to SECTION 10.05(E) of this Section (each an "ADJUSTMENT
DETERMINATION DATE"), the Company may elect to defer until the occurrence of the
applicable Adjustment Event (as hereinafter defined) (x) issuing to the Holder
of any Security converted after such Adjustment Determination Date and before
the occurrence of such Adjustment Event, the additional Conversion Settlement
Distribution or other securities issuable upon such conversion by reason of the
adjustment required by such Adjustment Event over and above the amounts
deliverable upon such conversion before giving effect to such adjustment and (y)
paying to such Holder any amount in cash in lieu of any fractional ADS pursuant
to SECTION 10.02(B). For purposes of this subsection (i), the term "ADJUSTMENT
EVENT" shall mean:
(i) in any case referred to in clause (1) hereof, the date any
dividend or distribution of Ordinary Shares (directly or in the form of
ADSs), shares of Share Capital, evidences of Indebtedness, other assets or
property or cash is paid or made, the effective date of any share split or
combination or the date of expiration of any rights, warrants or options,
and
(ii) in any case referred to in clause (2) hereof, the date a sale or
exchange of Ordinary Shares (directly or in the form of ADSs) pursuant to
such tender or exchange offer is consummated and becomes irrevocable.
(J) For the avoidance of doubt, if a holder converts Securities prior to
the effective date of a Fundamental Change, and the Fundamental Change does not
occur, the Holder shall not be entitled to Make-Whole Consideration in
connection with such conversion.
(K) In the event that the Company elects to settle the Conversion
Obligation in accordance with SECTION 10.02(A)(III)(C), at and after the close
of business on the last VWAP Trading Day (the "RELEVANT DATE") of the related
Cash Settlement Averaging Period, the Person in whose names any ADSs issuable
upon such conversion are registered shall be treated as the holder of record
thereof on such Relevant Date; provided, however, that if any such ADSs
constitute Make-Whole Consideration, then the Relevant Date with respect to such
shares that constitute Make-Whole Consideration shall instead be deemed to be
the later of (i) the last VWAP Trading Day of the related Cash Settlement
Averaging Period and (ii) the Make-Whole Reference Date of the Make-Whole
Fundamental Change resulting in the Make-Whole Consideration.
(L) Whenever any provision of this ARTICLE X requires a calculation of
Closing Sale Prices or Daily VWAP over a span of multiple days, the Company
shall make appropriate adjustments to the Conversion Settlement Distribution
(determined in good faith by the Board of Directors) to account for any
adjustment to the Conversion Rate that becomes effective, or any
73
event requiring an adjustment to the Conversion Rate where the Ex Date of the
event occurs, at any time during the period from which such calculation is to be
calculated; provided that such adjustments shall only be made to the Conversion
Settlement Distribution relating to days prior to the date that the adjustment
to the Conversion Rate becomes effective.
(M) Before taking any action which would cause an adjustment reducing the
Conversion Rate below the then par value, if any, of the Ordinary Shares
multiplied by the number of Ordinary Shares then represented by each ADS, the
Company shall take all corporate action which it reasonably determines may be
necessary in order that the Company may validly and legally issue Ordinary
Shares represented by the ADSs issuable upon conversion of the Securities at
such adjusted Conversion Rate. The Company covenants that all Ordinary Shares
represented by the ADSs issuable upon conversion of the Securities shall be
fully paid and non-assessable by the Company and free from all taxes, liens and
changes with respect to the issue thereof.
(N) Whenever the Conversion Rate is adjusted as herein provided:
(i) The Company shall compute the adjusted Conversion Rate in
accordance with SECTION 10.05 and shall prepare a certificate signed by the
Chief Financial Officer of the Company setting forth the adjusted
Conversion Rate and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall promptly be filed with the
Trustee and with each Conversion Agent (if other than the Trustee); and
(ii) Upon each such adjustment, a notice stating that the Conversion
Rate has been adjusted and setting forth the adjusted Conversion Rate shall
be required, such notice shall be provided by the Company to all Holders in
accordance with SECTION 12.02.
10.06 NO ADJUSTMENT.
Notwithstanding anything to the contrary in SECTION 10.05, no adjustment in
the Conversion Rate pursuant to SECTION 10.05 shall be required until cumulative
adjustments amount to one percent (1%) or more of the Conversion Rate as last
adjusted (or, if never adjusted, the initial Conversion Rate); provided,
however, that any adjustments to the Conversion Rate which by reason of this
SECTION 10.06 are not required to be made shall be carried forward and taken
into account in any subsequent adjustment to the Conversion Rate; provided
further, that (i) if the Company shall mail a notice of Redemption pursuant to
SECTION 3.04, or if a Fundamental Change or Make-Whole Fundamental Change
occurs, or if the Securities shall become convertible pursuant to SECTION
10.01(A)(III) or SECTION 10.01(A)(IV), (ii) on April 15 of each year, and (iii)
on the date that is twenty-nine (29) Scheduled Trading Days prior to, and on
each VWAP Trading Day thereafter until, April 15, 2013 any adjustments to the
Conversion Rate that have been, and at such time remain, deferred pursuant to
this SECTION 10.06 shall be given effect, and such adjustments, if any, shall no
longer be carried forward and taken into account in any subsequent adjustment to
the Conversion Rate. All calculations under this
74
ARTICLE X shall be made to the nearest cent or to the nearest one-millionth of
an ADS, as the case may be.
If any rights, options or warrants issued by the Company and requiring an
adjustment to the Conversion Rate in accordance with SECTION 10.05 are only
exercisable upon the occurrence of certain triggering events, then the
Conversion Rate will not be adjusted as provided in SECTION 10.05 until the
earliest of such triggering event occurs. Upon the expiration or termination of
any such rights, options or warrants without the exercise of such rights,
options or warrants, the Conversion Rate then in effect shall be adjusted
immediately to the Conversion Rate that would have been in effect at the time of
such expiration or termination had such rights, options or warrants, to the
extent outstanding immediately prior to such expiration or termination, never
been issued.
No adjustment to the Conversion Rate need be made pursuant to SECTION 10.05
for a transaction if Holders are to participate in the transaction without
conversion on a basis and with notice that the Board of Directors determines in
good faith to be fair and appropriate in light of the basis and notice on which
holders of ADSs participate in the transaction (which determination shall be
described in a Board Resolution).
Notwithstanding anything herein to the contrary, in no event shall the
Conversion Rate be increased pursuant to SECTION 10.05(B), SECTION 10.05(C),
SECTION 10.05(D) or SECTION 10.05(E) to the extent, but only to the extent, such
increase shall cause the Conversion Rate applicable to such Security to exceed
31.8167 ADSs shares per $1,000 principal amount (the "BCF ADJUSTMENT CAP");
provided, however, that the BCF Adjustment Cap shall be adjusted in the same
manner in which the Conversion Rate is to be adjusted pursuant to this ARTICLE
X.
10.07 OTHER ADJUSTMENTS.
In the event that, as a result of an adjustment made pursuant to SECTION
10.05 hereof, the Holder of any Security thereafter surrendered for conversion
may, subject to the Company's right of election pursuant to SECTION 10.02,
become entitled to receive any shares or securities other than ADSs, or if the
Ordinary Shares represented by such ADSs become converted, exchanged,
reclassified or otherwise changed into other shares or securities, thereafter
the Conversion Rate of such other shares so receivable upon conversion of any
Security shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to ADSs
(taking into account the number of Ordinary Shares represented by each ADS
immediately prior to such adjustment of the Conversion Rate or such change in
the ADSs or Ordinary Shares, as the case may be) contained in this ARTICLE X.
In the event that the facility for the ADSs maintained with the ADS
Depositary pursuant to the Deposit Agreement is terminated for any reason, but
such event does not constitute a Termination of Trading because the Ordinary
Shares are then listed for trading on a U.S. national securities exchange, all
references herein and in the Securities to the "ADSs", the "Closing Sale Price"
and the "Daily VWAP" will be deemed to refer to the "Ordinary Shares", and the
"Closing Sale Price" and "Daily VWAP" of the Ordinary Shares, respectively, and
other
75
appropriate adjustments will be made to the provisions hereunder and in the
Securities to reflect such change.
In the event that the facility for the ADSs maintained with the ADS
Depositary pursuant to the Deposit Agreement is terminated for any reason, but
such event does not constitute a Termination of Trading, then the provisions of
SECTION 3.09 shall apply.
