EXHIBIT 4.4
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INVISION TECHNOLOGIES, INC.
3% CONVERTIBLE SENIOR NOTES DUE 2023
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INDENTURE
DATED AS OF SEPTEMBER 19, 2003
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U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE................................................................. 1
SECTION 1.1. DEFINITIONS........................................................................... 1
SECTION 1.2. OTHER DEFINITIONS..................................................................... 5
SECTION 1.3. TRUST INDENTURE ACT PROVISIONS........................................................ 6
SECTION 1.4. RULES OF CONSTRUCTION................................................................. 6
ARTICLE 2 THE SECURITIES............................................................................................. 7
SECTION 2.1. FORM AND DATING....................................................................... 7
SECTION 2.2. EXECUTION AND AUTHENTICATION.......................................................... 8
SECTION 2.3. REGISTRAR, PAYING AGENT AND CONVERSION AGENT.......................................... 9
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST................................................... 9
SECTION 2.5. SECURITYHOLDER LISTS.................................................................. 10
SECTION 2.6. TRANSFER AND EXCHANGE................................................................. 10
SECTION 2.7. REPLACEMENT SECURITIES................................................................ 11
SECTION 2.8. OUTSTANDING SECURITIES................................................................ 11
SECTION 2.9. TREASURY SECURITIES................................................................... 12
SECTION 2.10. TEMPORARY SECURITIES.................................................................. 12
SECTION 2.11. CANCELLATION.......................................................................... 12
SECTION 2.12. LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS................................. 12
SECTION 2.13. CUSIP NUMBERS......................................................................... 15
ARTICLE 3 REDEMPTION, PURCHASE AND REPURCHASE........................................................................ 15
SECTION 3.1. TO REDEEM; NOTICE TO TRUSTEE.......................................................... 15
SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED................................................ 15
SECTION 3.3. NOTICE OF REDEMPTION.................................................................. 16
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION........................................................ 17
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE........................................................... 17
SECTION 3.6. SECURITIES REDEEMED IN PART........................................................... 17
SECTION 3.7. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION......................................... 17
SECTION 3.8. REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE IN CONTROL............... 18
SECTION 3.9. EFFECT OF CHANGE IN CONTROL REPURCHASE NOTICE......................................... 21
SECTION 3.10. DEPOSIT OF CHANGE IN CONTROL REPURCHASE PRICE......................................... 21
SECTION 3.11. REPAYMENT TO THE COMPANY.............................................................. 22
SECTION 3.12. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER ON SPECIFIED DATES..................... 22
SECTION 3.13. SECURITIES PURCHASED IN PART.......................................................... 25
SECTION 3.14. COMPLIANCE WITH SECURITIES LAWS UPON REPURCHASE OF SECURITIES......................... 25
ARTICLE 4 CONVERSION................................................................................................. 26
SECTION 4.1. CONVERSION PRIVILEGE AND CONVERSION RATE.............................................. 26
SECTION 4.2. CONVERSION PROCEDURE.................................................................. 28
SECTION 4.3. FRACTIONAL SHARES..................................................................... 29
SECTION 4.4. TAXES ON CONVERSION................................................................... 30
SECTION 4.5. COMPANY TO PROVIDE STOCK.............................................................. 30
SECTION 4.6. ADJUSTMENT OF CONVERSION RATE......................................................... 30
SECTION 4.7. NO ADJUSTMENT......................................................................... 35
SECTION 4.8. ADJUSTMENT FOR TAX PURPOSES........................................................... 35
SECTION 4.9. NOTICE OF ADJUSTMENT.................................................................. 35
SECTION 4.10. NOTICE OF CERTAIN TRANSACTIONS........................................................ 35
SECTION 4.11. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE ON CONVERSION PRIVILEGE..... 36
SECTION 4.12. TRUSTEE'S DISCLAIMER.................................................................. 37
SECTION 4.13. VOLUNTARY INCREASE.................................................................... 37
ARTICLE 5 [Intentionally Omitted].................................................................................... 37
ARTICLE 6 COVENANTS.................................................................................................. 37
SECTION 6.1. PAYMENT OF SECURITIES................................................................. 37
SECTION 6.2. SEC REPORTS........................................................................... 38
SECTION 6.3. COMPLIANCE CERTIFICATES............................................................... 38
SECTION 6.4. FURTHER INSTRUMENTS AND ACTS.......................................................... 38
SECTION 6.5. MAINTENANCE OF CORPORATE EXISTENCE.................................................... 38
SECTION 6.6. RULE 144A INFORMATION REQUIREMENT..................................................... 38
SECTION 6.7. STAY, EXTENSION AND USURY LAWS........................................................ 39
SECTION 6.8. PAYMENT OF LIQUIDATED DAMAGES......................................................... 39
ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE....................................................... 39
SECTION 7.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.................................. 39
SECTION 7.2. SUCCESSOR SUBSTITUTED................................................................. 40
ARTICLE 8 DEFAULT AND REMEDIES....................................................................................... 40
SECTION 8.1. EVENTS OF DEFAULT..................................................................... 40
SECTION 8.2. ACCELERATION.......................................................................... 42
SECTION 8.3. OTHER REMEDIES........................................................................ 43
SECTION 8.4. WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.............................................. 43
SECTION 8.5. CONTROL BY MAJORITY................................................................... 43
SECTION 8.6. LIMITATIONS ON SUITS.................................................................. 43
SECTION 8.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT................................... 44
SECTION 8.8. COLLECTION SUIT BY TRUSTEE............................................................ 44
SECTION 8.9. TRUSTEE MAY FILE PROOFS OF CLAIM...................................................... 44
SECTION 8.10. PRIORITIES............................................................................ 45
SECTION 8.11. UNDERTAKING FOR COSTS................................................................. 45
ARTICLE 9 TRUSTEE.................................................................................................... 45
SECTION 9.1. DUTIES OF TRUSTEE..................................................................... 45
SECTION 9.2. RIGHTS OF TRUSTEE..................................................................... 46
SECTION 9.3. INDIVIDUAL RIGHTS OF TRUSTEE.......................................................... 47
SECTION 9.4. TRUSTEE'S DISCLAIMER.................................................................. 47
SECTION 9.5. NOTICE OF DEFAULT OR EVENTS OF DEFAULT................................................ 47
SECTION 9.6. REPORTS BY TRUSTEE TO HOLDERS......................................................... 47
SECTION 9.7. COMPENSATION AND INDEMNITY............................................................ 48
SECTION 9.8. REPLACEMENT OF TRUSTEE................................................................ 48
SECTION 9.9. SUCCESSOR TRUSTEE BY MERGER, ETC...................................................... 49
SECTION 9.10. ELIGIBILITY; DISQUALIFICATION......................................................... 49
SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..................................... 50
ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE................................................................... 50
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE............................................... 50
SECTION 10.2. APPLICATION OF TRUST MONEY............................................................ 51
SECTION 10.3. REPAYMENT TO COMPANY.................................................................. 51
SECTION 10.4. REINSTATEMENT......................................................................... 51
ARTICLE 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS....................................................................... 52
SECTION 11.1. WITHOUT CONSENT OF HOLDERS............................................................ 52
SECTION 11.2. WITH CONSENT OF HOLDERS............................................................... 52
SECTION 11.3. COMPLIANCE WITH TRUST INDENTURE ACT................................................... 53
SECTION 11.4. REVOCATION AND EFFECT OF CONSENTS..................................................... 53
SECTION 11.5. NOTATION ON OR EXCHANGE OF SECURITIES................................................. 54
SECTION 11.6. TRUSTEE TO SIGN AMENDMENTS, ETC....................................................... 54
SECTION 11.7. EFFECT OF SUPPLEMENTAL INDENTURES..................................................... 54
ARTICLE 12 MISCELLANEOUS............................................................................................. 54
SECTION 12.1. TRUST INDENTURE ACT CONTROLS.......................................................... 54
SECTION 12.2. NOTICES............................................................................... 54
SECTION 12.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.......................................... 55
SECTION 12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.................................... 55
SECTION 12.5. RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS.................................... 56
SECTION 12.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION AGENT........................ 56
SECTION 12.7. LEGAL HOLIDAYS........................................................................ 56
SECTION 12.8. GOVERNING LAW......................................................................... 57
SECTION 12.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS......................................... 57
SECTION 12.10. NO RECOURSE AGAINST OTHERS............................................................ 57
SECTION 12.11. SUCCESSORS............................................................................ 57
SECTION 12.12. MULTIPLE COUNTERPARTS................................................................. 57
SECTION 12.13. SEPARABILITY.......................................................................... 57
SECTION 12.14. TABLE OF CONTENTS, HEADINGS, ETC...................................................... 57
CROSS-REFERENCE TABLE*
TIA INDENTURE
SECTION SECTION
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Section 310(a)(1)................................................................. 9.10
(a)(2).................................................................... 9.10
(a)(3).................................................................... N.A.**
(a)(4).................................................................... N.A.
(a)(5).................................................................... 9.10
(b)....................................................................... 9.8; 9.10
(c)....................................................................... N.A.
Section 311(a).................................................................... 9.11
(b)....................................................................... 9.11
(c)....................................................................... N.A.
Section 312(a).................................................................... 2.5
(b)....................................................................... 12.3
(c)....................................................................... 12.3
Section 313(a).................................................................... 9.6
(b)(1).................................................................... N.A.
(b)(2).................................................................... 9.6
(c)....................................................................... 9.6; 12.2
(d)....................................................................... 9.6
Section 314(a).................................................................... 6.2; 6.4; 12.2
(b)....................................................................... N.A.
(c)(1).................................................................... 12.4(a)
(c)(2).................................................................... 12.4(a)
(c)(3).................................................................... N.A.
(d)....................................................................... N.A.
(e)....................................................................... 12.4(b)
(f)....................................................................... N.A.
Section 315(a).................................................................... 9.1(b)
(b)....................................................................... 9.5; 12.2
(c)....................................................................... 9.1(a)
(d)....................................................................... 9.1(c)
(e)....................................................................... 8.11
Section 316(a)(last sentence)..................................................... 2.9
(a)(1)(A)................................................................. 8.5
(a)(1)(B)................................................................. 8.4
(a)(2).................................................................... N.A.
(b)....................................................................... 8.7
(c)....................................................................... 12.5
Section 317(a)(1)................................................................. 8.8
(a)(2).................................................................... 8.9
(b)....................................................................... 2.4
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* This Cross-Reference Table shall not, for any purpose, be deemed a part of
this Indenture.
** N.A. means Not Applicable.
THIS INDENTURE dated as of September 19, 2003 is between InVision
Technologies, Inc., a corporation duly organized under the laws of the State of
Delaware (the "Company"), and U.S. Bank National Association, a national banking
association organized and existing under the laws of the United States, as
Trustee (the "Trustee").
In consideration of the purchase of the Securities by the Holders
thereof, both parties agree as follows for the benefit of the other and for the
equal and ratable benefit of the Holders of the Company's 3% Convertible Senior
Notes Due 2023.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Affiliate" means, with respect to any specified person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of this
definition, "control" when used with respect to any person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent or Conversion Agent.
"Applicable Procedures" means, with respect to any transfer or exchange
of beneficial ownership interests in a Global Security, the rules and procedures
of the Depositary, in each case to the extent applicable to such transfer or
exchange.
"Board of Directors" means either the board of directors of the Company
or any committee of the Board of Directors authorized to act for it with respect
to this Indenture.
"Business Day" means each day that is not a Legal Holiday.
"Capital Stock" or "capital stock" of any Person means any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such Person,
but excluding any debt securities convertible into such equity.
"Cash" or "cash" means such coin or currency of the United States as at
any time of payment is legal tender for the payment of public and private debts.
"Certificated Security" means a Security that is in substantially the
form attached hereto as Exhibit A and that does not include the information or
the schedule called for by footnotes 1, 3 and 4 thereof.
"Common Stock" means the common stock of the Company, $0.001 par value
per share, as it exists on the date of this Indenture and any shares of any
class or classes of capital stock of the Company resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or
of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not subject to redemption
by the Company; provided, however, that if at any time there shall be more than
one such resulting class, the shares of each such class then so issuable on
conversion of Securities shall be substantially in the proportion which the
total number of shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes resulting from all such
reclassifications.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such successor Company.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered
which office at the date of the execution of this Indenture is located at 633
West Fifth Street, 24th Floor, LM-CA-T24T, Xxx Xxxxxxx, XX 00000; Attention:
Corporate Trust Services (InVision Technologies, Inc. -- 3% Convertible Senior
Notes Due 2023) or at any other time at such other address as the Trustee may
designate from time to time by notice to the Company.
"Default" or "default" means, when used with respect to the Securities,
any event which is or, after notice or passage of time or both, would be an
Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"Final Maturity Date" means October 1, 2023.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the date of this Indenture, including those
set forth in (1) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants, (2) the
statements and pronouncements of the Financial Accounting Standards Board, (3)
such other statements by such other entity as approved by a significant segment
of the accounting profession and (4) the rules and regulations of the SEC
governing the inclusion of financial statements (including pro forma financial
statements) in registration statements filed under the Securities Act and
periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"Global Security" means a permanent global security that is in
substantially the form attached hereto as Exhibit A and that includes the
information and schedule called for by footnotes 1, 3 and 4 thereof and which is
deposited with the Depositary or its custodian and registered in the name of the
Depositary or its nominee.
"Holder" or "Securityholder" means the person in whose name a Security
is registered on the Primary Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time
to time pursuant to the terms of this Indenture.
"Initial Purchaser" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
"Interest Payment Date" means April 1 and October 1 of each year.
2
"Liquidated Damages" has the meaning specified in the Registration
Rights Agreement. All references herein to interest accrued or payable as of any
date shall include any Liquidated Damages accrued or payable as of such date as
provided in the Registration Rights Agreement.
"Officer" means the Chairman or any Co-Chairman of the Board, any Vice
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Controller, the Secretary, any
Assistant Controller or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers;
provided, however, that for purposes of Sections 4.11 and 6.3, "Officers'
Certificate" means a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company and
by one other Officer.
"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company or the Trustee.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Principal" or "principal" of a debt security, including the
Securities, means the principal of the security plus, when appropriate, the
premium, if any, on the security.
"Redemption Date" or "redemption date" when used with respect to any
Security to be redeemed, means the date fixed by the Company for such redemption
pursuant to this Indenture, as set forth in the form of Security annexed as
Exhibit A hereto.
"Redemption Price" when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture,
as set forth in the form of Security annexed as Exhibit A hereto.
"Registration Rights Agreement" means the Registration Rights Agreement
dated, as of September 19, 2003, between the Company and the Initial Purchaser.
"Regular Record Date" means, with respect to each Interest Payment
Date, the March 15 or September 15, as the case may be, next preceding such
Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act or any
successor for such Rule.
"Restricted Global Security" means a Global Security that is a
Restricted Security.
"Restricted Security" means a Security required to bear the restricted
legend set forth in the form of Security set forth in Exhibit A of this
Indenture.
"Rule 144" means Rule 144 under the Securities Act or any successor to
such Rule.
"Rule 144A" means Rule 144A under the Securities Act or any successor
to such Rule.
"SEC" means the Securities and Exchange Commission.
3
"Securities" means the 3% Convertible Senior Notes due 2023 or any of
them (each, a "Security"), as amended or supplemented from time to time, that
are issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
"Securities Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor thereto.
"Significant Subsidiary" means, in respect of any Person, a Subsidiary
of such Person that would constitute a "significant subsidiary" as such term is
defined under Rule 1-02 of Regulation S-X under the Securities Act and the
Exchange Act.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, general partners or
trustees thereof is at the time owned or controlled, directly or indirectly, by
(i) such Person; (ii) such Person and one or more Subsidiaries of such Person;
or (iii) one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939, as amended, and the rules
and regulations thereunder as in effect on the date of this Indenture, except as
provided in Section 11.3, and except to the extent any amendment to the Trust
Indenture Act expressly provides for application of the Trust Indenture Act as
in effect on another date.
"Trading Day" means (i) if the Common Stock is quoted on the Nasdaq
National Market or any other system of automated dissemination of quotations of
securities prices, days on which trades may be effected through such system,
(ii) if the Common Stock is listed or admitted for trading on any national or
regional securities exchange, days on which such national or regional securities
exchange is open for business, or (iii) if the Common Stock is not listed on a
national or regional securities exchange or quoted on the Nasdaq National Market
or any other system of automated dissemination of quotation of securities
prices, days on which the Common Stock is traded regular way in the
over-the-counter market and for which a closing bid and a closing asked price
for the Common Stock are available.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture, and thereafter means the successor.
"Trust Officer" means, with respect to the Trustee, any officer
assigned to the Corporate Trust Office, and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Unrestricted Certificated Security" means a Certificated Security that
is not a Restricted Security.
"Unrestricted Global Security" means a Global Security that is not a
Restricted Security.
"Vice President" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
4
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
SECTION 1.2. OTHER DEFINITIONS.
