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Exhibit 10.44
INDENTURE
Dated as of June 15, 2001
Between
ChipPAC, INC.
and
FIRSTAR BANK, N.A.
as Trustee
__________________
8% Convertible Subordinated Notes Due June 15, 2011
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Xxxxxx, Xxxxx & Xxxxxxx llp
New York, New York
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.............................................. 1
SECTION 1.1 Definitions...................................................................... 1
SECTION 1.2 Other Definitions................................................................ 7
SECTION 1.3 Trust Indenture Act Provisions................................................... 8
SECTION 1.4 Rules of Construction............................................................ 9
ARTICLE 2 THE SECURITIES.......................................................................... 9
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 in Trust.............................................. 11
SECTION 2.5 Security Holder Lists............................................................ 11
SECTION 2.6 Transfer and Exchange............................................................ 12
SECTION 2.7 Replacement Securities........................................................... 13
SECTION 2.8 Outstanding Securities........................................................... 13
SECTION 2.9 Treasury Securities.............................................................. 14
SECTION 2.10 Temporary Securities............................................................. 14
SECTION 2.11 Cancellation..................................................................... 14
SECTION 2.12 Additional Transfer and Exchange Requirements.................................... 14
SECTION 2.13 CUSIP Numbers.................................................................... 19
SECTION 2.14 Defaulted Interest............................................................... 19
SECTION 2.15 Add On Securities................................................................ 20
ARTICLE 3 REDEMPTION AND PURCHASES................................................................ 22
SECTION 3.1 Provisional and Optional Redemption; Notice to Trustee........................... 22
SECTION 3.2 Selection of Securities to Be Redeemed........................................... 22
SECTION 3.3 Notice of Redemption............................................................. 23
SECTION 3.4 Effect of Notice of Redemption................................................... 24
SECTION 3.5 Deposit of Redemption Price...................................................... 24
SECTION 3.6 Securities Redeemed in Part...................................................... 24
SECTION 3.7 Conversion Arrangement on Call for Redemption.................................... 24
SECTION 3.8 Purchase of Securities at Option of the Holder upon Change in Control............ 25
SECTION 3.9 Effect of Change in Control Purchase Notice...................................... 27
SECTION 3.10 Deposit of Change in Control Purchase Price...................................... 28
SECTION 3.11 Securities Purchased in Part..................................................... 28
SECTION 3.12 Compliance with Securities Laws upon Purchase of Securities...................... 28
SECTION 3.13 Repayment to the Company......................................................... 29
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PAGE
ARTICLE 4 CONVERSION.............................................................................. 29
SECTION 4.1 Conversion Privilege............................................................. 29
SECTION 4.2 Conversion Procedure............................................................. 29
SECTION 4.3 Fractional Shares................................................................ 30
SECTION 4.4 Taxes on Conversion.............................................................. 31
SECTION 4.5 Company to Provide Stock......................................................... 31
SECTION 4.6 Adjustment of Conversion Price................................................... 31
SECTION 4.7 No Adjustment.................................................................... 35
SECTION 4.8 Adjustment for Tax Purposes...................................................... 35
SECTION 4.9 Notice of Adjustment............................................................. 35
SECTION 4.10 Notice of Certain Transactions................................................... 36
SECTION 4.11 Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege....................................................................... 36
SECTION 4.12 Trustee's Disclaimer............................................................. 37
SECTION 4.13 Voluntary Reduction.............................................................. 37
ARTICLE 5 SUBORDINATION........................................................................... 37
SECTION 5.1 Agreement of Subordination....................................................... 37
SECTION 5.2 Payments to Holders.............................................................. 38
SECTION 5.3 Subrogation of Securities........................................................ 40
SECTION 5.4 Authorization to Effect Subordination............................................ 40
SECTION 5.5 Notice to Trustee................................................................ 41
SECTION 5.6 Trustee's Relation to Senior Indebtedness........................................ 41
SECTION 5.7 No Impairment of Subordination................................................... 42
SECTION 5.8 Certain Conversions Deemed Payment............................................... 42
SECTION 5.9 Article Applicable to Paying Agents.............................................. 42
SECTION 5.10 Senior Indebtedness Entitled to Rely............................................. 42
ARTICLE 6 COVENANTS............................................................................... 42
SECTION 6.1 Payment of Securities............................................................ 42
SECTION 6.2 SEC Reports...................................................................... 43
SECTION 6.3 Compliance Certificates.......................................................... 43
SECTION 6.4 Further Instruments and Acts..................................................... 43
SECTION 6.5 Maintenance of Corporate Existence............................................... 43
SECTION 6.6 Rule 144A Information Requirements............................................... 44
SECTION 6.7 Stay, Extension and Usury Laws................................................... 44
SECTION 6.8 Payment of Additional Interest................................................... 44
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PAGE
ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.................................... 44
SECTION 7.1 Company May Consolidate, Etc., Only on Certain Terms............................. 44
SECTION 7.2 Successor Substituted............................................................ 45
SECTION 7.3 Withholding Taxes................................................................ 45
ARTICLE 8 DEFAULT AND REMEDIES.................................................................... 46
SECTION 8.1 Events of Default................................................................ 46
SECTION 8.2 Acceleration..................................................................... 48
SECTION 8.3 Other Remedies................................................................... 48
SECTION 8.4 Waiver of Defaults and Events of Default......................................... 48
SECTION 8.5 Control by Majority.............................................................. 48
SECTION 8.6 Limitations on Suits............................................................. 49
SECTION 8.7 Rights of Holders to Receive Payment and to Convert.............................. 49
SECTION 8.8 Collection Suit by Trustee....................................................... 49
SECTION 8.9 Trustee May File Proofs of Claim................................................. 49
SECTION 8.10 Priorities....................................................................... 50
SECTION 8.11 Undertaking for Costs............................................................ 50
ARTICLE 9 TRUSTEE................................................................................. 51
SECTION 9.1 Duties of Trustee................................................................ 51
SECTION 9.2 Rights of Trustee................................................................ 52
SECTION 9.3 Individual Rights of Trustee..................................................... 53
SECTION 9.4 Trustee's Disclaimer............................................................. 53
SECTION 9.5 Notice of Default or Events of Default........................................... 53
SECTION 9.6 Reports by Trustee to Holders.................................................... 53
SECTION 9.7 Compensation and Indemnity....................................................... 53
SECTION 9.8 Replacement of Trustee........................................................... 54
SECTION 9.9 Successor Trustee by Merger, Etc................................................. 55
SECTION 9.10 Eligibility; Disqualification.................................................... 55
SECTION 9.11 Preferential Collection of Claims Against Company................................ 55
ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE................................................. 55
SECTION 10.1 Satisfaction and Discharge of Indenture.......................................... 55
SECTION 10.2 Application of Trust Money....................................................... 56
SECTION 10.3 Repayment to Company............................................................. 56
SECTION 10.4 Reinstatement.................................................................... 56
ARTICLE 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS..................................................... 57
SECTION 11.1 Without Consent of Holders....................................................... 57
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SECTION 11.2 With Consent of Holders.......................................................... 57
SECTION 11.3 Compliance with Trust Indenture Act.............................................. 58
SECTION 11.4 Revocation and Effect of Consents................................................ 58
SECTION 11.5 Notation on or Exchange of Securities............................................ 59
SECTION 11.6 Trustee to Sign Amendments, Etc.................................................. 59
ARTICLE 12 MISCELLANEOUS........................................................................... 59
SECTION 12.1 Trust Indenture Act Controls..................................................... 59
SECTION 12.2 Notices.......................................................................... 59
SECTION 12.3 Communications by Holders with Other Holders..................................... 60
SECTION 12.4 Certificate and Opinion as to Conditions Precedent............................... 60
SECTION 12.5 Record Date for Vote or Consent of Securityholders............................... 61
SECTION 12.6 Rules by Trustee, Paying Agent, Registrar and Conversion Agent................... 61
SECTION 12.7 Legal Holidays................................................................... 61
SECTION 12.8 Governing Law.................................................................... 61
SECTION 12.9 No Adverse Interpretation of Other Agreements.................................... 62
SECTION 12.10 No Recourse Against Others....................................................... 62
SECTION 12.11 Successors....................................................................... 62
SECTION 12.12 Multiple Counterparts............................................................ 62
SECTION 12.13 Separability..................................................................... 62
SECTION 12.14 Table of Contents, Headings, Etc................................................. 62
SECTION 12.15 Improper Payments................................................................ 62
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CROSS-REFERENCE TABLE*
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INDENTURE
TIA SECTION SECTION
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Section 310(a)(1).....................................................................9.10
(a)(2).................................................................9.10
(a)(3).................................................................N.A.**
(a)(4).................................................................N.A.
(a)(5).................................................................9.10
(b)....................................................................9.8; 9.10
(c)....................................................................N.A.
Section 311(a)........................................................................9.11
(b)....................................................................9.11
(c)....................................................................N.A.
Section 312(a)........................................................................2.5
(b)....................................................................12.3
(c)....................................................................12.3
Section 313(a)........................................................................9.6
(b)(1).................................................................N.A.
(b)(2).................................................................9.6
(c)....................................................................9.6; 12.2
(d)....................................................................9.6
Section 314(a)........................................................................6.2; 6.3,
6.4; 12.2
(b)....................................................................N.A.
(c)(1).................................................................12.4(a)
(c)(2).................................................................12.4(a)
(c)(3).................................................................N.A.
(d)....................................................................N.A.
(e)....................................................................12.4(b)
(f)....................................................................N.A.
Section 315(a)........................................................................9.1(b)
(b)....................................................................9.5; 12.2
(c)....................................................................9.1(a)
(d)....................................................................9.1(c)
(e)....................................................................8.11
Section 316(a)(last sentence).........................................................2.9
(a)(1)(A)..............................................................8.5
(a)(1)(B)..............................................................8.4
(a)(2).................................................................N.A.
(b)....................................................................8.7
(c)....................................................................12.5
Section 317(a)(1).....................................................................8.8
(a)(2).................................................................8.9
(b)....................................................................2.4
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* This Cross-Reference Table shall not, for any purpose, be deemed a part of
this Indenture.
** N.A. means Not Applicable.
THIS INDENTURE dated as of June 15, 2001 is between ChipPAC, Inc., a
Delaware corporation (the "Company"), and Firstar Bank, N.A., a national banking
organization organized under the laws of the United States, as Trustee (the
"Trustee").
In consideration of the premises and the purchase of the Securities by
the Holders thereof, both parties agree as follows for the benefit of the other
and for the equal and ratable benefit of the registered Holders of (i) the
Company's 8% Convertible Subordinated Notes Due June 15, 2011 (the "Initial
Securities") and (ii) if and when issued, any Add On Securities (as defined
herein).
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions
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"Additional Interest" has the meaning specified in Section 5(a) of the
Registration Rights Agreement. All references herein to interest accrued or
payable as of any date shall include any Additional Interest accrued or payable
as of such date as provided in the Registration Rights Agreement.
"Add On Security Board Resolutions" means resolutions duly adopted by
the Board of Directors and delivered to the Trustee in an Officers' Certificate
providing for the issuance of Add On Securities.
"Add On Security Supplemental Indenture" means a supplement to this
Indenture duly executed and delivered by the Company and the Trustee pursuant to
Section 2.15 providing for the issuance of Add On Securities.
"Add On Securities" means any Securities originally issued after the
Initial Issue Date pursuant to Section 2.15.
