Exhibit 4.2
EXECUTION COPY
ARTESYN TECHNOLOGIES, INC.
5.50% Convertible Senior Subordinated Notes due 2010
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INDENTURE
Dated as of August 13, 2003
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The Bank of New York
TRUSTEE
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.............................................1
Section 1.2 Other Definitions.......................................7
Section 1.3 Incorporation by Reference of Trust Indenture Act.......7
Section 1.4 Rules of Construction...................................8
Section 1.5 Acts of Holders.........................................8
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating.........................................9
Section 2.2 Execution and Authentication...........................10
Section 2.3 Registrar, Paying Agent and Conversion Agent...........11
Section 2.4 Paying Agent to Hold Money and Securities in Trust.....12
Section 2.5 Securityholder Lists...................................12
Section 2.6 Transfer and Exchange..................................12
Section 2.7 Replacement Securities.................................14
Section 2.8 Outstanding Securities; Determinations of Holders'
Action.................................................15
Section 2.9 Temporary Securities...................................16
Section 2.10 Cancellation...........................................16
Section 2.11 Defaulted Interest.....................................16
Section 2.12 Persons Deemed Owners..................................17
Section 2.13 Global Securities......................................17
Section 2.14 CUSIP Numbers..........................................24
ARTICLE III
REDEMPTION AND PURCHASES
Section 3.1 Company's Right to Redeem; Notices to Trustee..........24
Section 3.2 Selection of Securities to Be Redeemed.................24
Section 3.3 Notice of Redemption...................................25
Section 3.4 Effect of Notice of Redemption.........................26
Section 3.5 Deposit of Redemption Price............................26
Section 3.6 Securities Redeemed in Part............................26
Section 3.7 Purchase of Securities at Option of the Holder
upon Change of Control.................................26
Section 3.8 Effect of Change of Control Purchase Notice;
Withdrawal.............................................30
Section 3.9 Deposit of Change of Control Purchase Price............31
Section 3.10 Securities Purchased in Part...........................31
Section 3.11 Covenant to Comply With Securities Laws Upon Purchase of
Securities.............................................31
Section 3.12 Repayment to the Company...............................31
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ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities..................................32
Section 4.2 SEC and Other Reports..................................32
Section 4.3 Compliance Certificate.................................32
Section 4.4 Further Instruments and Acts...........................33
Section 4.5 Maintenance of Office or Agency........................33
Section 4.6 Delivery of Certain Information........................33
Section 4.7 Statement by Officers as to Default....................33
Section 4.8 Additional Interest Notice.............................33
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets..............34
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default......................................35
Section 6.2 Acceleration...........................................36
Section 6.3 Other Remedies.........................................37
Section 6.4 Waiver of Past Defaults................................37
Section 6.5 Control by Majority....................................37
Section 6.6 Limitation on Suits....................................38
Section 6.7 Rights of Holders to Receive Payment...................38
Section 6.8 Collection Suit by Trustee.............................38
Section 6.9 Trustee May File Proofs of Claim.......................38
Section 6.10 Priorities.............................................39
Section 6.11 Undertaking for Costs..................................39
Section 6.12 Waiver of Stay, Extension or Usury Laws................40
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee......................................40
Section 7.2 Rights of Trustee......................................41
Section 7.3 Individual Rights of Trustee...........................43
Section 7.4 Trustee's Disclaimer...................................43
Section 7.5 Notice of Defaults.....................................43
Section 7.6 Reports by Trustee to Holders..........................43
Section 7.7 Compensation and Indemnity.............................44
Section 7.8 Replacement of Trustee.................................44
Section 7.9 Successor Trustee by Merger............................45
Section 7.10 Eligibility; Disqualification..........................45
Section 7.11 Preferential Collection of Claims Against Company......45
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ARTICLE VIII
AMENDMENTS
Section 8.1 Without Consent of Holders.............................46
Section 8.2 With Consent of Holders................................46
Section 8.3 Compliance with Trust Indenture Act....................47
Section 8.4 Revocation and Effect of Consents, Waivers and
Actions................................................48
Section 8.5 Notation on or Exchange of Securities..................48
Section 8.6 Trustee to Sign Supplemental Indentures................48
Section 8.7 Effect of Supplemental Indentures......................48
ARTICLE IX
CONVERSIONS
Section 9.1 Conversion Privilege...................................48
Section 9.2 Conversion Procedure; Conversion Price; Fractional
Shares.................................................48
Section 9.3 Adjustment of Conversion Price.........................50
Section 9.4 Consolidation or Merger of the Company.................58
Section 9.5 Notice of Adjustment...................................60
Section 9.6 Notice in Certain Events...............................60
Section 9.7 Company To Reserve Stock: Registration; Listing........61
Section 9.8 Taxes on Conversion....................................61
Section 9.9 Conversion After Interest Payment Record Date..........62
Section 9.10 Company Determination Final............................62
Section 9.11 Responsibility of Trustee for Conversion Provisions....62
Section 9.12 Unconditional Right of Holders to Convert..............62
ARTICLE X
SUBORDINATION OF THE SECURITIES
Section 10.1 Agreement to Subordinate...............................63
Section 10.2 Liquidation, Dissolution, Bankruptcy...................63
Section 10.3 Default on Designated Senior Indebtedness of the
Company................................................64
Section 10.4 Acceleration of Payment of Securities..................65
Section 10.5 When Distribution Must Be Paid Over....................65
Section 10.6 Subrogation............................................65
Section 10.7 Relative Rights........................................65
Section 10.8 Subordination May Not Be Impaired......................65
Section 10.9 Rights of Trustee and Paying Agent.....................65
Section 10.10 Distribution or Notice to Representative...............66
Section 10.11 Article 10 Not to Prevent Events of Default or
Limit Right to Accelerate..............................66
Section 10.12 Trustee Entitled to Rely...............................66
Section 10.13 Trustee to Effectuate Subordination....................67
Section 10.14 Trustee Not Fiduciary for Holders of Senior
Indebtedness...........................................67
Section 10.15 Reliance by Holders of Senior Indebtedness on
Subordination Provisions...............................67
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Section 10.16 Amendments.............................................67
ARTICLE XI
MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls...........................67
Section 11.2 Notices................................................67
Section 11.3 Communication by Holders with Other Holders............68
Section 11.4 Certificate and Opinion as to Conditions Precedent.....69
Section 11.5 Statements Required in Certificate or Opinion..........69
Section 11.6 Separability Clause....................................69
Section 11.7 Rules by Trustee, Paying Agent, Conversion Agent
and Registrar.........................................69
Section 11.8 Legal Holidays.........................................69
Section 11.9 GOVERNING LAW; WAIVER OF JURY TRIAL....................69
Section 11.10 No Recourse Against Others.............................70
Section 11.11 Successors.............................................70
Section 11.12 Multiple Originals.....................................70
Section 11.13 Effect of Headings and Table of Contents...............70
EXHIBIT A Form of Global Security
EXHIBIT B Form of Certificated Security
EXHIBIT C Transfer Certificate
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INDENTURE dated as of August 13, 2003 between ARTESYN TECHNOLOGIES,
INC., a Florida corporation ("Company"), and THE BANK OF NEW YORK, a New York
banking corporation ("Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's 5.50%
Convertible Senior Subordinated Notes due 2010:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 DEFINITIONS.
"144A Global Security" means a permanent Global Security in the form
of the Security attached hereto as Exhibit A, and that is deposited with and
registered in the name of the Depositary, representing Securities sold in
reliance on Rule 144A under the Securities Act.
"Additional Amounts" shall have the meaning ascribed to it in the
Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or non-U.S. law for the relief of debtors.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of such board.
"Board Resolution" means a resolution of the Board of Directors.
"Business Day" means, with respect to any Security, a day that in The
City of New York, is not a day on which banking institutions are authorized by
law or regulation to close.
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"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"Cash Equivalents" means (i) any evidence of Indebtedness issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality thereof having maturities of not more than one year
from the date of acquisition, (ii) certificates of deposit and eurodollar time
deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year and overnight bank
deposits, in each case with any domestic commercial bank having capital and
surplus in excess of $250.0 million and a Xxxxxxxx Bank Watch Rating of "B" or
better, or whose short-term debt has the highest rating obtainable from Xxxxx'x
Investors Service, Inc. ("Moody's") or Standard & Poor's Corporation ("S&P"),
(iii) any money market deposit account issued or offered by a domestic
commercial bank having capital and surplus in excess of $250.0 million and a
Xxxxxxxx Bank Watch Rating of "B" or better, or whose short-term debt has the
highest rating obtainable from Moody's or S&P, (iv) repurchase obligations with
a term of not more than seven days for underlying securities of the types
described in clauses (i) and (ii) above entered into with any financial
institution meeting the qualifications specified in clause (ii) above, and (v)
commercial paper having the highest rating obtainable from Moody's or S&P, and
in each case maturing within one year after the date of acquisition.
"Certificated Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit B.
"Common Stock" shall mean the Common Stock, $0.01 par value per share,
of the Company existing on the date of this Indenture or any other shares of
Capital Stock of the Company into which such Common Stock shall be reclassified
or changed.
"Company" means the party named as the "Company" in the first Section
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any two Officers.
"Conversion Price" means initially $8.064 per share, subject to
adjustment as set forth herein.
"Corporate Trust Office" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Corporate Trust Administration, or such other address
as the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Company).
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"Credit Facility" means the Loan and Security Agreement dated March
28, 2003, by and among the Company, Artesyn North America, Inc., Artesyn
Communication Products, Inc. and Fleet Capital Corporation, as the same may be
amended, modified, supplemented, extended, renewed, restated, refinanced,
restructured or replaced in whole or in part from time to time (including,
without limitation, any successive renewals, extensions, substitutions,
refinancings, restructurings, replacements, supplements or modifications of the
foregoing), whether with the present lender or any other lenders.
"Default" means an event which, with the giving of notice or the lapse
of time, or both, would become an Event of Default.
"Defaulted Interest" has the meaning assigned to it in Section 2 of
the Form of Reverse of Global Security contained in Exhibit A.
"Designated Senior Indebtedness" means (i) the Obligations outstanding
under or in respect of the Credit Facility and any Senior Indebtedness
outstanding under any other credit facility and (ii) any other Senior
Indebtedness permitted under this Indenture, the principal amount of which is
$25.0 million or more and that has been designated by the Company as "Designated
Senior Indebtedness."
"Ex-Dividend Time" means, with respect to any issuance or distribution
on shares of Common Stock, the first date on which the shares of Common Stock
trade regular way on the principal securities market on which the shares of
Common Stock are then traded without the right to receive such issuance or
distribution.
"Global Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit A, and that are registered in the register
of Securities in the name of a Depositary or a nominee thereof, and to the
extent that such Securities are required to bear the Legend required by Section
2.6, such Securities will be in the form of a 144A Global Security.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered on the Registrar's books.
"Indebtedness" means, with respect to any Person, any indebtedness of
such person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing capital lease obligations or the balance deferred and unpaid of
the purchase price of any property or representing any hedging obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and hedging obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with generally accepted accounting
principles, as well as all indebtedness of others secured by a lien on any
assets of such Person (whether or not such indebtedness is assumed by such
Person) and, to the extent not otherwise included, the guarantee by such Person
of any indebtedness of any other Person.
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"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Interest Payment Date" means the stated due date of an installment of
interest on the Securities as specified in Section 2 of the Form of Reverse of
Global Security contained in Exhibit A.
"Interest Payment Record Date" means the February 1 and August 1
preceding an Interest Payment Date.
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Obligations" means, collectively, all advances, debts, liabilities,
obligations, covenants and duties arising under the Credit Facility (or under
any other document, agreement or instrument delivered to the agent or any lender
under the Credit Facility (or any affiliate of the agent or any lender) or in
connection with the transactions contemplated by the Credit Facility) owing by
any borrower under the Credit Facility to the agent or any lender under the
Credit Facility (or any affiliate of the agent or any lender) or any person
entitled to indemnification from any borrower under or in connection with the
transactions contemplated by the Credit Facility, or arising under any swap
contract or treasury services contract between any borrower under the Credit
Facility and the agent or any lender under the Credit Facility (or any affiliate
of the agent or any lender), in any case, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising. For the purposes of this definition, the term
"swap contract" means any agreement, whether or not in writing, relating to any
transaction that is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap or option, bond, note or
bill option, interest rate option, forward foreign exchange transaction, cap,
collar or floor transaction, currency swap, cross-currency rate swap, swaption,
currency option and any other, similar transaction (including any option to
enter into any of the foregoing) or any combination of the foregoing, and,
unless the context otherwise clearly requires, any master agreement relating to
or governing any or all of the foregoing, and the term "treasury services
contract" means any agreement, whether or not in writing, relating to demand
deposit, operating, collections, payroll and trust accounts, cash management
services, controlled disbursement services, electronic funds transfer services,
information reporting services, lockbox services, stop payment services, wire
transfer services, merchant card services and automated clearinghouse transfer
services and any other, similar services or products, and, unless the context
otherwise clearly requires, any master agreement relating to or governing any or
all of the foregoing.
"Officer" means the Chairman of the Board, the Vice Chairman, the
Chief Executive Officer, the President, any Executive Vice President, any Senior
Vice President, the Chief Financial Officer, the Treasurer, the Controller, the
Secretary, any Assistant Treasurer or Assistant Secretary of the Company.
4
"Officers' Certificate" means a written certificate containing the
information specified in Sections 11.4 and 11.5, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.3 shall be signed by the principal
executive Officer, principal financial Officer or principal accounting Officer
of the Company but need not contain the information specified in Sections 11.4
and 11.5.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 11.4 and 11.5, from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of, or
counsel to, the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Redemption Date" or "redemption date" shall mean the date specified
in a notice of redemption on which the Securities may be redeemed in accordance
with the terms of the Securities and this Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
forth in Section 6 of the Securities.
"Registration Rights Agreement" means the Resale Registration Rights
Agreement, dated as of the date hereof, among the Company, Xxxxxx Brothers Inc.
and Xxxxxxxx Inc.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Security" means a Security required to bear the
restrictive legend set forth in the form of Security set forth in Exhibits A and
B of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Sale Price" of a security on any date of determination means:
(i) the closing sales price as reported by the Nasdaq Stock Market;
(ii) if such security is not so reported, on any such date, the
closing sale price as reported in the composite transactions for the principal
U.S. securities exchange on which such security is so listed;
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(iii) if such security is not so reported, the last price quoted by
Interactive Data Corporation for such security on such date or, if Interactive
Data Corporation is not quoting such price, a similar quotation service selected
by the Company;
(iv) if such security is not so quoted, the average of the mid-point
of the last bid and ask prices for such security on such date from at least two
dealers recognized as market-makers for such security selected by the Company
for this purpose; or
(v) if such security is not so quoted, the average of that last bid
and ask prices for such security on such date from a dealer engaged in the
trading of convertible securities selected by the Company for this purpose.
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the Company's 5.50% Convertible Senior
Subordinated Notes due 2010, as amended or supplemented from time to time,
issued under this Indenture.
"Securityholder" or "Holder" means a Person in whose name a Security
is registered on the Registrar's books.
"Senior Indebtedness" means (i) all Obligations outstanding under or
in respect of the Credit Facility, including, without limitation, all loans,
letters of credit or other extensions of credit under the Credit Facility, and
all Indebtedness under any other credit facilities and all hedging obligations
with respect thereto, (ii) any other Indebtedness permitted to be incurred by
the Company under the terms of this Indenture, unless the instrument under which
such Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Securities and (iii) all principal,
premium, if any, and interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization, whether or not a
claim for post-filing interest is allowed in such proceeding), penalties, fees,
charges, expenses, indemnification, reimbursement obligations, damages,
guarantees and other liabilities or amounts payable under the documentation
governing any Indebtedness referred to in clauses (i) and (ii) above.
Notwithstanding anything to the contrary in the foregoing, "Senior Indebtedness"
will not include (i) the Company's outstanding 3% convertible promissory note
due 2007, (ii) any liability for federal, state, local or other taxes owed or
owing by the Company, (iii) any Indebtedness of the Company to any of its
subsidiaries or other affiliates, (iv) any trade payables or (v) any
indebtedness that is incurred in violation of this Indenture.
"Significant Subsidiary" shall have the meaning ascribed to such term
in Rule 405 of the Securities Act.
"Stated Maturity", when used with respect to any Security, means
August 15, 2010.
"Subsidiary" means any Person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Company or by one or more Subsidiaries or by the Company and
one or more Subsidiaries.
6
"TIA" means the Trust Indenture Act of 1939 as in effect on the date
of this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"Trading Day" means a day during which trading in securities generally
occurs on the Nasdaq Stock Market or, if the Common Stock is not quoted on the
Nasdaq Stock Market, on the principal other national or regional securities
exchange on which the Common Stock then is listed or, if the Common Stock is not
traded on the Nasdaq Stock Market or listed on a national or regional securities
exchange, on the principal other market on which the Common Stock is then traded
or quoted.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Voting Stock" of a Person means Capital Stock of such Person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
Section 1.2 OTHER DEFINITIONS.