TERM DEFINED IN SECTION
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"Agent Members".............................................................................. 2.1(b)
"Bankruptcy Law"............................................................................. 8.1
"Change in Control".......................................................................... 3.8(a)
"Change in Control Repurchase Date".......................................................... 3.8(a)
"Change in Control Repurchase Notice"........................................................ 3.8(c)
"Change in Control Repurchase Price"......................................................... 3.8(a)
"Closing Price".............................................................................. 4.6(d)
"Company Order".............................................................................. 2.2
"Company Put Right Notice" .................................................................. 3.12(b)
"Conversion Agent"........................................................................... 2.3
"Conversion Date"............................................................................ 4.2
"Conversion Price"........................................................................... 4.1(b)
"Conversion Rate"............................................................................ 4.1(b)
"Conversion Value"........................................................................... 4.1(a)
"Current Market Price"....................................................................... 4.6(d)
"Custodian".................................................................................. 8.1
"DTC"........................................................................................ 2.1(a)
"Depositary"................................................................................. 2.1(a)
"Determination Date"......................................................................... 4.6(c)
"Distribution Notice"........................................................................ 4.1(a)
"Event of Default"........................................................................... 8.1
"Exchange Act"............................................................................... 3.8(a)
"Expiration Date"............................................................................ 4.6(c)
"Expiration Time"............................................................................ 4.6(c)
"Instrument"................................................................................. 8.1(6)
"Legal Holiday".............................................................................. 12.7
"Legend" .................................................................................... 2.12(a)
"Merger Notice".............................................................................. 4.1(a)
"Notice of Default".......................................................................... 8.1
"Paying Agent"............................................................................... 2.3
"Primary Registrar".......................................................................... 2.3
"Purchase Agreement"......................................................................... 2.1
"Purchased Shares"........................................................................... 4.6(c)
"Put Right Purchase Date" ................................................................... 3.12
"Put Right Purchase Notice" ................................................................. 3.12
"Put Right Purchase Price" .................................................................. 3.12
"QIB"........................................................................................ 2.1
"Registrar".................................................................................. 2.3
"Rights"..................................................................................... 4.6(c)
"Rights Plan"................................................................................ 4.6(c)
"Spinoff Valuation Period.................................................................... 4.6(c)
"Trading Price".............................................................................. 4.1(a)
5
TERM DEFINED IN SECTION
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"Trigger Event" ............................................................................. 4.6(c)
"Triggering Distribution".................................................................... 4.6(c)
SECTION 1.3. TRUST INDENTURE ACT PROVISIONS.
Whenever this Indenture refers to a provision of the TIA, that
provision is incorporated by reference in and made a part of this Indenture. The
Indenture shall also include those provisions of the TIA required to be included
herein by the provisions of the Trust Indenture Reform Act of 1990. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other obligor on
the Securities.
All other terms used in this Indenture that are defined in the TIA,
defined by TIA reference to another statute or defined by any SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(A) a term has the meaning assigned to it;
(B) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(C) words in the singular include the plural, and words
in the plural include the singular;
(D) provisions apply to successive events and
transactions;
(E) the term "merger" includes a statutory share exchange
and the term "merged" has a correlative meaning;
(F) the masculine gender includes the feminine and the
neuter;
(G) references to agreements and other instruments
include subsequent amendments thereto; and
(H) "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.
6
ARTICLE 2
THE SECURITIES
SECTION 2.1. FORM AND DATING.
The Securities and the Trustee's certificate of authentication shall be
substantially in the respective forms set forth in Exhibit A, which Exhibit is
incorporated in and made part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall provide any such notations, legends or endorsements to
the Trustee in writing. Each Security shall be dated the date of its
authentication. The Securities are being offered and sold by the Company
pursuant to a Purchase Agreement, dated September 16, 2003 (the "Purchase
Agreement"), between the Company and the Initial Purchaser, in transactions
exempt from, or not subject to, the registration requirements of the Securities
Act.
(a) Restricted Global Securities. All of the Securities are initially
being offered and sold to qualified institutional buyers as defined in Rule 144A
(collectively, "QIBs" or individually, each a "QIB") in reliance on Rule 144A
under the Securities Act and shall be issued initially in the form of one or
more Restricted Global Securities, which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Trustee, at its
Corporate Trust Office, as custodian for the depositary, The Depository Trust
Company ("DTC") (such depositary, or any successor thereto, being hereinafter
referred to as the "Depositary"), and registered in the name of its nominee,
Cede & Co., for the accounts of participation in the Depositary duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Restricted Global Securities may from time to
time be increased or decreased by adjustments made on the records of the
Securities Custodian as hereinafter provided, subject in each case to compliance
with the Applicable Procedures.
(b) Global Securities In General. Each Global Security shall represent
such of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect replacements, exchanges, repurchases, redemptions,
purchases or conversions of such Securities. Any adjustment of the aggregate
principal amount of a Global Security to reflect the amount of any increase or
decrease in the amount of outstanding Securities represented thereby shall be
made by the Trustee in accordance with instructions given by the Holder thereof
as required by Section 2.12 hereof and shall be made on the records of the
Trustee and the Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or under the Global Security, and the Depositary
(including, for this purpose, its nominee) may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner and
Holder of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall (A) prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or (B)
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(c) Book Entry Provisions. The Company shall execute and the Trustee
shall, in accordance with this Section 2.1(c), authenticate and deliver
initially one or more Global Securities that (i) shall be registered
7
in the name of the Depositary or its nominee, (ii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instructions and (iii)
shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO INVISION TECHNOLOGIES, INC. (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 THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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 THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE 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."
SECTION 2.2. EXECUTION AND AUTHENTICATION.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $125,000,000, except as
provided in Sections 2.6 and 2.7.
An Officer shall sign the Securities for the Company by manual or
facsimile signature attested by the manual or facsimile signature of the
Secretary or an Assistant Secretary of the Company. Typographic and other minor
errors or defects in any such facsimile signature shall not affect the validity
or enforceability of any Security which has been authenticated and delivered by
the Trustee.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities for original issue in the aggregate principal amount of up to
$125,000,000 upon receipt of a written order or orders of the Company signed by
two Officers of the Company (a "Company Order"). The Company Order shall specify
the amount of Securities to be authenticated, shall provide that all such
Securities will be represented by a Restricted Global Security and the date on
which each original issue of Securities is to be authenticated.
8
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 agent. An
authenticating agent shall have the same rights as an Agent to deal with the
Company or an Affiliate of the Company.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 principal amount and any integral
multiple thereof.
SECTION 2.3. REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
The Company shall maintain one or more offices or agencies where
Securities may be presented for registration of transfer or for exchange (each,
a "Registrar"), one or more offices or agencies where Securities may be
presented for payment (each, a "Paying Agent"), one or more offices or agencies
where Securities may be presented for conversion (each, a "Conversion Agent")
and one or more offices or agencies where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will at all times maintain a Paying Agent, Conversion Agent, Registrar
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served in the Borough of
Manhattan, The City of New York. One of the Registrars (the "Primary Registrar")
shall keep a register of the Securities and of their transfer and exchange.
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 of the name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or
agent for service of notices and demands in any place required by this
Indenture, or fails to give the foregoing notice, the Trustee shall act as such.
The Company or any Affiliate of the Company may act as Paying Agent (except for
the purposes of Section 6.1 and Article 10).
The Company hereby initially designates the Trustee as Paying Agent,
Registrar, Custodian (as defined in Section 8.1) and Conversion Agent, and each
of the Corporate Trust Office of the Trustee and the office or agency of the
Trustee in the Borough of Manhattan, The City of New York, one such office or
agency of the Company for each of the aforesaid purposes.
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
Prior to 11:00 a.m., New York City time, on each due date of the
principal of, or interest, on any Securities, the Company shall deposit with a
Paying Agent a sum sufficient to pay such principal or interest, so becoming
due. Subject to Section 10.2, a Paying Agent shall hold in trust for the benefit
of Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of, or interest, on the Securities, and shall notify the
Trustee of any default by the Company (or any other obligor on the Securities)
in making any such payment. If the Company or an Affiliate of the Company acts
as Paying Agent, it shall, before 11:00 a.m., New York City time, on each due
date of the principal of, or interest, on any Securities, segregate the money
and hold it as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee, and the Trustee may at
any time during the continuance of any default, upon written request to a Paying
Agent, require such Paying Agent to pay forthwith to the Trustee all sums so
held in trust by such Paying Agent. Upon doing so, the Paying Agent (other than
the Company) shall have no further liability for the money.
9
SECTION 2.5. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Primary Registrar, the Company shall
furnish to the Trustee on or before each semiannual Interest Payment Date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Securityholders.
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) Subject to compliance with any applicable additional requirements
contained in Section 2.12, when a Security is presented to a Registrar with a
request to register a transfer thereof or to exchange such Security for an equal
principal amount of Securities of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested; provided,
however, that every Security presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by an assignment form
and, if applicable, a transfer certificate each in the form included in Exhibit
A, and in form satisfactory to the Registrar duly executed by the Holder thereof
or its attorney duly authorized in writing. To permit registration of transfers
and exchanges, upon surrender of any Security for registration of transfer or
exchange at an office or agency maintained pursuant to Section 2.3, the Company
shall execute and the Trustee shall authenticate Securities of a like aggregate
principal amount at the Registrar's request. Any exchange or transfer shall be
without charge, except that the Company or the Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto, and provided, that this sentence shall not apply to
any exchange pursuant to Section 2.10, 2.12(a), 3.6, 3.13, 4.2 (second to last
paragraph) or 11.5.
Neither the Company, any Registrar nor the Trustee shall be required to
exchange or register a transfer of (i) any Securities for a period of 15 days
next preceding mailing of a notice of Securities to be redeemed, (ii) any
Securities or portions thereof selected or called for redemption (except in the
case of redemption of a Security in part, the portion thereof not to be
redeemed) or (iii) any Securities or portions thereof in respect of which a
Change in Control Repurchase Notice has been delivered and not withdrawn by the
Holder thereof (except, in the case of the purchase of a Security in part, the
portion thereof not to be purchased).
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Company, evidencing the same debt and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
(b) Any Registrar appointed pursuant to Section 2.3 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(c) Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or other
beneficial
10
owners of interests in any Global Security) other than to require delivery of
such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 2.7. REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Company, a Registrar or
the Trustee, or the Company, a Registrar and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Security, and there
is delivered to the Company, the applicable Registrar and the Trustee such
security or indemnity as will be required by them to save each of them harmless,
then, in the absence of notice to the Company, such Registrar or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company shall
execute, and upon its written request the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased,
redeemed or repurchased by the Company pursuant to Article 3, the Company in its
discretion may, instead of issuing a new Security, pay, redeem, repurchase or
purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section 2.7, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the reasonable fees and expenses of the Trustee
or the Registrar) in connection therewith.
Every new Security issued pursuant to this Section 2.7 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section 2.7 are (to the extent lawful) exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 2.8. OUTSTANDING SECURITIES.
Securities outstanding at any time are all Securities authenticated by
the Trustee, except for those canceled by it, those converted pursuant to
Article 4, those delivered to it for cancellation or surrendered for transfer or
exchange and those described in this Section 2.8 as not outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Company receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If a Paying Agent (other than the Company or an Affiliate of the
Company) holds in respect of the outstanding Securities on a Redemption Date, a
Change in Control Repurchase Date or the Final Maturity Date money sufficient to
pay the principal of (including premium, if any) and accrued interest on
Securities (or portions thereof) payable on that date, then on and after such
Redemption Date, Change in Control
11
Repurchase Date, or the Final Maturity Date, as the case may be, such Securities
(or portions thereof, as the case may be) shall cease to be outstanding and
interest on them shall cease to accrue; provided, that if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision thereof satisfactory to the Trustee has been made.
Subject to the restrictions contained in Section 2.9, a Security does
not cease to be outstanding because the Company or an Affiliate of the Company
holds the Security.
SECTION 2.9. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities have concurred in any notice, direction, waiver or consent,
Securities owned by the Company or any other obligor on the Securities or by any
Affiliate of the Company or of such other obligor shall be disregarded, except
that, for purposes of determining whether the Trustee shall be protected in
relying on any such notice, direction, waiver or consent, only Securities which
a Trust Officer of the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith shall not
be disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to the Securities and that the pledgee is
not the Company or any other obligor on the Securities or any Affiliate of the
Company or of such other obligor.
SECTION 2.10. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and execute, and, upon receipt of a Company Order, the Trustee shall
authenticate and deliver, temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company with the consent of the Trustee considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate and deliver definitive Securities in exchange for
temporary Securities.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, the Paying Agent and the Conversion Agent shall
forward to the Trustee or its agent any Securities surrendered to them for
transfer, exchange, redemption, repurchase, purchase, payment or conversion. The
Trustee and no one else shall cancel, in accordance with its standard
procedures, all Securities surrendered for transfer, exchange, redemption,
repurchase, purchase, payment, conversion or cancellation and shall deliver the
canceled Securities to the Company. All Securities which are redeemed,
repurchased, purchased or otherwise acquired by the Company or any of its
Subsidiaries prior to the Final Maturity Date shall be delivered to the Trustee
for cancellation, and the Company may not hold or resell such Securities or
issue any new Securities to replace any such Securities or any Securities that
any Holder has converted pursuant to Article 4.
SECTION 2.12. LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS.
(a) If Securities are issued upon the transfer, exchange or replacement
of Securities subject to restrictions on transfer and bearing the legends set
forth on the forms of Securities attached hereto as Exhibit A (collectively, the
"Legend"), or if a request is made to remove the Legend on a Security, the
Securities so issued shall bear the Legend, or the Legend shall not be removed,
as the case may be, unless
12
there is delivered to the Company and the Registrar such satisfactory evidence,
which shall include an opinion of counsel if requested by the Company or such
Registrar, as may be reasonably required by the Company and the Registrar, that
neither the Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A, Rule 144 or Regulation S under the Securities Act or that such Securities
are not "restricted" within the meaning of Rule 144 under the Securities Act;
provided that no such evidence need be supplied in connection with the sale of
such Security pursuant to a registration statement that is effective at the time
of such sale. Upon (i) provision of such satisfactory evidence if requested, or
(ii) notification by the Company to the Trustee and Registrar of the sale of
such Security pursuant to a registration statement that is effective at the time
of such sale, the Trustee, at the written direction of the Company, shall
authenticate and deliver a Security that does not bear the Legend. If the Legend
is removed from the face of a Security and the Security is subsequently held by
an Affiliate of the Company, the Legend shall be reinstated.
(b) A Global Security may not be transferred, in whole or in part, to
any Person other than the Depositary or a nominee or any successor thereof, and
no such transfer to any such other Person may be registered; provided that the
foregoing shall not prohibit any transfer of a Security that is issued in
exchange for a Global Security but is not itself a Global Security. No transfer
of a Security to any Person shall be effective under this Indenture or the
Securities unless and until such Security has been registered in the name of
such Person. Notwithstanding any other provisions of this Indenture or the
Securities, transfers of a Global Security, in whole or in part, shall be made
only in accordance with this Section 2.12.
(c) Subject to the succeeding paragraph, every Security shall be
subject to the restrictions on transfer provided in the Legend other than a
Restricted Global Security. Whenever any Restricted Security other than a
Restricted Global Security is presented or surrendered for registration of
transfer or for exchange for a Security registered in a name other than that of
the Holder, such Security must be accompanied by a certificate in substantially
the form set forth in Exhibit A, dated the date of such surrender and signed by
the Holder of such Security, as to compliance with such restrictions on
transfer. The Registrar shall not be required to accept for such registration of
transfer or exchange any Security not so accompanied by a properly completed
certificate.
(d) The restrictions imposed by the Legend upon the transferability of
any Security shall cease and terminate when such Security has been sold pursuant
to an effective registration statement under the Securities Act or transferred
in compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by, if requested by the Company or the
Registrar, an opinion of counsel reasonably acceptable to the Company and
addressed to the Company in form acceptable to the Company, to the effect that
the transfer of such Security has been made in compliance with Rule 144 or such
successor provision), be exchanged for a new Security, of like tenor and
aggregate principal amount, which shall not bear the restrictive Legend. The
Company shall inform the Trustee of the effective date of any registration
statement registering the Securities under the Securities Act. The Trustee shall
not be liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned opinion of counsel or registration statement.
13
(e) As used in the preceding two paragraphs of this Section 2.12, the
term "transfer" encompasses any sale, pledge, transfer, hypothecation or other
disposition of any Security.
(f) The provisions below shall apply only to Global Securities:
(i) Notwithstanding any other provisions of this
Indenture or the Securities, a Global Security shall not be
exchanged in whole or in part for a Security registered in the
name of any Person other than the Depositary or one or more
nominees thereof, provided that a Global Security may be
exchanged for Securities registered in the names of any person
designated by the Depositary in the event that (A) the
Depositary has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security or
such Depositary has ceased to be a "clearing agency"
registered under the Exchange Act, and a successor Depositary
is not appointed by the Company within 90 days, (B) the
Company has provided the Depositary with written notice that
it has decided to discontinue use of the system of book-entry
transfer through the Depositary or any successor Depositary or
(C) an Event of Default has occurred and is continuing with
respect to the Securities. Any Global Security exchanged
pursuant to clauses (A) or (B) above shall be so exchanged in
whole and not in part, and any Global Security exchanged
pursuant to clause (C) above may be exchanged in whole or from
time to time in part as directed by the Depositary. Any
Security issued in exchange for a Global Security or any
portion thereof shall be a Global Security; provided that any
such Security so issued that is registered in the name of a
Person other than the Depositary or a nominee thereof shall
not be a Global Security.
(ii) Securities issued in exchange for a Global
Security or any portion thereof shall be issued in definitive,
fully registered form, without interest coupons, shall have an
aggregate principal amount equal to that of such Global
Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear
the applicable legends provided for herein. Any Global
Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Registrar. With regard to any
Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, if the
Trustee is acting as custodian for the Depositary or its
nominee with respect to such Global Security, the principal
amount thereof shall be reduced, by an amount equal to the
portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and
deliver the Security issuable on such exchange to or upon the
order of the Depositary or an authorized representative
thereof.