"Affiliate" means, with respect to any specified person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of this
definition, "control" when used with respect to any person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent or Conversion Agent.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial ownership interests in a Global Security, the rules and
procedures of the Depositary that are applicable to such transfer or exchange.
"Bank Indebtedness" means all obligations pursuant to the Credit
Facility.
"Board of Directors" means the board of directors of the Company or
any authorized committee of the Board of Directors.
"Business Day" means each day that is not a Legal Holiday.
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"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, but excluding any debt
securities convertible into such equity.
"cash" means such coin or currency of the United States as at any time
of payment is legal tender for the payment of public and private debts.
"Certificated Security" means a Security that is in substantially the
form attached hereto as Exhibit A and that does not include the information or
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the schedule called for by footnotes 1, 3 and 4 thereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Class A common stock of the Company, par
value $.01 per share, as it exists on the date of this Indenture and any shares
of any class or classes of capital stock of the Company resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which are
not subject to redemption by the Company; provided, however, that if at any time
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there shall be more than one such resulting class, the shares of each such class
then so issuable on conversion of Securities shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture, and thereafter means the
successor.
"Corporate Trust Office" shall be the principal address of the Trustee
specified in Section 12.2 or such other address as to which the Trustee may give
notice to the Company.
"Credit Facility" means the Credit Agreement, dated as of August 5,
1999, as amended and restated as of June 30, 2000, by and among ChipPAC
International Limited, the Company, certain of its subsidiaries, the lenders
referred to therein and Credit Suisse First Boston, as Administrative Agent,
together with the related documents thereto (including without limitation the
term loans and revolving loans thereunder, any guarantees and security
documents), as amended, extended, renewed, restated, supplemented or otherwise
modified (in whole or in part, and without limitation as to amount, terms,
conditions, covenants and other provisions) from time to time, and any agreement
(and related document) governing Indebtedness incurred to refund or refinance,
in whole or in part, the borrowings and commitments then outstanding or
permitted to be outstanding under such Credit Agreement or a successor Credit
Agreement, whether by the same or any other lender or group of lenders.
"Default" means, when used with respect to the Securities, any event
which is or, after notice or passage of time or both, would be an Event of
Default.
"Designated Senior Indebtedness" means (1) the Bank Indebtedness
(including the Company's guarantee of such Bank Indebtedness); provided,
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however, that bank indebtedness outstanding under any credit agreement that is
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refinanced in part, but not in whole, shall only constitute Designated Senior
Indebtedness if it meets the requirements of succeeding clause (2), and (2) any
other senior indebtedness that, at the date of determination, has an aggregate
principal amount outstanding of, or under which, at the date of determination,
the holders thereof are committed to lend up to, at least $10.0 million and is
specifically designated in the instrument evidencing or governing such senior
indebtedness as "designated senior indebtedness" for purposes of the indenture.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"Final Maturity Date" means June 15, 2011.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the date of this Indenture, including those
set forth in (1) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants, (2) the
statements and pronouncements of the Financial Accounting Standards Board, (3)
such other statements by such other entity as approved by a significant segment
of the accounting profession and (4) the rules and regulations of the SEC
governing the inclusion of financial statements (including pro forma financial
statements) in registration statements filed under the Securities Act and
periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"Global Security" means a permanent Global Security that is in
substantially the form attached hereto as Exhibit A and that includes the
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information and schedule called for by footnotes 1, 3 and 4 thereof and which is
deposited with the Depositary or its custodian and registered in the name of the
Depositary or its nominee.
"Holder" or "Securityholder" means the person in whose name a Security
is registered on the Primary Registrar's books.
"Indebtedness" means:
(1) all of the Company's indebtedness, obligations and other
liabilities, contingent or otherwise, for borrowed money, including:
overdrafts, foreign exchange contracts, currency exchange agreements,
interest rate protection agreements, and any loans or advances from banks,
whether or not evidenced by notes or similar instruments; or
credit or loan agreements, bonds, debentures, notes or other written
obligations, whether or not the recourse of the lender is to all of the
Company's assets or to only a portion thereof; other than any account payable or
other accrued current liability or obligation incurred in the ordinary course of
business in connection with the obtaining of materials or services;
(2) all of the Company's reimbursement obligations and other
liabilities, contingent or otherwise, with respect to letters of credit, bank
guarantees or bankers' acceptances;
(3) all of the Company's obligations and liabilities, contingent or
otherwise, in respect of leases required, in conformity with generally accepted
accounting principles, to be accounted for as capitalized lease obligations on
the Company's balance sheet;
(4) all of the Company's obligations evidenced by a note or similar
instrument given in connection with the acquisition of any businesses,
properties or assets of any kind;
(5) all of the Company's obligations issued or assumed as the deferred
purchase price of property or services, but excluding trade accounts payable and
accrued liabilities arising in the ordinary course of business;
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(6) all of the Company's obligations and other liabilities, contingent
or otherwise, under any lease or related document, including a purchase
agreement, in connection with the lease of real property or improvements (or any
personal property included as part of any such lease) which provides that we are
contractually obligated to purchase or cause a third party to purchase the
leased property and thereby guarantee a residual value of leased property to the
lessor and all of the Company's obligations under such lease or related document
to purchase or to cause a third party to purchase the leased property (whether
or not such lease transaction is characterized as an operating lease or a
capitalized lease in accordance with generally accepted accounting principles);
(7) all of the Company's obligations, contingent or otherwise with
respect to an interest rate, currency or other swap, cap, floor or collar
agreement, hedge agreement, forward contract, or other similar instrument or
agreement or foreign currency hedge, exchange, purchase or similar instrument or
agreement;
(8) all of the Company's direct or indirect guarantees or similar
agreements to purchase or otherwise acquire or otherwise assure a creditor
against loss in respect of indebtedness, obligations -or liabilities of another
person of the kind described in clauses (1) through (7); and
(9) any and all deferrals, renewals, extensions and refundings of, or
amendments, modifications, supplements to, any indebtedness, obligation or
liability of the kind described in clauses (1) through (8).
The amount of Indebtedness at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date; provided, however, that
the amount outstanding at any time of any Indebtedness issued with original
issue discount shall be deemed to be the face amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in accordance with generally accepted
accounting principles.
"Indenture" means this Indenture as amended or supplemented from time
to time pursuant to the terms of this Indenture.
"Initial Issue Date" means the date of original issuance of the
Initial Securities.
"Initial Purchaser" means Citicorp Mezzanine III, L.P., any investment
fund that is an Affiliate of Citicorp Mezzanine III, L.P. or any Person
directly or indirectly controlling Citicorp Mezzanine III, L.P.
"Initial Securities" means the 8% Convertible Subordinated Note Due
June 15, 2011.
"Issue Date" means the date of original issuance of any Securities.
"Officer" means the Chairman or any Co-Chairman of the Board, any Vice
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Controller, the Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers;
provided, however, that for purposes of Sections 4.11 and 6.3, "Officers'
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Certificate" means a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company and
by one other Officer.
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"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company or the Trustee.
"Permitted Holders" means the Principals and any Related Party thereto
and any group of investors if deemed to be a "person" (as such term is used in
Section 13(d)(3) of the Exchange Act) by virtue of the Shareholders Agreement,
as the same may be amended, modified or supplemented from time to time, provided
that
a Principal is party to such Shareholders Agreement;
the persons party to the Shareholders Agreement, as so amended,
supplemented or modified from time to time, that were not parties and are not
affiliates of persons who were parties to the Shareholders Agreement as of
August 5, 1999, together with their respective affiliates (collectively, the
"New Investors"), are not direct or indirect beneficial owners (determined
without reference to the Shareholders Agreement) of more than 50% of the voting
stock owned by all parties to the Shareholders' Agreement as so amended,
supplemented or modified; and
the New Investors, individually or in the aggregate, do not, directly
or indirectly, have the right, pursuant to the Shareholders Agreement (as so
amended, supplemented or modified from time to time) or otherwise to designate
more than 50% of the members of the Board of Directors of the Company or any
direct or indirect parent entity of the Company.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"principal" of a debt security, including the Securities, means the
principal of the security plus, when appropriate, the premium, if any, on the
security.
"Principal" means Xxxx Capital, Inc., SXI Group LLC, Citicorp Venture
Capital Ltd. and any officer, employee or director of Citicorp Venture Capital
Ltd. or any trust, partnership or other entity established solely for the
benefit of such officers, employees or directors.
"Redemption Date," when used with respect to any Security to be
redeemed, means the Provisional Redemption Date, in the event of a Provisional
Redemption pursuant to Section 3.1(a) or the Optional Redemption Date, in the
event of an Optional Redemption pursuant to Section 3.1(b), as the case may be.
"Redemption Price," when used with respect to any Security to be
redeemed, means the Provisional Redemption Price, in the event of a Provisional
Redemption pursuant to Section 3.1(a) or the Optional Redemption Price, in the
event of an Optional Redemption pursuant to Section 3.1(b), as the case may be.
"Registration Rights Agreement" means, with respect to the Initial
Securities, the Registration Rights Agreement, dated as of June 22, 2001,
between the Company and Citicorp Mezzanine III, L.P., as the purchaser and means
with respect to any Add On Securities, any registration rights agreement entered
into by the Company for the benefit of the holders of such Add On Securities.
"Related Party" with respect to any Principal means:
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any controlling stockholder or 80% (or more) owned subsidiary of such
Principal;
any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or persons beneficially holding an
80% or more controlling interest of which consist of such Principal and/or such
other persons referred to in the immediately preceding bullet; or
any affiliate of any Principal.
"Representative" means (a) the indenture trustee or other trustee,
agent or representative for any Senior Indebtedness or (b) with respect to any
Senior Indebtedness that does not have any such trustee, agent or other
representative, (i) in the case of such Senior Indebtedness issued pursuant to
an agreement providing for voting arrangements as among the holders or owners of
such Senior Indebtedness, any holder or owner of such Senior Indebtedness acting
with the consent of the required persons necessary to bind such holders or
owners of such Senior Indebtedness and (ii) in the case of all other such Senior
Indebtedness, the holder or owner of such Senior Indebtedness.
"Restricted Certificated Security" means a Certificated Security which
is a Transfer Restricted Security.
"Restricted Global Security" means a Global Security that is a
Transfer Restricted Security.
"Rule 144" means Rule 144 under the Securities Act or any successor to
such Rule.
"Rule 144A" means Rule 144A under the Securities Act or any successor
to such Rule.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Initial Securities, any Add On Securities, and
any securities issued in exchange or replacement therefore, in accordance with
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
"Securities Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor thereto.
"Senior Indebtedness" means the principal of, premium, if any,
interest including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding, and rent payable on or
in connection with, and all fees, costs, expenses and other amounts accrued or
due on or in connection with, Indebtedness whether secured or unsecured,
absolute or contingent, due or to become due, outstanding on the date of the
indenture or thereafter created, incurred, assumed, guaranteed or in effect
guaranteed by the Company, including all deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to, the foregoing,
unless in the case of any particular Indebtedness the instrument creating or
evidencing the same or the assumption or guarantee thereof expressly provides
that such Indebtedness shall not be senior in right of payment to the notes or
expressly provides that such Indebtedness is on the same basis or junior to the
notes.
Senior Indebtedness does not include, among other things, any
Indebtedness to any Subsidiary of the Company or any obligation for U.S.
federal, state, local or other taxes.