Term: Section defined in:
"Act" ................................... 1.5
"Agent Members".......................... 2.12(e)
"beneficial owner"....................... 3.7(a)
"Change of Control"...................... 3.7(a)
"Change of Control Purchase Date"........ 3.7(a)
"Change of Control Purchase Notice"...... 3.7(c)
"Change of Control Purchase Price"....... 3.7(a)
"Common Stock Restrictive Legend" ....... 2.6(f)
"Continuing Director".................... 3.7(a)
"Conversion Agent"....................... 2.3
"Current Market Price"................... 9.3(g)
"Depositary"............................. 2.1(a)
"distributed assets" .................... 9.3(d)
"DTC" ................................... 2.1(a)
"Event of Default"....................... 6.1
"Exchange Act"........................... 2.12(e)
"Expiration Time" ....................... 9.3(f)
"Fair Market Value" ..................... 9.3(g)
"issuer tender offer" ................... 3.11
"Legal Holiday".......................... 10.8
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"Legend"................................. 2.6(f)
"Non-Electing Share" .................... 9.4
"Nonpayment Default" .................... 10.3(a)
"Paying Agent"........................... 2.3
"Payment Blockage Notice"................ 10.3(a)
"Payment Default" ....................... 10.3(a)
"QIB".................................... 2.1(a)
"Record Date" ........................... 9.3(g)
"Reference Period" ...................... 9.3(d)
"Registrar".............................. 2.3
"Rule 144A Information".................. 4.6
"Securities Act"......................... 2.6(f)
"Special Record Date" ................... 2.11(a)
"Spin-Off" .............................. 9.3(d)
"transfer" .............................. 2.12(d)
"Trigger Event" ......................... 9.3(d)
Section 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.4 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with U.S. generally accepted accounting principles as in effect
from time to time;
(3) "or" is not exclusive;
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(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
Section 1.5 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company, as
described in Section 11.2. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of Holders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the Trustee
deems sufficient.
(c) The principal amount and serial number of any Security and the
ownership of Securities shall be proved by the register for the Securities.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
9
outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
ARTICLE II
THE SECURITIES
Section 2.1 FORM AND DATING. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibits A
and B, which shall constitute, and are expressly made, a part of this Indenture,
and, to the extent applicable, the Company and the Trustee, by their execution
and delivery of this Indenture expressly agree to such terms and provisions and
to be bound thereby. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage (provided that any such notation,
legend or endorsement required by usage is in a form acceptable to the Company).
The Company shall provide any such notations, legends or endorsements to the
Trustee in writing. Each Security shall be dated the date of its authentication.
(a) 144A GLOBAL SECURITIES. Securities offered and sold within the
United States to qualified institutional buyers as defined in Rule 144A ("QIBs")
in reliance on Rule 144A shall be issued initially in the form of a 144A Global
Security, which shall be deposited with the Trustee at its Corporate Trust
Office, as custodian for the Depositary (as defined below) and registered in the
name of The Depository Trust Company ("DTC") or the nominee thereof (DTC, or any
successor thereto, and any such nominee being hereinafter referred to as the
"Depositary"), duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the 144A Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary as hereinafter provided.
(b) GLOBAL SECURITIES IN GENERAL. Each Global Security shall represent
such of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, repurchases and conversions.
Any adjustment of the aggregate principal amount of a Global Security
to reflect the amount of any increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.12 hereof and
shall be made on the records of the Trustee and the Depositary.
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(c) BOOK-ENTRY PROVISIONS. This Section 2.1(c) shall apply only to
Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(c), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary, (b) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (c) shall be substantially in the form of Exhibit A attached
hereto; provided that the Legend (other than the first and second paragraphs
thereof) may be removed from such Global Security on satisfaction of the
conditions specified in this Indenture.
(d) CERTIFICATED SECURITIES. Securities not issued as interests in the
Global Securities will be issued in certificated form substantially in the form
of Exhibit B attached hereto; provided that the Legend may be removed from such
Securities on satisfaction of the conditions specified in this Indenture.
Section 2.2 EXECUTION AND AUTHENTICATION. The Securities shall be
executed on behalf of the Company by any Officer. The signature of the Officer
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at the time of the execution of the Securities Officers shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver the Securities for original
issue in an aggregate principal amount of up to $75,000,000 (up to $90,000,000
if the Initial Purchasers exercise their option to purchase up to $15,000,000
aggregate principal amount of additional Securities) upon one or more Company
Orders without any further action by the Company (other than as contemplated in
Section 11.4 and Section 11.5 hereof). The aggregate principal amount of the
Securities due at the Stated Maturity thereof outstanding at any time may not
exceed the amount set forth in the foregoing sentence.
The Securities shall be issued only in registered form without coupons
and only in denominations of $1,000 of principal amount and any integral
multiple of $1,000.
The Securities shall bear interest on the principal amount of the
Securities at the interest rate of 5.50% per annum from the date of issuance
until repayment in full at August 15, 2010, or until an earlier conversion,
redemption or repurchase, and such interest shall be paid on this Security
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semi-annually in arrears on February 15 and August 15 of each year commencing
February 15, 2004.
Section 2.3 REGISTRAR, PAYING AGENT AND CONVERSION AGENT. The Company
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for purchase or payment ("Paying Agent") and
an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent, including
any named pursuant to Section 4.5. The term Conversion Agent includes any
additional conversion agent, including any named pursuant to Section 4.5.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (in each case, if such
Registrar, agent or co-registrar is a Person other than the Trustee). The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee in writing of the name and address
of any such agent. If the Company fails to maintain a Registrar, Paying Agent or
Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.7. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar,
Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Paying Agent
and Conversion Agent in connection with the Securities.
Section 2.4 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. Except
as otherwise provided herein, on or prior to 10:00 a.m. New York City time on
each due date of payments in respect of any Security, the Company shall deposit
with the Paying Agent a sum of money (in immediately available funds if
deposited on the due date) sufficient to make such payments when so becoming
due. The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the making
of payments in respect of the Securities and shall notify the Trustee of any
default by the Company in making any such payment. At any time during the
continuance of any such default, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money so held in trust.
If the Company, a Subsidiary or an Affiliate of either of them acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and to account for any funds and Common
Stock disbursed by it. Upon doing so, the Paying Agent shall have no further
liability for the money.
Section 2.5 SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least
semiannually on January 1 and July 1 a listing of Securityholders dated within
12
15 days of the date on which the list is furnished and at such other times as
the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of
Securityholders.
Section 2.6 TRANSFER AND EXCHANGE. (a) Subject to Section 2.12 hereof,
upon surrender for registration of transfer of any Security, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Securityholder or such Securityholder's attorney duly authorized in writing,
at the office or agency of the Company designated as Registrar or co-registrar
pursuant to Section 2.3, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denomination or
denominations, of a like aggregate principal amount. The Company shall not
charge a service charge for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to pay all taxes, assessments or
other governmental charges that may be imposed in connection with the transfer
or exchange of the Securities from the Securityholder requesting such transfer
or exchange.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount upon surrender of the Securities to be exchanged, together with
a written instrument of transfer satisfactory to the Registrar duly executed by
the Securityholder or such Securityholder's attorney duly authorized in writing,
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Change of Control Purchase
Notice has been given and not withdrawn by the Holder thereof in accordance with
the terms of this Indenture (except, in the case of Securities to be purchased
in part, the portion thereof not to be purchased) or any Securities for a period
of 15 days before the mailing of a notice of redemption of Securities to be
redeemed.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, (i) transfers of beneficial interests in a Global Security, in whole
or in part, may be effected only through a book entry system maintained by the
Holder of such Global Security (or its agent) in accordance with Applicable
Procedures, (ii) ownership of a beneficial interest in the Security shall be
required to be reflected in book entry and (iii) transfers of Global Securities
or beneficial interests in Global Securities shall be made only in accordance
with Section 2.12 and this Section 2.6(b). Transfers of a Global Security shall
be limited to transfers of such Global Security in whole or in part, to the
Depositary, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
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(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.3 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(e) No Registrar shall be required to make registrations of transfer
or exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) If Securities are issued upon the transfer, exchange or
replacement of Securities subject to restrictions on transfer and bearing the
legends set forth on the forms of Security attached hereto as Exhibits A and B
setting forth such restrictions (collectively, the "Legend"), or if a request is
made to remove the Legend on a Security, the Securities so issued shall bear the
Legend, or the Legend shall not be removed, as the case may be, unless there is
delivered to the Company and the Registrar such satisfactory evidence, which
shall include an Opinion of Counsel, as may be reasonably required by the
Company and the Registrar and the Trustee (if not the same Person as the
Trustee), 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 or Rule 144 under the Securities Act of 1933, as amended
("Securities Act") or that such Securities are not "restricted" within the
meaning of Rule 144 under the Securities Act. Upon (i) provision of such
satisfactory evidence, or (ii) notification by the Company to the Trustee and
Registrar of the sale of such Security pursuant to a registration statement that
is effective at the time of such sale, the Trustee, upon receipt of a Company
Order, 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 the Company or an Affiliate of the Company, the Legend
shall be reinstated.
In the event Rule 144(k) as promulgated under the Securities Act is
amended to shorten the two-year period under Rule 144(k), then, the references
in the Legend to "TWO YEARS", and in the corresponding transfer restrictions
described above, will be deemed to refer to such shorter period, from and after
receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel to
that effect. As soon as practicable after the Company knows of the effectiveness
of any such amendment to shorten the two-year period under Rule 144(k), unless
such changes would otherwise be prohibited by, or would cause a violation of,
the federal securities laws applicable at the time, the Company will provide to
the Trustee an Officers' Certificate and an Opinion of Counsel as to the
effectiveness of such amendment and the effectiveness of such change to the
restrictive legends and transfer restrictions.
Until the Legend on any Restricted Security has been removed in
compliance with this Section 2.6(f), all shares of Common Stock (or other
securities issuable upon conversion as a result of the provisions of this
Indenture) issued upon conversion of such Restricted Security shall bear a
legend substantially in the form of the Legend (the "Common Stock Restrictive
Legend") and shall be subject to the same restrictions on transfer as such
Restricted Security. At any time following the time when the restrictions on
14
transfer set forth in the Common Stock Restrictive Legend shall have expired in
accordance with their terms or shall have terminated under applicable law, the
holder of such Common Stock may, upon a surrender of the certificate
representing such Common Stock exchange to the Company's transfer agent in
accordance with such agent's customary procedures (accompanied, in the event
that such restrictions on transfer have terminated by reason of a transfer in
compliance with Rule 144 or any successor provision, by an opinion of counsel
having substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and in form
acceptable to the Company, to the effect that the transfer of such Common Stock
has been made in compliance with Rule 144 or such successor provision), may
receive a new certificate representing such Common Stock, in like amount, which
shall not bear the Common Stock Restrictive Legend.
Section 2.7 REPLACEMENT SECURITIES. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount, bearing a certificate number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section 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
expenses (including the fees and expenses of the Trustee) connected 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 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 exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.8 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION.
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those cancelled by it, those paid pursuant to Section 2.7,
those delivered to it for cancellation and those described in this Section 2.8
15
as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate thereof holds the Security; provided, however, that in
determining whether the Holders of the requisite principal amount of Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent, waiver, or other Act hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other
Act, only Securities which a Responsible Officer of the Trustee actually knows
to be so owned shall be so disregarded. Subject to the foregoing, only
Securities outstanding at the time of such determination shall be considered in
any such determination (including, without limitation, determinations pursuant
to Articles 6 and 8).
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Change of Control Purchase
Date, or on Stated Maturity, money sufficient to pay Securities payable on that
date, then immediately after such Redemption Date, Change of Control Purchase
Date or Stated Maturity, as the case may be, such Securities shall cease to be
outstanding and interest, including Additional Amounts, if any, on such
Securities 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 therefor satisfactory to the Trustee has been made.
If a Security is converted in accordance with Article 9, then from and
after the time of conversion on the date of conversion, such Security shall
cease to be outstanding and interest, including Additional Amounts, if any,
shall cease to accrue on such Security.
Section 2.9 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
typewritten or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.3,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
16
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 2.10 CANCELLATION. If the Company shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless the same are delivered
to the Trustee for cancellation. All Securities surrendered for payment,
purchase by the Company pursuant to Article 3, conversion, redemption or
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. The Company may not issue new
Securities to replace Securities it has paid or delivered to the Trustee for
cancellation or that any Holder has converted pursuant to Article 9. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of by
the Trustee in accordance with the Trustee's customary procedure.
Section 2.11 DEFAULTED INTEREST. When any installment of interest
becomes Defaulted Interest, such installment shall forthwith cease to be payable
to the Holders in whose names the Securities were registered on the Interest
Payment Record Date applicable to such installment of interest. Defaulted
Interest (including any interest on such Defaulted Interest) may be paid by the
Company, at its election, as provided in Section 2.11(a) or (b).
(a) The Company may elect to make payment of any Defaulted Interest
(including any interest payable on such Defaulted Interest) to the Holders in
whose names the Securities are registered at the close of business on a special
record date for the payment of such Defaulted Interest (a "Special Record
Date"), which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Holders entitled to such Defaulted Interest as provided in this
Section 2.11(a). Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest, which shall be not more than 15 calendar
days and not less than ten calendar days prior to the date of the proposed
payment and not less than ten calendar days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be sent, first-class mail, postage
prepaid, to each Holder at such Holder's address as it appears in the
registration books of the Registrar, not less than ten calendar days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Holders in whose names the
Securities are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to Section 2.11(b); or
17
(b) The Company may make payment of any Defaulted Interest (including
any interest on such Defaulted Interest) in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Section 2.11(b), such manner of payment shall be deemed
practicable by the Trustee.
Section 2.12 PERSONS DEEMED OWNERS. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of the Security or the payment of any Redemption Price or Change of
Control Purchase Price in respect thereof, and interest thereon, for the purpose
of conversion and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 2.13 GLOBAL SECURITIES. (a) Notwithstanding any other
provisions of this Indenture or the Securities, (A) transfers of a Global
Security, in whole or in part, shall be made only in accordance with Section 2.6
and Section 2.12(a)(i), (B) transfers or exchanges of a beneficial interest in a
Global Security for an interest in the same or another Global Security shall
comply with Section 2.6 and Section 2.12(a)(ii) below, (C) transfers of a
beneficial interest in a Global Security for a Certificated Security shall
comply with Section 2.6, Section 2.12(a)(iii) below and Section 2.12(e)(1)
below, and (D) transfers of a Certificated Security shall comply with Section
2.6 and Sections 2.12(a)(iv) and (v) below.
(i) TRANSFER OF GLOBAL SECURITY. A Global Security may not
be transferred, in whole or in part, to any Person other than the
Depositary or a nominee or any successor thereof, and no such
transfer to any such other Person may be registered; provided
that this clause (i) shall not prohibit any transfer of a
Certificated Security that is issued in exchange for a Global
Security. No transfer of a Global Security to any Person shall be
effective under this Indenture or the Securities unless and until
such Security has been registered in the name of such Person.
Nothing in this Section 2.12(a)(i) shall prohibit or render
ineffective any transfer of a beneficial interest in a Global
Security effected in accordance with the other provisions of this
Section 2.12.
(ii) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY;
EXCHANGE OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR A
BENEFICIAL INTEREST IN THE SAME OR ANOTHER GLOBAL SECURITY.
(x) A beneficial interest in a Global Security may not be
transferred, nor may it be exchanged for a beneficial interest in
another Global Security, except upon satisfaction of the requirements
set forth below. Upon receipt by the Trustee of a request to effect
such a transfer or exchange in accordance with Applicable Procedures,
together with:
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(A) so long as the Securities are Restricted Securities,
certification in the form set forth in Exhibit C;
(B) written instructions to the Trustee to make, or direct
the Registrar to make, in the case of a transfer of a
beneficial interest in a Global Security, an appropriate
adjustment on its books and records with respect to such
Global Securities to reflect such transfer and containing
information regarding the Depositary account to be credited;
(C) written instructions to the Trustee to make, or direct
the Registrar to make, in the case of an exchange of a
beneficial interest in a Global Security, an appropriate
adjustment on its books and records with respect to such
Global Securities to reflect such exchange and containing
information regarding the Depositary account to be credited;
and
(D) if the Company or the Trustee so requests, an opinion of
counsel or other evidence reasonably satisfactory to it as
to the compliance with the restrictions set forth in the
Legend,
then the Trustee, (1) shall cause, or direct the Registrar to
cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Registrar, the
aggregate principal amount of the Securities represented by the
appropriate Global Security to be decreased by the aggregate
principal amount that the other Global Security is increased and
(2) in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar and Applicable
Procedures, shall debit and credit or cause to be debited or
credited, as appropriate, to the accounts of the persons
specified in such instructions a beneficial interest in the
Global Security or Global Securities, as appropriate, equal to
the amount of the beneficial interests so transferred or
exchanged.