(iii) Subject to the provisions of clause (v)
below, the registered Holder may grant proxies and otherwise
authorize any Person, including Agent Members and persons that
may hold interests through Agent Members, to take any action
which a Holder is entitled to take under this Indenture or the
Securities.
(iv) In the event of the occurrence of any of the
events specified in clause (i) above, the Company will
promptly make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered form,
without interest coupons.
(v) Neither Agent Members nor any other Persons
on whose behalf Agent Members may act shall have any rights
under this Indenture with respect to any Global
14
Security registered in the name of the Depositary or any
nominee thereof, or under any such Global Security, and the
Depositary or such nominee, as the case may be, may be treated
by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner and holder of such Global
Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as
the case may be, or impair, as between the Depositary, its
Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such
Persons governing the exercise of the rights of a holder of
any Security.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Securities may use one or more "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption or purchase as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption or purchase and that reliance may be placed only
on the other identification numbers printed on the Securities, and any such
redemption or purchase shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE 3
REDEMPTION, PURCHASE AND REPURCHASE
SECTION 3.1. TO REDEEM; NOTICE TO TRUSTEE.
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time on or after October 1, 2008 at
the Redemption Price, together with any accrued interest up to, but not
including, the Redemption Date; provided that, if the Redemption Date falls
after a Regular Record Date and on or before an Interest Payment Date, then
interest on the Securities shall be payable to the Holders in whose name the
Securities are registered at the close of business on such Regular Record Date.
If the Company elects to redeem Securities pursuant to this Section 3.1
and paragraph 5 of the Securities, it shall notify the Trustee at least 25 days
prior to the Redemption Date as fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee) of the Redemption Date and the principal
amount of Securities to be redeemed. If fewer than all of the Securities are to
be redeemed, the record date relating to such redemption shall be selected by
the Company and given to the Trustee, which record date shall not be less than
five days after the date of notice to the Trustee.
SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed, unless the
procedures of the Depositary provide otherwise, the Trustee shall, at least 20
days but not more than 60 days prior to the Redemption Date, select the
Securities to be redeemed. The Trustee shall make the selection from the
Securities outstanding and not previously called for redemption by lot, or in
its discretion, on a pro rata basis. Securities in denominations of $1,000 may
only be redeemed in whole. The Trustee may select for redemption portions (equal
to $1,000 or any integral multiple thereof) of the principal of Securities that
have denominations larger than $1,000.
15
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed to
be the portion selected for redemption. Securities which have been converted
subsequent to the Trustee commencing selection of Securities to be redeemed but
prior to redemption of such Securities shall be treated by the Trustee as
outstanding for the purpose of such selection.
SECTION 3.3. NOTICE OF REDEMPTION.
At least 20 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause to be mailed a notice of redemption to each
Holder of Securities to be redeemed at such Holder's address as it appears on
the Registrar's books.
The notice shall identify the Securities (including CUSIP numbers) to
be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the then current Conversion Price
and Conversion Rate;
(iv) the name and address of each Paying
Agent and Conversion Agent;
(v) that Securities called for
redemption must be presented and surrendered to a Paying Agent to collect the
Redemption Price;
(vi) that Holders who wish to convert
Securities must surrender such Securities for conversion no later than the close
of business on the Business Day immediately preceding the Redemption Date and
must satisfy the other requirements set forth in paragraph 9 of the Securities
and Article 4 hereof;
(vii) that, unless the Company defaults
in making the payment of the Redemption Price, interest on Securities called for
redemption shall cease accruing on and after the Redemption Date and the only
remaining right of the Holder shall be to receive payment of the Redemption
Price plus accrued interest upon presentation and surrender to a Paying Agent of
the Securities; and
(viii) if any Security is being redeemed
in part, the portion of the principal amount of such Security to be redeemed and
that, after the Redemption Date, upon presentation and surrender of such
Security, a new Security or Securities in aggregate principal amount equal to
the unredeemed portion thereof will be issued.
If any of the Securities to be redeemed is in the form of a Global
Security, then the Company shall modify such notice to the extent necessary to
accord with the procedures of the Depositary applicable to redemptions. At the
Company's written request, which request shall (i) be irrevocable once given and
(ii) set forth all relevant information required by clauses (i) through (viii)
of the preceding paragraph, the Trustee shall give the notice of redemption to
each Holder in the Company's name and at the Company's expense.
16
At the Company's request, the Trustee shall give such notice of
redemption on behalf of the Company and at the Company's expense; provided,
however, that, in all cases, the text of such notice of redemption shall be
prepared by the Company.
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price stated
in the notice, together with accrued interest, except for Securities that are
converted in accordance with the provisions of Article 4. On or after the
Redemption Date and upon presentation and surrender to a Paying Agent,
Securities called for redemption shall be paid at the Redemption Price, plus any
accrued interest, up to but not including the Redemption Date; provided that if
the Redemption Date falls after a Regular Record Date and on or before an
Interest Payment Date, then interest on the Securities will be payable to the
Holders in whose names the Securities are registered at the close of business on
such Regular Record Date.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.
Prior to 11:00 a.m., New York City time, on the Redemption Date, the
Company shall deposit with a Paying Agent (or, if the Company acts as Paying
Agent, shall segregate and hold in trust) an amount of money (in immediately
available funds if deposited on such Redemption Date) sufficient to pay the
Redemption Price of, and any accrued interest on, all Securities to be redeemed
on that date, other than Securities or portions thereof called for redemption on
that date which have been delivered by the Company to the Trustee for
cancellation or have been converted. The Paying Agent shall as promptly as
practicable return to the Company any money not required for that purpose
because of the conversion of Securities pursuant to Article 4 or, if such money
is then held by the Company in trust and is not required for such purpose, it
shall be discharged from the trust.
SECTION 3.6. SECURITIES REDEEMED IN PART.
Upon presentation and surrender of a Security that is redeemed in part,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder a new Security equal in principal amount to the unredeemed portion of the
Security surrendered.
SECTION 3.7. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
In connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities called for redemption
by an agreement with one or more investment banks or other purchasers to
purchase such Securities by paying to a Paying Agent (other than the Company or
any of its Affiliates) in trust for the Holders, on or before 11:00 a.m. New
York City time, on the Redemption Date, an amount that, together with any
amounts deposited with such Paying Agent by the Company for the redemption of
such Securities, is not less than the Redemption Price, together with any
accrued interest accrued to, but not including, the Redemption Date of such
Securities. Notwithstanding anything to the contrary contained in this Article
3, the obligation of the Company to pay the Redemption Price of such Securities,
including all accrued interest shall be deemed to be satisfied and discharged to
the extent such amount is so paid by such purchasers; provided, however, that
nothing in this Section 3.7 shall relieve the Company of its obligation to pay
the Redemption Price, plus any accrued interest, to but excluding the relevant
Redemption Date, on Securities called for redemption. If such an agreement with
one or more
17
investment banks or other purchasers is entered into, any Securities called for
redemption and not surrendered for conversion by the Holders thereof prior to
the relevant Redemption Date may, at the option of the Company upon written
notice to the Trustee, 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 4) surrendered by such purchasers for
conversion, all as of 11:00 a.m., New York City time, 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 in the same manner as it would money deposited
with it by the Company for the redemption of Securities. Without the Paying
Agent's prior written consent, no arrangement between the Company and such
purchasers for the purchase and conversion of any Securities shall increase or
otherwise affect any of the powers, duties, responsibilities or obligations of
the Paying Agent as set forth in this Indenture, and the Company agrees to
indemnify the Paying Agent from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Company and such
purchasers, including the costs and expenses incurred by 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 its powers, duties, responsibilities or
obligations under this Indenture.
SECTION 3.8. REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON
CHANGE IN CONTROL.
(a) If at any time the Securities remain outstanding there shall have
occurred a Change in Control, all or any portion of the Securities of any Holder
equal to $1,000 or a whole multiple of $1,000, shall be repurchased by the
Company, at the option of such Holder, at a repurchase price equal to 100% of
the principal amount of the Securities to be repurchased, together with interest
accrued and unpaid to, but excluding, the repurchase date (the "Change in
Control Repurchase Price"), on the date (the "Change in Control Repurchase
Date") that is 45 days after the date of the Change in Control Repurchase
Notice; provided, however, if the Change in Control Repurchase Date falls after
a Regular Record Date and on or before an Interest Payment Date, then interest
on the Securities shall be payable to the Holders in whose name the Securities
are registered at the close of business on such Regular Record Date.
Whenever in this Indenture (including Sections 2.1, 8.1 and 8.7 hereof)
or in the form of Securities there is a reference, in any context, to the
principal of any Securities as of any time, such reference shall be deemed to
include reference to the Change in Control Repurchase Price payable in respect
to such Securities to the extent that such Change in Control Repurchase Price
is, was or would be so payable at such time, and express mention of the Change
in Control Repurchase Price in any provision of this Indenture shall not be
construed as excluding the Change in Control Repurchase Price in those
provisions of this Indenture when such express mention is not made.
A "Change in Control" of the Company, or any successor entity who is
subject to the terms of this Indenture, shall be deemed to have occurred at such
time after the original issuance of Securities as any of the following events
shall occur:
(1) the acquisition by any person of beneficial ownership,
directly or indirectly, through a purchase, merger or other acquisition
transaction or series of transactions, of shares of the Capital Stock of the
Company (or in the case of a merger or consolidation described in clause (2)(C)
below, the common stock referred to in such clause) entitling that person to
exercise 50% or more of the total voting power of all shares
18
of such Capital Stock (or common stock) entitled to vote generally in elections
of directors, other than any acquisition by the Company, any of its Subsidiaries
or any employee benefit plans of the Company.
(2) any consolidation or merger of the Company with or into
any other person, any merger of another person into the Company, or any
conveyance, transfer, sale, lease or other disposition of all or substantially
all of the Company's properties and assets to another person, other than:
(A) any transaction (1) that does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
the Capital Stock of the Company and (2) pursuant to which holders of the
Capital Stock of the Company immediately prior to the transaction are entitled
to exercise, directly or indirectly, 50% or more of the total voting power of
all shares of the Capital Stock of the Company entitled to vote generally in the
election of directors of the continuing or surviving person immediately after
the transaction;
(B) any merger solely for the purpose of changing the
Company's jurisdiction of incorporation and resulting in a reclassification,
conversion or exchange of outstanding shares of Common Stock solely into shares
of common stock of the surviving entity;
(C) in the case of a merger or consolidation, all of
the consideration (excluding cash payments for fractional shares and cash
payments pursuant to dissenters' appraisal rights) in the merger or
consolidation otherwise constituting the Change in Control consists of shares of
common stock traded on a United States national securities exchange or quoted on
the Nasdaq National Market (or which will be so traded or quoted when issued or
exchanged in connection with such Change in Control) and as a result of such
transaction or transactions the Securities become convertible solely into such
common stock.
(3) during any consecutive two-year period, individuals who at
the beginning of that two-year period constituted the Board of Directors
(together with any new directors whose election to the Board of Directors, or
whose nomination for election by the stockholders of the Company, was approved
by a vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election were previously so approved) cease to constitute a majority of the
Board of Directors then in office, except if such change results solely and
directly from, force majeure, acts of war and/or terrorism; or
(4) a resolution is passed by the Company's stockholders
approving a plan of liquidation or dissolution of the Company other than in a
transaction which complies with the provisions described in Article 7 of the
Indenture.
Beneficial ownership shall be determined in accordance with Rule 13d-3
promulgated by the SEC under the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"). The term "person" shall include any syndicate or group
that would be deemed to be a "person" under Section 13(d)(3) of the Exchange
Act.
(b) Within 30 days after the occurrence of a Change in Control, the
Company, or, at the written request and expense of the Company, the Trustee,
shall mail a written notice of the Change in Control to the Trustee (if the
Trustee does not mail such notice) and to each Holder (and to beneficial owners
as required by applicable law). The notice shall include the form of a Change in
Control Repurchase Notice to be completed by the Holder and shall state:
19
(1) the date of such Change in Control and, briefly, the
events causing such Change in Control;
(2) the date by which the Change in Control Repurchase Notice
pursuant to this Section 3.8 must be given;
(3) the Change in Control Repurchase Date;
(4) the Change in Control Repurchase Price;
(5) the Holder's right to require the Company to repurchase
the Securities;
(6) briefly, the conversion rights of the Securities;
(7) the name and address of each Paying Agent and Conversion
Agent and that the Securities must be surrendered to the Paying Agent to collect
payment;
(8) the Conversion Price and Conversion Rate and any
adjustments thereto;
(9) that Securities as to which a Change in Control Repurchase
Notice has been given may be converted into Common Stock pursuant to Article 4
of this Indenture only to the extent that the Change in Control Repurchase
Notice has been withdrawn in accordance with the terms of this Indenture;
(10) the procedures that the Holder must follow to exercise
rights under this Section 3.8;
(11) the procedures for withdrawing a Change in Control
Repurchase Notice, including a form of notice of withdrawal; and
(12) that the Holder must satisfy the requirements set forth
in the Securities in order to convert the Securities.
If any of the Securities is in the form of a Global Security, then the
Company shall modify such notice to the extent necessary to accord with the
procedures of the Depositary applicable to the repurchase of Global Securities.
(c) A Holder may exercise its rights specified in subsection (a) of
this Section 3.8 upon delivery of a written notice (which shall be in
substantially the form included in Exhibit A hereto and which may be delivered
by letter, overnight courier, hand delivery, facsimile transmission or in any
other written form and, in the case of Global Securities, may be delivered
electronically or by other means in accordance with the Depositary's customary
procedures) of the exercise of such rights (a "Change in Control Repurchase
Notice") to any Paying Agent at any time prior to the close of business on the
Business Day next preceding the Change in Control Repurchase Date.
The delivery of such Security to any Paying Agent prior to, on or after
the Change in Control Repurchase Date (together with all necessary endorsements)
at the office of such Paying Agent shall be a condition to the receipt by the
Holder of the Change in Control Repurchase Price therefor.
The Company shall repurchase from the Holder thereof, pursuant to this
Section 3.8, a portion of a Security if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of the
20
Indenture that apply to the repurchase of all of a Security pursuant to this
Article 3 also apply to the repurchase of such portion of such Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to a Paying Agent the Change in Control Repurchase Notice contemplated by this
subsection (c) shall have the right to withdraw such Change in Control
Repurchase Notice in whole or in a portion thereof that is a principal amount of
$1,000 or in an integral multiple thereof at any time prior to the close of
business on the Business Day next preceding the Change in Control Repurchase
Date by delivery of a written notice of withdrawal to the Paying Agent in
accordance with Section 3.9.
A Paying Agent shall promptly notify the Company of the receipt by it
of any Change in Control Repurchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case of Global
Securities, any Change in Control Repurchase Notice may be delivered or
withdrawn and such Securities may be surrendered or delivered for repurchase in
accordance with the Applicable Procedures as in effect from time to time.
SECTION 3.9. EFFECT OF CHANGE IN CONTROL REPURCHASE NOTICE.
Upon receipt by any Paying Agent of the Change in Control Repurchase
Notice specified in Section 3.8(c), the Holder of the Security in respect of
which such Change in Control Repurchase Notice was given shall (unless such
Change in Control Repurchase Notice is withdrawn as specified below) thereafter
be entitled to receive the Change in Control Repurchase Price with respect to
such Security. Such Change in Control Repurchase Price shall be paid to such
Holder promptly following the later of (a) the Change in Control Repurchase Date
with respect to such Security (provided the conditions in Section 3.8(c) have
been satisfied) and (b) the time of delivery of such Security to a Paying Agent
by the Holder thereof in the manner required by Section 3.8(c). Securities in
respect of which a Change in Control Repurchase Notice has been given by the
Holder thereof may not be converted into shares of Common Stock pursuant to
Article 4 on or after the date of the delivery of such Change in Control
Repurchase Notice unless such Change in Control Repurchase Notice has first been
validly withdrawn.
A Change in Control Repurchase Notice may be withdrawn by means of a
written notice (which may be delivered by mail, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case
of Global Securities, may be delivered electronically or by other means in
accordance with the Depositary's customary procedures) of withdrawal delivered
by the Holder to a Paying Agent at any time prior to the close of business on
the Business Day immediately preceding the Change in Control Repurchase Date,
specifying the principal amount of the Security or portion thereof (which must
be a principal amount of $1,000 or an integral multiple of $1,000 in excess
thereof) with respect to which such notice of withdrawal is being submitted.
SECTION 3.10. DEPOSIT OF CHANGE IN CONTROL REPURCHASE PRICE.
On or before 11:00 a.m. New York City time on the Change in Control
Repurchase Date, the Company shall deposit with the Trustee or with a Paying
Agent (other than the Company or an Affiliate of the Company) an amount of money
(in immediately available funds if deposited on such Change in Control
Repurchase Date) sufficient to pay the aggregate Change in Control Repurchase
Price of all the Securities or portions thereof that are to be purchased as of
such Change in Control Repurchase Date. The manner in which the deposit required
by this Section 3.10 is made by the Company shall be at the option of the
21
Company, provided that such deposit shall be made in a manner such that the
Trustee or a Paying Agent shall have immediately available funds on the Change
in Control Repurchase Date.