In the event that the facility for the ADSs maintained with the ADS
Depositary pursuant to the Deposit Agreement is terminated for any reason
(whether or not such event constitutes a Termination of Trading), Holders' right
to convert Securities into ADSs under this ARTICLE X shall become a right to
convert Securities into Ordinary Shares (subject to the Company's right under
SECTION 10.02 to deliver cash in lieu thereof) at a Conversion Rate, subject to
adjustment from time to time in accordance with this ARTICLE X, equal to (i) the
number of Ordinary Shares represented by each ADS immediately prior to such
termination, multiplied by (ii) the Conversion Rate applicable immediately prior
to such termination, multiplied by (iii) the aggregate principal amount of the
Securities being converted divided by $1,000.
10.08 ADJUSTMENTS FOR TAX PURPOSES.
Except as prohibited by law the Company may (but is not obligated to) make
such increases in the Conversion Rate, in addition to those required by SECTION
10.05 hereof, as it determines to be advisable in order that any share dividend,
subdivision of shares, distribution of rights to purchase shares or securities
or distribution of securities convertible into or exchangeable for shares made
by the Company or to holders of Ordinary Shares or ADSs will not be taxable to
the recipients thereof or in order to diminish any such taxation.
10.09 NOTICE OF ADJUSTMENT.
Whenever the Conversion Rate is adjusted, the Company shall promptly mail
to Holders at the addresses appearing on the Registrar's books a notice of the
adjustment and file with the Trustee, the Conversion Agent and the Securities
Agent an Officer's Certificate briefly stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence of the correctness of such adjustment.
10.10 NOTICE OF CERTAIN TRANSACTIONS.
In the event that:
(1) the Company takes any action, or becomes aware of any event, which
would require an adjustment in the Conversion Rate,
(2) the Company takes any action that would require a supplemental
indenture pursuant to SECTION 10.11, or
(3) there is a dissolution or liquidation of the Company,
76
the Company shall mail to Holders at the addresses appearing on the Registrar's
books, and to the Trustee, the Conversion Agent and the Securities Agent, a
written notice stating the proposed Ex Date, effective date or expiration date,
as the case may be, of any transaction referred to in CLAUSE (1), (2) or (3) of
this SECTION 10.10. The Company shall mail such notice at least thirty (30)
Scheduled Trading Days before such date; however, failure to mail such notice or
any defect therein shall not affect the validity of any transaction referred to
in CLAUSE (1), (2) or (3) of this SECTION 10.10.
10.11 EFFECT OF RECLASSIFICATIONS, BUSINESS COMBINATIONS, ASSET SALES AND
OTHER CORPORATE EVENTS ON CONVERSION PRIVILEGE.
Except as provided in SECTION 10.14(E), if any of the following shall
occur, namely: (i) any reclassification or change in the Ordinary Shares
represented by the ADSs issuable upon conversion of Securities (other than a
change only 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 of Ordinary
Shares), (ii) any consolidation, merger, binding share exchange, reconstruction,
amalgamation or other similar arrangement, or such to which the Company is a
party, other than a merger in which the Company is the continuing Person and
which does not result in any reclassification of, or change (other than a change
in name, or par value, or from par value to no par value, or from no par value
to par value or as a result of a subdivision or combination) in, the Ordinary
Shares, or (iii) any sale, transfer, lease, conveyance or other disposition of
all or substantially all of the property or assets of the Company, in each case,
pursuant to which the Ordinary Shares would be converted into or exchanged for,
or would constitute solely the right to receive, cash, securities or other
property, then the Company or such successor or purchasing Person, as the case
may be, shall execute and deliver to the Trustee and the Securities Agent a
supplemental indenture in form reasonably satisfactory to the Trustee and the
Securities Agent providing that, at and after the effective time of such
reclassification, change, consolidation, merger, binding share exchange,
reconstruction, amalgamation or other similar arrangement, or such sale,
transfer, lease, conveyance or disposition, the Holder of each Security then
outstanding shall have the right to convert such Security (if otherwise
convertible pursuant to this ARTICLE X) into the kind and amount of cash,
securities or other property (collectively, "REFERENCE PROPERTY") receivable
upon such reclassification, change, consolidation, merger, binding share
exchange, reconstruction, amalgamation or other similar arrangement, or such
sale, transfer, lease, conveyance or disposition by a holder of a number of
Ordinary Shares equal to the product of (i) the number of Ordinary Shares then
represented by each ADS, and (ii) a fraction whose denominator is one thousand
(1,000) and whose numerator is the product of the principal amount of such
Security and the Conversion Rate in effect immediately prior to such
reclassification, change, consolidation, merger, binding share exchange,
reconstruction, amalgamation or other similar arrangement, or such sale,
transfer, lease, conveyance or disposition (assuming, if holders of Ordinary
Shares shall have the opportunity to elect the form of consideration to receive
pursuant to such reclassification, change, consolidation, merger, binding share
exchange, reconstruction, amalgamation or other similar arrangement, or such
sale, transfer, lease, conveyance or disposition, that the Collective Election
shall have been made with respect to such
77
election); provided, however, that at and after the effective time of such
reclassification, change, consolidation, merger, binding share exchange,
reconstruction, amalgamation or other similar arrangement, or such sale,
transfer, lease, conveyance or disposition, the Company shall continue to have
the right to elect in accordance with SECTION 10.02 to deliver cash in full or
partial settlement of the Conversion Obligation pursuant to SECTION 10.02 with
respect to the conversion of any Security and the Conversion Settlement
Distribution deliverable upon the conversion of any Security shall be calculated
based on the fair value of the Reference Property instead of the Closing Sale
Price per Ordinary Share. If holders of Ordinary Shares shall have the
opportunity to elect the form of consideration to receive pursuant to such
reclassification, change, consolidation, merger, binding share exchange,
reconstruction, amalgamation or other similar arrangement, or such sale,
transfer, lease, conveyance or disposition, the kind and amount of consideration
that a holder of Ordinary Shares would have been entitled to shall be deemed to
be (i) the weighted average of the kind and amount of consideration received by
the holders of Ordinary Shares that affirmatively make such an election or (ii)
if no holders of Ordinary Shares affirmatively make such an election, the kind
and amount of consideration actually received by such holders. The supplemental
indenture referred to in the first sentence of this paragraph shall provide for
adjustments of the Conversion Rate which shall be as nearly equivalent as may be
practicable to the adjustments of the Conversion Rate provided for in this
ARTICLE X. The foregoing, however, shall not in any way affect the right a
Holder of a Security may otherwise have, pursuant to SECTION 10.05(C), SECTION
10.05(H) or SECTION 10.13, to receive rights or warrants upon conversion or a
Security. If, in the case of any such consolidation, merger, binding share
exchange, reconstruction, amalgamation or other similar arrangement, or such
sale, transfer, lease, conveyance or disposition, the cash, securities or other
and property receivable thereupon by a holder of Ordinary Shares includes cash,
securities or other property of a Person other than the successor or purchasing
Person, as the case may be, in such consolidation, merger, binding share
exchange, reconstruction, amalgamation or other similar arrangement, or such
sale, transfer, lease, conveyance or disposition, then such supplemental
indenture shall also be executed by such other Person and shall contain such
additional provisions to protect the interests of the Holders of the Securities
as the Board of Directors in good faith shall reasonably determine necessary by
reason of the foregoing (which determination shall be described in a Board
Resolution). The provisions of this SECTION 10.11 shall similarly apply to
successive consolidations, mergers, binding share exchanges, reconstruction,
amalgamation or other similar arrangement, or successive sales, transfers,
leases, conveyances or dispositions.
In the event the Company shall execute a supplemental indenture pursuant to
this SECTION 10.11, the Company shall promptly file with the Trustee, the
Conversion Agent and the Securities Agent an Officer's Certificate briefly
stating the reasons therefore, the kind or amount of shares of stock or
securities or property (including cash) receivable by Holders of the Securities
upon the conversion of their Securities after any such reclassification, change,
consolidation, merger, binding share exchange, reconstruction, amalgamation or
other similar arrangement, or such sale, transfer, lease, conveyance or
disposition and any adjustment to be made with respect thereto.
78
10.12 DISCLAIMER OF THE TRUSTEE, THE CONVERSION AGENT AND THE SECURITIES
AGENT.
None of the Trustee, the Conversion Agent or the Securities Agent shall
have any duty to determine when an adjustment under this ARTICLE X should be
made, how it should be made or what such adjustment should be, but each may
accept as conclusive evidence of the correctness of any such adjustment, and
shall be protected in relying upon, the Officer's Certificate with respect
thereto which the Company is obligated to file with the Trustee, the Conversion
Agent and the Securities Agent pursuant to SECTION 10.09 hereof. None of the
Trustee, the Conversion Agent or the Securities Agent makes any representation
as to the validity or value of any securities or assets issued upon conversion
of Securities, and none of them shall be responsible for the failure by the
Company to comply with any provisions of this ARTICLE X.