(y) Other than transfers to the Company or to an Affiliate
of the Company, beneficial interests in a Global Security that is
not a Restricted Security may not be transferred to Person who
takes delivery thereof in the form a beneficial interest in a
Global Security that is a Restricted Security.
(iii) TRANSFER OR EXCHANGE OF A BENEFICIAL INTEREST IN A
GLOBAL SECURITY FOR A CERTIFICATED SECURITY. A beneficial interest in
a Global Security may not be exchanged for a Certificated Security
except upon satisfaction of the requirements set forth below and in
Section 2.12(e)(1) below. Upon receipt by the Trustee of a transfer of
a beneficial interest in a Global Security in accordance with
Applicable Procedures for a Certificated Security in the form
satisfactory to the Trustee, together with:
(A) so long as the Securities are Restricted Securities,
certification in the form set forth in Exhibit C;
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(B) written instructions to the Trustee to make, or direct
the Registrar to make, an adjustment on its books and
records with respect to such Global Security to reflect a
decrease in the aggregate principal amount of the Securities
represented by the Global Security, such instructions to
contain information regarding the Depositary account to be
credited with such decrease; and
(C) if the Company or the Trustee so requests, an opinion of
counsel or other evidence reasonably satisfactory to it as
to the compliance with the restrictions set forth in the
Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Registrar, the aggregate principal amount of the Securities represented
by the Global Security to be decreased by the aggregate principal amount of the
Certificated Security to be issued, shall issue such Certificated Security and
shall debit or cause to be debited to the account of the person specified in
such instructions a beneficial interest in the Global Security equal to the
principal amount of the Certificated Security so issued.
(iv) TRANSFER AND EXCHANGE OF CERTIFICATED SECURITIES. When
Certificated Securities are presented to the Registrar with a request:
(y) to register the transfer of such Certificated
Securities; or
(z) to exchange such Certificated Securities for an equal
principal amount of Certificated Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Certificated Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to
the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
(2) so long as such Securities are Restricted Securities, such
Securities are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are
accompanied by the following additional information and
documents, as applicable:
(A) if such Certificated Securities are being delivered to
the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect; or
20
(B) if such Certificated Securities are being transferred to
the Company, a certification to that effect; or
(C) if such Certificated Securities are being transferred
pursuant to an exemption from registration, (i) a
certification to that effect (in the form set forth in
Exhibit C, if applicable) and (ii) if the Company so
requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the
restrictions set forth in the Legend.
(v) TRANSFER OF A CERTIFICATED SECURITY FOR A BENEFICIAL
INTEREST IN A GLOBAL SECURITY. A Certificated Security may not be
exchanged for a beneficial interest in a Global Security except
upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Security, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(I) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit C, that such
Certificated Security is being transferred to a QIB in
accordance with Rule 144A, or to an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D of the Securities Act; and
(II) written instructions directing the Trustee to make, or
to direct the Registrar to make, an adjustment on its books
and records with respect to such Global Security to reflect
an increase in the aggregate principal amount of the
Securities represented by the Global Security, such
instructions to contain information regarding the Depositary
account to be credited with such increase, then the Trustee
shall cancel such Certificated Security and cause, or direct
the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary
and the Registrar, the aggregate principal amount of
Securities represented by the Global Security to be
increased by the aggregate principal amount of the
Certificated Security to be exchanged, and shall credit or
cause to be credited to the account of the Person specified
in such instructions a beneficial interest in the Global
Security equal to the principal amount of the Certificated
Security so cancelled. If no Global Securities are then
outstanding, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form
of an Officers' Certificate, a new Global Security in the
appropriate principal amount.
21
(b) Subject to the succeeding Section (c), every Security shall be
subject to the restrictions on transfer provided in the Legend and herein
including the delivery of an opinion of counsel, if so provided. Whenever any
Restricted Security is presented or surrendered for transfer or for exchange,
such Security must be accompanied by a certificate in substantially the form set
forth in Exhibit C, dated the date of such surrender and signed by the Holder,
as to compliance with such restrictions on transfer. The Registrar shall not be
required to accept for such transfer or exchange any Security not so accompanied
by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the transferability of
any Security shall cease and terminate when such Security has been sold pursuant
to an effective registration statement under the Securities Act or transferred
in compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and in form
acceptable to the Company, to the effect that the transfer of such Security has
been made in compliance with Rule 144 or such successor provision), be exchanged
for a new Security, of like tenor and aggregate principal amount, which shall
not bear the restrictive Legend. The Company shall inform the Trustee of the
effective date of any registration statement registering the Securities under
the Securities Act. The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned
opinion of counsel or registration statement.
(d) As used in the preceding two paragraphs of this Section 2.12, the
term "transfer" encompasses any sale, pledge, transfer, loan, hypothecation, or
other disposition of any interest in any Security.
(e) The provisions of clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) 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 (i) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global
Security or such Depositary has ceased to be a "clearing agency"
registered under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and a successor Depositary is not appointed
by the Company within 90 days or (ii) an Event of Default has
occurred and is continuing with respect to the Securities. Any
Global Security exchanged pursuant to clause (i) above shall be
22
so exchanged in whole and not in part, and any Global Security
exchanged pursuant to clause (ii) above may be exchanged in whole
or from time to time in part as directed by the Depositary. Any
Security issued in exchange for a Global Security or any portion
thereof shall be a Global Security; provided that any such
Security so issued that is registered in the name of a Person
other than the Depositary or a nominee thereof shall not be a
Global Security.
(2) Securities issued in exchange for a Global Security or any
portion thereof shall be issued in definitive, fully registered
form, without interest coupons, shall have an aggregate principal
amount 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.
(3) Subject to the provisions of clause (5) below, the registered
Holder may grant proxies and otherwise authorize any Person,
including Agent Members (as defined below) and Persons that may
hold interests through Agent Members, to take any action which a
holder is entitled to take under this Indenture or the
Securities.
(4) In the event of the occurrence of any of the events specified in
clause (1) above, the Company will promptly make available to the
Trustee a reasonable supply of Certificated Securities in
definitive, fully registered form, without interest coupons.
(5) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on
whose behalf Agent Members may act shall have any rights under
this Indenture with respect to any Global Security registered in
the name of the Depositary or any nominee thereof, or under any
such Global Security, and the Depositary or such nominee, as the
case may be, may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and
holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
23
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.
(f) By its acceptance of any Security bearing the Legend, each Holder
acknowledges the restrictions on transfer of such Security set forth in this
Indenture and agrees that it will transfer such Security only as provided in
this Indenture.
(g) Each Holder 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.
(h) 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
beneficial 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.
(i) Neither the Trustee nor any agent shall have any responsibility
for any actions taken or not taken by the Depositary.
Section 2.14 CUSIP NUMBERS. The Company may issue the Securities with
one or more "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the CUSIP numbers.
ARTICLE III
REDEMPTION AND PURCHASES
Section 3.1 COMPANY'S RIGHT TO REDEEM; NOTICES TO TRUSTEE. Prior to
August 15, 2008, the Securities will not be redeemable at the Company's option.
Beginning on August 15, 2008, the Company, at its option, may redeem the
Securities, subject to and in accordance with the terms and conditions of
Section 6 of the Securities, for cash, as a whole or in part, at a redemption
price equal to the principal amount of those Securities plus any accrued and
unpaid interest, including Additional Amounts, if any, on those Securities to
the Redemption Date. If the Company elects to redeem Securities pursuant to
24
Section 6 of the Securities, it shall notify the Trustee in writing of the
Redemption Date, the principal amount of Securities to be redeemed and the
Redemption Price.
The Company shall give the notice to the Trustee of its intention to
exercise its right to redeem the Securities as provided for in this Section 3.1
by a Company Order at least ten (10) Business Days prior to the day the
Redemption Notice is to be mailed.
Section 3.2 SELECTION OF SECURITIES TO BE REDEEMED. If less than all
the Securities are to be redeemed, unless the procedures of the Depositary
provide otherwise, the Trustee shall select the Securities to be redeemed by
lot, on a pro rata basis or by another method the Trustee considers fair and
appropriate (so long as such method is not prohibited by the rules of any stock
exchange on which the Securities are then listed). The Trustee shall make the
selection within five Business Days after it receives the notice provided for in
Section 3.1 from outstanding Securities not previously called for redemption.
The Trustee may select for redemption portions of the principal amount of
Securities that have denominations larger than $1,000.
Securities and portions of Securities that the Trustee selects shall
be in principal amounts of $1,000 or an integral multiple of $1,000. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of the Securities to be redeemed.
Securities and portions of Securities that are to be redeemed are
convertible by the Holder until the close of business on the second Business Day
prior to the Redemption Date unless the Company fails to pay the Redemption
Price on the Redemption Date. If any Security selected for partial redemption is
converted in part before termination of the conversion right with respect to the
portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be
redeemed may be treated by the Trustee as outstanding for the purpose of such
selection.
Section 3.3 NOTICE OF REDEMPTION. At least 30 days but not more than
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first-class mail, postage prepaid, to each Holder to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Price;
(4) the name and address of the Paying Agent and Conversion Agent;
25
(5) that Securities called for redemption may be converted at any
time before the close of business on the second Business Day
prior to the Redemption Date;
(6) that Holders who wish to convert their Securities must satisfy
the requirements set forth in Section 8 of the Securities;
(7) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(8) if fewer than all of the outstanding Securities are to be
redeemed, the certificate numbers, if any, and principal amounts
of the particular Securities to be redeemed;
(9) that, unless the Company defaults in making payment of such
Redemption Price, interest, including Additional Amounts, if any,
on Securities called for redemption will cease to accrue interest
on and after the Redemption Date; and
(10) the CUSIP number(s) of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that the
Company makes such request at least ten Business Days prior to the date by which
such notice of redemption is to be given to Holders in accordance with this
Section 3.3, unless the Trustee agrees to a shorter period.
Section 3.4 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is given, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price stated in the notice except for
Securities which are converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption Xxxxx stated in the notice.
Section 3.5 DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m., New York
City time, on the Redemption Date, the Company shall deposit with the Paying
Agent (or if the Company or a Subsidiary or an Affiliate of either of them is
the Paying Agent, shall segregate and hold in trust) money sufficient to pay the
Redemption Price of all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which on or prior
thereto have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as practicable return to
the Company any money not required for that purpose because of conversion of
Securities pursuant to Article 11. If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.
Section 3.6 SECURITIES REDEEMED IN PART. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security in an authorized
denomination equal in principal amount to the unredeemed portion of the Security
surrendered.
26
Section 3.7 PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE
OF CONTROL. (a)(1) If a Change of Control occurs (subject to certain exceptions
set forth below), the Securities not previously purchased by the Company shall
be purchased by the Company for cash, at the option of the Holder thereof, at a
purchase price specified in Section 6 of the Securities (the "Change of Control
Purchase Price"), as of the date that is no later than 30 days after the date of
a notice of Change of Control delivered by the Company pursuant to Section
3.7(b) (the "Change of Control Purchase Date"), subject to satisfaction by or on
behalf of the Holder of the requirements set forth in Section 3.7(c).
A "Change of Control" will be deemed to have occurred at such time
after the Securities are originally issued when any of the following events
shall occur:
(i) the acquisition by any Person, including any syndicate or
group deemed to be a "person" under Section 13(d)(3) of the Exchange
Act, of beneficial ownership, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of
purchases, mergers or other acquisition transactions of shares of the
Capital Stock of the Company entitling that Person to exercise 50% or
more of the total voting power of all shares of the Capital Stock of
the Company entitled to vote generally in elections of directors,
other than any acquisition by the Company, any of its subsidiaries or
any of its employee benefit plans; or
(ii) the first day on which a majority of the members of the
board of directors of the Company does not consist of Continuing
Directors; or
(iii) the Company consolidates or merges 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 Company's Capital Stock; and (2) pursuant to
which the holders of 50% or more of the total voting power of the
Company's Capital Stock entitled to vote generally in elections of
directors immediately prior to the transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total voting
power of all shares of Capital Stock entitled to vote generally in
elections of directors of the continuing or surviving Person
immediately after giving effect to such issuance; and (B) any merger
primarily 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, if at all, solely into
shares of common stock of the surviving entity.
A "Continuing Director" shall mean, as of any date of determination,
any member of the Board of Directors who:
(i) was a member of the Board of Directors of the Company on
August 13, 2003; or
27
(ii) was nominated for election or elected to the Board of
Directors with the approval of a majority of the Continuing Directors
who were members of the Board of Directors at the time of the new
director's nomination or election.
(2) Notwithstanding the provisions of Section 3.7(a)(1), the Company shall not
be required to purchase the Securities of the Holders upon a Change of
Control pursuant to this Section 3.7 (and a Change of Control shall be
deemed not to have occurred) if:
(i) the Sale Price per share of Common Stock for any five Trading
Days within (1) the period of 10 consecutive Trading Days ending
immediately after the later of the Change of Control or the
public announcement of the Change of Control, in the case of a
Change of Control under clause (i) or (ii) of the definition of
"Change of Control" above, or (2) the period of 10 consecutive
Trading Days ending immediately before the Change of Control, in
the case of a Change of Control under clause (iii) of the
definition of "Change of Control" above, equals or exceeds 110%
of the Conversion Price of the Securities in effect on each of
those five Trading Days; or
(ii) all of the consideration in the transaction or transactions
(other than cash payments for fractional shares and cash payments
made in respect of dissenters' appraisal rights) constituting a
Change of Control consists of shares of common stock traded or to
be traded immediately following a Change of Control on a national
securities exchange or the Nasdaq Stock Market, and, as a result
of the transaction or transactions, the Securities become
convertible solely into that common stock (and any rights
attached thereto).
For the purposes of this Section 3.7, (x) whether a Person is a "beneficial
owner" shall be determined in accordance with Rule 13d-3 and Rule 13d-5 under
the Exchange Act (except that any of those Persons shall be deemed to have
beneficial ownership of all securities it has the right to acquire, whether the
right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition) and (y) the term "Person" includes any syndicate or group
that would be deemed to be a "person" under Section 13(d)(3) of the Exchange
Act.
(b) No later than 30 days after the occurrence of a Change of Control,
the Company shall mail a written notice of the Change of Control by first class
mail to the Trustee and to each Holder (and to beneficial owners as required by
applicable law). The notice shall include a form of Change of Control Purchase
Notice to be completed by the Holder and shall state:
(1) briefly, the events causing a Change of Control and the date of
such Change of Control;
28
(2) the date by which the Change of Control Purchase Notice pursuant
to this Section 3.7 must be delivered to the Paying Agent in
order for a Holder to exercise the repurchase rights;
(3) the Change of Control Purchase Date;
(4) the Change of Control Purchase Price;
(5) the name and address of the Paying Agent and the Conversion
Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that the Securities as to which a Change of Control Purchase
Notice has been given may be converted if they are otherwise
convertible pursuant to Article 9 hereof only if the Change of
Control Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(8) that the Securities must be surrendered to the Paying Agent to
collect payment;
(9) that the Change of Control Purchase Price for any Security as to
which a Change of Control Purchase Notice has been duly given and
not withdrawn will be paid as promptly as practicable following
the later of the Change of Control Purchase Date and the time of
surrender of such Security as described in clause (8) above;
(10) briefly, the procedures the Holder must follow to exercise rights
under this Section 3.7;
(11) briefly, the conversion rights of the Securities;
(12) the procedures for withdrawing a Change of Control Purchase
Notice;
(13) that, unless the Company defaults in making payment of such
Change of Control Purchase Price, interest, if any, on Securities
surrendered for purchase by the Company will cease to accrue on
and after the Change of Control Purchase Date; and
(14) the CUSIP number(s) of the Securities.
Without otherwise limiting the Company's obligations pursuant to this
Section 3.7 in any way, the Company shall also issue a press release through Dow
Xxxxx & Company, Inc., Bloomberg Business News or Business Wire containing the
relevant information and otherwise make this information available on the
Company's web site or through another public medium as the Company may use at
that time.
29
(c) A Holder may exercise its rights specified in Section 3.7(a) upon
delivery of a written notice of purchase (a "Change of Control Purchase Notice")
to the Paying Agent at any time on or prior to the close of business on the
second Business Day preceding the Change of Control Purchase Date (unless the
Company shall specify a later date), specifying:
(1) the certificate number of the Security which the Holder will
deliver to be purchased or the appropriate depositary procedures
if Certificated Securities have not been issued;
(2) the portion of the principal amount of the Security which the
Holder will deliver to be purchased, which portion must be $1,000
or an integral multiple of $1,000; and
(3) that such Security shall be purchased pursuant to the terms and
conditions specified in Section 6 of the Securities and in this
Indenture.