If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Change in Control Repurchase Price of any Security for
which a Change in Control Repurchase Notice has been tendered and not withdrawn
in accordance with this Indenture then, on the Change in Control Repurchase
Date, such Security will cease to be outstanding and the rights of the Holder in
respect thereof shall terminate (other than the right to receive the Change in
Control Repurchase Price as aforesaid). The Company shall publicly announce the
principal amount of Securities purchased as a result of such Change in Control
on or as soon as practicable after the Change in Control Repurchase Date.
SECTION 3.11. REPAYMENT TO THE COMPANY.
To the extent that the aggregate amount of cash deposited by the
Company pursuant to Sections 3.10 or 3.12 exceeds the aggregate Change in
Control Repurchase Price or Put Right Purchase Price, as the case may be,
together with interest thereon of the Securities or portions thereof that the
Company is obligated to purchase, then promptly after the Change in Control
Repurchase Date or Put Right Purchase Date, as the case may be, the Trustee or a
Paying Agent, as the case may be, shall return any such excess cash to the
Company.
SECTION 3.12. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER ON
SPECIFIED DATES.
(a) Securities shall be purchased in cash by the Company in accordance
with the provisions of paragraph 8 of the Securities promptly after October 1,
2008, October 1, 2013 and October 1, 2018 (each a respective "Put Right Purchase
Date"), at a purchase price per Security equal to 100% of the aggregate
principal amount of the Security, together with any accrued interest up to but
not including the applicable Put Right Purchase Date (the "Put Right Purchase
Price"); provided that if the Put Right Purchase Date falls after a Regular
Record Date and on or before the related Interest Payment Date, any interest on
the Securities will be payable to the Holders in whose names the Securities are
registered at the close of business on such Regular Record Date.
(b) The Company shall give written notice of the applicable Put Right
Purchase Date by notice sent by first-class mail to the Trustee and to each
Holder (at its address shown in the register of the Registrar) not less than 20
Business Days prior to each Put Right Purchase Date (the "Company Put Right
Notice"). Each Company Put Right Notice shall include a form of Put Right
Purchase Notice to be completed by a Securityholder and shall state:
(1) the Put Right Purchase Price, the Put Right Purchase Date
and the Conversion Price and Conversion Rate then in effect;
(2) the name and address of the Paying Agent and the
Conversion Agent;
(3) that Securities as to which a Put Right Purchase Notice
has been given may be converted if they are otherwise convertible only in
accordance with Article 4 hereof and paragraph 9 of the Securities only to the
extent that the Put Right Purchase Notice has been withdrawn in accordance with
the terms of this Indenture;
(4) that Securities must be surrendered to the Paying Agent to
collect payment;
22
(5) that the Put Right Purchase Price for any Security as to
which a Put Right Purchase Notice has been given and not withdrawn will be paid
promptly following the later of the Put Right Purchase Date and the time of
surrender of such Security as described in subclause (4) above;
(6) the procedures the Holder must follow to exercise rights
under this Section and a brief description of those rights;
(7) briefly, the conversion rights of the Securities;
(8) the procedures for withdrawing a Put Right Purchase Notice
(including pursuant to the terms of Section 3.12(d));
(9) that, unless the Company defaults in making payment on
Securities for which a Put Right Purchase Notice has been submitted, interest on
such Securities will cease to accrue on and after the Put Right Purchase Date;
and
(10) the CUSIP number of the Securities.
If any of the Securities are to be redeemed in the form of a Global
Security, the Company shall modify such notice to the extent necessary to accord
with the procedures of the Depositary applicable to redemptions.
At the Company's request, the Trustee shall give such Company Put Right
Notice on behalf of the Company and at the Company's expense; provided, however,
that, in all cases, the text of such Company Put Right Notice shall be prepared
by the Company.
(c) Purchases of Securities by the Company pursuant to this Section
3.12 shall be made, at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a written
notice of purchase in the form set forth in Exhibit A attached hereto (a "Put
Right Purchase Notice") at any time from the opening of business on the date
that is 20 Business Days prior to the applicable Put Right Purchase Date until
the close of business on the Put Right Purchase Date stating:
(A) if certificated Securities have been issued, the
certificate number of the Security which the Holder will deliver to be purchased
(or if the Securities are not certificated, the Put Right Purchase Notice must
comply with the procedures of the Depositary applicable to repurchases),
(B) the portion (which may be 100%) of the principal
amount of the Security which the Holder will deliver to be purchased, which
portion must be in a principal amount of $1,000 or an integral multiple thereof,
and
(C) that such Security shall be purchased as of the
applicable Put Right Purchase Date pursuant to the terms and conditions
specified in paragraph 8 of the Securities and in this Section 3.12 of this
Indenture.
(2) delivery of such Security to the Paying Agent at any time
after delivery of the Put Right Purchase Notice (together with all necessary
endorsements) at the offices of the Paying Agent (if the Securities are not
certificated, such delivery must comply with the procedures of the Depositary
applicable to
23
repurchases). Delivery of such Security shall be a condition to receipt by the
Holder of the Put Right Purchase Price therefor. The Put Right Purchase Price
shall be paid pursuant to this Section 3.12 only if the Security delivered to
the Paying Agent shall conform in all respects to the description thereof in the
related Put Right Purchase Notice, as determined by the Company.
(d) Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Put Right Purchase Notice contemplated by
this Section 3.12 shall have the right to withdraw such Put Right Purchase
Notice at any time prior to the close of business on the Put Right Purchase Date
by delivery of a written notice of withdrawal to the Paying Agent specifying:
(1) the certificate number, if any, of the Security in respect
of which such notice of withdrawal is being submitted (or, if the Securities are
not certificated, the withdrawal notice must comply with the procedures of the
Depositary applicable to withdrawals),
(2) the aggregate principal amount of the Security with
respect to which such notice of withdrawal is being submitted, and
(3) the aggregate principal amount, if any, of such Security
which remains subject to the original Put Right Purchase Notice and which has
been or will be delivered for purchase by the Company.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Put Right Purchase Notice or written notice of withdrawal thereof.
(e) On or before 5:00 p.m. (local time in the City of New York) on the
Business Day following the Put Right Purchase Date, the Company shall deposit
with the Trustee or with the Paying Agent (or if the Company or an Affiliate of
the Company is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.4) an amount of money (in immediately available funds if
deposited on such Put Right Purchase Date) sufficient to pay the aggregate Put
Right Purchase Price of all the Securities or portions thereof which are to be
purchased as of the Put Right Purchase Date. The manner in which the deposit
required by this Section 3.12(e) is made by the Company shall be at the option
of the Company; provided that such deposit shall be made in a manner such that
the Trustee or a Paying Agent shall have immediately available funds by the
close of business on the Business Day after the Put Right Purchase Date.
If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Put Right Purchase Price of any Security for which a Put
Right Notice has been tendered and not withdrawn on the Put Right Purchase Date,
then, on the close of business on the Business Day after the Put Right Purchase
Date, such Security will cease to be outstanding, whether or not the Security is
delivered to the Paying Agent, and the rights of the Holder in respect thereof
shall terminate (other than the right to receive the Put Right Purchase Price as
aforesaid) and interest will cease to accrue on such Security.
The Put Right Purchase Price shall be paid to such Holder with respect
to Securities for which a Put Right Purchase Notice has been tendered and not
withdrawn, subject to receipt of funds by the Paying Agent, promptly following
the later of (x) the Business Day after the Put Right Purchase Date with respect
to such Security (provided the conditions in Section 3.12(c) have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by
the Holder thereof in the manner required by Section 3.12(c). Securities in
respect of which a Put Right Purchase Notice has been given by the Holder
thereof may not be converted pursuant to Article 4 hereof on or after the date
of the delivery of such Put Right Purchase Notice, unless such Put Right
Purchase Notice has first been validly withdrawn as specified in Section
3.12(d).
24
To the extent that the aggregate amount of cash deposited by the
Company pursuant to this Section 3.12(e) exceeds the aggregate Put Right
Purchase Price of the Securities or portions thereof that the Company is
obligated to purchase, then promptly after the Put Right Purchase Date the
Trustee or a Paying Agent, as the case may be, shall return any such excess cash
to the Company.
(f) There shall be no purchase of any Securities pursuant to this
Section 3.12 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 Put Right
Purchase Notice) and is continuing an Event of Default (other than a default in
the payment of the Put Right Purchase Price). The Paying Agent will promptly
return to the respective Holders thereof any Securities (x) with respect to
which a Put Right Purchase Notice has been withdrawn in compliance with this
Indenture, or (y) held by it during the continuance of an Event of Default
(other than a default in the payment of the Put Right Purchase Price) in which
case, upon such return, the Put Right Purchase Notice with respect thereto shall
be deemed to have been withdrawn.
Upon receipt by the Paying Agent of the Put Right Purchase Notice
specified in Section 3.12(c), the Holder of the Security in respect of which
such Put Right Purchase Notice was given shall (unless such Put Right Purchase
Notice is withdrawn as specified herein) thereafter be entitled to receive
solely the Put Right Purchase Price with respect to such Security.
(g) The Company shall purchase from the Holder thereof, pursuant to
this Section 3.12, a portion of a Security if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
SECTION 3.13. SECURITIES PURCHASED IN PART.
Any Security that is to be purchased only in part shall be surrendered
at the office of a Paying Agent, and promptly after the Change in Control
Repurchase Date or the Put Right Purchase Date, as the case may be, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of such
authorized denomination or denominations as may be requested by such Holder, in
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Security so surrendered that is not purchased or
repurchased.
SECTION 3.14. COMPLIANCE WITH SECURITIES LAWS UPON REPURCHASE OF
SECURITIES.
In connection with any offer to purchase or repurchase of Securities
under Section 3.8 or Section 3.12, the Company shall (a) comply with Rule 13e-4
and Rule 14e-1 (or any successor to either such Rule), if applicable, under the
Exchange Act, (b) file the related Schedule TO (or any successor or similar
schedule, form or report) if required under the Exchange Act, and (c) otherwise
comply with all federal and state securities laws in connection with such offer
to purchase or repurchase of Securities, all so as to permit the rights of the
Holders and obligations of the Company under Sections 3.8 through 3.12 to be
exercised in the time and in the manner specified therein.
25
ARTICLE 4
CONVERSION
SECTION 4.1. CONVERSION PRIVILEGE AND CONVERSION RATE.
(a) Subject to and upon compliance with the provisions of this Article
and the Securities, at the option of the Holder thereof, any Security that is an
integral multiple of $1,000 may be converted into fully paid and nonassessable
shares (calculated as to each conversion to the nearest 1/100th of a share) of
Common Stock of the Company at any time on or prior to the close of business on
the Final Maturity Date at the Conversion Rate, determined as hereinafter
provided, in effect at the time of conversion and subject to the adjustments
described below, only under the following circumstances:
(1) prior to October 1, 2021, on any date during any fiscal
quarter (and only during such fiscal quarter) after the fiscal quarter ending
September 28, 2003, if the Closing Price per share of the Common Stock was more
than 110% of the then current Conversion Price for at least 20 Trading Days in
the period of the 30 consecutive Trading Days ending on the last day of the
previous fiscal quarter;
(2) on or after October 1, 2021, at all times on or after any
date on which the Closing Price per share of the Common Stock is more than 110%
of the then current Conversion Price on the Securities;
(3) until the close of business on the Business Day prior to
the Redemption Date if the Company elects to redeem the Securities on or after
October 1, 2008;
(4) if the Company distributes to all or substantially all
holders of Common Stock rights, options or warrants entitling them to purchase
Common Stock at less than the Closing Price per share of the Common Stock on the
last Trading Day preceding the declaration for such distribution;
(5) if the Company distributes to all or substantially all
holders of Common Stock cash, assets, debt securities or capital stock, which
distribution has a per share value as determined by the Board of Directors
exceeding 10% of the Closing Price per share of the Common Stock on the last
Trading Day preceding the declaration for such distribution;
(6) if the Company becomes a party to a consolidation, merger
or binding share exchange pursuant to which all or substantially all of the
Company's Common Stock would be converted to cash, securities or other property,
or if the Company undergoes a Change in Control or an event occurs that would
have been a Change in Control but for the existence of one of the Change in
Control exceptions pursuant to Section 3.8(a)(2) of this Indenture; or
(7) for the ten Business Day period after any five consecutive
Trading Day period in which the average Trading Prices for the Securities for
such five Trading Day period was less than 98% of the average Conversion Value
for the Securities during such period; provided, however, that a Holder may not
convert its Securities pursuant to this clause (7) if, on the Conversion Date,
the Closing Price per share of Common Stock is greater than or equal to the then
current Conversion Price of the Securities and less than or equal to 110% of the
then current Conversion Price of the Securities.
In the case of a distribution contemplated by clauses (4) and (5) of
this Section 4.1(a), the Company will notify Holders at least 20 days prior to
the ex-dividend date for such distribution (the "Distribution Notice"). Once the
Company has given the Distribution Notice, Holders may surrender their
Securities for
26
conversion at any time until the earlier of the close of business on the last
Business Day preceding the ex-dividend date or the Company's announcement that
such distribution will not take place. Notwithstanding the foregoing, in the
event of a distribution contemplated by clauses (4) and (5) of this Section
4.1(a), Holders may not convert the Securities if the Holders may participate in
such distribution without converting their Securities.
In the case of an event contemplated by clause (6) of this Section
4.1(a), the Company will notify Holders at least 25 days prior to the
anticipated effective date of such transaction (the "Merger Notice"). Once the
Company has given the Merger Notice, the Holders may surrender Securities for
conversion at any time from and after the date which is 15 days prior to the
anticipated effective date of such transaction until the date which is 15 days
after the actual effective date of such transaction. If the Company is party to
a transaction contemplated by clause (6) of this Section 4.1(a), then at the
effective time of the transaction, the right to convert a Security into shares
of Common Stock shall be changed into a right to convert such Security into the
kind and amount of cash, securities or other property of the Company or another
person that the Holders would have received if the Holders had converted such
Security immediately prior to the effective time of the transaction.
With respect to clause (1) of this Section 4.1(a), the Conversion Agent
will determine, on behalf of the Company, on the first Business Day of each
fiscal quarter whether the Securities are convertible as set forth in such
clause (1) as a result of the Closing Price per share of the Common Stock and
the then current Conversion Price and, if so, will notify the Company. With
respect to clause (2) of this section 4.1(a), the Conversion Agent will
determine, on behalf of the Company, daily on any date on or after October 1,
2021, whether the Securities are convertible as set forth in such clause (2) as
a result of the Closing Price per share of the Common Stock and the then current
Conversion Price and, if so, will notify the Company.
The "Conversion Value" for the Securities is equal to the product of
(i) the Closing Price per share of the Common Stock on a given day and (ii) the
then current Conversion Rate.
The "Trading Price" of the Securities on any date of determination
means the average of the secondary market bid quotations per Security obtained
by the Conversion Agent for $5,000,000 principal amount of the Securities at
approximately 4:00 p.m., New York City time, on such determination date from
three unaffiliated nationally recognized securities dealers the Company selects,
which may include the Initial Purchaser, provided that if at least three such
bids cannot be reasonably obtained by the Conversion Agent, but two bids are
obtained, then the average of the two bids will be used, and if only one such
bid can be reasonably obtained by the Conversion Agent, this one bid will be
used. If the Conversion Agent, through the exercise of reasonable efforts,
cannot obtain at least one bid for $5,000,000 principal amount of the Securities
from a nationally recognized securities dealer or if in the Company's reasonable
judgment, the bid quotations are not indicative of the secondary market value of
the Securities, then the Trading Price of the Securities will be deemed to be
less than 98% of the product of the then current Conversion Rate and the Closing
Price of Common Stock on the five Trading Days ending on such determination
date, appropriately adjusted.
The Conversion Agent shall have no obligation to determine the Trading
Price of the Securities unless the Company has requested such determination; and
the Company shall have no obligation to make such request unless a Holder
provides the Company with reasonable evidence that the Trading Price of the
Securities is reasonably likely to be less than 98% of the Conversion Value; at
which time, the Company shall instruct the Conversion Agent to determine the
Trading Price and Conversion Value of the Securities beginning on the next
Trading Day and on each successive Trading Day until the Trading Price is
greater than or equal to 98% of the Conversion Value, and the Conversion Agent
shall make such determinations and
27
determine whether the Securities are convertible as set forth in such clause (7)
and, if so, will notify the Company.
The Company will provide written notice to the Conversion Agent upon
the occurrence of any of the conversion events specified in (3), (4), (5) or (6)
above.
(b) The conversion right, subject to the conditions described in clause
(a) of this Section 4.1, shall commence on the initial issuance date of the
Securities and expire at the close of business on the Final Maturity Date,
subject, in the case of conversion of any Global Security, to any Applicable
Procedures. If a Security is called for redemption or submitted or presented for
purchase or repurchase pursuant to Article 3, such conversion right shall
terminate at the close of business on the Business Day immediately preceding the
Redemption Date, Change in Control Repurchase Date or Put Right Purchase Date,
as the case may be, for such Security or such earlier date as the Holder
presents such Security for redemption, purchase or repurchase (unless the
Company shall default in making the Redemption Price payment, Change in Control
Repurchase Price payment or Put Right Purchase Price payment when due in
accordance with Article 3, in which case the conversion right shall terminate at
the close of business on the date such default is cured and such Security is
redeemed, purchased or repurchased, as the case may be).
Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
A Holder of Securities is not entitled to any rights of a holder of
Common Stock until such Holder has converted its Securities into Common Stock,
and only to the extent such Securities are deemed to have been converted into
Common Stock pursuant to this Article 4.