None of the Trustee, the Conversion Agent or the Securities Agent shall be
under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture executed pursuant to SECTION 10.11, but
each of them may accept as conclusive evidence of the correctness thereof, and
shall be protected in relying upon, an Opinion of Counsel and the Officer's
Certificate with respect thereto which the Company is obligated to file with the
Trustee and the Securities Agent pursuant to SECTION 10.11 hereof.
10.13 RIGHTS DISTRIBUTIONS PURSUANT TO ANTI-TAKEOVER PROVISIONS.
Upon conversion of any Security or a portion thereof, to the extent the
Holder thereof receives ADSs upon such conversion, the Company shall make
provision for such Holder to receive, in addition to, and concurrently with the
delivery of, such ADSs any preferred shares or other securities or rights issued
or distributed to holders of Ordinary Shares by the Board of Directors or the
Company pursuant to the anti-takeover provisions in the Company's Articles of
Association, whether or not such preferred shares, securities or rights were
issued or distributed prior to the time of such conversion, but only to the
extent other holders of ADSs would receive such preferred shares or other
securities or rights. In the event that, after the date hereof, the Company
amends, supplements or supersedes the anti-takeover provisions in its Articles
of Association to provide, or if the Board of Directors approve a resolution,
for the issuance or distribution of any such preferred shares or other
securities or rights to holders of Ordinary Shares, the Company shall provide
that the Holders will receive, upon conversion of their Securities, in addition
to the consideration otherwise payable hereunder upon such conversion, the such
shares, securities or rights, but only to the extent such Holder will receive
ADSs upon such conversion and only to the extent other holders of ADSs would
receive such preferred shares, securities or rights.
Any distribution of preferred shares, securities or rights pursuant to such
anti-takeover provisions or Board Resolution will not result in an adjustment to
the Conversion Rate pursuant to SECTION 10.05(B) and 10.05(C) above if the
Company has made proper provision for Holders to receive, to the extent they
receive ADSs upon conversion hereunder, to also receive such preferred shares,
securities or rights to the same extent as other holders of ADSs in accordance
with the terms of the Deposit Agreement.
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10.14 INCREASED CONVERSION RATE APPLICABLE TO CERTAIN SECURITIES
SURRENDERED IN CONNECTION WITH MAKE-WHOLE FUNDAMENTAL CHANGES.
(A) Notwithstanding anything herein to the contrary, the Conversion Rate
applicable to each Security that is surrendered for conversion, in accordance
with this Article X, at any time during the period (the "MAKE-WHOLE CONVERSION
PERIOD") that begins on, and includes, the date that is thirty (30) Scheduled
Trading Days prior to the date originally announced by the Company as the
anticipated effective date of a Make-Whole Fundamental Change (which anticipated
effective date the Company shall disclose, in good faith, in the written notice,
public announcement and publication referred to in SECTION 10.14(D)) and ends
on, and includes, the Fundamental Change Repurchase Date applicable to such
Make-Whole Fundamental Change, shall be increased to an amount equal to the
Conversion Rate that would, but for this SECTION 10.14, otherwise apply to such
Security pursuant to this ARTICLE X, plus an amount equal to the Make-Whole
Applicable Increase; provided, however, that such increase to the Conversion
Rate shall not apply if such Make-Whole Fundamental Change is announced by the
Company but shall not be consummated.
The additional consideration payable hereunder on account of any Make-Whole
Applicable Increase with respect to a Security surrendered for conversion is
herein referred to as the "MAKE-WHOLE CONSIDERATION."
The Make-Whole Consideration due upon a conversion of a Security by a
Holder shall be paid as soon as practicable after the Conversion Date of such
conversion, but in no event later than the later of (1) the Conversion
Settlement Date for such conversion, and (2) the third (3rd) Business Day after
the Make-Whole Reference Date of the applicable Make-Whole Fundamental Change.
80
MAKE-WHOLE REFERENCE DATE
--------------------------------------------------------------------
APRIL 9, APRIL 15, APRIL 15, APRIL 15, APRIL 15, APRIL 15,
APPLICABLE PRICE 2008 2009 2010 2011 2012 2013
---------------- -------- --------- --------- --------- --------- ---------
$31.43.......... 6.3633 6.3633 6.3633 6.3633 6.3633 6.3633
40.00........... 5.4001 4.8191 3.8619 2.8488 2.5770 0.0000
50.00........... 3.4016 2.7735 1.7949 0.2701 0.0753 0.0000
51.07........... 2.4438 1.8621 1.0004 0.0000 0.0000 0.0000
60.00........... 2.3291 1.7529 0.9052 0.0000 0.0000 0.0000
70.00........... 1.6983 1.1987 0.5080 0.0000 0.0000 0.0000
80.00........... 1.2989 0.8747 0.3222 0.0000 0.0000 0.0000
90.00........... 1.0302 0.6721 0.2292 0.0000 0.0000 0.0000
100.00.......... 0.8399 0.5372 0.1780 0.0000 0.0000 0.0000
110.00.......... 0.6993 0.4423 0.1464 0.0000 0.0000 0.0000
120.00.......... 0.5915 0.3722 0.1246 0.0000 0.0000 0.0000
130.00.......... 0.5064 0.3182 0.1081 0.0000 0.0000 0.0000
140.00.......... 0.4376 0.2751 0.0949 0.0000 0.0000 0.0000
150.00.......... 0.3807 0.2398 0.0838 0.0000 0.0000 0.0000
160.00.......... 0.3329 0.2101 0.0743 0.0000 0.0000 0.0000
170.00.......... 0.2922 0.1848 0.0660 0.0000 0.0000 0.0000
180.00.......... 0.2572 0.1628 0.0586 0.0000 0.0000 0.0000
190.00.......... 0.2267 0.1436 0.0520 0.0000 0.0000 0.0000
200.00.......... 0.1999 0.1267 0.0461 0.0000 0.0000 0.0000
210.00.......... 0.1764 0.1116 0.0408 0.0000 0.0000 0.0000
220.00.......... 0.1555 0.0981 0.0359 0.0000 0.0000 0.0000
(B) As used herein, "MAKE-WHOLE APPLICABLE INCREASE" shall mean, with
respect to a Make-Whole Fundamental Change, the amount, set forth in the above
table, which corresponds to the date such Make-Whole Fundamental Change is first
publicly-announced, occurs or becomes effective (the "MAKE-WHOLE REFERENCE
DATE") and the Applicable Price of such Make-Whole Fundamental Change:
provided, however, that:
(i) if the actual Applicable Price of such Make-Whole Fundamental
Change is between two (2) prices listed in the table above under the column
titled "Applicable Price," or if the actual Make-Whole Reference Date of
such Make-Whole Fundamental Change is between two dates listed in the table
above in the row immediately below the
81
title "Make-Whole Reference Date," then the Make-Whole Applicable Increase
for such Make-Whole Fundamental Change shall be determined by linear
interpolation between the Make-Whole Applicable Increases set forth for
such two prices, or for such two dates based on a three hundred and
sixty-five (365) day year, as applicable;
(ii) if the actual Applicable Price of such Make-Whole Fundamental
Change is greater than $220.00 per ADS (subject to adjustment as provided
in SECTION 10.14(B)(III)), or if the actual Applicable Price of such
Make-Whole Fundamental Change is less than $31.43 per share (subject to
adjustment as provided in SECTION 10.14(B)(III)), then the Make-Whole
Applicable Increase shall be equal to zero (0);
(iii) if an event occurs that requires, pursuant to this ARTICLE X
(other than solely pursuant to this SECTION 10.14), an adjustment to the
Conversion Rate, then, on the date and at the time such adjustment is so
required to be made, each price set forth in the table above under the
column titled "Applicable Price" shall be deemed to be adjusted so that
such price, at and after such time, shall be equal to the product of (1)
such price as in effect immediately before such adjustment to such price
and (2) a fraction whose numerator is the Conversion Rate in effect
immediately before such adjustment to the Conversion Rate and whose
denominator is the Conversion Rate to be in effect, in accordance with this
ARTICLE X, immediately after such adjustment to the Conversion Rate;
(iv) each Make-Whole Applicable Increase amount set forth in the table
above shall be adjusted in the same manner in which, and for the same
events for which, the Conversion Rate is to be adjusted pursuant to this
ARTICLE X; and
(v) in no event shall the Conversion Rate applicable to any Security
be increased pursuant to this SECTION 10.14 to the extent, but only to the
extent, such increase shall cause the Conversion Rate applicable to such
Security to exceed 31.8167 ADSs per $1,000 principal amount (the "BCF
MAKE-WHOLE CAP"); provided, however, that the BCF Make-Whole Cap shall be
adjusted in the same manner in which, and for the same events for which,
the Conversion Rate is to be adjusted pursuant to this ARTICLE X.