The receipt of such Security by the Paying Agent with the Change of
Control Purchase Notice (together with all necessary endorsements) at the
offices of the Paying Agent shall be a condition to the receipt by the Holder of
the Change of Control Purchase Price therefor; provided, however, that such
Change of Control Purchase Price shall be so paid pursuant to this Section 3.7
and Section 3.8 only if the Security so delivered to the Paying Agent shall
conform in all respects to the description thereof set forth in the related
Change of Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.7 and 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 this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.7 and Section 3.8 shall be consummated by the delivery of the
consideration to be received by the Holder.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Change of Control Purchase Notice contemplated by this
Section 3.7(c) shall have the right to withdraw such Change of Control Purchase
Notice at any time prior to the close of business on the last Business Day
immediately preceding the Change of Control Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section 3.8.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Change of Control Purchase Notice or written withdrawal thereof.
Section 3.8 EFFECT OF CHANGE OF CONTROL PURCHASE NOTICE; WITHDRAWAL.
Upon receipt by the Paying Agent of the Change of Control Purchase Notice
specified in Section 3.7(c), the Holder of the Security in respect of which such
Change of Control Purchase Notice was given shall (unless such Change of Control
Purchase Notice is withdrawn as specified in the following two paragraphs)
30
thereafter be entitled to receive solely the Change of Control Purchase Price
with respect to such Security. Such Change of Control Purchase Price shall be
paid to such Holder, subject to the receipt of funds by the Paying Agent,
promptly following the later of (x) the Change of Control Purchase Date with
respect to such Security (provided the conditions in Section 3.7(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 3.7(c). Securities in
respect of which a Change of Control Purchase Notice has been given by the
Holder thereof may not be converted pursuant to Article 9 hereof on or after the
date of the delivery of such Change of Control Purchase Notice unless such
Change of Control Purchase Notice has first been validly withdrawn as specified
in the following two paragraphs.
A Change of Control Purchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent in
accordance with the Change of Control Purchase Notice, at any time prior to the
close of business on the Change of Control Purchase Date, specifying:
(1) the certificate number, if any, of the Security in respect of
which such notice of withdrawal is being submitted,
(2) the principal amount of the Security with respect to which such
notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security which remains
subject to the original Change of Control Purchase Notice, and
which has been or will be delivered for purchase by the Company.
There shall be no purchase of any Securities pursuant to Section 3.7
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 Change of Control Purchase
Notice) and is continuing an Event of Default (other than a default in the
payment of the Change of Control Purchase Price with respect to such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities (x) with respect to which a Change of Control 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 Change of Control Purchase Price with respect to such Securities)
in which case, upon such return, the Change of Control Purchase Notice with
respect thereto shall be deemed to have been withdrawn.
Section 3.9 DEPOSIT OF CHANGE OF CONTROL PURCHASE PRICE. Prior to
10:00 a.m., New York City time, on the Business Day following the Change of
Control Purchase Date, the Company shall deposit with the Trustee or with the
Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of
them is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.4) an amount of cash (in immediately available funds if
deposited on such Business Day) sufficient to pay the aggregate Change of
Control Purchase Price of all the Securities or portions thereof which are to be
purchased as of the Change of Control Purchase Date.
31
Section 3.10 SECURITIES PURCHASED IN PART. Any Certificated Security
which is to be purchased only in part shall be surrendered at the office of the
Paying Agent (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Xxxxxx's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder, without service charge, a new Security
or Securities, of any authorized denomination as 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 which is not purchased.
Section 3.11 COVENANT TO COMPLY WITH SECURITIES LAWS UPON PURCHASE OF
SECURITIES. When complying with the provisions of Section 3.7 hereof (provided
that such offer or purchase constitutes an "issuer tender offer" for purposes of
Rule 13e-4 (which term, as used herein, includes any successor provision
thereto) under the Exchange Act at the time of such offer or purchase), and
subject to any exemptions available under applicable law, the Company shall (i)
comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the
Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form
or report) under the Exchange Act, and (iii) otherwise comply with all Federal
and state securities laws so as to permit the rights and obligations under
Section 3.7 to be exercised in the time and in the manner specified in Section
3.7.
Section 3.12 REPAYMENT TO THE COMPANY. The Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed as provided in
Section 11 of the Securities, together with interest or dividends, if any,
thereon (subject to the provisions of Section 7.1(f)), held by them for the
payment of the Change of Control Purchase Price; provided, however, that to the
extent that the aggregate amount of cash deposited by the Company pursuant to
Section 3.9 exceeds the aggregate Change of Control Purchase Price of the
Securities or portions thereof which the Company is obligated to purchase as of
the Change of Control Purchase Date, then, unless otherwise agreed in writing
with the Company, promptly after the Business Day following the Change of
Control Purchase Date, the Trustee shall return any such excess to the Company
together with interest thereon (subject to the provisions of Section 7.1(f)).
ARTICLE IV
COVENANTS
Section 4.1 PAYMENT OF SECURITIES. The Company shall promptly make all
payments in respect of the Securities on the dates and in the manner provided in
the Securities or pursuant to this Indenture. Any amounts of cash to be given to
the Trustee or Paying Agent, shall be deposited with the Trustee or Paying Agent
by 10:00 a.m., New York City time, by the Company. Principal amount plus accrued
interest, if any, including Additional Amounts, if any, the Redemption Price,
the Change of Control Purchase Price and cash interest, if any, shall be
considered paid on the applicable date due if on such date the Trustee or the
Paying Agent holds, in accordance with this Indenture, cash sufficient to pay
all such amounts then due.
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Section 4.2 SEC AND OTHER REPORTS. The Company shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. In the event the Company is at any time
no longer subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, it shall continue to provide the Trustee with reports containing
substantially the same information as would have been required to be filed with
the SEC had the Company continued to have been subject to such reporting
requirements. In such event, such reports shall be provided at the times the
Company would have been required to provide reports had it continued to have
been subject to such reporting requirements. The Company also shall comply with
the other provisions of TIA Section 314(a). Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely conclusively on Officers'
Certificates).
Section 4.3 COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 26, 2003) an Officers'
Certificate, stating whether or not to the knowledge of the signers thereof, the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 4.4 FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
Section 4.5 MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain
in the Borough of Manhattan, the City of New York, an office or agency of the
Trustee, Registrar, Paying Agent and Conversion Agent where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange, purchase, redemption or conversion and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The office of The Bank of New York, 000 Xxxxxxx Xxxxxx,
Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000 (Attention: Corporate Trust Administration),
shall initially be such office or agency for all of the aforesaid purposes. The
Company shall give prompt written notice to the Trustee of the location, and of
any change in the location, of any such office or agency (other than a change in
the location of the office of the Trustee). If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
11.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
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or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes.
Section 4.6 DELIVERY OF CERTAIN INFORMATION. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of Common Stock issued upon conversion thereof, the
Company will promptly furnish or cause to be furnished Rule 144A Information (as
defined below) to such Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of Common Stock, or to a prospective purchaser of any
such security designated by any such holder, as the case may be, to the extent
required to permit compliance by such Holder or holder with Rule 144A under the
Securities Act in connection with the resale of any such security. "Rule 144A
Information" shall be such information as is specified pursuant to Rule
144A(d)(4) under the Securities Act. Whether a Person is a beneficial owner
shall be determined by the Company to the Company's reasonable satisfaction.
Section 4.7 STATEMENT BY OFFICERS AS TO DEFAULT. The Company shall
deliver to the Trustee, as soon as possible and in any event within five days
after the Company becomes aware of the occurrence of any Event of Default or an
event which, with notice or the lapse of time or both, would constitute an Event
of Default, an Officers' Certificate setting forth the details of such Event of
Default or default and the action which the Company proposes to take with
respect thereto.
Section 4.8 ADDITIONAL INTEREST NOTICE. In the event that the Company
is required to pay Additional Interest to Holders pursuant to the Registration
Rights Agreement, the Company will provide written notice ("Additional Interest
Notice") to the Trustee of its obligation to pay Additional Interest no later
than fifteen days prior to the proposed payment date for the Additional
Interest, and the Additional Interest Notice shall set forth the amount of
Additional Interest to be paid by the Company on such payment date. The Trustee
shall not at any time be under any duty or responsibility to any Holder to
determine the Additional Interest, or with respect to the nature, extent, or
calculation of the amount of Additional Interest owed, or with respect to the
method employed in such calculation of the Additional Interest.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. The Company
shall not consolidate with or merge with or into any other Person or convey,
transfer, sell, lease or otherwise dispose of all or substantially all of its
properties and assets to any Person, unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance, transfer
or lease all or substantially all of the properties and assets of the Company
substantially as an entirety (i) shall be organized and validly existing under
the laws of the United States or any State thereof or the District of Columbia
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and (ii) shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably satisfactory to the Trustee,
all of the obligations of the Company under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default or
Event of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article 5 and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment
(excluding the grant of a security interest but including any foreclosure
thereon), sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which, if such
assets were owned by the Company, would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
The successor Person formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of a lease and obligations the Company may have under a supplemental
indenture, the Company shall be discharged from all obligations and covenants
under this Indenture and the Securities. Subject to Section 8.6, the Company,
the Trustee and the successor Person shall enter into a supplemental indenture
to evidence the succession and substitution of such successor Person and such
discharge and release of the Company.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 EVENTS OF DEFAULT. So long as any Securities are
outstanding, each of the following shall be an "Event of Default":
(1) the Company defaults in the payment of the principal amount on any
Security when the same becomes due and payable at its Stated Maturity;
(2) the Company defaults in its obligation to repurchase any Security, or
any portion thereof, upon the exercise by the Holder of such Holder's right to
require the Company to purchase such Securities pursuant to and in accordance
with Section 3.7 hereof;
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(3) the Company defaults in its obligation to redeem any Security, or any
portion thereof, called for redemption by the Company pursuant to and in
accordance with Section 3.1 hereof;
(4) the Company defaults in the payment of any accrued and unpaid interest,
including Additional Amounts, if any, on any Security, in each case when due and
payable, and continuance of such default for a period of 30 days;
(5) the Company fails to comply with any of its covenants or agreements in
the Securities or this Indenture (other than those referred to in clause (1)
through (4) above) and such failure continues for 60 days after receipt by the
Company of a Notice of Default;
(6) a default under any indebtedness for money borrowed by the Company or
any Significant Subsidiary in an aggregate outstanding principal amount of $5.0
million or more, for a period of 30 days after written notice of default is
given to the Company by the Trustee or to the Company and the Trustee by Holders
of not less than 25% in aggregate principal amount of the Securities then
outstanding, which default (A) is caused by the failure to pay principal or
interest when due on such indebtedness by the end of the applicable grace
period, if any, unless such indebtedness is discharged or (B) results in the
acceleration of such indebtedness, unless such acceleration is waived, cured,
rescinded or annulled or unless such indebtedness is discharged;
(7) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any of its Subsidiaries
that is a Significant Subsidiary, in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company or any of its Subsidiaries that is a
Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement, adjustment or composition of or
in respect of the Company or any of its Subsidiaries that is a Significant
Subsidiary, under any applicable law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or
(8) the commencement by the Company or any of its Subsidiaries that is a
Significant Subsidiary, of a voluntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Company or any of its Subsidiaries that is a Significant Subsidiary, to the
entry of a decree or order for relief in respect of the Company or any of its
Subsidiaries that is a Significant Subsidiary, in an involuntary case or
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company, or the filing by the Company or any of its
Subsidiaries that is a Significant Subsidiary, of a petition or answer or
consent seeking reorganization or relief under any applicable law, or the
consent by the Company to the filing of such petition or to the appointment of
or the taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
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substantial part of its property, or the making by the Company or any of its
Subsidiaries that is a Significant Subsidiary, of an assignment for the benefit
of creditors, or the admission by the Company or any of its Subsidiaries that is
a Significant Subsidiary, in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company or any of
its Subsidiaries that is a Significant Subsidiary, expressly in furtherance of
any such action.
A Default under clause (5) 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 at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default (and
such Default is not waived) within the time specified in clause (5) above after
actual receipt of such notice. Any such notice must specify the Default, require
that it be remedied and state that such notice is a "Notice of Default."
The Trustee shall, within 90 days of the occurrence of a Default or
Event of Default, give to the Holders of the Securities notice of all uncured
Defaults or Events of Default known to it, its status and what action the
Company is taking or proposes to take with respect thereto; provided, however,
the Trustee shall be protected in withholding such notice if it, in good faith,
determines that the withholding of such notice is in the best interest of such
Holders, except in the case of a Default or Event of Default under clauses (1),
(2), (3) or (4) above.
Section 6.2 ACCELERATION. If an Event of Default (other than an Event
of Default specified in Section 6.1(7) or (8) with respect to the Company)
occurs and is continuing (the Event of Default not having been cured or waived
as provided in this Article 6), the Trustee by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the Securities at the
time outstanding by notice to the Company and the Trustee, may declare the
principal amount plus accrued and unpaid interest, including Additional Amounts,
if any, on all the Securities to be immediately due and payable. Upon such a
declaration, such accelerated amount shall be due and payable immediately. If an
Event of Default specified in Section 6.1(7) or (8) occurs (with respect to the
Company) and is continuing, the principal amount plus accrued and unpaid
interest, including Additional Amounts, if any, on all the Securities shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder) may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of the principal amount plus accrued and unpaid
interest, including Additional Amounts, if any, that have become due solely as a
result of acceleration and if all amounts due to the Trustee under Section 7.7
have been paid. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
Section 6.3 OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the principal amount plus accrued and unpaid interest, including Additional
Amounts, if any, on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
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The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
Section 6.4 WAIVER OF PAST DEFAULTS. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder), may waive an
existing Default and its consequences except (i) an Event of Default described
in Section 6.1(1), 6.1(2), 6.1(3) or 6.1(4), (ii) a Default in respect of a
provision that under Section 8.2 cannot be amended without the consent of each
Securityholder affected or (iii) a Default which constitutes a failure to
convert any Security in accordance with the terms of Article 9. When a Default
is waived, it is deemed cured, but no such waiver shall extend to any subsequent
or other Default or impair any consequent right. This Section 6.4 shall be in
lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) is hereby
expressly excluded from this Indenture, as permitted by the TIA.
Section 6.5 CONTROL BY MAJORITY. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability unless the Trustee is offered indemnity satisfactory to
it. This Section 6.5 shall be in lieu of Section 316(a)(1)(A) of the TIA and
such Section 316(a)(1)(A) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
Section 6.6 LIMITATION ON SUITS. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of such notice, request and offer of security or
indemnity; and
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(5) the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder (it being understood that the Trustee does not have an
affirmative duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders).
Section 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
the principal amount, Redemption Price, Change of Control Purchase Price or
interest, including Additional Amounts, if any, in respect of the Securities
held by such Holder, on or after the respective due dates expressed in the
Securities or any Redemption Date, and to convert the Securities in accordance
with Article 9, or to bring suit for the enforcement of any such payment on or
after such respective dates or the right to convert, shall not be impaired or
affected adversely without the consent of such Holder.
Section 6.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.1(1), (2), (3) or (4) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount owing with respect to the Securities
and the amounts provided for in Section 7.7.
Section 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal amount, Redemption Price, Change of Control Purchase
Price or interest, including Additional Amounts, if any, in respect of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any such amount) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the principal
amount, Redemption Price, Change of Control Purchase Price, or interest,
including Additional Amounts, if any, and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel or any other amounts due the Trustee
under Section 7.7) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due it for the compensation, expenses, disbursements and advances of the
39
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.10 PRIORITIES. Subject to the provisions of Article 10, if
the Trustee collects any money pursuant to this Article 6, it shall pay out the
money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for the principal amount, Redemption Price, Change of Control
Purchase Price or interest, including Additional Amounts, if any, as the case
may be, ratably, without preference or priority of any kind, according to such
amounts due and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company a
notice that states the record date, the payment date and the amount to be paid.
Section 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.7 or a suit by Holders of more than 10% in aggregate principal amount of the
Securities at the time outstanding. This Section 6.11 shall be in lieu of
Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
Section 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal amount,
Redemption Price or Change of Control Purchase Price in respect of Securities,
or any interest, including Additional Amounts, if any, on such amounts, as
contemplated herein, or which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
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that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
Section 7.1 DUTIES OF TRUSTEE. If an Event of Default has occurred and
is continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(a) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture, but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture, but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein. This Section 7.1(b)
shall be in lieu of Section 315(a) of the TIA and such Section
315(a) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
(b) 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 Section (b) does not limit the effect of Section (a) of this
Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
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Subparagraphs (b)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the
TIA.