The rate at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Rate") shall be initially 31.25 shares
of Common Stock for each $1,000 principal amount of Securities. The Conversion
Rate shall be adjusted in certain instances as provided in this Article 4. The
"Conversion Price" shall initially equal $1,000 divided by the Conversion Rate
and shall be adjusted when the Conversion Price is so adjusted in accordance
with this Article 4.
SECTION 4.2. CONVERSION PROCEDURE.
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice on the back of the Security and deliver such notice to a
Conversion Agent, (b) surrender the Security to a Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by a Registrar or a
Conversion Agent, and (d) pay any transfer or similar tax, if required. The date
on which the Holder satisfies all of those requirements is the "Conversion
Date." As soon as practicable after the Conversion Date, the Company shall
deliver to the Holder through a Conversion Agent a certificate for the number of
whole shares of Common Stock issuable upon the conversion and cash in lieu of
any fractional shares pursuant to Section 4.3. Anything herein to the contrary
notwithstanding, in the case of Global Securities, conversion notices may be
delivered and such Securities may be surrendered for conversion in accordance
with the Applicable Procedures as in effect from time to time.
The person in whose name the Common Stock certificate is registered
shall be deemed to be a stockholder of record on the Conversion Date; provided,
however, that no surrender of a Security on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the person
or persons entitled to receive the shares of Common Stock upon such conversion
as the record holder or holders
28
of such shares of Common Stock on such date, but such surrender shall be
effective to constitute the person or persons entitled to receive such shares of
Common Stock as the record holder or holders thereof for all purposes at the
close of business on the next succeeding day on which such stock transfer books
are open; provided, further, that such conversion shall be at the Conversion
Rate in effect on the Conversion Date as if the stock transfer books of the
Company had not been closed. Upon conversion of a Security, such person shall no
longer be a Holder of such Security. No payment or adjustment will be made for
dividends or distributions on shares of Common Stock issued upon conversion of a
Security.
Securities so surrendered for conversion (in whole or in part) during
the period from the close of business on any Regular Record Date to the opening
of business on the next succeeding Interest Payment Date (excluding (1)
Securities or portions thereof called for redemption or presented for repurchase
upon a Change in Control on a Redemption Date or on a Change in Control
Repurchase Date, as the case may be, with such date occurring during the period
beginning at the close of business on a Regular Record Date and ending at the
opening of business on the fifth Business Day after the next succeeding Interest
Payment Date or (2) Securities that are submitted for conversion between the
Regular Record Date for the final interest payment and the opening of business
on the final Interest Payment Date) shall also be accompanied by payment in
funds acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of such Security then being
converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of such Security, subject to the provisions of
this Indenture relating to the payment of defaulted interest by the Company.
Except as otherwise provided in this Section 4.2, no payment or adjustment will
be made for accrued interest on a converted Security. If the Company defaults in
the payment of interest payable on such Interest Payment Date, the Company shall
promptly repay such funds to such Holder.
Nothing in this Section shall affect the right of a Holder in whose
name any Security is registered at the close of business on a Regular Record
Date to receive the interest payable on such Security on the related Interest
Payment Date in accordance with the terms of this Indenture, the Securities and
the Registration Rights Agreement. If a Holder converts more than one Security
at the same time, the number of shares of Common Stock issuable upon the
conversion shall be based on the aggregate principal amount of Securities
converted.
Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Security equal in principal amount to the unconverted portion of the
Security surrendered.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in an aggregate principal amount equal to
the unconverted portion of the principal amount of such Security. A Security may
be converted in part, but only if the principal amount of such Security to be
converted is any integral multiple of $1,000 and the principal amount of such
security to remain outstanding after such conversion is equal to $1,000 or any
integral multiple of $1,000 in excess thereof.
SECTION 4.3. FRACTIONAL SHARES.
The Company will not issue fractional shares of Common Stock upon
conversion of Securities. In lieu thereof, the Company will pay an amount in
cash for the current market value of the fractional shares. The current market
value of a fractional share shall be determined (calculated to the nearest
1/100th of a share)
29
by multiplying the Closing Price (determined as set forth in Section 4.6(d)) of
the Common Stock on the Trading Day immediately prior to the Conversion Date by
such fractional share and rounding the product to the nearest whole cent.
SECTION 4.4. TAXES ON CONVERSION.
If a Holder converts a Security, the Company shall pay any documentary,
stamp or similar issue or transfer tax due on the issue of shares of Common
Stock upon such conversion. However, the Holder shall pay any such tax which is
due because the Holder requests the shares to be issued in a name other than the
Holder's name. The Conversion Agent may refuse to deliver the certificate
representing the Common Stock being issued in a name other than the Holder's
name until the Conversion Agent receives a sum sufficient to pay any tax which
will be due because the shares are to be issued in a name other than the
Holder's name. Nothing herein shall preclude any tax withholding required by law
or regulation.
SECTION 4.5. COMPANY TO PROVIDE STOCK.
The Company shall, prior to issuance of any Securities hereunder, and
from time to time as may be necessary, reserve, out of its authorized but
unissued Common Stock, a sufficient number of shares of Common Stock to permit
the conversion of all outstanding Securities into shares of Common Stock.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares, shall be duly authorized, validly issued, fully
paid and nonassessable and shall be free from preemptive or similar rights and
free of any lien or adverse claim.
The Company will endeavor promptly to comply with all federal and state
securities laws regulating the offer and delivery of shares of Common Stock upon
conversion of Securities, if any, and will list or cause to have quoted such
shares of Common Stock on each national securities exchange or on the Nasdaq
National Market or other over-the-counter market or such other market on which
the Common Stock is then listed or quoted; provided, however, that if rules of
such automated quotation system or exchange permit the Company to defer the
listing of such Common Stock until the first conversion of the Securities into
Common Stock in accordance with the provisions of this Indenture, the Company
covenants to list such Common Stock issuable upon conversion of the Securities
in accordance with the requirements of such automated quotation system or
exchange at such time. Any Common Stock issued upon conversion of a Security
hereunder which at the time of conversion was a Restricted Security will also be
a Restricted Security.
SECTION 4.6. 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 (i) pay a dividend on its Common Stock in
shares of Common Stock, (ii) make a distribution on its Common Stock in shares
of Common Stock, (iii) subdivide its outstanding Common Stock into a greater
number of shares, or (iv) combine its outstanding Common Stock into a smaller
number of shares, the Conversion Rate in effect immediately prior thereto shall
be adjusted so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive that number of shares of Common Stock
which it would have owned had such Security been converted immediately prior to
the happening of such event. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of subdivision or combination.
30
(b) In case the Company shall issue rights, options or warrants to all
holders of its Common Stock entitling them (for a period of not more than 60
days after such issuance) to subscribe for or purchase shares of Common Stock
(or securities convertible into Common Stock) at a price per share (or having a
conversion price per share) less than the Current Market Price per share of
Common Stock (as determined in accordance with subsection (d) of this Section
4.6) on the record date for the determination of stockholders entitled to
receive such rights, options or warrants, the Conversion Rate in effect
immediately prior thereto shall be adjusted so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect immediately prior
to such record date by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding on such record date plus the number of
additional shares of Common Stock offered (or into which the convertible
securities so offered are convertible) and of which the denominator shall be the
number of shares of Common Stock outstanding on such record date plus the number
of shares which the aggregate offering price of the total number of shares of
Common Stock so offered (or the aggregate conversion price of the convertible
securities so offered, which shall be determined by multiplying the number of
shares of Common Stock issuable upon conversion of such convertible securities
by the conversion price per share of Common Stock pursuant to the terms of such
convertible securities) would purchase at the Current Market Price per share (as
defined in subsection (d) of this Section 4.6) of Common Stock on such record
date. Such adjustment shall be made successively whenever any such rights,
options or warrants are issued, and shall become effective immediately after
such record date. If at the end of the period during which such rights, options
or warrants are exercisable not all rights, options or warrants shall have been
exercised, the adjusted Conversion Rate shall be immediately readjusted to what
it would have been based upon the number of additional shares of Common Stock
actually issued (or the number of shares of Common Stock issuable upon
conversion of convertible securities actually issued).
(c) In case the Company shall distribute to all holders of its Common
Stock any shares of capital stock of the Company (other than Common Stock),
evidences of indebtedness or other non-cash assets (including securities of any
person other than the Company but excluding (1) dividends or distributions paid
exclusively in cash or (2) dividends or distributions referred to in subsection
(a) of this Section 4.6), or shall distribute to all holders of its Common Stock
rights, options or warrants to subscribe for or purchase any of its securities
(excluding those rights and warrants referred to in subsection (b) of this
Section 4.6) and also excluding the distribution of rights to all holders of
Common Stock pursuant to a Rights Plan (as defined below) adopted before or
after the date of this Indenture), then in each such case the Conversion Rate
shall be adjusted so that the same shall equal the rate determined by
multiplying the current Conversion Rate by a fraction of which the numerator
shall be the Current Market Price per share (as defined in subsection (d) of
this Section 4.6) of the Common Stock on such record date and of which the
denominator shall be Current Market Price per share (as defined in subsection
(d) of this Section 4.6) of the Common Stock on the record date mentioned below
less the fair market value on such record date (as determined by the Board of
Directors, whose determination shall be conclusive evidence of such fair market
value and which shall be evidenced by an Officers' Certificate delivered to the
Trustee) of the portion of the capital stock, evidences of indebtedness or other
non-cash assets so distributed or of such rights, options or warrants applicable
to one share of Common Stock (determined on the basis of the number of shares of
Common Stock outstanding on the record date). Such adjustment shall be made
successively whenever any such distribution is made and shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such distribution.
In the event the then fair market value (as so determined) of the
portion of the capital stock, evidences of indebtedness or other non-cash assets
so distributed or of such rights or warrants applicable to one share of Common
Stock is equal to or greater than the Current Market Price per share of the
Common Stock on such record date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of a
31
Security shall have the right to receive upon conversion the amount of capital
stock, evidences of indebtedness or other non-cash assets so distributed or of
such rights or warrants such holder would have received had such holder
converted each Security on such record date. In the event that such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared. If the Board of Directors determines the
fair market value of any distribution for purposes of this Section 4.6(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 Current Market Price of the Common Stock.
Notwithstanding the foregoing, if the securities distributed by the
Company to all holders of its Common Stock consist of capital stock of, or
similar equity interests in, a Subsidiary or other business unit, the Conversion
Rate shall be increased so that the same shall be equal to the rate determined
by multiplying the Conversion Rate in effect on the record date with respect to
such distribution by a fraction: the numerator of which shall be the sum of (x)
the average Closing Price of one share of Common Stock over the ten consecutive
Trading Day period (the "Spinoff Valuation Period") commencing on and including
the fifth Trading Day after the date on which "ex-dividend trading" commences on
the Common Stock on the Nasdaq National Market or such other national or
regional exchange or market on which the Common Stock is then listed or quoted
and (y) the average Closing Price over the Spinoff Valuation Period of the
portion of the securities so distributed applicable to one share of Common Stock
and the denominator of which shall be the average Closing Price of one share of
Common Stock over the Spinoff Valuation Period, such adjustment to become
effective immediately prior to the opening of business on the fifteenth Trading
Day after the date on which "ex-dividend trading" commences; provided, however,
that the Company may in lieu of the foregoing adjustment elect to reserve the
pro rata portion of such Securities so that each Holder of securities shall have
the right to receive upon conversion the amount of such shares of capital stock
or similar equity interests of such Subsidiary or business unit that such Holder
of Securities would have received if such Holder of Securities had converted
such Securities on the record date with respect to such distribution.
With respect to any rights (the "Rights") that may be issued or
distributed pursuant to any rights plan that the Company implements after the
date of this Indenture (any Rights that may be issued pursuant to any such
future rights plan being referred to as, a "Rights Plan"), upon conversion of
the Securities into Common Stock, to the extent that such Rights Plan is in
effect upon such conversion, the holders of Securities will receive, in addition
to the Common Stock, the Rights described therein (whether or not the Rights
have separated from the Common Stock at the time of conversion), subject to the
limitations set forth in any such Rights Plan. Any distribution of rights or
warrants pursuant to a Rights Plan complying with the requirements set forth in
the immediately preceding sentence of this paragraph shall not constitute a
distribution of rights or warrants pursuant to this Section 4.6(c).
Rights or warrants (other than rights issued pursuant to a Rights Plan)
distributed by the Company to all holders of Common Stock entitling the holders
thereof to subscribe for or purchase shares of the Company's Capital Stock
(either initially or under certain circumstances), which rights or warrants,
until the occurrence of a specified event or events ("Trigger Event"): (i) are
deemed to be transferred with such shares of Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this Section
4.6 (and no adjustment to the Conversion Price under this Section 4.6 will be
required) until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
Section 4.6(c). If any such right or warrant, including any such existing rights
or warrants distributed prior to the date of this Indenture, are subject to
events, upon the occurrence of which such rights or warrants become exercisable
to purchase
32
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 or warrants with such
rights (and a termination or expiration of the existing rights or warrants
without exercise by any of the holders thereof). In addition, in the event of
any distribution (or deemed distribution) of rights or warrants, or any Trigger
Event or other event (of the type described in the preceding sentence) with
respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this Section 4.6 was
made, (1) in the case of any such rights or warrants which shall all have been
redeemed, purchased by the Company or repurchased without exercise by any
holders thereof, the Conversion Rate shall be readjusted upon such final
redemption, purchase by the Company or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder or holders of Common Stock with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made to all holders
of Common Stock as of the date of such redemption or repurchase, and (2) in the
case of such rights or warrants which shall have expired or been terminated
without exercise by any holders thereof, the Conversion Rate shall be readjusted
as if such rights and warrants had not been issued.
(1) In case the Company shall, by dividend or otherwise, at
any time distribute (a "Triggering Distribution") to all holders of its Common
Stock cash, the Conversion Rate shall be increased so that the same shall equal
the rate determined by multiplying such Conversion Rate in effect immediately
prior to the Business Day immediately preceding the day on which such Triggering
Distribution is declared ("Determination Date") by a fraction of which the
numerator shall be such Current Market Price per share of the Common Stock (as
determined in accordance with subsection (d) of this Section 4.6) on the
Determination Date and the denominator of which shall be the Current Market
Price per share of the Common Stock (as determined in accordance with subsection
(d) of this Section 4.6) on the Determination Date less the sum of the aggregate
amount of cash, paid or payable within such 12 months (including, without
limitation, the Triggering Distribution) applicable to one share of Common Stock
(determined on the basis of the number of shares of Common Stock outstanding on
the Determination Date), such increase to become effective immediately prior to
the opening of business on the day following the date on which the Triggering
Distribution is paid.
(2) In case any tender offer made by the Company or any of its
Subsidiaries for Common Stock shall expire, then immediately prior to the
opening of business on the day after the last date (the "Expiration Date")
tenders could have been made pursuant to such tender offer (as it may be
amended) (the last time at which such tenders could have been made on the
Expiration Date is hereinafter sometimes called the "Expiration Time"), the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to the
close of business on the Expiration Date by a fraction of which the numerator
shall be the sum of (x) the aggregate consideration (determined as aforesaid)
payable to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender offer) of all shares validly tendered and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased Shares and
excluding any shares held in the treasury of the Company) at the Expiration Time
and the Current Market Price per share of Common Stock (as determined in
accordance with subsection (d) of this Section 4.6) on the Trading Day next
succeeding the Expiration Date and the denominator of which shall be the product
of the number of shares of Common Stock outstanding (including tendered shares
but excluding any shares held in the treasury of the Company) at the Expiration
Time multiplied by the Current Market Price per share of the Common Stock (as
determined in accordance with subsection (d) of this Section 4.6) on the Trading
Day next succeeding the Expiration Date, such increase to become effective
immediately prior to the opening of business on the day
33
following the Expiration Date. In the event that the Company is obligated to
purchase shares pursuant to any such tender offer, but the Company is
permanently prevented by applicable law from effecting any or all such purchases
or any or all such purchases are rescinded, the Conversion Rate shall again be
adjusted to be the Conversion Rate which would have been in effect based upon
the number of shares actually purchased. If the application of this Section
4.6(c)(2) to any tender offer would result in a decrease in the Conversion Rate,
no adjustment shall be made for such tender offer under this Section 4.6(c)(2).
(3) For purposes of this Section 4.6(c), the term "tender
offer" shall mean and include both tender offers and exchange offers, all
references to "purchases" of shares in tender offers (and all similar
references) shall mean and include both the purchase of shares in tender offers
and the acquisition of shares pursuant to exchange offers, and all references to
"tendered shares" (and all similar references) shall mean and include shares
tendered in both tender offers and exchange offers.
(d) For the purpose of any computation under subsections (b) and (c) of
this Section 4.6, the current market price (the "Current Market Price") per
share of Common Stock on any date shall be deemed to be the average of the daily
closing prices for the 30 consecutive Trading Days commencing 45 Trading Days
before (i) the Determination Date or the Expiration Date, as the case may be,
with respect to distributions or tender offers under subsection (c) of this
Section 4.6 or (ii) the record date with respect to distributions, issuances or
other events requiring such computation under subsection (b) or (c) of this
Section 4.6. The closing price (the "Closing Price") for each day shall be the
last reported sales price or, in case no such reported sale takes place on such
date, the average of the reported closing bid and asked prices in either case on
the Nasdaq National Market or, if the Common Stock is not listed or admitted to
trading on the Nasdaq National Market, on the principal national securities
exchange on which the Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on the Nasdaq National Market or any national
securities exchange, the last reported sales price of the Common Stock as quoted
on NASDAQ or, in case no reported sales takes place, the average of the closing
bid and asked prices as quoted on NASDAQ or any comparable system or, if the
Common Stock is not quoted on NASDAQ or any comparable system, the closing sales
price or, in case no reported sale takes place, the average of the closing bid
and asked prices, as furnished by any two members of the National Association of
Securities Dealers, Inc. selected from time to time by the Company for that
purpose. If no such prices are available, the Current Market Price per share
shall be the fair value of a share of Common Stock as reasonably determined by
the Board of Directors (which shall be evidenced by an Officers' Certificate
delivered to the Trustee).