(C) As used herein, "APPLICABLE PRICE" shall have the following meaning
with respect to a Make-Whole Fundamental Change: (a) if such Make-Whole
Fundamental Change constitutes a Voting Share Change Make-Whole Fundamental
Change or an Ordinary Share Change Make-Whole Fundamental Change and the
consideration (excluding cash payments for fractional ADSs or pursuant to
statutory appraisal rights) for the Ordinary Shares in such Make-Whole
Fundamental Change consists solely of cash, then the "Applicable Price" with
respect to such Make-Whole Fundamental Change shall be equal to the cash amount
paid per Ordinary Share in such Make-Whole Fundamental Change multiplied by the
number of Ordinary Shares then represented by each ADS, and (b) in all other
circumstances, the "Applicable Price" with respect to such Make-Whole
Fundamental Change shall be equal to the average of the
82
Closing Sale Prices per ADS for the five (5) consecutive Trading Days
immediately preceding the date on which such Make-Whole Fundamental Change
becomes effective, except that in the case of a Hedge Illiquidity Event the
"Applicable Price" shall be the average of the Closing Sales Price per ADS for
the five (5) consecutive Trading Days immediately preceding June 28, 2008, which
average shall be appropriately adjusted by the Board of Directors, in its good
faith determination (which determination shall be described in a Board
Resolution), to account for any adjustment, pursuant hereto, to the Conversion
Rate that shall become effective, or any event requiring, pursuant hereto, an
adjustment to the Conversion Rate where the Ex Date of such event occurs, at any
time during such five (5) consecutive Trading Days.
(D) At least thirty (30) Scheduled Trading Days before the first
anticipated effective date of an Asset Sale Make-Whole Fundamental Change or an
Ordinary Share Change Make-Whole Fundamental Change, the Company shall mail to
each Holder, in accordance with SECTION 12.02, written notice of, and shall
publicly announce, through a reputable national newswire service in the United
States, and publish on the Company's website, the anticipated effective date of
such proposed Make-Whole Fundamental Change and in any event no later than the
actual effective date of the Make-Whole Fundamental Change, provided that in the
case of a Hedge Illiquidity Event the effective date will be deemed to be June
27, 2008 and such mailing, announcement and publication must occur no later than
July 3, 2008. No later than the third Business Day after the Make-Whole
Reference Date of each Make-Whole Fundamental Change, the Company shall mail, in
accordance with SECTION 12.02, written notice of, and shall publicly announce,
through a reputable national newswire service in the United States, and publish
on the Company's website, such Make-Whole Reference Date and the Make-Whole
Applicable Increase applicable to such Make-Whole Fundamental Change.
(E) For avoidance of doubt, the provisions of this SECTION 10.14 shall not
affect or diminish the Company's obligations, if any, pursuant to ARTICLE IV
with respect to a Make-Whole Fundamental Change.
(F) Nothing in this SECTION 10.14 shall prevent an adjustment to the
Conversion Rate pursuant to SECTION 10.05 in respect of a Make-Whole Fundamental
Change.
(G) The Company shall perform all computations hereunder.
XI. TAX TREATMENT
11.01 TAX TREATMENT.
The Company hereby agrees and by purchasing an interest in a Security, each
Holder and each Person (including an entity) that acquires a direct or indirect
beneficial interest in the Security hereby agrees that such Person shall (except
to the extent otherwise required by final administrative or judicial
determinations to the contrary) treat the Securities as indebtedness of the
Company for all U.S. federal income tax purposes.
11.02 TAX WITHHOLDING OBLIGATIONS.
83
By purchasing an interest in a Security, each Holder and each Person
(including an entity) that acquires a direct or indirect beneficial interest in
a Security hereby agrees:
(A) that the Company may withhold any tax, to the extent it is required to
do so under any law or regulation (whether based on accrued, constructive or
cash income), from any payments of cash or ADSs (including ADSs to be paid upon
conversion) to be made to a Holder or Person holding a direct or indirect
beneficial interest in a Security or in ADSs received upon conversion of a
Security; and
(B) that if the Company pays any withholding taxes on behalf of a Holder or
Person holding a direct or indirect beneficial interest in a Security, as a
result of an adjustment to the Conversion Rate or a failure to make an
adjustment to the Conversion Rate, the Company may, in its discretion, reduce
any payments to such Holder or Person of cash or ADSs (including any ADSs to be
paid upon conversion) on the Security by the amounts of any such withholding
taxes paid.
XII. MISCELLANEOUS
12.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision of the TIA shall control.
12.02 NOTICES.
Any notice or communication by the Company, the Trustee or the Securities
Agent to one another shall be in the English language and be deemed to be duly
given if made in writing and delivered:
(A) by hand (in which case such notice shall be effective upon delivery);
(B) by facsimile (in which case such notice shall be effective upon receipt
of confirmation of good transmission thereof); or
(C) by overnight delivery by a nationally recognized courier service (in
which case such notice shall be effective on the Business Day immediately after
being deposited with such courier service),
in each case to the other party's address or facsimile number, as applicable,
set forth in this SECTION 12.02. Each of the Company, the Trustee and the
Securities Agent, by notice to the others, may designate additional or different
addresses or facsimile numbers for subsequent notices or communications.
84
Any notice or communication to a Holder shall be mailed to its 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 mailed in the manner provided above, it is
duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and the Securities Agent at the same time. If the Trustee or
the Securities Agent is required, pursuant to the express terms of this
Indenture or the Securities, to mail a notice or communication to Holders, the
Trustee or the Securities Agent, as the case may be, shall also mail a copy of
such notice or communication to the Company.
All notices or communications shall be in writing.
The Company's address is:
LDK Solar Co., Ltd.
Xx-Xxxx Xxxxxxxxxx Xxxx
Xxxxx Xxxx
Xxxxxxx Xxxxxxxx 000000
People's Republic of China
Facsimile: 00-00-0000-0000
Attention: Xxxx Xxx, CFO
The Trustee and Securities Agent's address is:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
Facsimile: 0-000-000-0000/5803
Attention: Global Trust Services
with a copy to:
The Bank of New York
Xxx Xxxxxx Xxxxxx
Xxxxxx, X00 0XX
Xxxxxx Xxxxxxx
Facsimile: 44-0000000000
Attention: Global Corporate Trust
and
00
Xxx Xxxx xx Xxx Xxxx
Xxxx Xxxx Branch
Xxxxx 00, 0 Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxx, Xxxx Xxxx
Xxxx Xxxx SAR
Facsimile: 000-0000-0000
Attention: Global Corporate Trust
12.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(h) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Securities Agent, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
12.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee or the
Securities Agent to take any action under this Indenture, the Company shall
furnish to the Trustee or the Securities Agent, as applicable:
(i) an Officer's Certificate stating that, in the opinion of the
signatories to such Officer's Certificate, all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Each signatory to an Officer's Certificate or an Opinion of Counsel may (if
so stated) rely, effectively, upon an Opinion of Counsel as to legal matters and
an Officer's Certificate or certificates of public officials as to factual
matters, as the case may be, if such signatory reasonably and in good faith
believes in the accuracy of the document relied upon.
12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officer's Certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(i) a statement that the person making such certificate or opinion has
read such covenant or condition;
(ii) 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;
86
(iii) 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
(iv) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
12.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar, Paying Agent, Securities Agent and Conversion Agent may
make reasonable rules and set reasonable requirements for their respective
functions.
12.07 LEGAL HOLIDAYS.
A "BUSINESS DAY" means any weekday that is not a day on which banking
institutions in the City of New York are authorized or obligated to close. A
"LEGAL HOLIDAY" is a day that is not a Business Day. If a payment date is a
Legal Holiday, payment may be made at that place on the next succeeding day that
is not a Legal Holiday, and no interest shall accrue on that payment for the
intervening period.
12.08 DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement. Delivery of an executed counterpart by facsimile shall be effective
as delivery of a manually executed counterpart thereof.
12.09 GOVERNING LAW.
The law of the State of New York shall govern this Indenture and the
Securities.
12.10 SUBMISSION TO JURISDICTION
The parties hereby submit to the non-exclusive jurisdiction of any United
States Federal or New York State court sitting in the Borough of Manhattan in
the City of New York solely for the purpose of any legal action or proceeding
brought to enforce their obligations hereunder or with respect to any Security.
As long as any of the Securities remain outstanding or the parties hereto
have any obligation under this Indenture, the Company shall have an authorized
agent upon whom process may be served in any such legal action or proceeding.