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"Shareholders Agreement" means the Amended and Restated Shareholders
Agreement, dated August 5, 1999, by and among Hyundai Electronics, Hyundai
Electronics America, SXI Group LLC, certain Bain Related Parties and the
Company.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, general partners or
trustees thereof is at the time owned or controlled, directly or indirectly, by
(i) such Person; (ii) such Person and one or more Subsidiaries of such Person;
or (iii) one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939, as amended, as in effect
on the date of this Indenture, except as provided in Section 11.3, and except to
the extent any amendment to the Trust Indenture Act expressly provides for
application of the Trust Indenture Act as in effect on another date.
"Trading Day" means, with respect to any security, each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any day on which securities
are not generally traded on the principal exchange or market in which such
security is traded.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture, and
thereafter means the successor.
"Trust Officer" means, with respect to the Trustee, any officer in its
corporate trust department (or similar group) having direct responsibility for
the administration of the trust hereunder, and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Unrestricted Certificated Security" means a Certificated Security
that is not a Transfer Restricted Security.
"Unrestricted Global Security" means a Global Security that is not a
Transfer Restricted Security.
"Voting Stock" of a Person means any class or classes of Capital Stock
of such Person pursuant to which the holders of Capital Stock under ordinary
circumstances have the power to vote in the election of the board of directors,
managers or trustees of any person or other persons performing similar functions
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 occurrence of
any contingency.
SECTION 1.2 Other Definitions
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Term Defined
in Section
"Additional Amounts"......................................... 7.3
"Agent Members".............................................. 2.1
"Bankruptcy Law"............................................. 8.1
"Change in Control".......................................... 3.8(a)
"Change in Control Purchase Date"............................ 3.8(a)
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"Change in Control Purchase Notice".......................... 3.8(c)
"Change in Control Purchase Price"........................... 3.8(a)
"Closing Price".............................................. 4.6(g)
"Company Order".............................................. 2.2
"Conversion Agent"........................................... 2.3
"Conversion Date"............................................ 4.2
"Conversion Price"........................................... 4.6
"Current Market Price Per Share"............................. 4.6(g)
"Custodian".................................................. 8.1
"DTC"........................................................ 2.1(a)
"Defaulted Interest"......................................... 1.3
"Depositary"................................................. 2.1(a)
"Determination Date"......................................... 4.6(e)
"Distribution Date".......................................... 4.6(c)
"Event of Default"........................................... 8.1
"Excluded Holder"............................................ 7.3
"Expiration Date"............................................ 4.6(f)
"Expiration Time"............................................ 4.6(f)
"Legal Holiday".............................................. 12.7
"NNM"........................................................ 4.6(g)
"Notice Date"................................................ 3.1(a)
"NYSE"....................................................... 4.6(g)
"Optional Redemption"........................................ 3.1(b)
"Optional Redemption Date"................................... 3.1(b)
"Optional Redemption Price".................................. 3.1(b)
"Paying Agent"............................................... 2.3
"Payment Blockage Notice".................................... 5.2
"Primary Registrar".......................................... 2.3
"Provisional Redemption"..................................... 3.1(a)
"Provisional Redemption Date"................................ 3.1(a)
"Provisional Redemption Price"............................... 3.1(a)
"Purchased Shares"........................................... 4.6(f)
"QIB"........................................................ 2.1(a)
"Registrar".................................................. 2.3
"Taxes"...................................................... 7.3
"Transfer Certificate"....................................... 2.12(f)
"Transfer Restricted Security"............................... 2.12(f)
"Triggering Distribution".................................... 4.6(e)
"Unissued Shares"............................................ 3.8(a)
SECTION 1.3 Trust Indenture Act Provisions
------------------------------
Whenever this Indenture refers to a provision of the TIA, that
provision is incorporated by reference in and made a part of this Indenture.
The Indenture shall also include those provisions of the TIA required to be
included herein by the provisions of the Trust Indenture Reform Act of 1990.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
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"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined in the TIA,
defined by TIA reference to another statute or defined by any SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.4 Rules of Construction
---------------------
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) words in the singular include the plural, and words in the
plural include the singular;
(iv) provisions apply to successive events and transactions;
(v) the term "merger" includes a statutory share exchange and the
term "merged" has a correlating meaning;
(vi) the masculine gender includes the feminine and the neuter;
(vii) references to agreements and other instruments include
subsequent amendments thereto; and
(viii)"herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating
---------------
The Initial Securities and the Trustee's certificate of authentication
shall be substantially in the respective forms set forth in Exhibit A, which
---------
Exhibit is incorporated in and made part of this Indenture. The Add On
Securities shall be substantially in the same form as the Initial Securities
with such variations as may be specified in accordance with Section 2.15.
Notwithstanding any differences among them, all Securities issued under this
Indenture shall vote and consent together as a single class, except on matters
relating to changes to the interest rate or the Conversion Price of a particular
series of the Securities. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Security shall
be dated the date of its authentication.
(a) Restricted Global Securities and Restricted Certificated
--------------------------------------------------------
Securities. All of the Securities are initially being offered and sold to
----------
qualified institutional buyers as defined in Rule 144A
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(collectively, "QIBs" or individually, each a "QIB") in reliance on Rule 144A
under the Securities Act and shall be issued initially in the form, at the
option of the Initial Purchaser, of one or more (i) Restricted Global
Securities, which shall be deposited on behalf of the purchasers of the
Securities represented thereby with the Trustee, at its Corporate Trust Office,
as custodian for the depositary, The Depository Trust Company ("DTC") (such
depositary, or any successor thereto, being hereinafter referred to as the
"Depositary"), and registered in the name of its nominee, Cede & Co., or (ii)
Restricted Certificated Securities, and in each case shall be duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Restricted Global Security may from time to
time be increased or decreased by adjustments made on the records of the
Securities Custodian as hereinafter provided, subject in each case to compliance
with the Applicable Procedures.
(b) Global Securities In General. Each Global Security shall
----------------------------
represent such of the outstanding Securities as shall be specified therein and
each shall provide that it shall represent the aggregate amount of outstanding
Securities from time to time endorsed thereon and that the aggregate amount of
outstanding Securities represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges, redemptions, purchases or
conversions of such Securities. Any endorsement 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 Securities Custodian in accordance with
the standing instructions and procedures existing between the Depositary and the
Securities Custodian.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or under any Global Security,
and the Depositary (including, for this purpose, its nominee) may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and Holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or (B) impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(c) Certificated Securities. In addition to the initial
-----------------------
issuance of Restricted Certificated Securities, if any, Certificated Securities
shall be issued pursuant to Section 2.12(a)(1) hereof.
SECTION 2.2 Execution and Authentication
----------------------------
An Officer shall sign the Securities for the Company by manual
or facsimile signature attested by the manual or facsimile signature of the
Secretary or an Assistant Secretary of the Company. Typographic and other minor
errors or defects in any such facsimile signature shall not affect the validity
or enforceability of any Security which has been authenticated and delivered by
the Trustee.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Initial Securities for original issue in the aggregate principal amount of up to
$50,000,000 upon receipt of a written order or orders of the Company signed by
two Officers of the Company (a "Company Order"). The Company Order shall specify
the amount of Securities to be authenticated, shall provide that all such
Securities will be represented by a Restricted
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Global Security and the date on which each original issue of Securities is to be
authenticated. Subject to Section 2.15, the Company may issue Add On Securities.
The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent shall have the same rights as an Agent to deal with the
Company or an Affiliate of the Company.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.3 Registrar, Paying Agent and Conversion Agent
--------------------------------------------
The Company shall maintain one or more offices or agencies
where Securities may be presented for registration of transfer or for exchange
(each, a "Registrar"), one or more offices or agencies where Securities may be
presented for payment (each, a "Paying Agent"), one or more offices or agencies
where Securities may be presented for conversion (each, a "Conversion Agent")
and one or more offices or agencies where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will at all times maintain a Paying Agent, Conversion Agent, Registrar
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served in the Borough of
Manhattan, the City of New York. One of the Registrars (the "Primary Registrar")
shall keep a register of the Securities and of their transfer and exchange.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or
agent for service of notices and demands in any place required by this
Indenture, or fails to give the foregoing notice, the Trustee shall act as such.
The Company or any Affiliate of the Company may act as Paying Agent (except for
the purposes of Section 6.1 and Article 10).
The Company hereby initially designates the Trustee as Paying
Agent, Registrar, Primary Registrar, Custodian and Conversion Agent.
SECTION 2.4 Paying Agent to Hold Money in Trust
-----------------------------------
Prior to 11:00 a.m., New York City time, on each due date of
the principal of or interest, if any, on any Securities, the Company shall
deposit with a Paying Agent a sum sufficient to pay such principal or interest,
if any, so becoming due. Subject to Section 5.7, a Paying Agent shall hold in
trust for the benefit of Security holders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest, if any, on the
Securities, and if the Paying Agent is different than the Trustee, shall notify
the Trustee of any Default by the Company (or any other obligor on the
Securities) in making any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall, before 11:00 a.m., New York City time,
on each due date of the principal of or interest on any Securities, segregate
the money and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee, and the
Trustee may at any time during the continuance of any Default, upon written
request to a Paying Agent, require such Paying Agent to forthwith pay to the
Trustee all sums so held in trust by such Paying Agent. Upon doing so, the
Paying Agent (other than the Company) shall have no further liability for the
money.
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SECTION 2.5 Security Holder Lists
---------------------
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Security holders. If the Trustee is not the Primary Registrar, the
Company shall furnish to the Trustee on or before each semiannual interest
payment date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders.
SECTION 2.6 Transfer and Exchange
---------------------
(a) Subject to compliance with any applicable additional
requirements contained in Section 2.12, when a Security is presented to a
Registrar with a request to register a transfer thereof or to exchange such
Security for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested; provided, however, that every Security presented or surrendered for
-------- -------
registration of transfer or exchange shall be duly endorsed or accompanied by an
assignment form and, if applicable, a transfer certificate each in the form
included in Exhibit A, and in form satisfactory to the Registrar duly executed
---------
by the Holder thereof or its attorney duly authorized in writing. To permit
registration of transfers and exchanges, upon surrender of any Security for
registration of transfer or exchange at an office or agency maintained pursuant
to Section 2.3, the Company shall execute and the Trustee shall authenticate
Securities of a like aggregate principal amount at the Registrar's request. Any
exchange or transfer shall be without charge, except that the Company or the
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, and provided, that
this sentence shall not apply to any exchange pursuant to Section 2.7, 2.10,
2.12(a)(1), 3.6, 3.11, 4.2 (last paragraph) or 11.5.
Neither the Company, any Registrar nor the Trustee shall be
required to exchange or register a transfer of (a) any Securities for a period
of 15 days next preceding any mailing of a notice of Securities to be redeemed
or any interest payment date, (b) any Securities or portions thereof selected or
called for redemption (except, in the case of redemption of a Security in part,
the portion not to be redeemed) or (c) any Securities or portions thereof in
respect of which a Change in Control Purchase Notice has been delivered and not
withdrawn by the Holder thereof (except, in the case of the purchase of a
Security in part, the portion not to be purchased).
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt
and entitled to the same benefits, and under identical terms under this
Indenture, as the Securities surrendered upon such transfer or exchange.
(b) Any Registrar appointed pursuant to Section 2.3 hereof
shall provide to the Trustee such information as the Trustee may reasonably
require in connection with the delivery by such Registrar of Securities upon
transfer or exchange of Securities.
(c) Each Holder of a Security agrees to indemnify the
Company and the Trustee against any liability that may result from the transfer,
exchange or assignment of such Holder's Security in violation of any provision
of this Indenture and/or applicable United States federal or state securities
law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Agent Members
or other beneficial 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
-13-
express requirements hereof. The Trustee shall have no responsibility for the
actions or omissions of the Depositary, or for the accuracy of the books or
records of the Depositary.