(c) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(d) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(e) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company.
Section 7.2 RIGHTS OF TRUSTEE. Subject to its duties and
responsibilities under the TIA,
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(d) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith which it believes to be authorized or
within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and any advice
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
42
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby;
(g) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder;
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any Person authorized to sign an
Officers' Certificate, including any Person specified as so authorized in any
such certificate previously delivered and not superseded; and
(l) in no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
Section 7.3 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
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Section 7.4 TRUSTEE'S DISCLAIMER. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use or application of the proceeds from the
Securities, it shall not be responsible for any statement in the registration
statement for the Securities under the Securities Act or in any offering
document for the Securities, the Indenture or the Securities (other than its
certificate of authentication), or the determination as to which beneficial
owners are entitled to receive any notices hereunder.
Section 7.5 NOTICE OF DEFAULTS. If a Default occurs and if it is known
to the Trustee, the Trustee shall give to each Securityholder notice of the
Default within 90 days after it occurs or, if later, within 15 days after it is
known to the Trustee, unless such Default shall have been cured or waived before
the giving of such notice. Notwithstanding the preceding sentence, except in the
case of a Default described in Section 6.1(1), (2) (3) or (4), the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interest of the
Securityholders. The preceding sentence shall be in lieu of the proviso to
Section 315(b) of the TIA and such proviso is hereby expressly excluded from
this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have
knowledge of a Default unless a Responsible Officer of the Trustee has received
written notice of such Default, which notice specifically references this
Indenture and the Securities.
Section 7.6 REPORTS BY TRUSTEE TO HOLDERS. The Trustee shall transmit
to Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Securityholder a brief report dated as of such May 15 that
complies with TIA Section 313(a), if required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each securities exchange, if any, on which the
Securities are listed. The Company agrees to notify the Trustee in writing
promptly whenever the Securities become listed on any securities exchange and of
any delisting thereof.
Section 7.7 COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited (to
the extent permitted by law) by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the compensation and the expenses, advances and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
44
(c) to indemnify the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including attorney's fees and expenses, and taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee and any and all franchise taxes of the Trustee)) incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself against any claim (whether asserted by the Company or any
Holder or any other Person), liability in connection with the exercise or
performance of any of its powers or duties hereunder or in connection with
enforcing the provisions of this Section.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay the principal
amount, Redemption Price, Change of Control Purchase Price or interest,
including Additional Amounts, if any, as the case may be, on particular
Securities.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.1(6) or (7), the expenses including the reasonable
charges and expenses of its counsel, are intended to constitute expenses of
administration under any bankruptcy law.
Section 7.8 REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Company; provided, however, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.8. The Holders of a majority in aggregate principal amount of the Securities
at the time outstanding may remove the Trustee by so notifying the Trustee and
the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.7.
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If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding may petition any court of competent jurisdiction at the expense
of the Company for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Section 7.9 SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
Section 7.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee
(or its parent holding company) shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. Nothing herein contained shall prevent the Trustee from filing with
the Commission the application referred to in the penultimate paragraph of TIA
Section 310(b).
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
AMENDMENTS
Section 8.1 WITHOUT CONSENT OF HOLDERS. The Company and the Trustee
may amend, modify or supplement this Indenture or the Securities without the
consent of any Securityholder to:
(a) add to the covenants of the Company for the benefit of the Holders
of Securities;
(b) surrender any right or power herein conferred upon the Company;
(c) provide for conversion rights of Holders of Securities if any
reclassification or change of the Common Stock or any consolidation, merger or
sale of all or substantially all of the Company's assets occurs;
(d) provide for the assumption of the Company's obligations to the
Holders of Securities in the case of a merger, consolidation, conveyance,
transfer or lease pursuant to Article 5 hereof;
46
(e) reduce the Conversion Price; provided, however, that such
reduction in the Conversion Price shall not adversely affect the interests of
the Holders of Securities (after taking into account tax and other consequences
of such reduction);
(f) comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(g) cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein or which is otherwise
defective; provided, however, that such action pursuant to this clause (g) does
not, in the good faith opinion of the Board of Directors of the Company (as
evidenced by a Board Resolution), adversely affect the interests of the Holders
of Securities in any material respect; and
(h) add or modify any other provisions herein with respect to matters
or questions arising hereunder which the Company and the Trustee may deem
necessary or desirable and that will not, in the good faith opinion of the Board
of Directors of the Company (as evidenced by a Board Resolution), adversely
affect the interests of the Holders of Securities.
Section 8.2 WITH CONSENT OF HOLDERS. Except as provided below in this
Section 8.2, this Indenture or the Securities may be amended, modified or
supplemented, and noncompliance in any particular instance with any provision of
this Indenture or the Securities may be waived, in each case with the written
consent of the Holders of at least a majority of the principal amount of the
Securities at the time outstanding.
Without the written consent or the affirmative vote of each Holder
affected thereby, an amendment or waiver under this Section 8.2 may not:
(a) change the maturity of the principal amount of, or the date any
installment of interest, including Additional Amounts, is due on, any Security;
(b) reduce the principal amount of, or interest, including Additional
Amounts payable on, or the Redemption Price or Change of Control Purchase Price
of, any Security;
(c) change the currency of any amount owed or owing under the Security
or any interest thereon from U.S. Dollars;
(d) impair the right of any Holder to institute suit for the
enforcement of any payment or with respect to, or conversion of, any Security;
(e) modify the obligation of the Company to maintain an office or
agency in The City of New York pursuant to Section 4.5;
(f) except as otherwise permitted or contemplated by the provisions of
this Indenture, adversely affect the repurchase right of the Holders of the
Securities as provided in Article 3 or the right of the Holders of the
Securities to convert any Security as provided in Article 9;
47
(g) modify the provisions of Article 5 in a manner adverse to the
Holders of the Securities;
(h) modify any of the provisions of this Section 8.2, or reduce the
principal amount of outstanding Securities required to waive a default, except
to provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Security affected
thereby; or
(i) reduce the percentage of the principal amount of the outstanding
Securities the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver provided
for in this Indenture.
It shall not be necessary for the consent of the Holders under this
Section 8.2 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 8.2 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
Nothing in this Section 8.2 shall impair the ability of the Company
and the Trustee to amend this Indenture or the Securities without the consent of
any Securityholder to provide for the assumption of the Company's obligations to
the Holders of Securities in the case of a merger, consolidation, conveyance,
transfer or lease pursuant to Article 5 hereof.
Section 8.3 COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
Section 8.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment, waiver or other action by Holders becomes effective, a
consent thereto by a Holder hereunder is a continuing consent by the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same obligation as the consenting Holder's Security, even if
notation of the consent, waiver or action is not made on the Security. However,
any such Holder or subsequent Holder may revoke the consent, waiver or action as
to such Holder's Security or portion of the Security if the Trustee receives the
notice of revocation before the date the amendment, waiver or action becomes
effective. After an amendment, waiver or action becomes effective, it shall bind
every Securityholder.
Section 8.5 NOTATION ON OR EXCHANGE OF SECURITIES. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
Section 8.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 8 if the
amendment contained therein does not adversely affect the rights, duties,
48
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign such supplemental indenture. In signing such supplemental indenture
the Trustee shall receive, and (subject to the provisions of Section 7.1) shall
be fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
Section 8.7 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 theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
ARTICLE IX
CONVERSIONS
Section 9.1 CONVERSION PRIVILEGE. Subject to and upon compliance with
the provisions of this Article 9, a Holder shall have the right, at such
Holder's option, to convert all or any portion (if the portion to be converted
is $1,000 or an integral multiple of $1,000) of such Security into shares of
Common Stock at the Conversion Price in effect on the date of conversion, at any
time prior to the close of business on the Business Day prior to the Stated
Maturity of the Securities.
Section 9.2 CONVERSION PROCEDURE; CONVERSION PRICE; FRACTIONAL SHARES.
Each Security shall be convertible at the office of the Conversion Agent into
fully paid and nonassessable shares (calculated to the nearest 1/100th of a
share) of Common Stock. The Security will be converted into shares of Common
Stock at the Conversion Price therefor. No payment or adjustment shall be made
in respect of dividends on the Common Stock or accrued interest on a converted
Security, except as described in Section 9.9 hereof. The Company shall not issue
any fraction of a share of Common Stock in connection with any conversion of
Securities, but instead shall, subject to Section 9.3(k) hereof, make a cash
payment (calculated to the nearest cent) equal to such fraction multiplied by
the Sale Price of the Common Stock on the last Trading Day prior to the date of
conversion. Notwithstanding the foregoing, a Security in respect of which a
Holder has delivered a Change of Control Purchase Notice exercising such
Holder's option to require the Company to repurchase such Security may be
converted only if such notice of exercise is withdrawn in accordance with the
Section 3.8 hereof.
(a) Before any Holder shall be entitled to convert the same into
Common Stock, such Holder shall, in the case of Global Securities, comply with
the procedures of the Depositary in effect at that time, and in the case of
Certificated Securities, surrender such Securities, duly endorsed to the Company
or in blank, at the office of the Conversion Agent, and shall give written
notice to the Company at said office or place that such Holder elects to convert
the same and shall state in writing therein the principal amount of Securities
to be converted and the name or names (with addresses) in which such Holder
wishes the certificate or certificates for Common Stock to be issued.
49
Before any such conversion, a Holder also shall pay all funds
required, if any, relating to interest on the Securities, as provided in Section
9.9, and all taxes or duties, if any, as provided in Section 9.8.
If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares of Common Stock which shall
be deliverable upon conversion shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent
permitted thereby) so surrendered. Subject to the next succeeding sentence, the
Company will, as soon as practicable thereafter, issue and deliver at said
office or place to such Holder, or to such Holder's nominee or nominees,
certificates for the number of full shares of Common Stock to which such Holder
shall be entitled as aforesaid, together with cash in lieu of any fraction of a
share to which such Holder would otherwise be entitled. The Company shall not be
required to deliver certificates for shares of Common Stock while the stock
transfer books for such stock or the security register are duly closed for any
purpose, but certificates for shares of Common Stock shall be issued and
delivered as soon as practicable after the opening of such books or security
register.
(b) A Security shall be deemed to have been converted as of the close
of business on the date of the surrender of such Securities for conversion as
provided above, and the Person or Persons entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes as the record
Holder or Holders of such Common Stock as of the close of business on such date.
(c) In case any Security shall be surrendered for partial conversion,
the Company shall execute and the Trustee shall authenticate and deliver to or
upon the written order of the Holder of the Security so surrendered, without
charge to such Holder (subject to the provisions of Section 9.8 hereof), a new
Security or Securities in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Securities.
Section 9.3 ADJUSTMENT OF CONVERSION PRICE. The Conversion Price shall
be adjusted from time to time as follows:
(a) In case the Company shall, at any time or from time to time while
any of the Securities are outstanding, pay a dividend or make a distribution in
shares of Common Stock to all holders of its outstanding shares of Common Stock,
then the Conversion Price in effect at the opening of business on the date
following the record date fixed for the determination of stockholders entitled
to receive such dividend or other distribution shall be reduced by multiplying
such Conversion Price by a fraction:
(1) the numerator of which shall be the number of shares of Common
Stock outstanding at the close of business on the Record Date fixed for such
determination; and
(2) the denominator of which shall be the sum of such number of shares
and the total number of shares constituting such dividend or other distribution.
50
Such reduction shall become effective immediately after the opening of
business on the day following the Record Date fixed for such determination. If
any dividend or distribution of the type described in this Section 9.3(a) is
declared but not so paid or made, the Conversion Price shall again be adjusted
to the Conversion Price which would then be in effect if such dividend or
distribution had not been declared.
(b) In case the Company shall, at any time or from time to time while
any of the Securities are outstanding, subdivide its outstanding shares of
Common Stock into a greater number of shares of Common Stock, then the
Conversion Price in effect at the opening of business on the day following the
day upon which such subdivision becomes effective shall be proportionately
reduced, and conversely, in case the Company shall, at any time or from time to
time while any of the Securities are outstanding, combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock, then the
Conversion Price in effect at the opening of business on the day following the
day upon which such combination becomes effective shall be proportionately
increased.
Such reduction or increase, as the case may be, shall become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.
(c) In case the Company shall, at any time or from time to time while
any of the Securities are outstanding, issue rights or warrants (other than any
rights or warrants referred to in Section 9.3(d)) to all or substantially all
holders of its shares of Common Stock entitling them to subscribe for or
purchase shares of Common Stock (or securities convertible into shares of Common
Stock) at a price per share (or having a conversion price per share) less than
the Sale Price on the Business Day immediately preceding the date of the
announcement of such issuance (treating the conversion price per share of the
securities convertible into Common Stock as equal to (x) the sum of (i) the
price for a unit of the security convertible into Common Stock and (ii) any
additional consideration initially payable upon the conversion of such security
into Common Stock divided by (y) the number of shares of Common Stock initially
underlying such convertible security), then the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect at the opening of business on the date after such
date of announcement by a fraction:
(1) the numerator of which shall be the number of shares of
Common Stock outstanding on the close of business on the date of
announcement, plus the number of shares or securities which the
aggregate offering price of the total number of shares or securities
so offered for subscription or purchase (or the aggregate conversion
price of the convertible securities so offered) would purchase at such
Sale Price of the Common Stock; and
(2) the denominator of which shall be the number of shares of
Common Stock outstanding at the close of business on the date of
announcement, plus the total number of additional shares of Common
Stock so offered for subscription or purchase (or into which the
convertible securities so offered are convertible).
51
Such adjustment shall become effective immediately after the opening
of business on the day following the date of announcement of such issuance. To
the extent that shares of Common Stock (or securities convertible into shares of
Common Stock) are not delivered pursuant to such rights or warrants, upon the
expiration or termination of such rights or warrants, the Conversion Price shall
be readjusted to the Conversion Price which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the
basis of the delivery of only the number of shares of Common Stock (or
securities convertible into shares of Common Stock) actually delivered. In the
event that such rights or warrants are not so issued, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
the date fixed for the determination of stockholders entitled to receive such
rights or warrants had not been fixed. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase shares of Common Stock
at less than such Sale Price, and in determining the aggregate offering price of
such shares of Common Stock, there shall be taken into account any consideration
received for such rights or warrants, the value of such consideration if other
than cash, to be determined by the Board of Directors.
(d) In case the Company shall, at any time or from time to time while
any of the Securities are outstanding, by dividend or otherwise, distribute to
all or substantially all holders of its shares of Common Stock (including any
such distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation and the Common Stock is not changed or
exchanged), cash, shares of its capital stock (other than any dividends or
distributions to which Section 9.3(a) applies), evidences of its indebtedness or
other assets, including securities, but excluding (i) any rights or warrants
referred to in Section 9.3(c), (ii) dividends or distributions of stock,
securities or other property or assets (including cash) in connection with a
reclassification, consolidation, merger, statutory share exchange, combination,
sale or conveyance to which Section 9.4 applies and (iii) dividends and
distributions paid exclusively in cash (such capital stock, evidence of its
indebtedness, cash, other assets or securities being distributed hereinafter in
this Section 9.3(d) called the "distributed assets"), then, in each such case,
subject to the third and fourth succeeding paragraphs and the last paragraph of
this Section 9.3(d), the Conversion Price shall be reduced so that the same
shall be equal to the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the Record Date with
respect to such distribution by a fraction:
(1) the numerator of which shall be the Current Market Price of
the Common Stock, less the Fair Market Value on such date of the
portion of the distributed assets so distributed applicable to one
share of Common Stock (determined on the basis of the number of shares
of Common Stock outstanding on the record date)(determined as provided
in Section 9.3(g)) on such date; and
(2) the denominator of which shall be such Current Market Price.
Such reduction shall become effective immediately prior to the opening of
business on the day following the Record Date for such distribution. In the
event that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such dividend or distribution had not been declared.
52
If the Board of Directors determines the Fair Market Value of any
distribution for purposes of this Section 9.3(d) by reference to the actual
or when issued trading market for any distributed assets comprising all or
part of such distribution, it must in doing so consider the prices in such
market over the same period (the "Reference Period") used in computing the
Current Market Price pursuant to Section 9.3(g) to the extent possible,
unless the Board of Directors determines in good faith that determining the
Fair Market Value during the Reference Period would not be in the best
interest of the Holders.
In the event any such distribution consists of shares of capital
stock of, or similar equity interests in, one or more of the Company's
Subsidiaries (a "Spin-Off"), the Fair Market Value of the securities to be
distributed shall equal the average of the closing sale prices of such
securities on the principal securities market on which such securities are
traded for the five consecutive Trading Days commencing on and including the
sixth day of trading of those securities after the effectiveness of the
Spin-Off, and the Current Market Price shall be measured for the same
period. In the event, however, that an underwritten initial public offering
of the securities in the Spin-Off occurs simultaneously with the Spin-Off,
Fair Market Value of the securities distributed in the Spin-Off shall mean
the initial public offering price of such securities and the Current Market
Price shall mean the Sale Price for the Common Stock on the same Trading Day.