Service of process upon such agent and written notice of such service mailed or
delivered to the Company shall to the extent permitted by law be deemed in every
respect effective service of process upon the Company in any such legal action
or proceeding and, if it fails to maintain such an agent, any such process or
summons may be served by mailing a copy thereof by registered mail, or a form of
mail substantially
87
equivalent thereto, addressed to it at its address as provided for notices
hereunder. The Company hereby appoints Law Debenture Corporate Services Inc. at
000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its agent for such
purposes, and covenants and agrees that service of process in any legal action
or proceeding may be made upon it at such office of such agent.
The Company irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of venue of any such
action or proceeding in the Supreme Court of the State of New York, County of
New York or the United States District Court for the Southern District of New
York and any claim that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.
The Company irrevocably agrees that, should any such action or proceeding
be brought against it arising out of or in connection with this Indenture, no
immunity (to the extent that it may now or hereafter exist, whether on the
ground of sovereignty or otherwise) from such action or proceeding, from
attachment (whether in aid of execution, before judgment or otherwise) of its
property, assets or revenues, or from execution or judgment wherever brought or
made, shall be claimed by it or on its behalf or with respect to its property,
assets or revenues, any such immunity being hereby irrevocably waived by the
Company to the fullest extent permitted by law.
12.11 JUDGMENT CURRENCY
In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "JUDGMENT CURRENCY")
other than United States dollars, the Company will indemnify the Trustee and the
Security Agents against any loss incurred by the Trustee, the Securities Agent
or any other agent as a result of any variation as between (a) the rate of
exchange at which the United States dollar amount is converted into the judgment
currency for the purpose of such judgment or order and (b) the rate of exchange
at which the Trustee, the Securities Agent or any agent is able to purchase
United States dollars with the amount of the judgment currency actually received
by the Trustee, the Securities Agent or any agent. The foregoing indemnity shall
constitute a separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion into United
States dollars.
12.12 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any of its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
12.13 SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind its successors and assigns. All agreements of the Trustee in this Indenture
shall bind its successors and assigns.
88
12.14 SEPARABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby
and a Holder shall have no claim therefor against any party hereto.
12.15 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.
12.16 CALCULATIONS IN RESPECT OF THE SECURITIES.
The Company shall monitor valuation of the Securities and the ADSs and make
all calculations under this Indenture and the Securities (including, without
limitation the Conversion Price and any adjustments to the Conversion Rate
pursuant hereto) in good faith. In the absence of manifest error, such
calculations shall be final and binding on all Holders. The Company shall
provide a copy of such calculations to the Trustee and the Securities Agent as
requested or required hereunder, and each of the Trustee and the Securities
Agent shall be entitled to rely on the accuracy of any such calculation without
independent verification and shall be held harmless with respect thereto.
Neither the Trustee nor the Securities Agent shall have any obligation to
calculate or determine or verify the calculation or determination of the
Conversion Rate or the Conversion Price. The Trustee and/or the Securities Agent
shall forward the Company's calculations to any Holder upon request of such
Holder.
12.17 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES OR
SHAREHOLDERS.
None of the Company's past, present or future directors, officers,
employees or shareholders, as such, shall have any liability for any of the
Company's obligations under this Indenture or the Securities or for any claim
based on, or in respect or by reason of, such obligations or their creation. By
accepting a Security, each holder waives and releases all such liability. This
waiver and release is part of the consideration for the issue of the Securities.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
89
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first above written.
LDK SOLAR CO., LTD.
By: /s/ Xxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxx Xxxx
Title: Chief Executive Officer
[Indenture]
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK, AS SECURITIES
AGENT
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
[Indenture]
EXHIBIT A
[Face of Security]
LDK SOLAR CO., LTD.
Certificate No. __________
[INSERT PRIVATE PLACEMENT LEGEND AND GLOBAL SECURITY LEGEND, AS REQUIRED]
4.75% Convertible Senior Note due 2013
CUSIP No. 50183L AA5
LDK Solar Co., Ltd., a company with limited liability under the laws of the
Cayman Islands (the "COMPANY"), for value received, hereby promises to pay to
Cede & Co., or its registered assigns, the principal sum of Four Hundred Million
dollars ($400,000,000) on April 15, 2013 and to pay interest thereon, as
provided on the reverse hereof, until the principal and any unpaid and accrued
interest are paid or duly provided for.
Interest Payment Dates: April 15 and October 15, with the first payment to
be made on October 15, 2008.
Record Dates: April 1 and October 1.
The provisions on the back of this certificate are incorporated as if set
forth on the face hereof.
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IN WITNESS WHEREOF, LDK Solar Co., Ltd. has caused this instrument to be
duly signed.
LDK SOLAR CO., LTD.
By:
------------------------------------
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned indenture.
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------
Authorized Signatory
Dated:
---------------------------------
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[REVERSE OF SECURITY]
LDK SOLAR CO., LTD.
4.75% CONVERTIBLE SENIOR NOTE DUE 2013
1. INTEREST. LDK Solar Co., Ltd., a company with limited liability under
the laws of the Cayman Islands (the "COMPANY"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
will pay interest, payable semi-annually in arrears, on April 15 and October 15
of each year, with the first payment to be made on October 15, 2008. Interest on
the Securities will accrue on the principal amount from, and including, the most
recent date to which interest has been paid or provided for or, if no interest
has been paid, from, and including, April 15 2008, in each case to, but
excluding, the next interest payment date or Maturity Date, as the case may be.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. MATURITY. The Securities will mature on April 15, 2013.
3. METHOD OF PAYMENT. Except as provided in the indenture (as defined
below), the Company will pay interest on the Securities to the persons who are
Holders of record of the Securities at the close of business on the record date
set forth on the face of this Security next preceding the applicable interest
payment date. Holders must surrender the Securities to a Paying Agent to collect
the principal amount, Redemption Price, Optional Repurchase Price or Fundamental
Change Repurchase Price of the Securities, plus, if applicable, accrued and
unpaid interest, if any, payable as herein provided xxxx Xxxxxxxxxx, Xxxxxxxxxx
at Holder's Option or Repurchase Upon Fundamental Change. The Company will pay,
in money of the United States that at the time of payment is legal tender for
payment of public and private debts, all amounts due in cash with respect to the
Securities, which amounts shall be paid (A) in the case this Security is in
global form, by wire transfer of immediately available funds to the account
designated by the Depositary or its nominee; (B) in the case this Security is
held, other than global form, by a Holder of more than five million dollars
($5,000,000) in aggregate principal amount of the Securities, by wire transfer
of immediately available funds to the account specified by such Holder or, if
such Holder does not specify an account, by mailing a check to the address of
such Holder set forth in the register of the Registrar; and (C) in the case this
Security is held, other than global form, by a Holder of five million dollars
($5,000,000) or less in aggregate principal amount of the Securities, by mailing
a check to the address of such Holder set forth in the register of the
Registrar.
4. PAYING AGENT, REGISTRAR, CONVERSION AGENT. Initially, The Bank of New
York, (the "SECURITIES AGENT") will act as Paying Agent, Registrar and
Conversion Agent. The Company may change any Paying Agent, Registrar or
Conversion Agent without notice to Holders.
5. INDENTURE. The Company issued the Securities under an Indenture dated as
of April 15, 2008 (the "INDENTURE") among the Company and The Bank of New York,
as trustee (the "TRUSTEE") and the Securities Agent. The terms of the Securities
include those stated in the
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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
amended and in effect from time to time. The Securities are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
such terms. The Securities are general unsecured senior obligations of the
Company limited to $400,000,000 aggregate principal amount, except as otherwise
provided in the Indenture (except for the Securities issued in substitution for
destroyed, mutilated, lost or stolen the Securities). Terms used herein without
definition and which are defined in the Indenture have the meanings assigned to
them in the Indenture.
6. OPTIONAL REDEMPTION. The Company shall have the right, at the Company's
option, at any time, and from time to time, on a Redemption Date on or after
April 15, 2011, to redeem all or any part of the Securities at a price payable
in cash equal to one hundred percent (100%) of the principal amount of the
Securities to be redeemed, plus accrued and unpaid interest, if any, to, but
excluding, the Redemption Date.
7. NOTICE OF REDEMPTION. Notice of Redemption will be mailed, by the
Company or the Trustee at the request and expense of the Company, at least
thirty (30) days but not more than sixty (60) days before the Redemption Date to
each Holder of the Securities to be redeemed at its address appearing in the
security register. The Securities in denominations larger than $1,000 principal
amount may be redeemed in part but only in integral multiples of $1,000
principal amount.
8. REPURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER. Subject to the
terms and conditions of the Indenture, the Company shall become obligated to
purchase, at the option of each Holder, the Securities held by such Holder on
April 15, 2011 (the "OPTIONAL REPURCHASE DATE") at the Optional Repurchase
Price, payable in cash, equal to one hundred percent (100%) of the principal
amount of the Securities to be purchased, plus accrued and unpaid interest, if
any, to, but excluding, the Optional Repurchase Date, upon delivery of a
Repurchase Notice containing the information set forth in the Indenture, at any
time from the opening of business on the date that is twenty (20) Business Days
prior to the Optional Repurchase Date until the close of business on the third
(3rd) Business Day immediately preceding the Optional Repurchase Date and upon
delivery of the Securities to the Paying Agent by the Holder as set forth in the
Indenture; provided, however, that such accrued and unpaid interest shall be
paid to the Holder of record of such Security at the close of business on the
record date immediately preceding the Optional Repurchase Date.
9. REPURCHASE AT OPTION OF HOLDER UPON A FUNDAMENTAL CHANGE. Subject to the
terms and conditions of the Indenture, in the event of a Fundamental Change,
each Holder of the Securities shall have the right, at the Holder's option, to
require the Company to repurchase such Holder's Securities including any portion
thereof which is $1,000 in principal amount or any integral multiples thereof on
a date selected by the Company (the "FUNDAMENTAL CHANGE REPURCHASE DATE"), which
date is no later than thirty five (35) days, nor earlier than twenty (20) days,
after the date on which notice of such Fundamental Change is mailed in
accordance with the Indenture, at a price payable in cash equal to one hundred
percent (100%) of the principal amount of such Security, plus accrued and unpaid
interest to, but excluding, the Fundamental Change Repurchase Date; provided,
however, that if such Fundamental Change Repurchase Date
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is after a record date for the payment of an installment of interest and on or
before the related interest payment date, then the accrued and unpaid interest,
if any, to, but excluding, such interest payment date will be paid on such
interest payment date to the Holder of record of such Securities at the close of
business on such record date, and the Holder surrendering such Securities for
repurchase will not be entitled to any such accrued and unpaid interest unless
such Holder was also the Holder of record of such Securities at the close of
business on such record date.
10. CONVERSION. Subject to earlier Redemption, Repurchase at the Holder's
Option or Repurchase Upon Fundamental Change, the Securities may be surrendered
for conversion into, at the Company's election, cash, ADSs or a combination
thereof at any time prior to (and including) the third (3rd) Business Day
preceding the Maturity Date.
A Security, or portion of a Security, which has been called for Redemption
pursuant to PARAGRAPH 6 may be surrendered in integral multiples of $1,000
principal amount for conversion into, at the Company's election, cash, ADSs or a
combination thereof; provided, however, that such Security or portion thereof
may be surrendered for conversion pursuant to this paragraph only until the
close of business on the third (3rd) Business Day immediately preceding the
Redemption Date.
To convert a Security, a Holder must (1) complete and manually sign a
notice in substantially the form set forth in EXHIBIT A to the Indenture which
Holders must complete, execute and deliver to the Conversion Agent, with a copy
to the Company and JPMorgan Chase Bank, N.A., as the depositary under the
Deposit Agreement, dated as of May 31, 2007, among the Company, JPMorgan Chase
Bank, N.A., and the holders and beneficial owners from time to time of the ADSs
issued thereunder, as supplemented by the letter agreement dated as of April 15,
2008 between the Company and JPMorgan Chase Bank, N.A., in connection with any
conversion of Securities (the "CONVERSION NOTICE"), with appropriate signature
guarantee, on the back of the Security, or a facsimile of the Conversion Notice,
(2) deliver the Conversion Notice, which is irrevocable, and surrender the
Security to a Conversion Agent during normal business hours, (3) furnish
appropriate endorsements and transfer documents if required by the Registrar or
Conversion Agent, (4) if required, furnish written acknowledgements,
certifications and agreements in connection with the issuance of ADSs by the ADS
Depositary upon deposit of the Ordinary Shares, (5) pay funds equal to interest
payable on the next interest payment date if required in accordance with the
Indenture and (6) pay any tax or duty if required pursuant to the Indenture. A
Holder may convert a portion of a Security if the portion is $1,000 principal
amount or integral multiples of $1,000 principal amount.
Upon conversion of a Security, the Holder thereof shall be entitled to
receive, at the Company's election, the cash, ADSs or a combination thereof
payable upon conversion in accordance with ARTICLE X of the Indenture.
The initial Conversion Rate is 25.4534 ADSs per $1,000 principal amount of
Securities (which is equivalent to an effective initial Conversion Price of
approximately $39.29 per ADS) subject to adjustment in the event of certain
circumstances as specified in the Indenture. The Company will deliver cash in
lieu of any fractional share. On conversion, no payment or
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adjustment for any unpaid and accrued interest or additional interest on the
Securities will be made. If a Holder surrenders a Security for conversion after
the close of business on the record date for the payment of an installment of
interest and prior to the related interest payment date, such Security, when
surrendered for conversion, must be accompanied by payment of an amount equal to
the interest thereon which the registered Holder at the close of business on
such record date is to receive (other than overdue interest, if any, that has
accrued on such Security), unless such Security has been called for Redemption
as described in the Indenture.
The Conversion Rate applicable to each Security that is surrendered for
conversion, in accordance with the Securities and ARTICLE X of the Indenture, at
any time during the Make-Whole Conversion Period with respect to a Make-Whole
Fundamental Change shall be increased to an amount equal to the Conversion Rate
that would, but for SECTION 10.14 of the Indenture, otherwise apply to such
Security pursuant to ARTICLE X of the Indenture, plus an amount equal to the
Make-Whole Applicable Increase; provided, however, that such increase to the
Conversion Rate shall not apply if such Make-Whole Fundamental Change is
announced by the Company but shall not be consummated.
11. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered
form, without coupons, in denominations of $1,000 principal amount and integral
multiples of $1,000 principal amount. The transfer of the Securities may be
registered and the Securities may be exchanged as provided in the Indenture. The
Securities Agent may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents. No service charge shall be made
for any such registration of transfer or exchange, but the Company and the
Securities Agent may require payment of a sum sufficient to cover any tax or
similar governmental charge that may be imposed in connection with certain
transfers or exchanges. The Company or the Securities Agent, as the case may be,
shall not be required to register the transfer of or exchange any Security (i)
during a period beginning at the opening of business twenty (20) days before the
mailing of a notice of redemption of the Securities selected for Redemption
under SECTION 3.04 of the Indenture and ending at the close of business on the
day of such mailing or (ii) for a period of twenty (20) days before selecting,
pursuant to SECTION 3.03 of the Indenture, the Securities to be redeemed or
(iii) that has been selected for Redemption or for which a Repurchase Notice has
been delivered, and not withdrawn, in accordance with the Indenture, except the
unredeemed or unrepurchased portion of the Securities being redeemed or
repurchased in part.
12. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as the owner of such Security for all purposes.
13. MERGER OR CONSOLIDATION. Except as provided in the Indenture, the
Company shall not consolidate or amalgamate with, or merge with or into, or
reconstruct or enter into similar arrangements with, or sell, transfer, lease,
convey or otherwise dispose of all or substantially all of the property or
assets of the Company to, another person, whether in a single transaction or
series of related transactions, unless, among other things, (i) such other
person is a corporation organized and existing under the laws of the Cayman
Islands, the British Virgin Islands, Bermuda, Hong Kong, the United States, any
State of the United States or the District of Columbia; (ii) such person assumes
by supplemental indenture all the obligations of the
A-1-7
Company under the Securities and the Indenture; and (iii) immediately after
giving effect to the transaction, no Default or Event of Default shall exist.
14. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the
outstanding Securities, and certain existing Defaults or Events of Default may
be waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. In accordance with the terms of the
Indenture, the Company may amend or supplement this Indenture or the Securities
without notice to or the consent of any Securityholder: (i) to comply with
SECTIONS 5.01 and 10.11 of the Indenture; (ii) to make any changes or
modifications to the Indenture necessary in connection with the registration of
the public offer and sale of the Securities under the Securities Act pursuant to
the Registration Rights Agreement or the qualification of the Indenture under
the TIA; (iii) to evidence and provide the acceptance of the appointment of a
successor Trustee under the Indenture; (iv) to secure the obligations of the
Company in respect of the Securities; (v) to add to the covenants of the Company
described in the Indenture for the benefit of Securityholders or to surrender
any right or power conferred upon the Company; (vi) to make provisions with
respect to adjustments to the Conversion Rate as required by the Indenture or to
increase the Conversion Rate in accordance with the Indenture; (vii) to conform,
as necessary, the Indenture and the form or terms of the Notes to the
"Description of the Notes" set forth in the final offering memorandum; and
(viii) to make any changes of a formal minor or technical nature or necessary to
correct a manifest error or comply with mandatory provisions of applicable law
as evidence by an Opinion of Counsel as long as such change does not adversely
affect the rights of the Holders of the Securities in any material respect. In
addition, the Company, the Trustee and the Securities Agent may enter into a
supplemental indenture without the consent of Holders of the Securities to cure
any ambiguity, defect, omission or inconsistency in the Indenture in a manner
that does not, individually or in the aggregate with all other modifications
made or to be made to the Indenture, adversely affect the rights of any Holder
in any material respect.