(e) In any case in which this Section 4.6 shall require that an
adjustment be made following a record date or a Determination Date or Expiration
Date, as the case may be, established for purposes of this Section 4.6, the
Company may elect to defer (but only until five Business Days following the
filing by the Company with the Trustee of the certificate described in Section
4.9) issuing to the Holder of any Security converted after such record date or
Determination Date or Expiration Date the shares of Common Stock and other
capital stock of the Company issuable upon such conversion over and above the
shares of Common Stock and other capital stock of the Company issuable upon such
conversion only on the basis of the Conversion Rate prior to adjustment; and, in
lieu of the shares the issuance of which is so deferred, the Company shall issue
or cause its transfer agents to issue due bills or other appropriate evidence
prepared by the Company of the right to receive such shares. If any distribution
in respect of which an adjustment to the Conversion Rate is required to be made
as of the record date or Determination Date or Expiration Date therefor is not
thereafter made or paid by the Company for any reason, the Conversion Rate shall
be readjusted to the Conversion Rate which would then be in effect if such
record date had not been fixed or such effective date or Determination Date or
Expiration Date had not occurred.
34
(f) For purposes of this Section 4.6, "record date" shall mean, with
respect to any dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is
exchanged or converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders entitled to receive
such cash, security or other property (whether or not such date is fixed by the
Board of Directors or by statute, contract or otherwise).
SECTION 4.7. NO ADJUSTMENT.
No adjustment in the Conversion Rate shall be required if Holders may
participate in the transactions set forth in Section 4.6 above without
converting the Securities held by such Holders.
No adjustment in the Conversion Rate shall be required unless the
adjustment would require an increase or decrease of at least 1% in the
Conversion Rate as last adjusted; provided, however, that any adjustments which
by reason of this Section 4.7 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article 4 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
No adjustment in the Conversion Rate shall be required for issuances of
Common Stock pursuant to a Company plan for reinvestment of dividends or
interest or for a change in the par value or a change to no par value of the
Common Stock.
To the extent that the Securities become convertible into the right to
receive cash, no adjustment need be made thereafter as to the cash. Interest
will not accrue on the cash.
SECTION 4.8. ADJUSTMENT FOR TAX PURPOSES.
The Company shall be entitled to make such increases in the Conversion
Rate, in addition to those required by Section 4.6, as it in its discretion
shall determine to be advisable in order that any stock dividends, subdivisions
of shares, distributions of rights to purchase stock or securities or
distributions of securities convertible into or exchangeable for stock hereafter
made by the Company to its stockholders shall not be taxable. Any such change in
the Conversion Rate shall also be made to the Conversion Price.
SECTION 4.9. NOTICE OF ADJUSTMENT.
Whenever the Conversion Rate or conversion privilege is adjusted, the
Company shall promptly mail to Securityholders a notice of the adjustment and
file with the Trustee an Officers' Certificate briefly stating the facts
requiring the adjustment and the manner of computing it. Unless and until the
Trustee shall receive an Officers' Certificate setting forth an adjustment of
the Conversion Rate, the Trustee may assume without inquiry that the Conversion
Rate has not been adjusted and that the last Conversion Rate of which it has
knowledge remains in effect.
SECTION 4.10. NOTICE OF CERTAIN TRANSACTIONS.
In the event that:
(1) the Company takes any action which would require an
adjustment in the Conversion Rate;
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(2) the Company consolidates or merges with, or transfers all
or substantially all of its property and assets to, another corporation and
stockholders of the Company must approve the transaction; or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice at least ten days before such date. 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 4.10.
SECTION 4.11. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE
ON CONVERSION PRIVILEGE.
If any of the following shall occur, namely: (a) any reclassification
or change of shares of Common Stock issuable upon conversion of the Securities
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination, or any
other change for which an adjustment is provided in Section 4.6); (b) any
statutory share exchange, consolidation or merger or combination to which the
Company is a party other than a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or change
(other than 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) in,
outstanding shares of Common Stock; or (c) any sale or conveyance of all or
substantially all the property and assets of the Company, directly or
indirectly, to any person, then the Company, or such successor, purchasing or
transferee corporation, as the case may be, shall, as a condition precedent to
such reclassification, change, combination, statutory share exchange,
consolidation, merger, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right to convert such Security into the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such reclassification, change, combination, statutory share
exchange, consolidation, merger, sale or conveyance by a holder of the number of
shares of Common Stock deliverable upon conversion of such Security immediately
prior to such reclassification, change, combination, statutory share exchange,
consolidation, merger, sale or conveyance. Such supplemental indenture 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 4. If, in the case of any such consolidation,
merger, combination, statutory share exchange, sale or conveyance, the stock or
other securities and property (including cash) receivable thereupon by a holder
of Common Stock include shares of stock or other securities and property of a
person other than the successor, purchasing or transferee corporation, as the
case may be, in such consolidation, merger, combination, statutory share
exchange, sale or conveyance, 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
shall reasonably consider necessary by reason of the foregoing. The provisions
of this Section 4.11 shall similarly apply to successive reclassifications,
changes, combinations, consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 4.11, the Company shall promptly file with the Trustee
(x) an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or other securities or property (including cash)
receivable by Holders of the Securities upon the conversion of their Securities
after any such reclassification, change, combination, consolidation, merger,
sale or conveyance, any adjustment to be made with respect thereto and that all
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conditions precedent have been complied with and (y) an Opinion of Counsel that
all conditions precedent have been complied with, and shall promptly mail notice
thereof to all Holders.
SECTION 4.12. TRUSTEE'S DISCLAIMER.
The Trustee shall have no duty to determine when an adjustment under
this Article 4 should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of that fact or the correctness
of any such adjustment, and shall be protected in relying upon, an Officers'
Certificate including the Officers' Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 4.9. The
Trustee makes no representation as to the validity or value of any securities or
assets issued upon conversion of Securities, and the Trustee shall not be
responsible for the Company's failure to comply with any provisions of this
Article 4.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 4.11, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 4.11.
SECTION 4.13. VOLUNTARY INCREASE.
The Company from time to time may increase the Conversion Rate by any
amount for any period of time if the period is at least 20 days and if the
increase is irrevocable during the period if the Board of Directors determines
that such increase would be in the best interest of the Company or to avoid or
diminish income tax to holders of shares of our Common Stock in connection with
a dividend or distribution of stock or similar event, and the Company provides
15 days prior notice of any increase in the Conversion Rate; provided, however,
that in no event may the Company increase the Conversion Rate so that the
adjusted Conversion Price would be less than the par value of a share of Common
Stock. Any such change in the Conversion Rate shall also be made to the
Conversion Price.
ARTICLE 5
[INTENTIONALLY OMITTED]
ARTICLE 6
COVENANTS
SECTION 6.1. PAYMENT OF SECURITIES.
The Company shall promptly make all payments in respect of the
Securities on the dates and in the manner provided in the Securities and this
Indenture. An installment of principal or interest or Liquidated Damages, if
any, shall be considered paid on the date it is due if the Paying Agent (other
than the Company) holds by 11:00 a.m., New York City time, on that date money,
deposited by the Company or an Affiliate thereof, sufficient to pay the
installment. Subject to Section 4.2 hereof, accrued and unpaid interest on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security is
registered at the close of business on the Regular Record Date for such interest
at the office or agency of the Company maintained for such purpose. The Company
shall, (in immediately available funds) to the fullest extent permitted by law,
pay interest on overdue principal (including premium, if any) and overdue
installments of interest at the rate borne by the Securities.
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Payment of the principal of (and premium, if any) and interest on the
Securities shall be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York (which shall
initially be the Trustee) or at the Corporate Trust Office of the Trustee in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address appears in the
Register; provided further that a Holder with an aggregate principal amount in
excess of $2,000,000 will be paid by wire transfer in immediately available
funds at the election of such Holder if such Holder has provided wire transfer
instructions to the Company at least 10 Business Days prior to the payment date.
SECTION 6.2. SEC REPORTS.
The Company shall file all reports and other information and documents
which it is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, and within 15 days after it files them with the SEC, the Company
shall file copies of all such reports, information and other documents with the
Trustee.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 6.3. COMPLIANCE CERTIFICATES.
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company (beginning with the fiscal year ending
December 31, 2003), an Officers' Certificate as to the signer's knowledge of the
Company's compliance with all conditions and covenants on its part contained in
this Indenture and stating whether or not the signer knows of any default or
Event of Default. If such signer knows of such a default or Event of Default,
the Officers' Certificate shall describe the default or Event of Default and the
efforts to remedy the same. For the purposes of this Section 6.3, compliance
shall be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 6.4. FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
SECTION 6.5. MAINTENANCE OF CORPORATE EXISTENCE.
Subject to Article 7, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 6.6. RULE 144A INFORMATION REQUIREMENT.
Within the period prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), the Company covenants and agrees that it shall, during any
period in which it is not subject to Section 13 or 15(d) under the Exchange Act,
upon the request of any Holder or beneficial holder of the Securities make
available to such Holder or beneficial holder
38
of Securities or any Common Stock issued upon conversion thereof which continue
to be Restricted Securities in connection with any sale thereof and any
prospective purchaser of Securities or such Common Stock designated by such
Holder or beneficial holder, the information required pursuant to Rule
144A(d)(4) under the Securities Act and it will take such further action as any
Holder or beneficial holder of such Securities or such Common Stock may
reasonably request, all to the extent required from time to time to enable such
Holder or beneficial holder to sell its Securities or Common Stock without
registration under the Securities Act within the limitation of the exemption
provided by Rule 144A, as such Rule may be amended from time to time. Upon the
request of any Holder or any beneficial holder of the Securities or such Common
Stock, the Company will deliver to such Holder a written statement as to whether
it has complied with such requirements.
SECTION 6.7. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law or other
law which would prohibit or forgive the Company from paying all or any portion
of the principal of, premium, if any, or interest (including Liquidated Damages,
if any), on the Securities as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and the Company (to the extent 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 had been enacted.
SECTION 6.8. PAYMENT OF LIQUIDATED DAMAGES.
If Liquidated Damages are payable by the Company pursuant to the
Registration Rights Agreement, the Company shall deliver to the Trustee a
certificate to that effect stating (i) the amount of such Liquidated Damages
that are payable, (ii) the reason why such Liquidated Damages are payable and
(iii) the date on which such Liquidated Damages are payable. Unless and until a
Trust Officer of the Trustee receives such a certificate, the Trustee may assume
without inquiry that no such Liquidated Damages is payable. If the Company has
paid Liquidated Damages directly to the Persons entitled to such Liquidated
Damages, the Company shall deliver to the Trustee a certificate setting forth
the particulars of such payment.
ARTICLE 7
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with, merge with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) either (a) the Company shall be the resulting or surviving
corporation or (b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance, transfer or lease, the properties and assets of the Company
substantially as an entirety shall (i) be a corporation organized and validly
existing under the laws of the United States of America or any State thereof and
(ii) expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of
39
and any premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed and the conversion rights shall be provided for in
accordance with Article 4, by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the Person (if other than the
Company) formed by such consolidation or into which the Company shall have been
merged or by the Person which shall have acquired the Company's assets;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
complies with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise) of the properties and assets of one or more Subsidiaries (other
than to the Company or another Subsidiary), which, if such assets were owned by
the Company, would constitute all or substantially all of the properties and
assets of the Company, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
SECTION 7.2. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 7.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE 8
DEFAULT AND REMEDIES
SECTION 8.1. EVENTS OF DEFAULT.
An "Event of Default" shall occur if:
(1) the Company defaults in the payment of any interest (or
Liquidated Damages, if any, payable to all holders of Registrable Securities (as
defined in the Registration Rights Agreement)) on any Security when the same
becomes due and payable and the default continues for a period of 30 days;
(2) the Company defaults in the payment of any principal of
(including, without limitation, any premium, if any, on) any Security when the
same becomes due and payable (whether at maturity, upon a Change in Control
Repurchase Date, Redemption Date, in connection with a Put Right Purchase Date
or otherwise);
40
(3) the Company fails to comply with any of its other terms,
covenants or agreements contained in the Securities or this Indenture and the
default continues for a period of 30 days after the Notice of Default specified
below;
(4) the Company fails to provide a Change in Control
Repurchase Notice when required by Section 3.8 and the default continues for a
period of 5 days after the Notice of Default specified below; or
(5) any indebtedness under any bond, debenture, note or other
evidence of indebtedness for money borrowed (or guarantee thereof) by the
Company or under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any indebtedness for money
borrowed by the Company (an "Instrument") with an aggregate principal amount
then outstanding in excess of $10,000,000, whether such indebtedness now exists
or shall hereafter be created, is not paid at final maturity of the Instrument
by the end of the applicable grace period (either at its stated maturity or upon
acceleration thereof), and such indebtedness is not discharged, or such
acceleration is not rescinded or annulled, within a period of 30 days after
there shall have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or cause such default to be cured or waived or such acceleration
to be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Company or any Significant Subsidiary, pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief
against it in an involuntary case or
proceeding or the commencement of any case
against it;
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its
property;
(D) makes a general assignment for the benefit of its
creditors;
(E) files a petition in bankruptcy or answer or
consent seeking reorganization or relief; or
(F) consents to the filing of such a petition or the
appointment of or taking possession by a
Custodian; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary
case or proceeding or adjudicates the
Company or any Significant Subsidiary
insolvent or bankrupt;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or
substantially all of the property of the
Company or any Significant Subsidiary; or
41
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
and in each case the order or decree remains unstayed and in effect for 60
consecutive days.
The term "Bankruptcy Law" means Title 11 of the United States Code (or
any successor thereto) or any similar federal or state law for the relief of
debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
A default under clauses (3) or (4) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding notify the Company
and the Trustee, in writing of the default, and the Company does not cure the
default within the time specified in clauses (3) or (4) above after receipt of
such notice. The notice given pursuant to this Section 8.1 must specify the
default, demand that it be remedied and state that the notice is a "Notice of
Default." When any default under this Section 8.1 is cured, it ceases.
The Company will deliver to the Trustee, within 5 business days of
becoming aware of the occurrence of an Event of Default, written notice thereof.
In addition, the Company shall deliver to the Trustee, within 10 days after it
becomes aware of the occurrence thereof, written notice of any event which with
the lapse of time would become an Event of Default under clause (3), (4) or (5)
above.
The Trustee shall not be charged with knowledge of any Event of Default
unless written notice thereof shall have been given to a Trust Officer at the
Corporate Trust Office of the Trustee by the Company, a Paying Agent, any Holder
or any agent of any Holder.
SECTION 8.2. ACCELERATION.
If an Event of Default (other than an Event of Default specified in
clause (6) or (7) of Section 8.1) occurs and is continuing, the Trustee may, by
notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding may, by notice to the Company and the
Trustee, declare all unpaid principal to the date of acceleration on the
Securities then outstanding (if not then due and payable) to be due and payable
upon any such declaration, and the same shall become and be immediately due and
payable. If an Event of Default specified in clause (6) or (7) of Section 8.1
occurs, all unpaid principal of the Securities then outstanding 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 notice to the Trustee may
rescind an acceleration and its consequences if (a) all existing Events of
Default, other than the nonpayment of the principal of the Securities which has
become due solely by such declaration of acceleration, have been cured or
waived; (b) to the extent the payment of such interest is lawful, interest
(calculated at the rate per annum borne by the Securities) on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid; (c) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction; and (d) all payments due to the Trustee and any predecessor
Trustee under Section 9.7 have been made. No such rescission shall affect any
subsequent default or impair any right consequent thereto.
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SECTION 8.3. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may, but
shall not be obligated to, pursue any available remedy by proceeding at law or
in equity to collect the payment of the principal of or interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if 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 Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 8.4. WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.
Subject to Sections 8.7 and 11.2, the Holders of a majority in
aggregate principal amount of the Securities then outstanding by notice to the
Trustee may waive an existing default or Event of Default and its consequences,
except a default or Event of Default in the payment of the principal of,
premium, if any, or interest on any Security, a failure by the Company to
convert any Securities into Common Stock or any default or Event of Default in
respect of any provision of this Indenture or the Securities which, under
Section 11.2, cannot be modified or amended without the consent of the Holder of
each Security affected. When a default or Event of Default is waived, it is
cured and ceases.
SECTION 8.5. 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, that the Trustee determines
may be unduly prejudicial to the rights of another Holder or the Trustee, or
that may involve the Trustee in personal liability unless the Trustee is offered
indemnity satisfactory to it; provided, however, that the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction.
SECTION 8.6. LIMITATIONS ON SUITS.
A Holder may not pursue any remedy with respect to this Indenture or
the Securities (except actions for payment of overdue principal, premium, if
any, or interest for the conversion of the Securities pursuant to Article 4)
unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the then outstanding Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
indemnity to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
43
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Securities then outstanding.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 8.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of the principal of and interest on the
Security, on or after the respective due dates expressed in the Security and
this Indenture, to convert such Security in accordance with Article 4 and to
bring suit for the enforcement of any such payment on or after such respective
dates or the right to convert, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.