SECTION 2.7 Replacement Securities
----------------------
If any mutilated Security is surrendered to the Company, a
Registrar or the Trustee, or the Company, a Registrar and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company, the applicable Registrar and
the Trustee such Security or indemnity as will be required by them to save each
of them harmless, then, in the absence of notice to the Company, such Registrar
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, or is about to be redeemed or
purchased by the Company pursuant to Article 3, the Company in its discretion
may, instead of issuing a new Security, pay, redeem or purchase such Security,
as the case may be.
Upon the issuance of any new Securities under this Section 2.7,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the reasonable fees and expenses of the Trustee
or the Registrar) in connection therewith.
Every new Security issued pursuant to this Section 2.7 in lieu
of any 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 (to the extent lawful)
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
SECTION 2.8 Outstanding Securities
----------------------
Securities outstanding at any time are all Securities
authenticated by the Trustee, except for those canceled by it, those delivered
to it for cancellation and those described in this Section 2.8 as not
outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases to
be outstanding unless the Company receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If a Paying Agent (other than the Company or an Affiliate of
the Company) holds on a Redemption Date, a Change in Control Purchase Date or
the Final Maturity Date money sufficient to pay the principal of (including
premium, if any) and accrued interest on Securities (or portions thereof)
payable on that date, then on and after that date such Securities (or portions
thereof, as the case may be) cease to be outstanding and interest on them ceases
to accrue.
Subject to the restrictions contained in Section 2.9, a
Security does not cease to be outstanding because the Company or an Affiliate of
the Company holds the Security.
-14-
SECTION 2.9 Treasury Securities
-------------------
In determining whether the Holders of the required principal
amount of Securities have concurred in any notice, direction, waiver or consent
given while this Indenture is qualified under the TIA, Securities owned by the
Company or any other obligor on the Securities or by any Affiliate of the
Company or of such other obligor shall be disregarded, except that, for purposes
of determining whether the Trustee shall be protected in relying on any such
notice, direction, waiver or consent, only Securities which a Trust Officer of
the Trustee actually knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith shall not be disregarded if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to the Securities and that the pledgee is not the Company or
any other obligor on the Securities or any Affiliate of the Company or of such
other obligor.
SECTION 2.10 Temporary Securities
--------------------
Until definitive Securities are ready for delivery, the Company
may prepare and execute, and, upon receipt of a Company Order, the Trustee shall
authenticate and deliver, temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company with the consent of the Trustee considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate and deliver definitive Securities in exchange for
temporary Securities.
SECTION 2.11 Cancellation
------------
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar, the Paying Agent and the Conversion Agent shall
forward to the Trustee or its agent any Securities surrendered to them for
transfer, exchange, payment or conversion. The Trustee and no one else shall
cancel, in accordance with its standard procedures, all Securities surrendered
for transfer, exchange, redemption, payment, conversion or cancellation and
shall deliver the canceled Securities to the Company. All Securities which are
redeemed, purchased or otherwise acquired by the Company or any of its
Subsidiaries prior to the Final Maturity Date shall be delivered to the Trustee
for cancellation and the Company may not hold or resell such Securities or issue
any new Securities to replace any such Securities or any Securities that any
Holder has converted pursuant to Article 4. Without limitation to the foregoing,
any Securities acquired by any investment bankers or other purchasers pursuant
to Section 3.7 shall be surrendered for conversion and thereafter cancelled, and
may not be reoffered, sold or otherwise transferred.
SECTION 2.12 Additional Transfer and Exchange Requirements
---------------------------------------------
(a) Transfer and Exchange of Global Securities.
------------------------------------------
(1) Certificated Securities shall be issued in
exchange for interests in the Global Securities if (x) the Depositary
notifies the Company that it is unwilling or unable to continue as
depositary for the Global Securities or if it at any time ceases to
be a "clearing agency" registered under the Exchange Act, if so
required by applicable law or regulation and a successor depositary
is not appointed by the Company within 90 days, or (y) an Event of
Default has occurred and is continuing. In either case, the Company
shall execute, and the Trustee shall, upon receipt of a Company Order
(which the Company agrees to delivery promptly), authenticate and
deliver Certificated Securities in an aggregate principal amount
equal to the principal amount of such Global Securities in exchange
therefor. Only Restricted Certificated Securities shall be issued in
exchange for beneficial interests in Restricted Global Securities,
and only Unrestricted Certificated Securities shall be issued in
exchange for
-15-
beneficial interests in Unrestricted Global Securities. Certificated
Securities issued in exchange for beneficial interests in Global
Securities shall be registered in such names and shall be in such
authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver or cause to be delivered such
Certificated Securities to the persons in whose names such Securities
are so registered. Such exchange shall be effected in accordance with
the Applicable Procedures.
(2) Notwithstanding any other provisions of this
Indenture other than the provisions set forth in Section 2.12(a)(1),
a Global Security may not be transferred as a whole except by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or
by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
(b) Transfer and Exchange of Certificated Securities. In
------------------------------------------------
the event that Certificated Securities are issued in exchange for beneficial
interests in Global Securities in accordance with Section 2.12(a)(1) of this
Indenture, on or after such event when Certificated Securities are presented by
a Holder to a Registrar with a request:
(x) to register the transfer of the Certificated Securities
to a person who will take delivery thereof in the form of
Certificated Securities only; or
(y) to exchange such Certificated Securities for an equal
principal amount of Certificated Securities of other authorized
denominations, such Registrar shall register the transfer or make the
exchange as requested;
provided, however, that the Certificated Securities presented or surrendered for
-------- -------
register of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the proviso to the first
paragraph of Section 2.6(a); and
(2) in the case of a Restricted Certificated Security,
such request shall be accompanied by the following additional
information and documents, as applicable:
(i) if such Restricted Certificated Security is
being delivered to the Registrar by a Holder for
registration in the name of such Holder, without transfer,
or such Restricted Certificated Security is being
transferred to the Company or a Subsidiary of the Company, a
certification to that effect from such Holder (in
substantially the form set forth in the Transfer
Certificate);
(ii) if such Restricted Certificated Security is
being transferred to a person the Holder reasonably believes
is a QIB in accordance with Rule 144A or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form set forth in the Transfer
Certificate); or
(iii) if such Restricted Certificated Security is
being transferred (i) pursuant to an exemption from the
registration requirements of the Securities Act in
accordance with Rule 144 or (ii) pursuant to an exemption
from the registration requirements of the Securities Act
(other than pursuant to Rule 144A or Rule 144) and as a
result of which, in the case of a Security transferred
pursuant to this clause (ii), such Security shall cease to
be a "restricted security" within the meaning of Rule 144, a
certification to that effect from the Holder (in
substantially the form set forth in the Transfer
Certificate) and, if the Company or
-16-
such Registrar so requests, a customary opinion of counsel,
certificates and other information reasonably acceptable to
the Company and such Registrar to the effect that such
transfer is in compliance with the registration requirements
of the Securities Act.
(c) Transfer of a Beneficial Interest in a Restricted
-------------------------------------------------
Global Security for a Beneficial Interest in an Unrestricted Global Security.
----------------------------------------------------------------------------
Any person having a beneficial interest in a Restricted Global Security may upon
request, subject to the Applicable Procedures, transfer such beneficial interest
to a person who is required or permitted to take delivery thereof in the form of
an Unrestricted Global Security. Upon receipt by the Trustee of written
instructions, or such other form of instructions as is customary for the
Depositary, from the Depositary or its nominee on behalf of any person having a
beneficial interest in a Restricted Global Security and the following additional
information and documents in such form as is customary for the Depositary from
the Depositary or its nominee on behalf of the person having such beneficial
interest in the Restricted Global Security (all of which may be submitted by
facsimile or electronically):
(1) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certification to that effect from the transferor (in
substantially the form set forth in the Transfer Certificate); or
(2) if such beneficial interest is being transferred
(i) pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 or (ii) pursuant to an
exemption from the registration requirements of the Securities Act
(other than pursuant to Rule 144A or Rule 144) and as a result of
which, in the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security" within
the meaning of Rule 144, a certification to that effect from the
transferor (in substantially the form set forth in the Transfer
Certificate) and, if the Company or the Trustee so requests, a
customary opinion of counsel, certificates and other information
reasonably acceptable to the Company and the Trustee to the effect that
such transfer is in compliance with the registration requirements of
the Securities Act, the Trustee, as a Registrar and Securities
Custodian, shall reduce or cause to be reduced the aggregate principal
amount of the Restricted Global Security by the appropriate principal
amount and shall increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Security by a like
principal amount. Such transfer shall otherwise be effected in
accordance with the Applicable Procedures. If no Unrestricted Global
Security is then outstanding, the Company shall execute and the Trustee
shall, upon receipt of a Company Order (which the Company agrees to
deliver promptly), authenticate and deliver an Unrestricted Global
Security.
(d) Transfer of a Beneficial Interest in an Unrestricted
----------------------------------------------------
Global Security for a Beneficial Interest in a Restricted Global Security. Any
-------------------------------------------------------------------------
person having a beneficial interest in an Unrestricted Global Security may upon
request, subject to the Applicable Procedures, transfer such beneficial interest
to a person who is required or permitted to take delivery thereof in the form of
a Restricted Global Security (it being understood that only QIBs may own
beneficial interests in Restricted Global Securities). Upon receipt by the
Trustee of written instructions or such other form of instructions as is
customary for the Depositary, from the Depositary or its nominee, on behalf of
any person having a beneficial interest in an Unrestricted Global Security and,
in such form as is customary for the Depositary, from the Depositary or its
nominee on behalf of the person having such beneficial interest in the
Unrestricted Global Security (all of which may be submitted by facsimile or
electronically) a certification from the transferor (in substantially the form
set forth in the Transfer Certificate) to the effect that such beneficial
interest is being transferred to a person that the transferor reasonably
believes is a QIB in accordance with Rule 144A. The Trustee, as a Registrar and
Securities Custodian, shall reduce or cause to be reduced the aggregate
principal amount of the Unrestricted Global Security by the appropriate
principal amount and shall increase or cause to be increased the aggregate
principal amount of the Restricted Global Security by a like principal amount.
Such transfer shall otherwise be effected in accordance with the
-17-
Applicable Procedures. If no Restricted Global Security is then outstanding, the
Company shall execute and the Trustee shall, upon receipt of a Company Order
(which the Company agrees to deliver promptly), authenticate and deliver a
Restricted Global Security.