Rights or warrants distributed by the Company to all holders of
its shares of Common Stock entitling them to subscribe for or purchase shares
of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"), (i) are deemed to be transferred with such
shares of Common Stock, (ii) are not exercisable and (iii) are also issued in
respect of future issuances of shares of Common Stock shall be deemed not to
have been distributed for purposes of this Section 9.3(d) (and no adjustment
to the Conversion Price under this Section 9.3(d) will be required) until the
occurrence of the earliest Trigger Event. If such right or warrant is
subject to subsequent events, upon the occurrence of which such right or
warrant shall become exercisable to purchase different distributed assets,
evidences of indebtedness or other assets, or entitle the holder to purchase
a different number or amount of the foregoing or to purchase any of the
foregoing at a different purchase price, then the occurrence of each such
event shall be deemed to be the date of issuance and record date with respect
to a new right or warrant (and a termination or expiration of the existing
right or warrant without exercise by the holder thereof). In addition, in
the event of any distribution (or deemed distribution) of rights or warrants,
or any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto, that resulted in an adjustment to the
Conversion Price under this Section 9.3(d):
(1) in the case of any such rights or warrants which shall all
have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Price shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price
received by a holder of shares of Common Stock with respect to such
rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of shares of Common Stock as of the
date of such redemption or repurchase; and
53
(2) in the case of such rights or warrants which shall have
expired or been terminated without exercise, the Conversion Price
shall be readjusted as if such rights and warrants had never been
issued.
For purposes of this Section 9.3(d) and Sections 9.3(a), 9.3(b)
and 9.3(c), any dividend or distribution to which this Section 9.3(d) is
applicable that also includes (i) shares of Common Stock, (ii) a subdivision or
combination of shares of Common Stock to which Section 9.3(b) applies or (iii)
rights or warrants to subscribe for or purchase shares of Common Stock to which
Section 9.3(c) applies (or any combination thereof), shall be deemed instead to
be:
(1) a dividend or distribution of the evidences of indebtedness,
assets, shares of capital stock, rights or warrants, other than such
shares of Common Stock, such subdivision or combination or such rights
or warrants to which Sections 9.3(a), 9.3(b) and 9.3(c) apply,
respectively (and any Conversion Price reduction required by this
Section 9.3(d) with respect to such dividend or distribution shall
then be made), immediately followed by
(2) a dividend or distribution of such shares of Common Stock,
such subdivision or combination or such rights or warrants (and any
further Conversion Price reduction required by Sections 9.3(a), 9.3(b)
and 9.3(c) with respect to such dividend or distribution shall then be
made), except:
(A) the Record Date of such dividend or distribution shall
be substituted as (i) "the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution," "Record Date fixed for such determinations" and
"Record Date" within the meaning of Section 9.3(a), (ii) "the day
upon which such subdivision becomes effective" and "the day upon
which such combination becomes effective" within the meaning of
Section 9.3(b), and (iii) as "the date fixed for the
determination of stockholders entitled to receive such rights or
warrants," "the Record Date fixed for the determination of the
stockholders entitled to receive such rights or warrants" and
such "Record Date" within the meaning of Section 9.3(c); and
(B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of
business on the date fixed for such determination" within the
meaning of Section 9.3(a) and any reduction or increase in the
number of shares of Common Stock resulting from such subdivision
or combination shall be disregarded in connection with such
dividend or distribution.
In the event of any distribution referred to in this Section
9.3(d) in which (1) the Fair Market Value (as determined by the Board of
Directors, whose determination shall be conclusive) of such distribution
applicable to one share of Common Stock (determined as provided above) equals or
exceeds the average of the Sale Prices of the Common Stock over the ten
consecutive Trading Day period ending on the Record Date for such distribution
or (2) the average of the Sale Prices of the Common Stock over the ten
54
consecutive Trading Day period ending on the Record Date for such distribution
exceeds the Fair Market Value of such distribution by less than $1.00, then, in
each such case, in lieu of an adjustment to the Conversion Price, adequate
provision shall be made so that each Holder shall have the right to receive upon
conversion of a Security, in addition to shares of Common Stock, the kind and
amount of such distribution such Holder would have received had such Holder
converted such Security immediately prior to the Record Date for determining the
shareholders entitled to receive the distribution.
In the event of any distribution referred to in Section 9.3(c) or
9.3(d), where, in the case of a distribution described in Section 9.3(d), the
Fair Market Value of such distribution per share of Common Stock (as determined
by the Board of Directors, whose determination shall be conclusive) exceeds 10%
of the Sale Price of a share of Common Stock on the Business Day immediately
preceding the declaration date for such distribution, then, if such distribution
would also trigger a conversion right under Section 9.1 or the Securities are
otherwise convertible pursuant to this Article 9, the Company will be required
to give notice to the Holders of Securities at least 20 days prior to the
Ex-Dividend Time for the distribution and, upon the giving of notice, the
Securities may be surrendered for conversion at any time on and after the date
that the Company gives notice to the Holders of such conversion right, until the
close of business on the Business Day prior to the Ex-Dividend Time or the
Company announces that such distribution will not take place. No adjustment to
the Conversion Price or the ability of a Holder to convert will be made if the
Holder will otherwise participate in such distribution without conversion.
(e) In case the Company shall, by dividend or otherwise,
distribute to all or substantially all holders of its Common Stock cash
(excluding any dividend or distribution in connection with the liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary),
then, in such case, the Conversion Price shall be reduced so that the same shall
equal the rate determined by multiplying the Conversion Rate in effect on the
applicable record date by a fraction,
(1) the numerator of which shall be the Current Market Price on
such record date less the full amount of cash so distributed as
applicable to one share of Common Stock; and
(2) the denominator of which shall be the Current Market Price on
such record date,
such adjustment to be effective immediately prior to the opening of business on
the day following the Record Date; provided that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall have the
right to receive upon conversion the amount of cash such holder would have
received had such Holder converted each Security on the Record Date. If such
dividend or distribution is not so paid or made, the Conversion Price shall
55
again be adjusted to be the Conversion Price that would then be in effect if
such dividend or distribution had not been declared.
(f) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to stockholders of consideration per share of Common Stock having a
Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors)
that as of the last time (the "Expiration Time") tenders or exchanges may be
made pursuant to such tender or exchange offer (as it may be amended) exceeds
the Closing Sale Price of a share of Common Stock on the Trading Day next
succeeding the Expiration Time, the Conversion Price shall be reduced so that
the same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the Expiration Time by a
fraction,
(1) the numerator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares)
at the Expiration Time multiplied by the Current Market Price of a
share of Common Stock on the Trading Day next succeeding the
Expiration Time such adjustment to become effective immediately prior
to the opening of business on the day following the Expiration Time;
and
(2) the denominator of which shall be the sum of (x) the Fair
Market Value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged 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) at the Expiration Time and the Current Market Price of a share
of Common Stock on the Trading Day next succeeding the Expiration
Time.
If the Company is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price that would then be in
effect if such tender or exchange offer had not been made.
(g) For purposes of this Article 9, the following terms shall have the
meanings indicated:
"Current Market Price" on any date means the average of the daily Sale
Prices per share of Common Stock for the ten consecutive Trading Days
immediately prior to such date; provided, however, that if:
(1) the "ex" date (as hereinafter defined) for any event (other
than the issuance or distribution requiring such computation) that
requires an adjustment to the Conversion Price pursuant to Section
9.3(a), (b), (c), (d), (e) or (f) occurs during such ten consecutive
56
Trading Days, the Sale Price for each Trading Day prior to the "ex"
date for such other event shall be adjusted by multiplying such Sale
Price by the same fraction by which the Conversion Price is so
required to be adjusted as a result of such other event;
(2) the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment
to the Conversion Price pursuant to Section 9.3(a), (b), (c), (d), (e)
or (f) occurs on or after the "ex" date for the issuance or
distribution requiring such computation and prior to the day in
question, the Sale Price for each Trading Day on and after the "ex"
date for such other event shall be adjusted by multiplying such Sale
Price by the reciprocal of the fraction by which the Conversion Price
is so required to be adjusted as a result of such other event; and
(3) the "ex" date for the issuance or distribution requiring such
computation is prior to the day in question, after taking into account
any adjustment required pursuant to clause (1) or (2) of this proviso,
the Sale Price for each Trading Day on or after such "ex" date shall
be adjusted by adding thereto the amount of any cash and the Fair
Market Value (as determined by the Board of Directors in a manner
consistent with any determination of such value for purposes of
Section 9.3(d), (e) or (f)) of the evidences of indebtedness, shares
of capital stock or assets being distributed applicable to one share
of Common Stock as of the close of business on the day before such
"ex" date.
For purposes of any computation under Section 9.3(f), if the "ex" date for any
event (other than the tender or exchange offer requiring such computation) that
requires an adjustment to the Conversion Price pursuant to Section 9.3(a), (b),
(c), (d), (e) or (f) occurs on or after the Expiration Time for the tender or
exchange offer requiring such computation and prior to the day in question, the
Sale Price for each Trading Day on and after the "ex" date for such other event
shall be adjusted by multiplying such Sale Price by the reciprocal of the
fraction by which the Conversion Price is so required to be adjusted as a result
of such other event. For purposes of this paragraph, the term "ex" date, when
used:
(1) with respect to any issuance or distribution, means the first
date on which the shares of Common Stock trade regular way on the
relevant exchange or in the relevant market from which the Sale Price
was obtained without the right to receive such issuance or
distribution;
(2) with respect to any subdivision or combination of shares of
Common Stock, means the first date on which the shares of Common Stock
trade regular way on such exchange or in such market after the time at
which such subdivision or combination becomes effective; and
(3) with respect to any tender or exchange offer, means the first
date on which the shares of Common Stock trade regular way on such
exchange or in such market after the Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive adjustments to the Conversion
Price are called for pursuant to this Section 9.3, such adjustments shall be
made to the Current Market Price as may be necessary or appropriate to
57
effectuate the intent of this Section 9.3 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.
"Fair Market Value" shall mean the amount that a willing buyer would
pay a willing seller in an arm's-length transaction (as determined by the Board
of Directors, whose determination shall be conclusive).
"Record Date" shall mean, with respect to any dividend, distribution
or other transaction or event in which the holders of shares of Common Stock
have the right to receive any cash, securities or other property or in which the
shares of Common Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other property, the date
fixed for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of
Directors or by statute, contract or otherwise).
(h) The Company shall be entitled to make such additional reductions
in the Conversion Price, in addition to those required by Sections 9.3(a), (b),
(c), (d), (e) and (f), as shall be necessary in order that any dividend or
distribution of Common Stock, any subdivision, reclassification or combination
of shares of Common Stock or any issuance of rights or warrants referred to
above shall not be taxable to the holders of Common Stock for United States
Federal income tax purposes.
(i) To the extent permitted by applicable law, the Company may, from
time to time, reduce the Conversion Price by any amount for any period of time,
if such period is at least 20 days and the reduction is irrevocable during the
period. Whenever the Conversion Price is reduced pursuant to the preceding
sentence, the Company shall mail to the Trustee, the Conversion Agent and each
Holder at the address of such Holder as it appears in the register of the
Securities maintained by the Registrar, at least 15 days prior to the date the
reduced Conversion Price takes effect, a notice of the reduction stating the
reduced Conversion Price and the period during which it will be in effect.
(j) In any case in which this Section 9.3 shall require that any
adjustment be made effective as of or retroactively immediately following a
Record Date, the Company may elect to defer (but only for five Trading Days
following the filing of the statement referred to in Section 9.5) issuing to the
Holder of any Securities converted after such Record Date the shares of Common
Stock issuable upon such conversion over and above the shares of Common Stock
issuable upon such conversion on the basis of the Conversion Price prior to
adjustment; provided, however, that the Company shall deliver to such Holder a
due bill or other appropriate instrument evidencing such Holder's right to
receive such additional shares upon the occurrence of the event requiring such
adjustment.
(k) All calculations under this Section 9.3 shall be made to the
nearest cent or one-hundredth of a share, with one-half cent and 0.005 of a
share, respectively, being rounded upward. Notwithstanding any other provision
of this Section 9.3, the Company shall not be required to make any adjustment of
the Conversion Price unless such adjustment would require an increase or
decrease of at least 1% of such price. Any lesser adjustment shall be carried
58
forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease of at least 1% in such price.
Any adjustments under this Section 9.3 shall be made successively whenever an
event requiring such an adjustment occurs.
(l) In the event that at any time, as a result of an adjustment made
pursuant to this Section 9.3, the Holder of any Securities thereafter
surrendered for conversion shall become entitled to receive any shares of stock
of the Company other than shares of Common Stock into which the Securities
originally were convertible, the Conversion Price of such other shares so
receivable upon conversion of any such Security shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to Common Stock contained in subparagraphs (a)
through (k) of this Section 9.3, and the provision of Sections 9.1, 9.2 and 9.4
through 9.9 with respect to the Common Stock shall apply on like or similar
terms to any such other shares and the determination of the Board of Directors
as to any such adjustment shall be conclusive.
(m) No adjustment shall be made pursuant to this Section 9.3 (i) if
the effect thereof would be to reduce the Conversion Price below the par value
(if any) of the Common Stock or (ii) if the Holders of the Securities may
participate in the transaction that would otherwise give rise to an adjustment
pursuant to this Section 9.3.
Section 9.4 CONSOLIDATION OR MERGER OF THE COMPANY. If any of the
following events occurs, namely:
(1) any reclassification or change of the outstanding Common
Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a
subdivision or combination);
(2) any merger, consolidation, statutory share exchange or
combination of the Company with another corporation as a result of
which holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect
to or in exchange for such Common Stock; or
(3) any sale or conveyance of the properties and assets of the
Company as, or substantially as, an entirety to any other corporation
as a result of which holders of Common Stock shall be entitled to
receive stock, securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock;
the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply with
the Trust Indenture Act as in force at the date of execution of such
supplemental indenture, if such supplemental indenture is then required to so
comply) providing that such Securities shall be convertible into the kind and
amount of shares of stock and other securities or property or assets (including
cash) which such Holder would have been entitled to receive upon such
reclassification, change, merger, consolidation, statutory share exchange,
59
combination, sale or conveyance had such Securities been converted into Common
Stock immediately prior to such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance assuming such holder
of Common Stock did not exercise its rights of election, if any, as to the kind
or amount of securities, cash or other property receivable upon such merger,
consolidation, statutory share exchange, sale or conveyance (provided, that if
the kind or amount of securities, cash or other property receivable upon such
merger, consolidation, statutory share exchange, sale or conveyance is not the
same for each share of Common Stock in respect of which such rights of election
shall not have been exercised ("Non-Electing Share"), then for the purposes of
this Section 9.4, the kind and amount of securities, cash or other property
receivable upon such merger, consolidation, statutory share exchange, sale or
conveyance for each Non-Electing Share shall be deemed to be the kind and amount
so receivable per share by a plurality of the Non-Electing Shares). Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
9. If, in the case of any such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance, the stock or other
securities and assets receivable thereupon by a holder of Common Stock includes
shares of stock or other securities and assets of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing,
including to the extent practicable the provisions providing for the conversion
rights set forth in this Article 9.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it
appears on the register of the Securities maintained by the Registrar, within 20
days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.
The above provisions of this Section 9.4 shall similarly apply to
successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.
If this Section 9.4 applies to any event or occurrence, Section 11.3
shall not apply.
Section 9.5 NOTICE OF ADJUSTMENT. Whenever an adjustment in the
Conversion Price with respect to the Securities is required:
(1) the Company shall forthwith place on file with the Trustee
and any Conversion Agent for such securities a certificate of the
Treasurer of the Company, stating the adjusted Conversion Price
determined as provided herein and setting forth in reasonable detail
such facts as shall be necessary to show the reason for and the manner
of computing such adjustment; and
(2) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall forthwith be
given by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company, to each Holder in the
manner provided in Section 11.2. Any notice so given shall be
60
conclusively presumed to have been duly given, whether or not the
Holder receives such notice.
In addition, whenever an adjustment in the Conversion Price with respect to the
Securities is required, the Company will issue a press release through Dow Xxxxx
& Company, Inc., Bloomberg Business News or Business Wire containing the
relevant information and make this information available on the Company's web
site or through another public medium as it may use at that time.