15. DEFAULTS AND REMEDIES.
If an Event of Default (excluding an Event of Default specified in SECTION
6.01(VIII) or (IX) of the Indenture with respect to the Company (but including
an Event of Default specified in SECTION 6.01(VIII) or (IX) of the Indenture
solely with respect to a Significant Subsidiary of the Company or any group of
Subsidiaries that in the aggregate would constitute a Significant Subsidiary of
the Company)) occurs and is continuing, the Trustee by notice to the Company or
the Holders of at least twenty five percent (25%) in principal amount of the
Securities then outstanding by notice to the Company and the Trustee may declare
the Securities to be due and payable. Upon such declaration, the principal of,
and any premium and accrued and unpaid interest (including any additional
interest) on, all Securities shall be due and payable immediately. If an Event
of Default specified in SECTION 6.01(VIII) or (IX) of the Indenture with respect
to the Company (excluding, for purposes of this sentence, an Event of Default
specified in SECTION 6.01(VIII) or (IX) of the Indenture solely with respect to
a Significant Subsidiary of the Company or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company) occurs, the
principal of, and premium and accrued and unpaid
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interest (including any additional interest) on, all the Securities shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder. The Holders of a majority in
aggregate principal amount of the Securities then outstanding by written notice
to the Trustee may rescind or annul an acceleration and its consequences if (A)
the rescission would not conflict with any order or decree, (B) all existing
Events of Default, except the nonpayment of principal, premium or interest
(including additional interest) that has become due solely because of the
acceleration, have been cured or waived and (C) all amounts due to the Trustee
and the Securities Agent under SECTION 7.07 of the Indenture have been paid.
Notwithstanding the foregoing, if the Company so selects, the sole remedy
of Holders for an Event of Default relating to any obligation the Company may
have or is deemed to have pursuant to TIA Section 314(a)(1) relating to the
failure of the Company to file any document or report that the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act or of the covenant in SECTION 4.03 of the Indenture shall for the first
ninety (90) days after the occurrence of such Event of Default consist
exclusively of the right to receive additional interest on the Securities at an
annual rate equal to 0.25% of the principal amount of the Securities. Any such
additional interest shall be payable in the same manner and on the same dates as
the stated interest payable on the Securities. The additional interest shall
accrue on all outstanding Securities from and including the date on which an
Event of Default relating to a failure to comply with the reporting obligations
in this Indenture first occurs to but not including the ninetieth (90th) day
thereafter (or such earlier date on which such Event of Default shall have been
cured or waived). On such ninetieth (90th) day (or earlier, if such Event of
Default is cured or waived prior to such ninetieth (90th) day), such additional
interest shall cease to accrue and the Securities shall be subject to
acceleration as provided in the preceding paragraph if such Event of Default is
continuing. For the avoidance of doubt, the additional interest shall not begin
to accrue until the Company fails to perform the covenant in SECTION 4.03 of the
Indenture for a period of sixty (60) days after notice of such failure to the
Company by the Trustee or to the trustee and the Company by Holders of at least
twenty-five percent (25%) in aggregate principal amount of the Securities then
outstanding in accordance with this Indenture.
Notwithstanding the preceding paragraph, if an event of default under any
other series of debt securities of the Company occurs as a result of the failure
of the Company to file any such document or report and such event of default
results in the principal amount of such other debt securities becoming due and
payable, then the Extension Right shall no longer apply and the Securities shall
be subject to acceleration as provided in the first paragraph of SECTION 6.02 of
the Indenture.
Holders may not enforce the Indenture or the Securities except as provided
in the Indenture. The Holders of a majority in aggregate principal amount of the
Securities then outstanding 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 the Indenture, is unduly prejudicial to the
rights of other Holders or would involve the Trustee in personal liability
unless the Trustee is offered indemnity satisfactory to it; provided, that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
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If a Default or Event of Default occurs and is continuing as to which the
Trustee has received written notice pursuant to the provisions of the Indenture,
or as to which a Responsible Officer of the Trustee shall have actual knowledge,
the Trustee shall mail to each Holder a notice of the Default or Event of
Default within thirty (30) days after it occurs unless such Default or Event of
Default has been cured or waived. Except in the case of a Default or Event of
Default in payment of any amounts due with respect to any Security, the Trustee
may withhold the notice if, and so long as it in good faith determines that,
withholding the notice is in the best interests of Holders. The Company must
deliver to the Trustee and the Securities Agent an annual compliance
certificate.
The Company will pay interest on any overdue installments of interest at
the rate per annum of 2.0%.
16. REGISTRATION RIGHTS. The Holders are entitled to registration rights as
set forth in the Registration Rights Agreement. The Holders shall be entitled to
receive additional interest in certain circumstances, all as set forth in the
Registration Rights Agreement.
17. TRUSTEE'S AND SECURITIES AGENT'S DEALINGS WITH THE COMPANY. Each of the
Trustee and the Securities Agent, and each banking institution, if any, serving
as successor Trustee or Securities Agent thereunder, in its individual or any
other capacity, may make loans to, 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 or Securities Agent, as applicable,
and to the extent permitted by the TIA.
18. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee or shareholder, as such, of the Company shall have any
liability for any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder, by accepting a Security, waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Security.
19. AUTHENTICATION. This Security shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent in accordance
with the Indenture.
20. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), 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).
21. CAPITALIZED TERMS. All capitalized terms used herein but not otherwise
defined in this Security shall have the same meanings assigned to them in the
Indenture.
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THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT
CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
LDK Solar Co., Ltd.
Xx-Xxxx Xxxxxxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxx Xxxxxxxx 000000
People's Republic of China
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[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
__________________________________
________________________________________________________________________________
(please print or type name and address)
________________________________________________________________________________
________________________________________________________________________________
the within Security and all rights thereunder, and hereby irrevocably constitute
and appoint
________________________________________________________________________________
Attorney to transfer the Security on the books of the Company with full power of
substitution in the premises
Dated:
------------------------------- ---------------------------------------
NOTICE: The signature on this
assignment must correspond with the
name as it appears upon the face of the
within Security in every particular
without alteration or enlargement or
any change whatsoever and be guaranteed
by a guarantor institution
participating in the Securities
Transfer Agents Medallion Program or in
such other guarantee program acceptable
to the Registrar.
Signature Guarantee:
-----------------------------------------------------------
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In connection with any transfer of this Security occurring prior to the date
which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended, covering resales of this Security (which effectiveness shall not have
been suspended or terminated at the date of the transfer) and (ii) the Resale
Restriction Termination Date, the undersigned confirms that it is making, and it
has not utilized any general solicitation or general advertising in connection
with, the transfer:
[Check One]
(1) [ ] to the Company or any Subsidiary thereof, or
(2) [ ] pursuant to, and in compliance with, the exemption from registration
provided by Rule 144A under the Securities Act of 1933, as amended, or
(3) [ ] pursuant to, and in compliance with, the exemption from registration
provided by Rule 144 under the Securities Act of 1933, as amended, or
(4) [ ] pursuant to, and in compliance with, an exemption from registration
under the Securities Act of 1933, as amended, other than Rule 144A or
Rule 144, or
(5) [ ] pursuant to an effective registration statement under the Securities
Act of 1933, as amended,
and, unless the box below is checked, the undersigned confirms that this
Security is not being transferred to an "affiliate" of the Company (an
"Affiliate") as defined in Rule 144 under the Securities Act of 1933, as
amended:
The transferee is an Affiliate of the Company. (If the Security is
transferred to an Affiliate, the restrictive legend must remain on the Security
for at least two (2) years following the date of the transfer.)
Unless one of the items (1) through (5) is checked, the Registrar will refuse to
register any of the Securities evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if item
(3) or (4) is checked, the Company or the Registrar may require, prior to
registering any such transfer of the Securities, in their sole discretion, such
written legal opinions, certifications and other information as the Registrar or
the Company have reasonably requested 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, as amended. If item (2)
is checked, the purchaser must complete the certification below.
If none of the foregoing items are checked, the Registrar shall not be obligated
to register this Security in the name of any person other than the Holder hereof
unless and until the conditions to any such transfer of registration set forth
herein and in the Indenture shall have been satisfied.