(e) Transfers of Certificated Securities for Beneficial
---------------------------------------------------
Interest in Global Securities. In the event that Certificated Securities are
-----------------------------
issued in exchange for beneficial interests in Global Securities and,
thereafter, the events or conditions specified in Section 2.12(a)(1) which
required such exchange shall cease to exist, the Company shall mail notice to
the Trustee and to the Holders stating that Holders may exchange Certificated
Securities for interests in Global Securities by complying with the procedures
set forth in this Indenture and briefly describing such procedures and the
events or circumstances requiring that such notice be given. Thereafter, if
Certificated Securities are presented by a Holder to a Registrar with a request:
(x) to register the transfer of such Certificated
Securities to a person who will take delivery thereof in the form of a
beneficial interest in a Global Security, which request shall specify
whether such Global Security will be a Restricted Global Security or an
Unrestricted Global Security; or
(y) to exchange such Certificated Securities for an equal
principal amount of beneficial interests in a Global Security, which
beneficial interests will be owned by the Holder transferring such
Certificated Securities (provided that in the case of such an exchange,
Restricted Certificated Securities may be exchanged only for Restricted
Global Securities and Unrestricted Certificated Securities may be exchanged
only for Unrestricted Global Securities), the Registrar shall register the
transfer or make the exchange as requested by canceling such Certificated
Security and causing, or directing the Securities Custodian to cause, the
aggregate principal amount of the applicable Global Security to be
increased accordingly and, if no such Global Security is then outstanding,
the Company shall issue and the Trustee shall authenticate and deliver a
new Global Security;
provided, however, that the Certificated Securities presented or surrendered for
-------- -------
registration of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the proviso to the first
paragraph of Section 2.6(a);
(2) in the case of a Restricted Certificated Security
to be transferred for a beneficial interest in an Unrestricted Global
Security, such request shall be accompanied by the following additional
information and documents, as applicable:
(i) if such Restricted Certificated Security is
being transferred pursuant to an effective registration statement
under the Securities Act, a certification to that effect from such
Holder (in substantially the form set forth in the Transfer
Certificate); or
(ii) if such Restricted Certificated Security is
being transferred pursuant to (i) an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 or (ii)
pursuant to an exemption from the registration requirements of the
Securities Act (other than pursuant to Rule 144A or Rule 144) and as a
result of which, in the case of a Security transferred pursuant to
this clause (ii), such Security shall cease to be a "restricted
security" within the meaning of Rule 144, a certification to that
effect from such Holder (in substantially the form set forth in the
Transfer Certificate), and, if the Company or the Registrar so
requests, a customary opinion of counsel, certificates and other
information
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reasonably acceptable to the Company and the Trustee to the effect
that such transfer is in compliance with the registration requirements
of the Securities Act;
(3) in the case of a Restricted Certificated Security
to be transferred or exchanged for a beneficial interest in a Restricted
Global Security, such request shall be accompanied by a certification from
such Holder (in substantially the form set forth in the Transfer
Certificate) to the effect that such Restricted Certificated Security is
being transferred to a person the Holder reasonably believes is a QIB
(which, in the case of an exchange, shall be such Holder) in accordance
with Rule 144A;
(4) in the case of an Unrestricted Certificated
Security to be transferred or exchanged for a beneficial interest in an
Unrestricted Global Security, such request need not be accompanied by any
additional information or documents; and
(5) in the case of an Unrestricted Certificated
Security to be transferred or exchanged for a beneficial interest in a
Restricted Global Security, such request shall be accompanied by a
certification from such Holder (in substantially the form set forth in the
Transfer Certificate) to the effect that such Unrestricted Certificated
Security is being transferred to a person the Holder reasonably believes is
a QIB (which, in the case of an exchange, shall be such Holder) in
accordance with Rule 144A.
(f) Legends.
-------
(1) Except as permitted by the following paragraphs (2) and (3),
each Global Security and Certificated Security (and all Securities issued
in exchange therefor or upon registration of transfer or replacement
thereof) shall bear a legend in substantially the form called for by
footnote 2 to Exhibit A hereto (each a "Transfer Restricted Security" for
---------
so long as it is required by this Indenture to bear such legend). Each
Transfer Restricted Security shall have attached thereto a certificate (a
"Transfer Certificate") in substantially the form called for by footnote 5
to Exhibit A hereto.
---------
(2) Upon any sale or transfer of a Transfer Restricted Security
(w) after the expiration of the holding period applicable to sales of the
Securities under Rule 144(k) of the Securities Act, (x) pursuant to Rule
144, (y) pursuant to an effective registration statement under the
Securities Act or (z) pursuant to any other available exemption (other than
Rule 144A) from the registration requirements of the Securities Act and as
a result of which, in the case of a Security transferred pursuant to this
clause (z), such Security shall cease to be a "restricted security" within
the meaning of Rule 144:
(i) in the case of any Restricted Certificated Security,
any Registrar shall permit the Holder thereof to exchange such
Restricted Certificated Security for an Unrestricted Certificated
Security, or (under the circumstances described in Section 2.12(e)) to
transfer such Restricted Certificated Security to a transferee who
shall take such Security in the form of a beneficial interest in an
Unrestricted Global Security, and in each case shall rescind any
restriction on the transfer of such Security; provided, however, that
-------- -------
the Holder of such Restricted Certificated Security shall, in
connection with such exchange or transfer, comply with the other
applicable provisions of this Section 2.12; and
(ii) in the case of any beneficial interest in a Restricted
Global Security, the Trustee shall permit the beneficial owner thereof
to transfer such beneficial interest to a transferee who shall take
such interest in the form of a beneficial interest in an Unrestricted
Global Security and shall rescind any restriction on transfer of such
beneficial interest;
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provided, that such Unrestricted Global Security shall continue to be
--------
subject to the provisions of Section 2.12(a)(2); and provided,
--------
further, that the owner of such beneficial interest shall, in
-------
connection with such transfer, comply with the other applicable
provisions of this Section 2.12.
(3) Upon the exchange, registration of transfer or replacement of
Securities not bearing the legend described in paragraph (1) above, the
Company shall execute, and the Trustee shall authenticate and deliver
Securities that do not bear such legend and that do not have a Transfer
Certificate attached thereto.
(4) After the expiration of the holding period pursuant to Rule
144(k) of the Securities Act, the Company may with the consent of the
Holder of a Restricted Global Security or Restricted Certificated Security,
remove any restriction of transfer on such Security, and the Company shall
execute, and the Trustee shall authenticate and deliver Securities that do
not bear such legend and that do not have a Transfer Certificate attached
thereto.
(g) Transfers to the Company. Nothing in this Indenture or in the
------------------------
Securities shall prohibit the sale or other transfer of any Securities
(including beneficial interests in Global Securities) to the Company or any of
its Subsidiaries, which Securities shall thereupon be cancelled in accordance
with the last sentence of Section 2.11.
SECTION 2.13 CUSIP Numbers
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption or purchase as a convenience to Holders; provided that any such
--------
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption or purchase and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption or
purchase shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
SECTION 2.14 Defaulted Interest
------------------
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any interest payment date ("Defaulted Interest"),
shall forthwith cease to be payable to the Holder on the relevant regular record
date, and such Defaulted Interest may be paid by the Company as follows. The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities are registered at the close of business on a special
record date for the payment of such Defaulted Interest, 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 on each Security 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 Persons entitled
to such Defaulted Interest as in this section provided. Thereupon the Company
shall fix a special record date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment, and notify the Trustee
thereof. The Trustee shall, in the name and at the expense of the Company,
cause notice of the proposed payment of such Defaulted Interest and the special
record date therefor to be given to each Holder of Securities pursuant to
Section 12.2, not less than 10 days prior to such special record date. Notice
of the proposed payment of such defaulted interest and the special record date
therefor having been so mailed, such Defaulted Interest shall be
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paid to the Persons in whose names the Securities are registered at the
close of business on such special record date.
Alternatively, the Company may elect to make payment of any Defaulted
Interest on the Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon any 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, such manner of payment shall be deemed practicable by the Trustee.
SECTION 2.15 Add On Securities
------------------
(a) The Company may, from time to time, subject to compliance with
any other applicable provisions of this Indenture, create and issue Add On
Securities, without the consent of the Holders; provided, however, that so long
as the Initial Purchaser remains a Holder, no Add On Securities shall be issued
which would result in the aggregate principal amount of all Add On Securities
issued pursuant to this Section 2.15 exceeding $49,000,000 unless consented to
in writing by the Initial Purchaser.
The Add On Securities shall have terms and conditions identical to those of
the outstanding Securities, except that Add On Securities:
(i) may have a different Issue Date than other the
outstanding Securities;
(ii) may have a different interest rate than is payable on
the other outstanding Securities;
(iii) may have a different Conversion Price than other
outstanding Securities; and
(iv) may have terms specified in the Add On Security Board
Resolutions or Add On Security Supplemental Indenture for such Add On
Securities making appropriate adjustments to this Article II and
----------
Exhibit A (and related definitions) applicable to such Add On
---------
Securities in order to conform to and ensure compliance with the
Securities Act (or other applicable securities laws) which are not
adverse in any material respect to the Holder of any outstanding
Securities (other than such Add On Securities) and which shall not
affect the rights or duties of the Trustee.
(b) In authenticating any Add On Securities, and accepting the
additional responsibilities under this Indenture in relation to such Add On
Securities, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon:
(i) a Company Order;
(ii) the Add On Security Board Resolutions or Add On
Security Supplemental Indenture relating thereto;
(iii) an Officers' Certificate complying with Section 12.4;
and
(iv) an Opinion of Counsel complying with Section 12.4
stating,
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(A) that the forms of such Securities have been
established by or pursuant to Add On Security Board
Resolutions or by an Add On Security Supplemental Indenture,
as permitted by this Section 2.15 and in conformity with the
provisions of this Indenture;
(B) the terms of such Securities have been established
by or pursuant to Add On Security Board Resolutions or by an
Add On Security Supplemental Indenture, as permitted by this
Section 2.15 and in conformity with the provisions of this
Indenture;
(C) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any customary conditions specified in
such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company entitled to the benefits
provided in the Indenture, enforceable in accordance with
their respective terms, except to the extent that the
enforcement of such obligations may be subject to bankruptcy
laws or insolvency laws or other similar laws, general
principles of equity and such other qualifications as such
counsel shall conclude are customary or do not materially
affect the rights of the Holders of such Securities;
(D) that all laws and requirements in respect of the
execution and delivery of the Securities have been complied
with; and
(E) such other matters as the Trustee may reasonably
request.
(c) If such forms or terms have been so established by or pursuant to
Add On Security Board Resolutions or an Add On Security Supplemental Indenture,
the Trustee shall have the right to decline to authenticate and deliver any
Securities:
(i) if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken;
(ii) if the Trustee by its committee of Trust Officers in
good faith determines that such action would expose the Trustee to
personal liability to Holders of any outstanding Securities; or
(iii) if the issue of such Add On Securities pursuant to
this Indenture will affect the Trustee's own rights, duties and
immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
(d) Add On Securities shall be a separate series of Securities under
this Indenture, unless
(i) no "original issue discount" within the meaning of
Section 1257 of the Code results from the issuance of such Add On
Securities; and
(ii) the terms of such Add On Securities are identical to
the terms of the Initial Securities; except for the Issue Date and the
amount of interest payable at the first interest payment date.
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Notwithstanding anything in this Section 2.15, the Company may not
issue Add On Securities if an Event of Default shall have occurred and be
continuing.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.1 Provisional and Optional Redemption; Notice to Trustee
------------------------------------------------------
(a) The Company may redeem any portion of the Securities at any
time prior to June 15, 2004 (a "Provisional Redemption"), upon giving notice as
set forth in Section 3.3, at a redemption price equal to $1,000 per $1,000
principal amount of the Securities redeemed plus accrued and unpaid interest, if
any (such amount, the "Provisional Redemption Price"), to but excluding the date
of redemption (the "Provisional Redemption Date") if (1) the Closing Price of
the Common Stock has[A exceeded 150% of the Conversion Price for at least 20
Trading Days within a period of any 30 consecutive Trading Days ending on the
Trading Day immediately preceding the date of mailing of the notice of
Provisional Redemption (the "Notice Date"), and (2) a shelf registration
statement covering resales of the Securities and the Common Stock issuable upon
conversion thereof is effective and available for use and is expected to remain
effective and available for use for the 30 days following the Provisional
Redemption Date unless registration is no longer required.