SECTION 8.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in the payment of principal or interest
specified in clause (1) or (2) of Section 8.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or another obligor on the Securities for the whole amount of
principal and accrued interest remaining unpaid, together with, to the extent
that payment of such interest is lawful interest on overdue principal and
overdue installments of interest in each case at the rate per annum borne by the
Securities and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 8.9. 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
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any money or other property payable or deliverable on any
such claims and to distribute the same, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 9.7, and to the extent that such payment of the reasonable compensation,
expenses, disbursements and advances in any such proceedings shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
property which the Holders may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or, on behalf of any Holder, to authorize, accept or
adopt 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.
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SECTION 8.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 8, it shall
pay out the money in the following order:
First, to the Trustee for amounts due under Section 9.7;
Second, to Holders for amounts due and unpaid on the Securities for
principal and interest (including Liquidated Damages, if any), ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities for principal and interest (including Liquidated Damages, if
any), respectively;
Third, to such other Person or Persons, if any, to the extent entitled
thereto; and
Fourth, the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 8.10.
SECTION 8.11. 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 of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, 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 8.11 does not apply to a suit made by the Trustee, a suit
by a Holder pursuant to Section 8.7, or a suit by Holders of more than 10% in
aggregate principal amount of the Securities then outstanding.
ARTICLE 9
TRUSTEE
SECTION 9.1. DUTIES OF TRUSTEE.
(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 its exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. The Trustee,
however, shall examine any certificates and opinions which by any provision
hereof are specifically required to be delivered to the Trustee to determine
whether or not they conform to the requirements of this Indenture.
45
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of subsection (b)
of this Section 9.1;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 8.5.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers unless the Trustee shall have received adequate indemnity in
its opinion against potential costs and liabilities incurred by it relating
thereto.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to subsections (a), (b), (c) and (d) of this Section 9.1.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 9.2. RIGHTS OF TRUSTEE.
Subject to Section 9.1:
(a) The Trustee may rely conclusively on any document believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to Section
12.4(b). The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers' Certificate or Opinion.
(c) The Trustee may act through its agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any such action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders
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shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(h) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office, and such notice
references the Securities and this Indenture.
(i) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, including, without limitation as Paying Agent, Registrar and
Conversion Agent, and to each agent, custodian and other Person employed to act
hereunder.
SECTION 9.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 9.10 and 9.11.
SECTION 9.4. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 9.5. NOTICE OF DEFAULT OR EVENTS OF DEFAULT.
If a default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Securityholder notice of
the default or Event of Default within 90 days after it occurs. However, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding notice is in the interests of
Securityholders, except in the case of a default or an Event of Default in
payment of the principal of or interest on any Security.
SECTION 9.6. REPORTS BY TRUSTEE TO HOLDERS.
If a report is required by TIA Section 313, within 60 days after each
October 1, beginning with the October 1 following the date of this Indenture,
the Trustee shall mail to each Securityholder a brief report dated as of such
October 1 that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Section 313(b)(2) and (c).
47
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and, to the extent required by the TIA, filed
with the SEC, and each stock exchange, if any, on which the Securities are
listed. The Company shall notify the Trustee whenever the Securities become
listed on any stock exchange or listed or admitted to trading on any quotation
system and any changes in the stock exchanges or quotation systems on which the
Securities are listed or admitted to trading and of any delisting thereof.
SECTION 9.7. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation (as agreed to from time to time by the Company and the Trustee in
writing) for its services (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses may
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee or any predecessor Trustee
(which for purposes of this Section 9.7 shall include its officers, directors,
employees and agents) for, and hold it harmless against, any and all loss,
liability or expense including taxes (other than taxes based upon, measured by
or determined by the income of the Trustee), (including reasonable legal fees
and expenses) incurred by it in connection with the acceptance or administration
of its duties under this Indenture or any action or failure to act as authorized
or within the discretion or rights or powers conferred upon the Trustee
hereunder including the reasonable costs and expenses of the Trustee and its
counsel in defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. The Company need not pay for any
settlement effected without its prior written consent, which shall not be
unreasonably withheld.
The Company need not reimburse the Trustee for any expense or indemnify
it against any loss or liability incurred by it resulting from its gross
negligence or bad faith.
To secure the Company's payment obligations in this Section 9.7, the
Trustee shall have a senior claim to which the Securities are hereby made
subordinate on all money or property held or collected by the Trustee, except
such money or property held in trust to pay the principal of and interest on
particular Securities. The obligations of the Company under this Section 9.7
shall survive the satisfaction and discharge of this Indenture or the
resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (6) or (7) of Section 8.1 occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law. The provisions of this Section shall
survive the termination of this Indenture.
SECTION 9.8. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company. The Holders of a
majority in aggregate principal amount of the Securities then outstanding may
remove the Trustee by so notifying the Trustee and may, with the Company's
written consent, appoint a successor Trustee. The Company may remove the Trustee
if:
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(1) the Trustee fails to comply with Section 9.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. The resignation or removal of a Trustee shall not be effective until a
successor Trustee shall have delivered the written acceptance of its appointment
as described below.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of 10% in principal amount of the Securities then outstanding may
petition any court of competent jurisdiction for the appointment of a successor
Trustee at the expense of the Company.
If the Trustee fails to comply with Section 9.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee and be released from its obligations (exclusive of any
liabilities that the retiring Trustee may have incurred while acting as Trustee)
hereunder, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.
A retiring Trustee shall not be liable for the acts or omissions of any
successor Trustee after its succession.
Notwithstanding replacement of the Trustee pursuant to this Section
9.8, the Company's obligations under Section 9.7 shall continue for the benefit
of the retiring Trustee.
SECTION 9.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust assets (including the
administration of this Indenture) to, another corporation, the resulting,
surviving or transferee corporation, without any further act, shall be the
successor Trustee, provided such transferee corporation shall qualify and be
eligible under Section 9.10. Such successor Trustee shall promptly mail notice
of its succession to the Company and each Holder.
SECTION 9.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall always satisfy the requirements of paragraphs (1),
(2) and (5) of TIA Section 310(a). The Trustee (or its parent holding company)
shall have a combined capital and surplus of at least $50,000,000. If at any
time the Trustee shall cease to satisfy any such requirements, it shall resign
immediately in the manner and with the effect specified in this Article 9. The
Trustee shall be subject to the
49
provisions of TIA Section 310(b). Nothing herein shall prevent the Trustee from
filing with the SEC the application referred to in the penultimate paragraph of
TIA Section 310(b).
SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for and except as further provided below),
and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.7 and (ii)
Securities for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation,
(i) have become due and payable,
(ii) will become due and payable at the
Final Maturity Date within one year, or
(iii) are to be called for redemption within
one year under arrangements reasonably satisfactory
to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of
the Company
and the Company has irrevocably deposited or caused to be irrevocably deposited
cash with the Trustee or a Paying Agent (other than the Company or any of its
Affiliates) as trust funds in trust for the purpose of and in an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Final Maturity Date or Redemption Date, as the
case may be. In the event that the Company exercises its right to redeem the
Securities as provided in Article 3, the Company shall have the right to
withdraw its funds previously deposited with the Trustee or Paying Agent
pursuant to the immediately preceding sentence;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.7 shall survive and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the provisions of Sections 2.3, 2.4, 2.5, 2.6, 2.7,
2.12 and 12.5, Articles 3 and 4, the last paragraph of Section 6.2 and this
Article 10, shall survive until the Securities have been paid in full.
SECTION 10.2. APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 10.3, the Trustee or a Paying
Agent shall hold in trust, for the benefit of the Holders, all money deposited
with it pursuant to Section 10.1 and shall apply the deposited money in
accordance with this Indenture and the Securities to the payment of the
principal of and interest on the Securities.
SECTION 10.3. REPAYMENT TO COMPANY.
The Trustee and each Paying Agent shall promptly pay to the Company
upon request any excess money (i) deposited with them pursuant to Section 10.1
and (ii) held by them at any time.
The Trustee and each Paying Agent shall, subject to applicable
abandonment property laws, pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years after a right to such money has matured; provided, however, that the
Trustee or such Paying Agent, before being required to make any such payment,
may at the expense of the Company cause to be mailed to each Holder entitled to
such money notice that such money remains unclaimed and that after a date
specified therein, which shall be at least 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company, Holders entitled to money must look
to the Company for payment as general creditors unless an applicable abandoned
property law designates another person.
SECTION 10.4. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 10.2 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, then the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 10.1 until such
time as the Trustee or such Paying Agent is permitted to apply all such money in
accordance with Section 10.2; provided, however, that if the Company has made
any payment of the principal of or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive any such payment from the money
held by the Trustee or such Paying Agent.
If pursuant to the last sentence of Section 10.1(1), the Company
withdraws its previously deposited funds as a result of its exercise of its
redemption right, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit has occurred
pursuant to Section 10.1.
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ARTICLE 11
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 11.1. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Securityholder for the
purpose of:
(1) adding to the Company's covenants for the benefit of the
Holders;
(2) surrendering any right or power conferred upon the
Company;
(3) providing for conversion rights of Holders if any
reclassification or change of Common Stock or any consolidation, merger or sale
of all or substantially all of the Company's assets occurs;
(4) reducing the Conversion Price, provided that the reduction
will not adversely affect the interests of Holders in any material respect;
(5) complying with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(6) making any changes or modifications to this Indenture
necessary in connection with the registration of the Securities under the
Securities Act as contemplated by the Registration Rights Agreement, provided
that this action does not adversely affect the interests of the Holders in any
material respect;
(7) curing any ambiguity, omission, inconsistency or
correcting or supplementing any defective provision contained in this Indenture;
provided that such modification or amendment does not, in the good faith opinion
of the Board of Directors and the Trustee, adversely affect the interests of the
Holders in any material respect;
(8) adding or modifying any other provisions which the Company
and the Trustee may deem necessary or desirable and which will not adversely
affect the interests of the Holders in any material respect;
(9) complying with Article 7; or
(10) providing for uncertificated Securities in addition to
the Certificated Securities so long as such uncertificated Securities are in
registered form for purposes of the Internal Revenue Code of 1986, as amended.
SECTION 11.2. WITH CONSENT OF HOLDERS.
The Company and the Trustee 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 Securities then outstanding. The Holders of at
least a majority in aggregate principal amount of the Securities then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Securities without notice to any
Securityholder. However, notwithstanding the foregoing but subject to Section
11.4, without the written consent of each Securityholder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section 8.4, may not:
52
(1) change the maturity of the principal of or any installment
of interest on, or any Liquidated Damages with respect to any Note;
(2) reduce the principal amount of, premium, if any, or
interest on, or any Liquidated Damages, or the amount payable upon redemption,
repurchase or purchase, with respect to any Note;
(3) reduce the interest rate or interest on, or any Liquidated
Damages with respect to any Note;
(4) change the currency of payment of principal of, premium,
if any, or interest on any Note;
(5) impair the right to institute suit for the enforcement of
any payment on or with respect to, or conversion of, any Note;
(6) modify the Company's obligation to purchase Securities at
the option of Holders or the Company's right to redeem Securities, in a manner
adverse to the Holders;
(7) except as otherwise permitted or contemplated by
provisions of this Indenture concerning corporate reorganizations, adversely
affect the repurchase option of Holders upon a Change in Control or the
conversion rights of Holders; or
(8) reduce the percentage in aggregate principal amount of
Securities outstanding necessary to modify or amend this Indenture or to waive
any past default.
After an amendment, supplement or waiver under this Section 11.2
becomes effective, the Company shall promptly mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
SECTION 11.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as in effect at the date of such amendment or
supplement.
SECTION 11.4. 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.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (8) of Section 11.2. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
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SECTION 11.5. 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 about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
SECTION 11.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 11 if the amendment or supplemental
indenture does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, in its sole discretion,
but need not sign it. In signing or refusing to sign such amendment or
supplemental indenture, the Trustee shall be entitled to receive and, subject to
Section 9.1, shall be fully protected in relying upon, an Opinion of Counsel
stating that such amendment or supplemental indenture is authorized or permitted
by this Indenture. The Company may not sign an amendment or supplement indenture
until the Board of Directors approves it.
SECTION 11.7. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the TIA through
operation of Section 318(c) thereof, such imposed duties shall control.
SECTION 12.2. NOTICES.
Any demand, authorization notice, request, consent or communication
shall be given in writing and delivered in person or mailed by first-class mail,
postage prepaid, addressed as follows or transmitted by facsimile transmission
(confirmed by delivery in person or mail by first-class mail, postage prepaid,
or by guaranteed overnight courier) to the following facsimile numbers:
54
If to the Company, to:
InVision Technologies, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx and Xxxx X. Phi
Facsimile No.: (000) 000-0000
if to the Trustee, to:
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
LM-CA-T24T
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Corporate Trust Services (InVision Technologies, Inc. -
3% Convertible Senior Notes Due 2023)
Facsimile No.: (000) 000-0000
Such notices or communications shall be effective when received.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
by first-class mail or delivered by an overnight delivery service to it at its
address shown on the register kept by the Primary Registrar.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication to a Securityholder is mailed in
the manner provided above, it is duly given, whether or not the addressee
receives it.
SECTION 12.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
SECTION 12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
(a) Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
at the request of the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent (including any covenants, compliance with
which constitutes a condition precedent), if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent (including any covenants, compliance with
which constitutes a condition precedent) have been complied with.
55
(b) Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she
has made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with;
provided however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 12.5. RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS.
The Company (or, in the event deposits have been made pursuant to
Section 10.1, the Trustee) may set a record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date shall not be
more than thirty (30) days prior to the date of the commencement of solicitation
of such action. Notwithstanding the provisions of Section 11.4, if a record date
is fixed, those persons who were Holders of Securities at the close of business
on such record date (or their duly designated proxies), and only those persons,
shall be entitled to take such action by vote or consent or to revoke any vote
or consent previously given, whether or not such persons continue to be Holders
after such record date.
SECTION 12.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION
AGENT.
The Trustee may make reasonable rules (not inconsistent with the terms
of this Indenture) for action by or at a meeting of Holders. Any Registrar,
Paying Agent or Conversion Agent may make reasonable rules for its functions.
SECTION 12.7. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, Sunday or a day on which state or
federally chartered banking institutions in New York, New York and the state in
which the Corporate Trust Office is located are not required to be open. If a
payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a Regular Record Date is a Legal Holiday, the record date
shall not be affected.
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SECTION 12.8. GOVERNING LAW.
This Indenture and the Securities shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
SECTION 12.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10. NO RECOURSE AGAINST OTHERS.
All liability described in paragraph 15 of the Securities of any
director, officer, employee or stockholder, as such, of the Company is waived
and released.
SECTION 12.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 12.12. MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent the same agreement.
SECTION 12.13. SEPARABILITY.
In case any provisions in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.14. TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet 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.
[SIGNATURE PAGE FOLLOWS]
57
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as
of the date and year first above written.
INVISION TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx, Ph.D.
Title: President and Chief Executive
Officer
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Name:Xxxx Xxxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name:Xxxxx Xxxxxx
Title: Vice President
EXHIBIT A
[FORM OF FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 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 THEREOF. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE 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.](1)
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.](2)
[THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
--------------------------
(1) These paragraphs should be included only if the Security is a Global
Security.
(2) These paragraphs to be included only if the Security is a Restricted
Security.
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH INVISION TECHNOLOGIES,
INC. OR ANY AFFILIATE OF INVISION TECHNOLOGIES, INC. WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO INVISION
TECHNOLOGIES, INC. OR ANY PARENT OR SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO INVISION TECHNOLOGIES, INC.'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.](2)
[THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A
REGISTRATION RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY
AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.](2)
INVISION TECHNOLOGIES, INC.
CUSIP: __________ R-______
3% CONVERTIBLE SENIOR NOTES DUE 2023
InVision Technologies, Inc., a Delaware corporation (the "Company",
which term shall include any successor corporation under the Indenture referred
to on the reverse hereof), promises to pay to___________ _________________, or
registered assigns, the principal sum of _____________________________ Dollars
($__________) on October 1, 2023 [or such greater or lesser amount as is
indicated on the Schedule of Exchanges of Notes on the other side of this
Note].(3)
Interest Payment Dates: April 1 and October 1.
Regular Record Dates: March 15 and September 15.
This Note is convertible as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side of this Note.
SIGNATURE PAGE FOLLOWS
-------------------------
(3) This phrase should be included only if the Security is a global Security.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
INVISION TECHNOLOGIES, INC.
By:_________________________________
Name:Xxxxxx Xxxxxxxx, Ph.D.
Title: President and Chief Executive
Officer
By:_________________________________
Name:Xxxx Xxxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
Dated:
Trustee's Certificate of Authentication: This is one of the
Securities referred to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
_________________________________________
Authorized Signatory
By:
[FORM OF REVERSE SIDE OF SECURITY]
INVISION TECHNOLOGIES, INC.
3% CONVERTIBLE SENIOR NOTES DUE 2023
1. INTEREST
InVision Technologies, Inc., a Delaware corporation (the "Company",
which term shall include any successor corporation under the Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Note at the rate of 3% per annum. The Company shall pay interest
semiannually on April 1 and October 1 of each year, commencing April 1, 2004.
Interest on the Securities shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from September 19,
2003; provided, however, that if there is not an existing default in the payment
of interest and if this Note is authenticated between a Regular Record Date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such Interest Payment Date. Interest will be computed
on the basis of a 360-day year of twelve 30-day months. Any reference herein to
interest accrued or payable as of any date shall include any Liquidated Damages
accrued or payable on such date as provided in the Registration Rights
Agreement.