Dated: Signed:
-------------------------- ------------------------------------
(Sign exactly as name appears on the other
side of this Security)
Signature Guarantee:
-----------------------------------------------------------
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TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Security for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933, as amended,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A and acknowledges that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
------------------------------- ---------------------------------------
NOTICE: To be executed by an executive
officer
A-1-14
CONVERSION NOTICE
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
Fax No.: 0 000 000 0000/5803
Attention: Global Corporate Trust
with a copy to:
The Bank of New York
Xxxxx 00, 0 Xxxxxxx Xxxxx
0 Xxxxx'x Xxxx Xxxx
Xxxx Xxxx
Fax No.: 000 0000 0000
Attention: Global Corporate Trust
To convert this Security in accordance with the Indenture, check the box: [ ]
To convert only part of this Security, state the principal amount to be
converted (must be in multiples of $1,000):
$__________
To elect to settle a conversion using staggered settlement as specified under
Section 10.02(A)(iii)(e) of the Indenture if the Company elects to satisfy a
percentage or a fixed amount (other than 100%) of the Conversion Obligation in
cash, check here: [ ]
To elect to settle a conversion under Section 10.02(A)(iii)(c) of the Indenture
if the Company elects to satisfy a percentage or a fixed amount (other than
100%) of the Conversion Obligation in cash, check here: [ ]
(Any form that does not check either of the two preceding boxes will be deemed
to elect settlement under Section 10.02(A)(iii)(c), if applicable.)
Please provide your contact information (name, address, zip code, fax number and
telephone number):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
A-1-15
Please provide your custodian account details for the delivery of the
certificate representing the ADSs issuable upon conversion, if applicable:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Please provide your bank account details for any settlement of a conversion in
cash:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
If you want the certificate representing the ADSs, if any, issuable upon
conversion made out in another person's name, fill in the form below:
________________________________________________________________________________
(Insert other person's soc. sec. or tax I.D. no.)
The undersigned hereby certifies that it (or if it is acting for the account of
one or more persons, that each such person):
is not, and has not been, during the three months immediately preceding the date
hereof, an affiliate of the Company (within the meaning of Rule 144 under the
Securities Act of 1933, as amended): [ ]
is, or was at a time during the three months immediately preceding the date
hereof, an affiliate of the Company (within the meaning of Rule 144 under the
Securities Act of 1933, as amended): [ ]
has paid all taxes and duties due as a result of such certificate representing
ADSs are to be issued upon conversion in another person's name, if applicable:
[ ]
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type other person's name, address and zip code)
________________________________________________________________________________
Date: Signature(s):
--------------------------- ------------------------------
A-1-16
--------------------------------------------
(Sign exactly as your name(s) appear(s) on
the other side of this Security)
Signature(s) guaranteed by:
--------------------------------------------
(All signatures must be guaranteed by a
guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program
acceptable to the Securities Agent.)
A-1-17
REPURCHASE NOTICE
Certificate No. of Security: _______________
If you want to elect to have this Security repurchased by the Company
pursuant to Section 3.08 of the Indenture, check the box: [ ]
If you want to elect to have this Security repurchased by the Company
pursuant to Section 3.09 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Security repurchased by the
Company pursuant to SECTIONS 3.08 OR 3.09 of the Indenture, as applicable, state
the principal amount to be so purchased by the Company:
$_________________________________________
(in integral multiples of $1,000)
Date: Signature(s):
-------------------------- -------------------------------
---------------------------------------------
(Sign exactly as your name(s) appear(s) on
the other side of this Security)
Signature(s) guaranteed by:
---------------------------------------------
(All signatures must be guaranteed by a
guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Securities Agent.)
A-1-18
SCHEDULE A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY(1)
The following exchanges of a part of this Global Security for an interest
in another Global Security or for Securities in certificated form, have been
made:
Amount of Signature or
decrease in Amount of Principal amount of authorized
Principal Increase in this Global signatory of
amount of this Principal Security following Securities
Global amount of this such decrease Agent or
Date of Exchange Security Global Security or increase Note Custodian
---------------- -------------- --------------- ------------------- --------------
----------
(1) This included in Global Securities only.
X-0-00
XXXXXXX X-0
FORM OF PRIVATE PLACEMENT LEGEND
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "U.S. SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A
"QUALIFIED INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER THE U.S.
SECURITIES ACT ("RULE 144A")) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION
WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE BENEFIT OF THE ISSUER THAT IT WILL NOT OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN PRIOR
TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT ONLY:
(A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER
THE U.S. SECURITIES ACT, OR
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A, OR
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE U.S. SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE,
A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED FROM
THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY
TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE
THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR
OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE
PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE U.S. SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S.
SECURITIES ACT.
B-1-1
THE AMERICAN DEPOSITARY SHARES ISSUABLE UPON CONVERSION OF THE NOTE ARE
SUBJECT TO THE DEPOSIT AGREEMENT (AS SUPPLEMENTED) DATED MAY 31, 2007 BETWEEN
THE ISSUER AND X.X.XXXXXX XXXXX BANK N.A., AS DEPOSITARY. IN CERTAIN
CIRCUMSTANCES, THE AMERICAN DEPOSITARY SHARES ISSUABLE UPON CONVERSION OF THE
NOTE WILL BE ISSUED AND DELIVERED IN THE FORM OF RESTRICTED AMERICAN DEPOSITARY
SHARES AND WILL BE SUBJECT TO TRANSFER RESTRICTIONS AS AGREED TO BETWEEN THE
DEPOSITARY AND THE ISSUER.
B-1-2
EXHIBIT B-2
FORM OF LEGEND FOR GLOBAL SECURITY
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY 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) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.
B-2-1
EXHIBIT C
Form of Notice of Transfer Pursuant to Registration Statement
LDK Solar Co., Ltd.
Xx-Xxxx Xxxxxxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxx Xxxxxxxx 000000
People's Republic of China
Attention: Chief Financial Officer
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: Global Trust Services
with a copy to:
The Bank of New York
Xxxxx 00, 0 Xxxxxxx Xxxxx
0 Xxxxx'x Xxxx Xxxx
Xxxx Xxxx
Xxxxxxxxx: Global Corporate Trust
Re: LDK Solar Co., Ltd. (the "COMPANY")
4.75% Convertible Senior Notes due 2013 (the "SECURITIES")
Ladies and Gentlemen:
Please be advised that ______________ has transferred $ ______________
aggregate principal amount of the Securities and __________ American depositary
shares, each representing one Ordinary Share, $0.10 par value per share, of the
Company issued on conversion of the Securities ("ADSS") pursuant to an effective
Shelf Registration Statement on Form F-3 (File No. 333-_____).
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933 as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the
Securities or ADSs is named as a "Selling Security Holder" in the Prospectus
dated __________, or in amendments or supplements thereto, and that the
aggregate principal amount of the Securities and the number of shares of ADSs
transferred are [a portion of] the Securities and ADSs listed in such
Prospectus, as amended or supplemented, opposite such owner's name.
Very truly yours,
________________________________________
(Name)
C-1
EXHIBIT D
Form of Opinion of Counsel in Connection with Registration of Securities
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: Global Trust Services
Re: LDK Solar Co., Ltd. (the "COMPANY")
4.75% Convertible Senior Notes due 2013 (the "SECURITIES")
Ladies and Gentlemen:
Reference is made to the Securities issued pursuant to a certain Indenture
dated as of April 15, 2008 by and among the Company and The Bank of New York as
trustee (the "TRUSTEE") and securities agent (the "SECURITIES AGENT"). The
Company issued $400,000,000 principal amount of the Securities on April 15, 2008
in transactions exempt from registration under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). The Company has filed with the Securities and
Exchange Commission (the "SEC") [a] [Amendment No. [___] to the] Registration
Statement on Form F-3 (File No. 333-_____) (the "REGISTRATION STATEMENT")
relating to the registration under the Securities Act of $__________ principal
amount of the Securities and Ordinary Shares of the Company, par value $0.10 per
share, (the "ORDINARY SHARES") represented by the American depositary share (the
"ADSS") issuable upon conversion of the Securities being registered. The
Registration Statement was declared effective by order of the SEC dated _______.
We have acted as counsel for the Company in connection with the issuance of
the Securities and the preparation and filing of the Registration Statement and
are familiar with the Securities, the Indenture, the Registration Statement, the
above-mentioned SEC order and such other documents as are necessary to render
this opinion.
Based on the foregoing, it is our opinion that (1) the Registration
Statement has become effective under the Securities Act and, to our knowledge,
no stop order suspending the effectiveness of the Registration Statement has
been issued, (2) assuming that the Securities covered by the Registration
Statement and the ADSs issuable upon conversion of such Securities are sold by a
relevant Holder specified in the Registration Statement in a manner specified in
the Registration Statement, such sale of the Securities and the Ordinary Shares
represented by the ADSs issuable upon conversion of the Securities will have
been duly registered under the Securities Act and (3) the Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended.
Yours truly,
D-1