(b) Except as set forth in clause (a) of this Section 3.1, the
Company shall not have the option to redeem the Securities pursuant to this
Section 3.1 prior to June 15, 2004. Thereafter, the Company shall have the
option to redeem any portion of the Securities (an "Optional Redemption") upon
giving notice as set forth in Section 3.3 at the Redemption Prices (the
"Optional Redemption Price") specified in paragraph 5 of the form of Security
attached hereto as Exhibit A, together with accrued interest up to but not
---------
including the date of redemption (the "Optional Redemption Date"); provided that
--------
if the Optional Redemption Date falls after an interest payment record date and
on or before an interest payment date, then the interest payment will be payable
to the Holders in whose name the Securities are registered at the close of
business on the relevant record date for payment of such interest.
If the Company elects to redeem Securities pursuant to clause (a)
or clause (b) of this Section 3.1 and paragraph 5 of the Securities, it shall
notify the Trustee, at the earlier of the time the Company notifies the Holders
of such redemption or 45 days prior to the Redemption Date as fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), of the
Redemption Date and the principal amount of Securities to be redeemed. If fewer
than all of the Securities are to be redeemed, the record date relating to such
redemption shall be selected by the Company and given to the Trustee, which
record date shall not be less than ten days after the date of notice to the
Trustee.
The Trustee shall have no duty or obligation to determine whether
the Securities are eligible for Provisional Redemption, and may
conclusively rely on any such determination by the Company.
Any redemption pursuant to clause (a) or clause (b) of this Section
3.1 shall be made pursuant to the applicable provisions of Sections 3.2
through 3.7 and Section 3.12 hereof.
SECTION 3.2 Selection of Securities to Be Redeemed
--------------------------------------
If fewer than all of the Securities are to be redeemed, the Trustee
shall, not more than 60 days prior to the Redemption Date, select the Securities
to be redeemed. The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption, by lot, or in its
discretion, on a pro rata basis. Securities in denominations of $1,000 may only
--------
be redeemed in whole. The Trustee may select for
-23-
redemption portions (equal to $1,000 or any multiple thereof) of the principal
of Securities that have denominations larger than $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
If any Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Security so selected, the converted portion of such Security shall be deemed
to be the portion selected for redemption. Securities which have been converted
during a selection of Securities to be redeemed shall be treated by the Trustee
as outstanding for the purpose of such selection.
SECTION 3.3 Notice of Redemption
--------------------
At least 20 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a notice of redemption to
each Holder of Securities to be redeemed at such Holder's address as it appears
on the Primary Registrar's books.
The notice shall identify the Securities (including CUSIP numbers)
to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the then current Conversion Price;
(4) the name and address of each Paying Agent and Conversion Agent;
(5) that Securities called for redemption must be presented and
surrendered to a Paying Agent to collect the Redemption Price;
(6) that Holders who wish to convert Securities must surrender such
Securities for conversion no later than the close of business on the
Business Day immediately preceding the Redemption Date and must satisfy
the other requirements in paragraph 8 of the Securities;
(7) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption shall cease
accruing on and after the Redemption Date and the only remaining right of
the Holder shall be to receive payment of the Redemption Price, plus
accrued interest, if any upon presentation and surrender to a Paying
Agent of the Securities; and
(8) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, upon presentation and surrender of such Security, a new
Security or Securities in aggregate principal amount equal to the
unredeemed portion thereof will be issued.
If any of the Securities to be redeemed is in the form of a Global
Security, then the Company shall modify such notice to the extent necessary to
accord with the procedures of the Depositary applicable to redemptions. At the
Company's written request, which request shall (i) be irrevocable once given and
(ii) set forth all relevant information required by clauses (1) through (8) of
the preceding paragraph, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense.
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SECTION 3.4 Effect of Notice of Redemption
------------------------------
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price stated
in the notice, together with accrued interest, if any, except for Securities
that are converted in accordance with the provisions of Article 4. Upon
presentation and surrender to a Paying Agent, Securities called for redemption
shall be paid at the Redemption Price, plus accrued interest up to but not
including the Redemption Date; provided if the Redemption Date is an interest
--------
payment date, interest will be payable to the Holders in whose names the
Securities are registered at the close of business on the relevant record dates
for payment of such interest.
SECTION 3.5 Deposit of Redemption Price
---------------------------
The Company, prior to 11:00 a.m. New York City time, on the Redemption
Date, shall deposit with a Paying Agent (or, if the Company acts as Paying
Agent, shall segregate and hold in trust) money sufficient to pay the Redemption
Price of and accrued interest on all Securities to be redeemed on that date,
other than Securities or portions thereof called for redemption on that date
which have been delivered by the Company to the Trustee for cancellation or have
been converted. The Paying Agent shall return to the Company any money not
required for that purpose because of the conversion of Securities pursuant to
Article 4 or, if such money is then held by the Company in trust and is not
required for such purpose, it shall be discharged from the trust.
SECTION 3.6 Securities Redeemed in Part
---------------------------
Upon presentation and surrender of a Security that is redeemed in
part, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder a new Security equal in principal amount to the unredeemed portion
of the Security surrendered.
SECTION 3.7 Conversion Arrangement on Call for Redemption
---------------------------------------------
In connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities called for redemption
by an agreement with one or more investment bankers or other purchasers to
purchase such Securities by paying to a Paying Agent (other than the Company or
any of its Affiliates) in trust for the Holders, on or before 11:00 a.m. New
York City time on the Redemption Date, an amount that, together with any amounts
deposited with such Paying Agent by the Company for the redemption of such
Securities, is not less than the Redemption Price, together with interest
accrued to, but not including, the Redemption Date, of such Securities.
Notwithstanding anything to the contrary contained in this Article 3, the
obligation of the Company to pay the Redemption Price of such Securities,
including all accrued interest, shall be deemed to be satisfied and discharged
to the extent such amount is so paid by such purchasers; provided, however, that
-------- -------
nothing in this Section 3.7 shall relieve the Company of its obligation to pay
the Redemption Price, plus accrued interest to but excluding the relevant
Redemption Date, on Securities called for redemption. If such an agreement with
one or more investment banks or other purchasers is entered into, any Securities
called for redemption and not surrendered for conversion by the Holders thereof
prior to the relevant Redemption Date may, at the option of the Company upon
written notice to the Trustee, be deemed, to the fullest extent permitted by
law, acquired by such purchasers from such Holders and (notwithstanding anything
to the contrary contained in Article 4) surrendered by such purchasers for
conversion, all as of 11:00 a.m. New York City time on the Redemption Date,
subject to payment of the above amount as aforesaid. The Paying Agent shall
hold and pay to the Holders whose Securities are selected for redemption any
such amount paid to it for purchase in the same manner as it would money
deposited with it by the Company for the redemption of Securities. Without the
Paying Agent's prior written consent, no arrangement between the Company and
such purchasers for the purchase and conversion of any Securities shall increase
or otherwise affect any of the powers, duties,
-25-
responsibilities or obligations of the Paying Agent as set forth in this
Indenture, and the Company agrees to indemnify the Paying Agent from, and hold
it harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such purchasers, including the costs and
expenses incurred by the Paying Agent in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.
SECTION 3.8 Purchase of Securities at Option of the Holder upon Change
----------------------------------------------------------
in Control
----------
(a) If at any time that Securities remain outstanding there shall
occur a Change in Control, Securities shall be purchased by the Company at the
option of the Holders thereof as of the date (the "Change in Control Purchase
Date") that is not less than 20 nor more than 30 Business Days after the date on
which the Company provides Holders notice of the occurrence of a Change in
Control (or if the Company has not therefore provided such, the 40th Business
Day following the occurrence of a Change in Control) at a purchase price equal
to the principal amount of the Securities, plus accrued and unpaid interest to,
but excluding, the Change in Control Purchase Date (the "Change in Control
Purchase Price"), subject to satisfaction by or on behalf of any Holder of the
requirements set forth in subsection (c) of this Section 3.8.
A "Change in Control" shall be deemed to have occurred if any of the
following occurs after the date hereof:
(1) any "person" or "group" (as such terms are defined below), other
than one or more Permitted Holders, is or becomes the "beneficial owner"
(as defined below), directly or indirectly, of shares of Voting Stock of
the Company representing 50% or more of the total voting power of all
outstanding classes of Voting Stock of the Company or such person or group
has the power, directly or indirectly, to elect a majority of the members
of the Board of Directors of the Company; or
(2) the Company consolidates with, or merges with or into, another
Person or the Company sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of the assets of the Company
to another Person, or any Person consolidates with, or merges with or into,
the Company, in any such event other than pursuant to a transaction in
which the Persons that "beneficially owned" (as defined below), directly or
indirectly, shares of Voting Stock of the Company immediately prior to such
transaction "beneficially own" (as defined below), directly or indirectly,
shares of Voting Stock of the Company representing at least a majority of
the total voting power of all outstanding classes of Voting Stock of the
surviving or transferee Person; or
(3) there shall occur the liquidation or dissolution of the Company.
For the purpose of the definition of "Change in Control", (i) "person" and
"group" have the meanings given such terms under Section 13(d) and 14(d) of the
Exchange Act or any successor provision to either of the foregoing, and the term
"group" includes any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act (or any successor provision thereto), (ii) a "beneficial owner"
shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in
effect on the date of this Indenture, except that the number of shares of Voting
Stock of the Company shall be deemed to include, in addition to all outstanding
shares of Voting Stock of the Company and Unissued Shares deemed to be held by
the "person" or "group" (as such terms are defined above) or other Person with
respect to which the Change in Control determination is being made, all Unissued
Shares deemed to be held by all other Persons, and (iii) the terms "beneficially
owned" and "beneficially own" shall have meanings correlative to that of
"beneficial owner." The term "Unissued Shares" means shares of Voting Stock not
outstanding that are subject to options,
-26-
warrants, rights to purchase or conversion privileges exercisable within 60 days
of the date of determination of a Change in Control.
Notwithstanding anything to the contrary set forth in this Section
3.8, a Change in Control will not be deemed to have occurred if either:
(1) the Closing Price of the Common Stock for any five Trading Days
during the ten Trading Days immediately preceding the Change in Control is
at least equal to 105% of the Conversion Price in effect on such Trading
Day; or
(2) in the case of a merger or consolidation, at least 90% of the
consideration (excluding cash payments for fractional shares in the merger
or consolidation constituting the Change in Control) consists of common
stock traded on a United States national securities exchange or quoted on
the Nasdaq National Market (or which will be so traded or quoted when
issued or exchanged in connection with such Change In Control) and as a
result of such transaction or transactions the Securities become
convertible solely into such common stock.
(b) within 10 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of the Change in Control to the
Trustee (and the Paying Agent if the Trustee is not then acting as Paying Agent)
and to each Holder (and to beneficial owners as required by applicable law).
The notice shall include the form of a Change in Control Purchase Notice to be
completed by the Holder and shall state:
(1) the date of such Change in Control and, briefly, the events
causing such Change in Control;
(2) the date by which the Change in Control Purchase Notice
pursuant to this Section 3.8 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) briefly, the conversion rights of the Securities;
(6) the name and address of each Paying Agent and Conversion
Agent;
(7) the Conversion Price and any adjustments thereto;
(8) that Securities as to which a Change in Control Purchase
Notice has been given may be converted into Common Stock pursuant to
Article 4 of this Indenture only to the extent that the Change in Control
Purchase Notice has been withdrawn in accordance with the terms of this
Indenture;
(9) the procedures that the Holder must follow to exercise
rights under this Section 3.8;
(10) the procedures for withdrawing a Change in Control Purchase
Notice, including a form of notice of withdrawal; and
-27-
(11) that the Holder must satisfy the requirements set forth in
the Securities in order to convert the Securities.