Section 9.6 NOTICE IN CERTAIN EVENTS. In case:
(1) of a consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required,
or of the sale or conveyance to another Person or entity or group of
Persons or entities acting in concert as a partnership, limited
partnership, syndicate or other group (within the meaning of Rule
13d-3 under the Exchange Act) of all or substantially all of the
property and assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion
Price referred to in clauses (x) or (y) below;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent, and shall cause to be given, to the Holders of the Securities
in the manner provided in Section 11.2, at least 15 days prior to the applicable
date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article 9, or,
if a record is not to be taken, the date as of which the holders of record of
Common Stock entitled to such distribution, rights or warrants are to be
determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article 9 is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reclassification, consolidation, merger
sale, conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2) or (3) of
this Section 9.6.
Section 9.7 COMPANY TO RESERVE STOCK: REGISTRATION; LISTING.
(a) The Company shall, in accordance with the laws of the State of
Florida, at all times reserve and keep available, free from preemptive rights,
out of its authorized but unissued shares of Common Stock, for the purpose of
effecting the conversion of the Securities, such number of its duly authorized
shares of Common Stock as shall from time to time be sufficient to effect the
61
conversion of all Securities then outstanding into such Common Stock at any time
(assuming that, at the time of the computation of such number of shares or
securities, all such Securities would be held by a single Holder); provided,
however, that nothing contained herein shall preclude the Company from
satisfying its obligations in respect of the conversion of the Securities by
delivery of purchased shares of Common Stock which are then held in the treasury
of the Company. The Company covenants that all shares of Common Stock which may
be issued upon conversion of Securities will upon issue be fully paid and
nonassessable and free from all liens and charges and, except as provided in
Section 9.8, taxes with respect to the issue thereof.
(b) If any shares of Common Stock which would be issuable upon
conversion of Securities hereunder require registration with or approval of any
governmental authority before such shares or securities may be issued upon such
conversion, the Company will in good faith and as expeditiously as possible
endeavor to cause such shares or securities to be duly registered or approved,
as the case may be. The Company further covenants that so long as the Common
Stock shall be listed on the Nasdaq Stock Market, the Company will, if permitted
by the rules of such exchange, list and keep listed all Common Stock issuable
upon conversion of the Securities, and the Company will endeavor to list the
shares of Common Stock required to be delivered upon conversion of the
Securities prior to such delivery upon any other national securities exchange
upon which the outstanding Common Stock is listed at the time of such delivery.
Section 9.8 TAXES ON CONVERSION. The issue of stock certificates on
conversion of Securities shall be made without charge to the converting Holder
for any documentary, stamp or similar issue or transfer taxes in respect of the
issue thereof, and the Company shall pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of the issue or
delivery of shares of Common Stock on conversion of Securities pursuant hereto.
The Company shall not, however, be required to pay any such tax which may be
payable in respect of any transfer involved in the issue or delivery of shares
of Common Stock or the portion, if any, of the Securities which are not so
converted in a name other than that in which the Securities so converted were
registered, and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to the Company the amount of such tax or
has established to the satisfaction of the Company that such tax has been paid.
Section 9.9 CONVERSION AFTER INTEREST PAYMENT RECORD DATE. Except as
provided below, if any Securities are surrendered for conversion on any day
other than an Interest Payment Date, the Holder of such Securities shall not be
entitled to receive any interest that has accrued on such Securities since the
prior Interest Payment Date. By delivery to the Holder of the number of shares
of Common Stock issuable or cash payment, if any, in lieu of fractional shares
payable upon conversion in accordance with this Article 9, any accrued and
unpaid interest on such Securities will be deemed to have been paid in full.
If any Securities are surrendered for conversion subsequent to the
Interest Payment Record Date preceding an Interest Payment Date but on or prior
to such Interest Payment Date, the Holder of such Securities at the close of
business on such Interest Payment Record Date shall receive the interest payable
on such Securities on such Interest Payment Date notwithstanding the conversion
thereof. Securities surrendered for conversion during the period from the close
62
of business on any Interest Payment Record Date preceding any Interest Payment
Date to the opening of business on such Interest Payment Date shall (except in
the case of Securities which have been called for redemption on a Redemption
Date between such Interest Payment Record Date and the third Business Day after
such Interest Payment Date) be accompanied by payment by Holders, for the
account of the Company, in New York Clearing House funds or other funds of an
amount equal to the interest payable on such Interest Payment Date on the
Securities being surrendered for conversion. Except as provided in this Section
9.9, no adjustments in respect of payments of interest on Securities surrendered
for conversion or any dividends or distributions or interest on the Common Stock
issued upon conversion shall be made upon the conversion of any Securities.
Section 9.10 COMPANY DETERMINATION FINAL. Any determination that the
Company or the Board of Directors must make pursuant to this Article 9 shall be
conclusive if made in good faith and in accordance with the provisions of this
Article, absent manifest error, and set forth in a Board Resolution.
Section 9.11 RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS. The
Trustee has no duty to determine when an adjustment under this Article 9 should
be made, how it should be made or what it should be. The Trustee makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Securities. The Trustee shall not be responsible for any
failure of the Company to comply with this Article 9. Each Conversion Agent
other than the Company shall have the same protection under this Section 9.11 as
the Trustee.
The rights, privileges, protections, immunities and benefits given to
the Trustee under the Indenture including, without limitation, its rights to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each Paying Agent or Conversion Agent acting
hereunder.
Section 9.12 UNCONDITIONAL RIGHT OF HOLDERS TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder shall have the
right, which is absolute and unconditional, to convert its Security in
accordance with this Article 9 and to bring an action for the enforcement of any
such right to convert, and such rights shall not be impaired or affected without
the consent of such Holder.
ARTICLE X
SUBORDINATION OF THE SECURITIES
Section 10.1 AGREEMENT TO SUBORDINATE. The Company agrees, and each
Holder by accepting a Security agrees, that the Indebtedness evidenced by the
Securities is subordinated in right of payment, to the extent and in the manner
provided in this Article 10, to the prior payment in full, in cash or Cash
Equivalents, of all Senior Indebtedness of the Company (in each case, whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed and including, without limitation, Senior Indebtedness of the Company
created, incurred, assumed or guaranteed during the pendency of any bankruptcy
or other insolvency proceeding of the Company) and that the subordination is for
63
the benefit of and enforceable by the holders of such Senior Indebtedness. Only
Senior Indebtedness of the Company shall rank senior to the Securities in
accordance with the provisions set forth herein. The Securities shall in all
respects rank pari passu with the Company's outstanding 3% convertible
promissory note due 2007 and the Company's future senior subordinated
Indebtedness, be senior to any future subordinated Indebtedness of the Company
and rank pari passu with, or be senior to, all other Indebtedness of the
Company. All provisions of this Article 10 shall be subject to Section 10.12.
Section 10.2 LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any payment or
distribution of the assets of the Company to creditors upon a total or partial
liquidation or dissolution of the Company, in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, in an assignment by the Company for the benefit of its creditors or
any marshaling of the assets and liabilities of the Company:
(1) holders of Senior Indebtedness of the Company shall be
entitled to receive payment in full of all obligations due in respect
thereof (including interest accruing after the commencement of any
such proceeding at the rate specified in the instrument evidencing
such Senior Indebtedness, whether or not a claim therefore is allowed
in any such proceeding, to the date of payment of such Senior
Indebtedness) before Holders shall be entitled to receive any payment
of principal of, premium, if any, or interest on the Securities; and
(2) until such Senior Indebtedness is paid in full in cash or
Cash Equivalents, any distribution to which Holders would be entitled
but for this Article 10 shall be made to holders of such Senior
Indebtedness as their interests may appear.
To the extent any payment of principal of, premium, if any, or interest on any
Senior Indebtedness of the Company (whether by or on behalf of the Company, as
proceeds of security or enforcement of any right of setoff or otherwise) is
declared to be fraudulent or preferential, set aside or required to be paid to
any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or
similar law, then, if such payment is recovered by, or paid over to, such
receiver, trustee in bankruptcy, liquidating trustee, agent or similar Person,
such Senior Indebtedness or part thereof intended to be satisfied shall be
deemed reinstated and outstanding, as if such payment had not occurred.
Section 10.3 DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS OF THE COMPANY.
(a) The Company may not pay the principal of, premium, if any, or
interest on the Securities and may not repurchase, redeem or otherwise retire
any Securities (collectively, "pay the Securities"), if:
(1) a default in the payment when due of the principal of,
premium, if any, or interest on or any other amount in respect of any
Designated Senior Indebtedness of the Company (a "Payment Default")
occurs and is continuing beyond any applicable grace period; or
64
(2) any default that is not a Payment Default (a "Nonpayment
Default") occurs and is continuing with respect to any Designated
Senior Indebtedness of the Company that permits the holders thereof to
accelerate its maturity and the Trustee receives a notice of that
default (a "Payment Blockage Notice") from the Company or the holders
of such Designated Senior Indebtedness.
(b) Payments on the Securities may and shall be resumed:
(1) in the case of a Payment Default, upon the date on which it
is cured or waived; and
(2) in case of a Nonpayment Default, the earlier of the date on
which it is cured or waived or 179 days after the date on which such
Payment Blockage Notice is received by the Trustee, unless the
maturity of the relevant Designated Senior Indebtedness of the Company
has been accelerated,
if this Article 10 otherwise permits the payment.
(c) No new Payment Blockage Notice may be delivered unless and until:
(1) 360 days have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice; and
(2) all scheduled payments of principal of and interest or
premium, if any, on the Securities that have come due have been paid
in full in cash.
(d) No Nonpayment Default that existed or was continuing on the date
of delivery of any Payment Blockage Notice to the Trustee shall be, or be made,
the basis for a subsequent Payment Blockage Notice unless that default shall
have been cured or waived for a period of not less than 90 days.
Section 10.4 ACCELERATION OF PAYMENT OF SECURITIES. If payment of the
Securities is accelerated because of an Event of Default, the Company shall
promptly notify the holders of the Senior Indebtedness of the Company (or their
representative) of the acceleration.
Section 10.5 WHEN DISTRIBUTION MUST BE PAID OVER. If a payment or
distribution is made to Holders that because of this Article 10 should not have
been made to them, the Holders who receive the payment or distribution shall
hold it in trust for holders of Senior Indebtedness of the Company and pay it
over promptly to them as their interests may appear.
Section 10.6 SUBROGATION. After all Senior Indebtedness of the Company
is paid in full in cash or Cash Equivalents and until the Securities are paid in
full in cash or Cash Equivalents, Holders shall be subrogated to the rights of
holders of such Senior Indebtedness to receive distributions applicable to such
Senior Indebtedness. A distribution made under this Article 10 to holders of
such Senior Indebtedness which otherwise would have been made to Holders is not,
as between the Company and Holders, a payment by the Company on such Senior
Indebtedness. In no event, however, shall Holders have any rights or claims
against the holders of any Senior Indebtedness of the Company for any alleged
65
impairment of Holders' subrogation rights, and each Holder, by accepting a
Security, acknowledges that any actions taken by the holders of any Senior
Indebtedness of the Company with respect to such Senior Indebtedness or any
security therefore are authorized and consented to by Holders.
Section 10.7 RELATIVE RIGHTS. This Article 10 defines the relative
rights of Holders and holders of Senior Indebtedness of the Company. Nothing in
this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of
the Company, which is absolute and unconditional, to pay its
obligations in respect of this Indenture and the Securities in
accordance with their terms; or
(2) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of the Company to receive distributions otherwise
payable to Holders as provided in this Article 10.
Section 10.8 SUBORDINATION MAY NOT BE IMPAIRED. No right of any holder
of Senior Indebtedness of the Company to enforce the subordination of the
Indebtedness evidenced by the Securities shall be impaired by any act or failure
to act by any such holder or by any noncompliance by the Company with this
Indenture, regardless of any knowledge thereof any such holder may have or
otherwise be charged with.
Section 10.9 RIGHTS OF TRUSTEE AND PAYING AGENT.
(a) Notwithstanding the provisions of Section 10.3, the Trustee or
Paying Agent may continue to make payments on the Securities and shall not be
charged with knowledge of the existence of facts that would prohibit the making
of any such payments unless, not less than three Business Days prior to the date
of such payment, a Responsible Officer receives notice reasonably satisfactory
to it that payments may not be made in accordance with the provisions of this
Article 10. The Company, a representative or a holder of Senior Indebtedness may
give the notice; provided, however, that, if the holders of an issue of Senior
Indebtedness of the Company have a representative, only the representative may
give the notice.
(b) The Trustee in its individual or any other capacity may hold
Senior Indebtedness of the Company with the same rights it would have if it were
not Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article 10 with respect to any Senior Indebtedness of the Company which may
at any time be held by it, to the same extent as any other holder of such Senior
Indebtedness, and nothing in Article 7 shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 10 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.7.
(c) With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
66
Section 10.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of the Company, the distribution may be made and the notice given to their
Representative (if any).
Section 10.11 ARTICLE 10 NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT
RIGHT TO ACCELERATE. The failure to make a payment pursuant to the Securities by
reason of any provision in this Article 10 shall not be construed as preventing
the occurrence of a Default. Nothing in this Article 10 shall have any effect on
the right of the Holders or the Trustee to accelerate the maturity of the
Securities. The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities.
Section 10.12 TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Holders shall be
entitled to conclusively rely (i) upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 10.2 are pending, (ii) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or to
the Holders or (iii) upon the Representative for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of such Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 10. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness of the Company to participate
in any payment or distribution pursuant to this Article 10, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 10, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.1 and 7.2 shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 10.
Section 10.13 TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder by
accepting a Security authorizes and directs the Trustee on such Xxxxxx's behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders and the holders of Senior
Indebtedness of the Company as provided in this Article 10 and appoints the
Trustee as attorney-in-fact for any and all such purposes.
Section 10.14 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall, in contravention of this Indenture, pay over or distribute to Holders or
the Company or any other Person, money or assets to which any holders of Senior
Indebtedness of the Company shall be entitled by virtue of this Article 10 or
otherwise; provided, however, that nothing herein shall limit the Trustee's
liability for any such payment or distribution which results from the Trustee's
gross negligence or willful misconduct.
67
Section 10.15 RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS. Each Holder by accepting a Security acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness of
the Company, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
Section 10.16 AMENDMENTS. The provisions of this Article 10 shall not
be amended or modified without the written consent of the holders of all Senior
Indebtedness of the Company.
ARTICLE XI
MISCELLANEOUS
Section 11.1 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
Section 11.2 NOTICES. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
mailed by first-class mail, postage prepaid, addressed as follows or transmitted
by facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile numbers:
if to the Company:
Artesyn Technologies, Inc.
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000-4105
Attn: Treasurer
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxx Xxxxx
Facsimile No.: (000) 000-0000
68
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 10286
Facsimile No. (000) 000-0000
Attention: Corporate Trust Administration
The Company or the Trustee by notice given to the other in the manner
provided above may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Securityholder shall be mailed
to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
Section 11.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
Section 11.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
Section 11.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that each Person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
69
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such Officers'
Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, he has made such
examination or investigation as is necessary to enable such Person to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement that, in the opinion of such Person, such covenant or
condition has been complied with.
Section 11.6 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.7 RULES BY TRUSTEE, PAYING AGENT, CONVERSION AGENT AND
REGISTRAR. The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, the Conversion Agent and the Paying Agent may
make reasonable rules for their functions.
Section 11.8 LEGAL HOLIDAYS. A "Legal Holiday" is any day other than a
Business Day. If any specified date (including a date for giving notice) is a
Legal Holiday, the action shall be taken on the next succeeding day that is not
a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no interest, if any, shall accrue for the intervening
period.
Section 11.9 GOVERNING LAW; WAIVER OF JURY TRIAL. THIS INDENTURE SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES
OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 11.10 NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
Section 11.11 SUCCESSORS. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
70
Section 11.12 MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
Section 11.13 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
71
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this
Indenture on behalf of the respective parties hereto as of the date first above
written.
ARTESYN TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
THE BANK OF NEW YORK
As Trustee
By: /s/ Xxxx XxXxxxxx
-------------------------
Name: Xxxx XxXxxxxx
Title: Vice President
72
EXHIBIT A
[FORM OF FACE OF GLOBAL SECURITY]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE, BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY
EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH
SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO
THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT, IF AVAILABLE, (E) TO AN INSTITUTIONAL INVESTOR THAT IS
AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, IF AVAILABLE, OR
(F) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE
AT THE TIME OF SUCH TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
The foregoing legend may be removed from this Security on satisfaction
of the conditions specified in the Indenture.
A-2
ARTESYN TECHNOLOGIES, INC.
5.50% Convertible Senior Subordinated Notes due 2010
No. : ______________ CUSIP: 000000XX0
Issue Date: August 13, 2003 Principal Amount: $______________
ARTESYN TECHNOLOGIES, INC., a Florida corporation, promises to pay to
Cede & Co. or registered assigns, the principal amount of [_____________________
dollars ($__________)] on August 15, 2010.
Interest Payment Dates: February 15 and August 15, commencing February
15, 2004.
Interest Payment Record Dates: February 1 and August 1.