2. METHOD OF PAYMENT
The Company shall pay interest on this Note (except defaulted interest)
to the person who is the Holder of this Note at the close of business on March
15 or September 15, as the case may be, (each, a Regular Record Date) next
preceding the related Interest Payment Date. The Holder must surrender this Note
to a Paying Agent to collect payment of principal. The Company will pay
principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts. The Company may,
however, pay principal and interest in respect of any Certificated Security by
check or wire payable in such money; provided, however, that a Holder with an
aggregate principal amount in excess of $2,000,000 will be paid by wire transfer
in immediately available funds at the election of such Holder if such Holder has
provided wire transfer instructions to the Company. The Company may mail an
interest check to the Holder's registered address. Notwithstanding the
foregoing, so long as this Note is registered in the name of a Depositary or its
nominee, all payments hereon shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT
Initially, U.S. Bank National Association (the "Trustee", which term
shall include any successor trustee under the Indenture hereinafter referred to)
will act as Paying Agent, Registrar and Conversion Agent. The Company may change
any Paying Agent, Registrar or Conversion Agent without notice to the Holder.
The Company or any of its Subsidiaries may, subject to certain limitations set
forth in the Indenture, act as Paying Agent or Registrar.
4. INDENTURE, LIMITATIONS
This Note is one of a duly authorized issue of Securities of the
Company designated as its 3% Convertible Senior Notes Due 2023 (the "Notes"),
issued under an Indenture dated as of September 19, 2003 (together with any
supplemental indentures thereto, the "Indenture"), between the Company and the
Trustee. The terms of this Note include those stated in the Indenture and those
required by or made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended, as in
effect on the date of the Indenture. This Note is subject to all such terms, and
the Holder of this Note is referred to the Indenture and said Act for a
statement of them.
The Notes are senior unsecured obligations of the Company limited to
$125,000,000 aggregate principal amount. The Indenture does not limit other debt
of the Company, secured or unsecured.
5. OPTIONAL REDEMPTION
The Notes are subject to redemption, at any time, or from time to time,
on or after October 1, 2008, as a whole or in part, at the election of the
Company. The Redemption Price is 100% of the principal amount of the Notes to be
redeemed, together with accrued and unpaid interest up to but not including the
Redemption Date; provided that if the Redemption Date falls after a Regular
Record Date and on or before an Interest Payment Date, then the interest will be
payable to the Holders in whose names the Notes are registered at the close of
business on such Regular Record Date.
No sinking fund is provided for the Notes.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 20
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at its registered address. Notes in denominations larger
than $1,000 may be redeemed in part, but only in whole multiples of $1,000. On
and after the Redemption Date, subject to the deposit with the Paying Agent of
funds sufficient to pay the Redemption Price plus accrued interest to, but
excluding, the Redemption Date, interest shall cease to accrue on Notes or
portions of them called for redemption.
7. REPURCHASE OF NOTES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to repurchase all or any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Notes held by such
Holder on the date that is 45 days after the date of the Change in Control
Purchase Notice, at a repurchase price equal to 100% of the principal amount
thereof together with any accrued interest up to, but excluding, the Change in
Control Repurchase Date. The Holder shall have the right to withdraw any Change
in Control Repurchase Notice (in whole or in a portion thereof that is $1,000 or
an integral multiple of $1,000 in excess thereof) at any time prior to the close
of business on the Business Day immediately preceding the Change in Control
Repurchase Date by delivering a written notice of withdrawal to the Paying Agent
in accordance with the terms of the Indenture.
8. PURCHASE OF NOTES AT OPTION OF HOLDER ON SPECIFIED DATES
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase for cash all or
any part specified by the Holder (so long as the principal amount of such part
is $1,000 or an integral multiple of $1,000 in excess thereof) of the Notes held
by such Holder on the applicable Put Right Purchase Date at the applicable Put
Right Purchase Price. The Holder
shall have the right to withdraw any Put Right Purchase Notice (in whole or in a
portion thereof that is $1,000 or an integral multiple of $1,000 in excess
thereof) at any time prior to the close of business on the Put Right Purchase
Date by delivering a written notice of withdrawal to the Paying Agent in
accordance with the terms of the Indenture.
9. CONVERSION
Subject to and upon compliance with the provisions of the Indenture, at
the option of the Holder thereof, any Security that is an integral multiple of
$1,000 may be converted into fully paid and nonassessable shares (calculated as
to each conversion to the nearest 1/100th of a share) of Common Stock of the
Company at any time on or prior to the close of business on the Final Maturity
Date at the Conversion Rate, determined as hereinafter provided, in effect at
the time of conversion and subject to the adjustments described below, only
under the following circumstances:
(1) prior to October 1, 2021, on any date during any fiscal
quarter (and only during such fiscal quarter) after the fiscal quarter ending
September 28, 2003, if the Closing Price per share of the Common Stock was more
than 110% of the then current Conversion Price for at least 20 Trading Days in
the period of the 30 consecutive Trading Days ending on the last day of the
previous fiscal quarter;
(2) on or after October 1, 2021, at all times on or after any
date on which the Closing Price per share of the Common Stock is more than 110%
of the then current Conversion Price on the Securities;
(3) until the close of business on the Business Day prior to
the Redemption Date if the Company elects to redeem the Securities on or after
October 1, 2008;
(4) if the Company distributes to all or substantially all
holders of Common Stock rights, options or warrants entitling them to purchase
Common Stock at less than the Closing Price per share of the Common Stock on the
last Trading Day preceding the declaration for such distribution;
(5) if the Company distributes to all or substantially all
holders of Common Stock cash, assets, debt securities or capital stock, which
distribution has a per share value as determined by the Board of Directors
exceeding 10% of the Closing Price per share of the Common Stock on the last
Trading Day preceding the declaration for such distribution;
(6) if the Company becomes a party to a consolidation, merger
or binding share exchange pursuant to which all or substantially all of the
Company's Common Stock would be converted to cash, securities or other property,
or if the Company undergoes a Change in Control or an event occurs that would
have been a Change in Control but for the existence of one of the Change in
Control exceptions pursuant to Section 3.8(a)(2) of the Indenture; or
(7) for the ten Business Day period after any five consecutive
Trading Day period in which the average Trading Prices for the Securities for
such five Trading Day period was less than 98% of the average Conversion Value
for the Securities during such period; provided, however, that a Holder may not
convert its Securities pursuant to this clause (7) if, on the Conversion Date,
the Closing Price per share of Common Stock is greater than or equal to the then
current Conversion Price of the Securities and less than or equal to 110% of the
then current Conversion Price of the Securities.
Provisions of the Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
A Holder of Securities is not entitled to any rights of a holder of
Common Stock until such Holder has converted its Securities into Common Stock,
and only to the extent such Securities are deemed to have been converted into
Common Stock pursuant to Article 4 of the Indenture.
The rate at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Rate") shall be initially 31.25 shares
of Common Stock for each $1,000 principal amount of Securities. The Conversion
Rate shall be adjusted in certain instances as provided in the Indenture. The
"Conversion Price" shall initially equal $1,000 divided by the Conversion Rate.
No fractional shares will be issued upon conversion; in lieu thereof,
an amount will be paid in cash based upon the Closing Price (as defined in the
Indenture) of the Common Stock on the Trading Day immediately prior to the
Conversion Date.
To convert a Note, a Holder must (a) complete and manually sign the
conversion notice set forth below and deliver such notice to a Conversion Agent,
(b) surrender the Note to a Conversion Agent, (c) furnish appropriate
endorsements and transfer documents if required by a Registrar or a Conversion
Agent, and (d) pay any transfer or similar tax, if required. Notes so
surrendered for conversion (in whole or in part) during the period from the
close of business on any Regular Record Date to the opening of business on the
next succeeding Interest Payment Date (excluding (1) Notes or portions thereof
called for redemption or presented for repurchase upon a Change in Control on a
Redemption Date or on a Change in Control Repurchase Date, as the case may be,
with such date occurring during the period beginning at the close of business on
a Regular Record Date and ending at the opening of business on the fifth
Business Day after the next succeeding Interest Payment Date or (2) Notes that
are submitted for conversion between the Regular Record Date for the final
interest payment and the opening of business on the final Interest Payment Date)
shall also be accompanied by payment in funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of such Note then being converted, and such interest shall be
payable to such registered Holder notwithstanding the conversion of such Note,
subject to the provisions of the Indenture relating to the payment of defaulted
interest by the Company. If the Company defaults in the payment of interest
payable on such Interest Payment Date the Company shall promptly repay such
funds to such Holder. A Holder may convert a portion of a Note equal to $1,000
or any integral multiple thereof.
A Note in respect of which a Holder had delivered a Change in Control
Repurchase Notice exercising the option of such Holder to require the Company to
repurchase such Note may be converted only if the Change in Control Repurchase
Notice is withdrawn in accordance with the terms of the Indenture.
10. DENOMINATIONS, TRANSFER, EXCHANGE
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder may register the transfer of
or exchange Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes or other governmental charges that may be imposed
in relation thereto by law or permitted by the Indenture.
11. PERSONS DEEMED OWNERS
The Holder of a Note may be treated as the owner of it for all
purposes.
12. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent will pay the money back to the Company at
its written request, subject to applicable unclaimed property law. After that,
Holders entitled to money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
13. AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and an existing
default or Event of Default and its consequence or compliance with any provision
of the Indenture or the Notes may be waived in a particular instance with the
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without the consent of or notice to any Holder, the Company
and the Trustee may amend or supplement the Indenture or the Notes to, among
other things, cure any ambiguity, defect or inconsistency or make any other
change that does not adversely affect the rights of any Holder.
14. SUCCESSOR ENTITY
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture in accordance with the terms and
conditions of the Indenture, the predecessor corporation (except in certain
circumstances specified in the Indenture) be released from those obligations.
15. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default includes: (i) a default for 30
days in payments of interest (including Liquidated Damages, if any) on any
Notes; (ii) a default in payment of any principal of, or premium, if any, on the
Notes when due; (iii) failure by the Company for 30 days after notice to comply
with any of its other terms, covenants or agreements contained in the Indenture
or the Notes; (iv) failure by the Company for 5 days after notice to provide a
notice of a Change in Control; (v) certain defaults in the payment of certain
indebtedness of the Company or (vi) certain events of bankruptcy, insolvency or
reorganization of the Company or any Significant Subsidiary.
If an Event of Default (other than as a result of certain events of
bankruptcy, insolvency or reorganization of the Company) occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding may declare all unpaid principal to the
date of acceleration on the Notes then outstanding to be due and payable
immediately, all as and to the extent provided in the Indenture. If an Event of
Default occurs as a result of certain events of bankruptcy, insolvency or
reorganization of the Company, unpaid principal of the Notes then outstanding
shall become due and payable immediately without any declaration or other act on
the part of the Trustee or any Holder, all as and to the extent provided in the
Indenture. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain limitations, Holders of
a majority in aggregate principal amount of the Notes then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding notice is in
their interests. The Company is required to file periodic reports with the
Trustee as to the absence of default.
16. TRUSTEE DEALINGS WITH THE COMPANY
U.S. Bank National Association, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from and
perform services for the Company or an Affiliate of the Company, and may
otherwise deal with the Company or an Affiliate of the Company, as if it were
not the Trustee.
17. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or the Indenture nor for any claim based on, in respect of or by reason of such
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
18. AUTHENTICATION
This Note shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Note.
19. ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors Act).
All terms defined in the Indenture and used in this Note but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
20. INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this Note and the
Indenture, the provisions of the Indenture shall control. This Note shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principals of conflicts of law.
The Company will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Requests may be made to: InVision
Technologies, Inc., 0000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx 00000, (510)
739-2400, Attention: Xxxxxx Xxxxxx and Xxxx X. Phi.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
________________________________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
Date:_______________________________ ____________________________________
(Sign exactly as your name appears
on the other side of this Note)
*Signature guaranteed by:
By:_________________________________
* The signature must be guaranteed by an institution which is a
member of one of the following recognized signature guaranty
programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program (MSP);
(iii) the Stock Exchange Medallion Program (SEMP); or (iv) such
other guaranty program acceptable to the Trustee.
CONVERSION NOTICE
To convert this Note into Common Stock of the Company, check the box:
[ ]
To convert only part of this Note, state the principal amount to be
converted (must be $1,000 or a integral multiple of $1,000): $____________.
If you want the stock certificate made out in another person's name,
fill in the form below:
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
Your Signature:
Date:____________________________ ____________________________________
(Sign exactly as your name appears
on the other side of this Note)
*Signature guaranteed by:
By:______________________________
* The signature must be guaranteed by an institution which is a
member of one of the following recognized signature guaranty
programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program (MSP);
(iii) the Stock Exchange Medallion Program (SEMP); or (iv) such
other guaranty program acceptable to the Trustee.
OPTION TO ELECT REPURCHASE
UPON A CHANGE IN CONTROL
To: InVision Technologies, Inc.
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from InVision Technologies, Inc. (the
"Company") as to the occurrence of a Change in Control with respect to the
Company and requests and instructs the Company to repurchase the entire
principal amount of this Security, or the portion thereof (which is $1,000 or an
integral multiple thereof) below designated, in accordance with the terms of the
Indenture referred to in this Security at the Change in Control Repurchase
Price, together with accrued interest to, but excluding, such date, to the
registered Holder hereof.
Dated: ____________ ____________________________________
____________________________________
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule
17Ad-15 under the Securities
Exchange Act of 1934.
____________________________________
Signature Guaranty
Principal amount to be redeemed
(in an integral multiple of $1,000, if less than all):
--------------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
OPTION TO ELECT PURCHASE
ON SPECIFIED DATES
To: InVision Technologies, Inc.
The undersigned hereby requests and instructs InVision Technologies,
Inc. to purchase the entire principal amount of this Security, or the portion
thereof (which is $1,000 or an integral multiple thereof) below designated, on
September 1, _____ in accordance with the terms of the Indenture referred to in
this Security at the Put Right Purchase Price to the registered Holder hereof.
Dated:____________ ____________________________________
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule
17Ad-15 under the Securities
Exchange Act of 1934.
____________________________________
Signature Guaranty
Principal amount to be redeemed
(in an integral multiple of $1,000, if less than all):
____________________________________
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SCHEDULE OF EXCHANGES OF NOTES(3)
The following exchanges, purchase, redemptions, repurchases or
conversions of a part of this global Note have been made:
PRINCIPAL AMOUNT
OF THIS GLOBAL NOTE AUTHORIZED AMOUNT OF
FOLLOWING SUCH SIGNATORY OF AMOUNT OF DECREASE IN INCREASE IN
DECREASE DATE SECURITIES PRINCIPAL AMOUNT PRINCIPAL AMOUNT
OF EXCHANGE (OR INCREASE) CUSTODIAN OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE
------------------------- --------- ------------------- -------------------
----------------------------
(3) This schedule should be included only if the Security is a global Security.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF RESTRICTED SECURITIES(4)
Re: _____ Convertible Senior Notes Due 2023 (the "Notes") of InVision
Technologies, Inc.
This certificate relates to $_______ principal amount of Notes owned in
(check applicable box)
[ ] book-entry or [ ] definitive form by ___________________ (the
"Transferor").
The Transferor has requested a Registrar or the Trustee to exchange or
register the transfer of such Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with transfer
restrictions relating to the Notes as provided in Section 2.12 of the Indenture
dated as of September 19, 2003 between InVision Technologies, Inc. and U.S. Bank
National Association, as trustee (the "Indenture"), and the transfer of such
Note is being made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act") (check applicable box)
or the transfer or exchange, as the case may be, of such Note does not require
registration under the Securities Act because (check applicable box):
[ ] Such Note is being transferred pursuant to an effective
registration statement under the Securities Act.
[ ] Such Note is being acquired for the Transferor's own account,
without transfer.
[ ] Such Note is being transferred to the Company or a Subsidiary
(as defined in the Indenture) of the Company.
[ ] Such Note is being transferred to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as
defined in Rule 144A or any successor provision thereto ("Rule
144A") under the Securities Act) that is purchasing for its
own account or for the account of a "qualified institutional
buyer", in each case to whom notice has been given that the
transfer is being made in reliance on such Rule 144A, and in
each case in reliance on Rule 144A.
[ ] Such Note is being transferred pursuant to and in compliance
with an exemption from the registration requirements under the
Securities Act in accordance with Rule 144 (or any successor
thereto) ("Rule 144") under the Securities Act.
[ ] Such Note is being transferred to a non-U.S. Person in an
offshore transaction in compliance with Rule 904 of Regulation
S under the Securities Act (or any successor thereto).
----------------------------
(4) This certificate should only be included if this Security is a Transfer
Restricted Security.
Such Note is being transferred pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act (other than
an exemption referred to above) and as a result of which such Note will, upon
such transfer, cease to be a "restricted security" within the meaning of Rule
144 under the Securities Act.
The Transferor acknowledges and agrees that, if the transferee will
hold any such Notes in the form of beneficial interests in a global Note which
is a "restricted security" within the meaning of Rule 144 under the Securities
Act, then such transfer can only be made pursuant to (i) Rule 144A under the
Securities Act and such transferee must be a "qualified institutional buyer" (as
defined in Rule 144A) or (ii) Regulation S under the Securities Act.
Date:__________________________________ ________________________________
(Insert Name of Transferor)