If any of the Securities is in the form of a Global Security, then the
Company shall modify such notice to the extent necessary to accord with the
procedures of the Depositary applicable to the repurchase of Global Securities.
(c) A Holder may exercise its rights specified in subsection (a) of
this Section 3.8 upon delivery of a written notice (which shall be in
substantially the form included in Exhibit A hereto and which may be delivered
---------
by letter, overnight courier, hand delivery, facsimile transmission or in any
other written form and, in the case of Global Securities, may be delivered
electronically or by other means in accordance with the Depositary's customary
procedures) of the exercise of such rights (a "Change in Control Purchase
Notice") to any Paying Agent at any time prior to the close of business on the
Business Day next preceding the Change in Control Purchase Date.
The delivery of such Security to any Paying Agent (together with all
necessary endorsements) at the office of such Paying Agent shall be a condition
to the receipt by the Holder of the Change in Control Purchase Price therefor.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.8, a portion of a Security if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of the Indenture that
apply to the purchase of all of a Security pursuant to Sections 3.8 through 3.13
also apply to the purchase of such portion of such Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to a Paying Agent the Change in Control Purchase Notice contemplated by this
subsection (c) shall have the right to withdraw such Change in Control Purchase
Notice in whole or in a portion thereof that is a principal amount of $1,000 or
in an integral multiple thereof at any time prior to the close of business on
the Business Day next preceding the Change in Control Purchase Date by delivery
of a written notice of withdrawal to the Paying Agent in accordance with Section
3.9.
A Paying Agent shall promptly notify the Company of the receipt by it
of any Change in Control Purchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case of Global
Securities, any Change in Control Purchase Notice may be delivered or withdrawn
and such Securities may be surrendered or delivered for purchase in accordance
with the Applicable Procedures as in effect from time to time.
SECTION 3.9 Effect of Change in Control Purchase Notice
-------------------------------------------
Upon receipt by any Paying Agent of the Change in Control Purchase
Notice specified in Section 3.8(c), the Holder of the Security in respect of
which such Change in Control Purchase Notice was given shall (unless such Change
in Control Purchase Notice is withdrawn as specified below) thereafter be
entitled to receive the Change in Control Purchase Price with respect to such
Security. Such Change in Control Purchase Price shall be paid to such Holder
promptly following the later of (a) the Change in Control Purchase Date with
respect to such Security (provided the conditions in Section 3.8(c) have been
satisfied) and (b) the time of delivery of such Security to a Paying Agent by
the Holder thereof in the manner required by Section 3.8(c). Securities in
respect of which a Change in Control Purchase Notice has been given by the
Holder thereof may not be converted into shares of Common Stock on or after the
date of the delivery of such Change in Control Purchase Notice unless such
Change in Control Purchase Notice has first been validly withdrawn.
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A Change in Control Purchase Notice may be withdrawn by means of a
written notice (which may be delivered by letter, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case
of Global Securities, may be delivered electronically or by other means in
accordance with the Depositary's customary procedures) of withdrawal delivered
by the Holder to a Paying Agent at any time prior to the close of business on
the Business Day immediately preceding the Change in Control Purchase Date,
specifying the principal amount of the Security or portion thereof (which must
be a principal amount of $1,000 or an integral multiple of $1,000 in excess
thereof) with respect to which such notice of withdrawal is being submitted.
SECTION 3.10 Deposit of Change in Control Purchase Price
-------------------------------------------
On or before 11:00 a.m. New York City time on the Change in Control
Purchase Date, the Company shall deposit with the Trustee or with a Paying Agent
(other than the Company or an Affiliate of the Company) an amount of money (in
immediately available funds if deposited on such Business Day) sufficient to pay
the aggregate Change in Control Purchase Price of all the Securities or portions
thereof that are to be purchased as of such Change in Control Purchase Date.
The manner in which the deposit required by this Section 3.10 is made by the
Company shall be at the option of the Company, provided that such deposit shall
be made in a manner such that the Trustee or a Paying Agent shall have
immediately available funds on the Change in Control Purchase Date.
If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Change in Control Purchase Price of any Security for which
a Change in Control Purchase Notice has been tendered and not withdrawn in
accordance with this Indenture then, on the Change in Control Purchase Date,
such Security will cease to be outstanding and the rights of the Holder in
respect thereof shall terminate (other than the right to receive the Change in
Control Purchase Price as aforesaid). The Company shall publicly announce the
principal amount of Securities purchased as a result of such Change in Control
on or as soon as practicable after the Change in Control Purchase Date.
SECTION 3.11 Securities Purchased in Part
----------------------------
Any Security that is to be purchased only in part shall be surrendered
at the office of a Paying Agent and promptly after the Change in Control
Purchase Date the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities, of such authorized denomination or denominations as may be
requested by such Holder, in aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Security so surrendered
that is not purchased.
SECTION 3.12 Compliance with Securities Laws upon Purchase of Securities
-----------------------------------------------------------
In connection with any offer to purchase or purchase of Securities
under Section 3.8, the Company shall (a) comply with Rule 13e-4 and Rule 14e-1
(or any successor to either such Rule), if applicable, under the Exchange Act,
(b) file the related Schedule TO (or any successor or similar schedule, form or
report) if required under the Exchange Act, and (c) otherwise comply with all
federal and state securities laws in connection with such offer to purchase or
purchase of Securities, all so as to permit the rights of the Holders and
obligations of the Company under Sections 3.8 through 3.11 to be exercised in
the time and in the manner specified therein.
-29-
SECTION 3.13 Repayment to the Company
------------------------
To the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 3.10 exceeds the aggregate Change in Control
Purchase Price together with interest, if any, thereon of the Securities or
portions thereof that the Company is obligated to purchase, then promptly after
the Change in Control Purchase Date the Trustee or a Paying Agent, as the case
may be, shall return any such excess cash (including any interest thereon) to
the Company.
ARTICLE 4
CONVERSION
SECTION 4.1 Conversion Privilege
--------------------
Subject to the further provisions of this Section 4.1, a Holder of a
Security may, at the Holder's option, convert the principal amount of such
Security (or any portion thereof equal to $1,000 or any integral multiple of
$1,000 in excess thereof) into Common Stock at any time prior to the close of
business on the Final Maturity Date, at the Conversion Price then in effect;
provided, however, that, if such Security is called for redemption or submitted
-------- -------
or presented for purchase pursuant to Article 3, such conversion right shall
terminate at the close of business on the Business Day immediately preceding the
Redemption Date or Change in Control Purchase Date, as the case may be, for such
Security or such earlier date as the Holder presents such Security for
redemption or for purchase (unless the Company shall Default in making the
redemption payment or Change in Control Purchase Price payment when due, in
which case the conversion right shall terminate at the close of business on the
date such Default is cured and such Security is redeemed or purchased, as the
case may be). The number of shares of Common Stock issuable upon conversion of
a Security shall be determined by dividing the principal amount of the Security
or portion thereof surrendered for conversion by the Conversion Price in effect
on the Conversion Date. The initial Conversion Price is set forth in paragraph
8 of the Securities and is subject to adjustment as provided in this Article 4.
Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
A Security in respect of which a Holder has delivered a Change in
Control Purchase Notice pursuant to Section 3.8(c) exercising the option of such
Holder to require the Company to purchase such Security may be converted only if
such Change in Control Purchase Notice is withdrawn by a written notice of
withdrawal delivered to a Paying Agent prior to the close of business on the
Business Day immediately preceding the Change in Control Purchase Date in
accordance with Section 3.9.
A Holder of Securities is not entitled to any rights of a holder of
Common Stock until such Holder has converted its Securities to Common Stock, and
only to the extent such Securities are deemed to have been converted into Common
Stock pursuant to this Article 4.
SECTION 4.2 Conversion Procedure
--------------------
To convert a Security, a Holder must (a) complete and manually sign
the conversion notice on the back of the Security and deliver such notice to a
Conversion Agent, (b) surrender the Security to a Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by a Registrar or a
Conversion Agent, and (d) pay any transfer or similar tax, if required. The
date on which the Holder satisfies all of those requirements is the "Conversion
Date." As soon as practicable after the Conversion Date, the Company shall
deliver to the Holder through a Conversion Agent a certificate for the number of
whole shares of Common
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Stock issuable upon the conversion and cash in lieu of any fractional shares
pursuant to Section 4.3. Anything herein to the contrary notwithstanding, in the
case of Global Securities, conversion notices may be delivered and such
Securities may be surrendered for conversion in accordance with the Applicable
Procedures as in effect from time to time.
The person in whose name the Common Stock certificate is registered
shall be deemed to be a stockholder of record on the Conversion Date; provided,
--------
however, that no surrender of a Security on any date when the stock transfer
-------
books of the Company shall be closed shall be effective to constitute the person
or persons entitled to receive the shares of Common Stock upon such conversion
as the record holder or holders of such shares of Common Stock on such date, but
such surrender shall be effective to constitute the person or persons entitled
to receive such shares of Common Stock as the record holder or holders thereof
for all purposes at the close of business on the next succeeding day on which
such stock transfer books are open; provided, further, that such conversion
-------- -------
shall be at the Conversion Price in effect on the Conversion Date as if the
stock transfer books of the Company had not been closed. Upon conversion of a
Security, such person shall no longer be a Holder of such Security. No payment
or adjustment will be made for dividends or distributions on shares of Common
Stock issued upon conversion of a Security.
Securities so surrendered for conversion (in whole or in part) during
the period from the close of business on any regular record date to the opening
of business on the next succeeding interest payment date (excluding Securities
or portions thereof which are either (i) called for redemption or (ii) subject
to purchase following a Change in Control, in either case, on the date during
the period beginning at the close of business on a regular record date and
ending at the opening of business on the first Business Day after the next
succeeding interest payment date, or if such interest payment date is not a
Business Day, the second such Business Day) shall also be accompanied by payment
in funds acceptable to the Company of an amount equal to the interest payable on
such interest payment date on the principal amount of such Security then being
converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of such Security, subject to the provisions of
this Indenture relating to the payment of defaulted interest by the Company.
Except as otherwise provided in this Section 4.2, no payment or adjustment will
be made for accrued interest on a converted Security. If the Company defaults
in the payment of interest payable on such interest payment date, the Company
shall promptly repay such funds to such Holder.
Nothing in this Section shall affect the right of a Holder in whose
name any Security is registered at the close of business on a record date to
receive the interest payable on such Security on the related interest payment
date in accordance with the terms of this Indenture and the Securities. If a
Holder converts more than one Security at the same time, the number of shares of
Common Stock issuable upon the conversion shall be based on the aggregate
principal amount of Securities converted.
Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Security equal in principal amount to the unconverted portion of the
Security surrendered.
SECTION 4.3 Fractional Shares
-----------------
The Company will not issue fractional shares of Common Stock upon
conversion of Securities. In lieu thereof, the Company will pay an amount in
cash based upon the Closing Price of the Common Stock on the Trading Day
immediately prior to the Conversion Date.
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SECTION 4.4 Taxes on Conversion
-------------------
If a Holder converts a Security, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of shares
of Common Stock upon such conversion. However, the Holder shall pay any such
tax which is due because the Holder requests the shares to be issued in a name
other than the Holder's name. The Conversion Agent may refuse to deliver the
certificate representing the Common Stock being issued in a name other than the
Holder's name until the Conversion Agent receives a sum sufficient to pay any
tax which will be due because the shares are to be issued in a name other than
the Holder's name. Nothing herein shall preclude any tax withholding required
by law or regulation.