Reference is hereby made to the further provisions of this Security
set forth on the reverse side of this Security, which further provisions shall
for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
ARTESYN TECHNOLOGIES, INC.
By:
-----------------------------------
Title:
--------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is one
of the Securities referred to in the
within-mentioned Indenture.
By__________________________________
Authorized Signatory
Dated: ______, 200__
A-3
[FORM OF REVERSE OF GLOBAL SECURITY]
5.50% Convertible Senior Subordinated Notes due 2010
This Security is one of a duly authorized issue of the 5.50% Convertible
Senior Subordinated Notes due 2010 (the "Securities") of Artesyn Technologies,
Inc., a Florida corporation (including any successor corporation under the
Indenture hereinafter referred to, the "Company"), issued under an Indenture,
dated as of August 13, 2003 (as it may be amended from time to time in
accordance with the terms thereof, the "Indenture"), between the Company and The
Bank of New York, as trustee (the "Trustee"). The terms of the Security include
those stated in the Indenture, those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended ("TIA"), and those set forth in this
Security. This Security is subject to all such terms, and Holders are referred
to the Indenture and the TIA for a statement of all such terms. To the extent
permitted by applicable law, in the event of any inconsistency between the terms
of this Security and the terms of the Indenture, the terms of the Indenture
shall control. Capitalized terms used but not defined herein have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. STATUS
Each Holder by accepting a Security agrees that the payment of
principal of, premium, if any, and interest on each Security is subordinated in
right of payment to the extent and in the manner provided in Article 10 of the
Indenture, to the prior payment in full of the Senior Indebtedness of the
Company (whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed), and the subordination is for the benefit of
the holders of such Senior Indebtedness.
2. INTEREST
The Company promises to pay Interest on the principal amount of the
Securities at the interest rate of 5.50% per annum (the "Interest Rate") from
the date of issuance until repayment in full at August 15, 2010, or until an
earlier conversion, redemption or repurchase. The Company will pay Interest on
this Security semi-annually in arrears on February 15 and August 15 of each year
(each, an "Interest Payment Date"), commencing February 15, 2004.
The Securities shall bear interest from August 13, 2003 until the
principal amount thereof is paid or made available for payment, or until such
date on which the Securities are converted, redeemed or purchased as provided
herein at a rate of 5.50% per annum.
Interest on the Securities shall be computed (i) for any full
semi-annual period for which a particular Interest Rate is applicable, on the
basis of a 360-day year of twelve 30-day months and (ii) for any period for
which a particular Interest Rate is applicable for less than a full semiannual
period for which Interest is calculated, on the basis of a 30-day month and, for
such periods of less than a month, the actual number of days elapsed over a
30-day month.
A-4
If this Security is redeemed or repurchased by the Company on a date
that is after the record date and prior to the corresponding Interest Payment
Date, interest and Additional Amounts, if any, accrued and unpaid hereon to but
not including the applicable Redemption Date or Change of Control Purchase Date,
as the case may be, will be paid to the same Holder to whom the Company pays the
principal of this Security.
Interest on Securities converted after a record date but prior to the
corresponding Interest Payment Date will be paid to the Holder on the record
date but, upon conversion, the Holder must pay the Company the interest and
Additional Amounts, if any, which have accrued and will be paid on such Interest
Payment Date; provided, that no such payment need be made with respect to
Securities which will be redeemed by the Company after a record date and prior
to the third Business Day after the corresponding Interest Payment Date.
If the principal amount hereof or any portion of such principal amount
or any interest, including Additional Amounts, if any, on any Security is not
paid when due (whether upon acceleration pursuant to Section 6.2 of the
Indenture, upon the date set for payment of the Redemption Price pursuant to
Section 5 hereof or the Change of Control Purchase Price pursuant to Section 6
hereof or upon the Stated Maturity of this Security), then in each such case the
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and, to the extent such payments
are lawful, interest on overdue installments of interest ("Defaulted Interest")
without regard to any applicable grace periods at the rate of 2.0% per annum in
excess of the rate shown on this Note, as provided in the Indenture. Such
Defaulted Interest shall be compounded semi-annually, which interest shall
accrue from the date on which such overdue amount was originally due to the date
of payment of such amount, including interest thereon, has been made or duly
provided for.
3. METHOD OF PAYMENT.
Except as provided below, interest will be paid (i) on the Global
Securities to The Depository Trust Company ("DTC") or its nominee in immediately
available funds, (ii) on any definitive Securities having an aggregate principal
amount of $5,000,000 or less, by check mailed to the Holders of such Securities;
and (iii) on any definitive Securities having an aggregate principal amount of
more than $5,000,000, by wire transfer in immediately available funds at the
election of the Holders of such Securities. Holders of such Securities
requesting wire transfer must provide the Trustee (as defined below) with wire
transfer instructions at least 15 days prior to the relevant payment date.
At Stated Maturity the Company will pay interest on definitive
Securities at the Company's office or agency in New York City, which initially
will be the Corporate Trust Office of the Trustee in New York City.
Principal on Global Securities will be paid to DTC or its nominee in
immediately available funds. Principal on definitive Securities will be payable,
upon Stated Maturity or when due, at the office or agency of the Company in New
York City, maintained for such purpose, initially the Corporate Trust Office of
the Trustee in New York City.
A-5
Subject to the terms and conditions of the Indenture, the Company will
make payments in cash in respect of Redemption Prices, Change of Control
Purchase Prices and at Stated Maturity to Holders who surrender Securities to a
Paying Agent to collect such payments in respect of the Securities. The Company
will pay cash amounts in money of the United States that at the time of payment
is legal tender for payment of public and private debts. However, the Company
may make such cash payments by check payable in such money.
4. PAYING AGENT, CONVERSION AGENT AND REGISTRAR.
Initially, The Bank of New York (the "Trustee") will act as Paying
Agent, Conversion Agent and Registrar. The Company may appoint and change any
Paying Agent, Conversion Agent or Registrar without notice, other than notice to
the Trustee; provided that the Company will maintain at least one Paying Agent
in the State of New York, City of New York, Borough of Manhattan, which shall
initially be an office or agency of the Trustee. The Company or any of its
Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion
Agent or Registrar.
5. INDENTURE.
The Securities are unsecured senior subordinated obligations of the
Company limited to $75,000,000 aggregate principal amount (up to $90,000,000
aggregate principal amount if the Initial Purchasers exercise their option to
purchase up to $15,000,000 aggregate principal amount of additional Securities).
The Indenture does not limit other indebtedness of the Company, secured or
unsecured.
6. REDEMPTION AT THE OPTION OF THE COMPANY.
No sinking fund is provided for the Securities. The Securities are not
redeemable by the Company prior to August 15, 2008. The Securities are
redeemable for cash at the option of the Company, in whole or in part, at any
time or from time to time, on or after August 15, 2008 upon not less than 30 nor
more than 60 days' notice (the "Redemption Notice") by mail for a redemption
price equal to the principal amount of those Securities plus accrued and unpaid
interest, including Additional Amounts, if any, up to the Redemption Date (the
"Redemption Price").
7. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to offer to purchase the
Securities held by such Holder within 30 days after the occurrence of a Change
of Control of the Company for a Change of Control Purchase Price equal to the
principal amount plus accrued and unpaid interest, including Additional Amounts,
if any, of such Security on the Change of Control Purchase Date. The Change of
Control Purchase Date shall be within 30 days of the Company's delivery of the
notice described in the preceding sentence, which shall be delivered to all
Holders and the Trustee. The Change of Control Purchase Price shall be paid in
cash.
Holders have the right to withdraw any Change of Control Purchase
Notice, as the case may be, by delivering to the Paying Agent a written notice
of withdrawal in accordance with the provisions of the Indenture.
A-6
If cash sufficient to pay the Change of Control Purchase Price of all
Securities or portions thereof to be purchased as of the Change of Control
Purchase Date, is deposited with the Paying Agent, on the Business Day following
the Change of Control Purchase Date, interest will cease to accrue on such
Securities (or portions thereof) immediately after such Change of Control
Purchase Date, and the Holder thereof shall have no other rights as such other
than the right to receive the Change of Control Purchase Price upon surrender of
such Security.
8. NOTICE OF REDEMPTION.
Notice of redemption pursuant to Section 6 of this Security will be
mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder to be redeemed at the Holder's registered address. If money
sufficient to pay the Redemption Price of all Securities (or portions thereof)
to be redeemed on the Redemption Date is deposited with the Paying Agent prior
to or on the Redemption Date, immediately after such Redemption Date interest
ceases to accrue on such Securities or portions thereof. Securities in
denominations larger than $1,000 of principal amount may be redeemed in part but
only in integral multiples of $1,000 of principal amount.
9. CONVERSION.
Subject to and in compliance with the provisions of the Indenture, a
Holder is entitled, at such Holder's option, to convert the Holder's Security
(or any portion of the principal amount thereof that is $1,000 or an integral
multiple $1,000), into fully paid and nonassessable shares of Common Stock at
the Conversion Price in effect at the time of conversion.
A Security in respect of which a Holder has delivered a Change of
Control Purchase Notice, exercising the option of such Holder to require the
Company to purchase such Security, may be converted only if such Change of
Control Purchase Notice is withdrawn in accordance with the terms of the
Indenture.
The initial Conversion Price is $8.064 per share, subject to
adjustment in certain events described in the Indenture. A Holder that
surrenders Securities for conversion will receive cash or a check in lieu of any
fractional share of Common Stock.
To surrender a Security for conversion, a Holder must (1) complete and
manually sign the conversion notice below (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent, (2)
surrender the Security to the Conversion Agent, (3) furnish appropriate
endorsements and transfer documents and (4) pay any transfer or similar tax, if
required by the Indenture.
No fractional shares of Common Stock shall be issued upon conversion
of any Security. Instead of any fractional share of Common Stock that would
otherwise be issued upon conversion of such Security, the Company shall pay a
cash adjustment as provided in the Indenture.
If the Company (i) is a party to a consolidation, merger or binding
share exchange, (ii) reclassifies the Common Stock or (iii) conveys, transfers
or leases its properties and assets substantially as an entirety to any Person,
the right to convert a Security into shares of Common Stock may be changed into
A-7
a right to convert it into securities, cash or other assets of the Company or
such other Person, in each case in accordance with the Indenture.
10. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of principal amount and integral multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a Purchase Notice or Change of Control Purchase
Notice has been given and not withdrawn (except, in the case of a Security to be
purchased in part, the portion of the Security not to be purchased) or any
Securities for a period of 15 days before the mailing of a notice of redemption
of Securities to be redeemed.
11. PERSONS DEEMED OWNERS.
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
12. UNCLAIMED MONEY OR SECURITIES.
The Trustee and the Paying Agent shall return to the Company upon
written request any money held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years, subject to
applicable unclaimed property law. After return to the Company, Holders entitled
to the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another Person.
13. AMENDMENT; WAIVER.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Securities and (ii) certain Defaults may be waived with the written consent of
the Holders of a majority in aggregate principal amount of the outstanding
Securities. The Indenture and the Securities may also be amended by the Company
and the Trustee, without the consent of any Holder, in certain circumstances set
forth in the Indenture; provided, that certain provisions of the Indenture and
the Securities may not be amended without the consent of each affected Holder.
14. DEFAULTS AND REMEDIES.
If any Event of Default with respect to Securities shall occur and be
continuing, the principal of all the Securities may be declared due and payable
in the manner and with the effect provided in the Indenture.
A-8
15. TRUSTEE DEALINGS WITH THE COMPANY.
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or shareholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
17. AUTHENTICATION.
This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW; WAIVER OF JURY TRIAL.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THIS NOTE
OR THE TRANSACTION CONTEMPLATED HEREBY.
A-9
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture which has in it the text of this
Security in larger type. Requests may be made to:
ARTESYN TECHNOLOGIES, INC.
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000-0000
Attn: Investor Relations
Facsimile No.: (000) 000-0000
20. REGISTRATION RIGHTS.
The Holders of the Securities are entitled to the benefits of a Resale
Registration Rights Agreement, dated as of August 13, 2003, among the Company,
Xxxxxx Brothers Inc., and Xxxxxxxx Inc. including the receipt of Additional
Amounts upon a registration default (as defined in such agreement).
A-10
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ASSIGNMENT FORM CONVERSION NOTICE
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To assign this Security, fill in To convert this Security
the form below: into Common Stock of the
Company, check the box [ ]
----------------------------------------------------------------------
I or we assign and transfer this To convert only part of this
Security to Security, state the
_______________________________ principal amount to be
_______________________________ converted (which must be
(Insert assignee's soc. sec. or $1,000 or an integral
tax ID no.) multiple of $1,000):
_______________________________
_______________________________ $_____________________________
_______________________________
(Print or type assignee's name, If you want the stock
address and zip code) certificate made out in
another person's name fill
and irrevocably appoint in the form below:
______________________________
____________________ agent to ______________________________
transfer this Security on the (Insert the other person's
books of the Company. The agent soc. sec. tax ID no.)
may substitute another to act
for him. ______________________________
______________________________
______________________________
______________________________
______________________________
(Print or type other
person's name, address and
zip code)
----------------------------------------------------------------------
Date: __________ Your Signature: _________________________________
____________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed
________________________________
Participant in a Recognized Signature
Guarantee Medallion Program
By:_____________________________
Authorized Signatory
A-11
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL SECURITY
Initial Principal Amount of Global Security: ____________ ($___________).
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Date Amount of Amount of Principal
Increase in Decrease in Amount of Notation by
Principal Principal Global Security Registrar or
Amount of Amount of After Increase or Security
Global Security Global Security Decrease Custodian
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A-12
EXHIBIT B
[FORM OF FACE OF CERTIFICATED SECURITY]
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE, BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO A
NON-U.S. PERSON OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT, IF AVAILABLE, (E) TO AN INSTITUTIONAL INVESTOR
THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT, IF AVAILABLE, OR (F) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT
TO CLAUSE 2(F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
The foregoing legend may be removed from this Security on satisfaction
of the conditions specified in the Indenture.
ARTESYN TECHNOLOGIES, INC.
5.50% Convertible Senior Subordinated Notes due 2010
No.: _________ CUSIP: 000000XX0
Issue Date: August 13, 2003 Principal Amount: $_________
ARTESYN TECHNOLOGIES, INC., a Florida corporation, promises to pay to
___________________ or registered assigns, the principal amount of [_________
dollars ($_________ )] on August 15, 2010.
Interest Payment Dates: February 15 and August 15, commencing February
15, 2004.
Interest Payment Record Dates: February 1 and August 1.
Reference is hereby made to the further provisions of this Security
set forth on the reverse side of this Security, which further provisions shall
for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
ARTESYN TECHNOLOGIES, INC.
By: _______________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned Indenture.
By ________________________
Authorized Signatory
Dated:
B-2
[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A]
EXHIBIT C
5.50% Convertible Senior Subordinated Notes due 2010
Transfer Certificate
In connection with any transfer of any of the Securities or beneficial
interest in a Global Security that is a Restricted Security within the period
prior to the expiration of the holding period applicable to the sales thereof
under Rule 144(k) under the Securities Act of 1933, as amended (the "Securities
Act") (or any successor provision), the undersigned registered owner or
beneficial owner of this Security hereby certifies with respect to $____________
principal amount of the above-captioned Securities (the "Surrendered
Securities") presented or surrendered on the date hereof for registration of
transfer, or for exchange or conversion where the securities issuable upon such
exchange or conversion are to be registered in a name other than that of the
undersigned registered or beneficial owner (each such transaction being a
"transfer"), that such transfer complies with the restrictive legend set forth
on the face of the Surrendered Securities for the reason checked below:
[_] A transfer of the Surrendered Securities is made to the Company
or any subsidiaries; or
[_] The transfer of the Surrendered Securities is to a qualified
institutional buyer as defined and in all other respects in
compliance with Rule 144A under the Securities Act; or
[_] The transfer of the Surrendered Securities is to an institutional
accredited investor within the meaning of and all other respects
in compliance with Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act; or
[_] The transfer of the Surrendered Securities is pursuant to an
effective registration statement under the Securities Act; or
[_] The transfer of the Surrendered Securities is pursuant to another
available exemption from the registration requirement of the
Securities Act;
and unless the box below is checked, the undersigned confirms that, to the
undersigned's knowledge, such Securities are not being transferred to an
"affiliate" of the Company as defined in Rule 144 under the Securities Act (an
"Affiliate").
[_] The transferee is an Affiliate of the Company.
DATE: __________________________________
Signature(s)
(If the registered owner is a corporation, partnership or
fiduciary, the title of the person signing on behalf of such
registered owner must be stated.)
Signature Guarantee:
________________________________
Signature must be guaranteed by a participant
in a recognized signature guaranty medallion
program or other signature guarantor acceptable
to the Trustee.
C-2