SECTION 4.5 Company to Provide Stock
------------------------
The Company shall, prior to issuance of any Securities hereunder, and
from time to time as may be necessary, reserve, out of its authorized but
unissued Common Stock, a sufficient number of shares of Common Stock to permit
the conversion of all outstanding Securities into shares of Common Stock.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares, shall be duly authorized, validly issued, fully
paid and nonassessable and shall be free from preemptive rights and free of any
lien or adverse claim.
The Company will endeavor promptly to comply with all federal and
state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of Common Stock on each national securities exchange or on
the Nasdaq National Market or other over-the-counter market or such other market
on which the Common Stock is then listed or quoted; provided, however, that if
-------- -------
rules of such automated quotation system or exchange permit the Company to defer
the listing of such Common Stock until the first conversion of the Notes into
Common Stock in accordance with the provisions of this Indenture, the Company
covenants to list such Common Stock issuable upon conversion of the Notes in
accordance with the requirements of such automated quotation system or exchange
at such time.
SECTION 4.6 Adjustment of Conversion Price
------------------------------
The conversion price as stated in paragraph 8 of the Securities (the
"Conversion Price") shall be adjusted from time to time by the Company as
follows:
(a) In case the Company shall (i) pay a dividend on its Common Stock
in shares of Common Stock, (ii) make a distribution on its Common Stock in
shares of Common Stock, (iii) subdivide its outstanding Common Stock into a
greater number of shares, or (iv) combine its outstanding Common Stock into a
smaller number of shares, the Conversion Price in effect immediately prior
thereto shall be adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive that number of shares of
Common Stock which it would have owned had such Security been converted
immediately prior to the happening of such event. An adjustment made pursuant
to this subsection (a) shall become effective immediately after the record date
in the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of subdivision or combination.
(b) In case the Company shall issue rights or warrants to all or
substantially all holders of its Common Stock entitling them (for a period
commencing no earlier than the record date described below and expiring not more
than 60 days after such record date) to subscribe for or purchase shares of
Common Stock (or securities convertible into Common Stock) at a price per share
(or having a conversion price per share) less than the Current Market Price Per
Share of Common Stock on the record date for the determination of stockholders
-32-
entitled to receive such rights or warrants (provided, however, if such rights
or warrants are only exercisable upon the occurrence of certain events, then the
Conversion Price shall not be adjusted unless and until such triggering events
occur), the Conversion Price in effect immediately prior thereto shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction
of which (x) the numerator shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock so offered (or the
aggregate conversion price of the convertible securities so offered, which shall
be determined by multiplying the number of shares of Common Stock issuable upon
conversion of such convertible securities by the conversion price per share of
Common Stock pursuant to the terms of such convertible securities) would
purchase at the Current Market Price Per Share of Common Stock on such record
date, and of which (y) the denominator shall be the number of shares of Common
Stock outstanding on such record date plus the number of additional shares of
Common Stock offered (or into which the convertible securities so offered are
convertible). Such adjustment shall be made successively whenever any such
rights or warrants are issued, and shall become effective immediately after such
record date. If at the end of the period during which such rights or warrants
are exercisable not all rights or warrants shall have been exercised, the
adjusted Conversion Price shall be immediately readjusted to what it would have
been based upon the number of additional shares of Common Stock actually issued
(or the number of shares of Common Stock issuable upon conversion of convertible
securities actually issued).
(c) In case the Company shall distribute to all or substantially all
holders of its Common Stock rights or warrants to subscribe for or purchase any
of its securities (excluding those rights and warrants referred to in subsection
(b) of this Section 4.6), then in each such case, for so long as such rights or
warrants shall not have expired or been redeemed by the Company, the Holder of
any Security surrendered for conversion shall be entitled to receive, in
addition to the shares of Common Stock issuable upon conversion, the following:
(i) If conversion occurs on or prior to the date for
distribution of certificates evidencing such rights or warrants (the
"Distribution Date"), the Holder shall be entitled to the same number
of rights or warrants that a holder of a number of shares of Common
Stock equal to the number of shares of Common Stock issuable upon
conversion is entitled; and
(ii) if conversion occurs after the Distribution Date, the
Holder shall be entitled to the same number of rights or warrants that
a holder of a number of shares of Common Stock equal to the number of
shares of Common Stock which the Holder would have owned had such
Security been converted immediately prior to the Distribution Date, in
accordance with the terms and provisions applicable to such rights or
warrants.
(d) In case the Company shall distribute to all or substantially all
holders of its Common Stock any shares of capital stock of the Company (other
than Common Stock), evidences of indebtedness or other non-cash assets
(including securities of any person other than the Company but excluding (1)
dividends or distributions paid exclusively in cash or (2) dividends or
distributions referred to in subsection (a) of this Section 4.6), or shall
distribute to all or substantially all holders of its Common Stock rights or
warrants to subscribe for or purchase any of its securities which rights or
warrants have expired or have been redeemed prior to conversion of any
Securities (excluding those rights and warrants referred to in subsections (b)
or (c) of this Section 4.6), then in each such case the Conversion Price shall
be adjusted so that the same shall equal the price determined by multiplying the
current Conversion Price by a fraction of which the numerator shall be the
Current Market Price Per Share of the Common Stock on the record date mentioned
below less the fair market value on such record date (as reasonably determined
in good faith by the Board of Directors, whose determination shall be conclusive
evidence of such fair market value and which shall be evidenced by an Officers'
Certificate delivered to the Trustee) of the portion of the capital stock,
evidences of indebtedness or
-33-
other non-cash assets so distributed or of such rights or warrants applicable to
one share of Common Stock (determined on the basis of the number of shares of
Common Stock outstanding on the record date), and of which the denominator shall
be the Current Market Price Per Share of the Common Stock on such record date;
provided, however, that in the case of rights or warrants which have expired or
have been redeemed, such determination shall be made as of the time of
expiration or redemption, rather than the record date, and shall be based upon
the value immediately prior to such expiration or upon the redemption price, as
the case may be. Such adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of shareholders entitled to receive such
distribution.
(e) In case the Company shall, by dividend or otherwise, at any time
distribute (a "Triggering Distribution") to all or substantially all holders of
its Common Stock cash in an aggregate amount that, together with the aggregate
amount of (A) any cash and the fair market value (as reasonably determined in
good faith by the Board of Directors, whose determination shall be conclusive
evidence thereof and which shall be evidenced by an Officers' Certificate
delivered to the Trustee) of any other consideration payable in respect of any
tender offer by the Company or a Subsidiary of the Company for Common Stock
consummated within the 12 months preceding the date of payment of the Triggering
Distribution and in respect of which no Conversion Price adjustment pursuant to
this Section 4.6 has been made and (B) all other all cash distributions to all
or substantially all holders of its Common Stock made within the 12 months
preceding the date of payment of the Triggering Distribution and in respect of
which no Conversion Price adjustment pursuant to this Section 4.6 has been made,
exceeds an amount equal to 12.5% of the product of the Current Market Price Per
Share of Common Stock on the Business Day (the "Determination Date") immediately
preceding the day on which such Triggering Distribution is declared by the
Company multiplied by the number of shares of Common Stock outstanding on the
Determination Date (excluding shares held in the treasury of the Company), the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying such Conversion Price in effect immediately prior to
the Determination Date by a fraction of which the numerator shall be the Current
Market Price Per Share of the Common Stock on the Determination Date less the
sum of the aggregate amount of cash and the aggregate fair market value (as
reasonably determined in good faith by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value and which
shall be evidenced by an Officers' Certificate delivered to the Trustee) of any
such other consideration so distributed, paid or payable within such 12 months
(including, without limitation, the Triggering Distribution) applicable to one
share of Common Stock (determined on the basis of the number of shares of Common
Stock outstanding on the Determination Date) and the denominator shall be such
Current Market Price Per Share of the Common Stock on the Determination Date,
such reduction to become effective immediately prior to the opening of business
on the day following the date on which the Triggering Distribution is paid.
(f) (1) In case any tender offer made by the Company or any of its
Subsidiaries for Common Stock shall expire and such tender offer (as amended
upon the expiration thereof) shall involve the payment of aggregate
consideration in an amount (determined as the sum of the aggregate amount of
cash consideration and the aggregate fair market value (as reasonably determined
in good faith by the Board of Directors, whose determination shall be conclusive
evidence thereof and which shall be evidenced by an Officers' Certificate
delivered to the Trustee thereof) of any other consideration) that, together
with the aggregate amount of (A) any cash and the fair market value (as
reasonably determined in good faith by the Board of Directors, whose
determination shall be conclusive evidence thereof and which shall be evidenced
by an Officers' Certificate delivered to the Trustee) of any other consideration
payable in respect of any other tender offers by the Company or any Subsidiary
of the Company for Common Stock consummated within the 12 months preceding the
date of the Expiration Date (as defined below) and in respect of which no
Conversion Price adjustment pursuant to this Section 4.6 has been made and (B)
all cash distributions to all or substantially all holders of its Common Stock
made within the 12 months preceding the Expiration Date and in respect of which
no Conversion Price adjustment pursuant to this Section 4.6 has been made,
exceeds an amount equal to 12.5% of the product of the Current Market Price Per
Share of Common Stock as of the last date (the "Expiration Date") tenders could
have been made pursuant to such tender offer (as it may be amended) (the last
-34-
time at which such tenders could have been made on the Expiration Date is
hereinafter sometimes called the "Expiration Time") multiplied by the number of
shares of Common Stock outstanding (including tendered shares but excluding any
shares held in the treasury of the Company) at the Expiration Time, then,
immediately prior to the opening of business on the day after the Expiration
Date, the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to close of business on the Expiration Date by a fraction of which the numerator
shall be the product of the number of shares of Common Stock outstanding
(including tendered shares but excluding any shares held in the treasury of the
Company) at the Expiration Time multiplied by the Current Market Price Per Share
of the Common Stock on the Trading Day next succeeding the Expiration Date and
the denominator shall be the sum of (x) the aggregate consideration (determined
as aforesaid) payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of all shares validly tendered and
not withdrawn as of the Expiration Time (the shares deemed so accepted, up to
any such maximum, being referred to as the "Purchased Shares") and (y) the
product of the number of shares of Common Stock outstanding (less any Purchased
Shares and excluding any shares held in the treasury of the Company) at the
Expiration Time and the Current Market Price Per Share of Common Stock on the
Trading Day next succeeding the Expiration Date, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Date. In the event that the Company is obligated to purchase shares
pursuant to any such tender offer, but the Company is permanently prevented by
applicable law from effecting any or all such purchases or any or all such
purchases are rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would have been in effect based upon the number of shares
actually purchased. If the application of this Section 4.6(f) to any tender
offer would result in an increase in the Conversion Price, no adjustment shall
be made for such tender offer under this Section 4.6(f).
(2) For purposes of Section 4.6(e) and 4.6(f), the term "tender
offer" shall mean and include both tender offers and exchange offers
(within the meaning of U.S. Federal securities laws), all references to
"purchases" of shares in tender offers (and all similar references) shall
mean and include both the purchase of shares in tender offers and the
acquisition of shares pursuant to exchange offers, and all references to
"tendered shares" (and all similar references) shall mean and include
shares tendered in both tender offers and exchange offers.
(g) For the purpose of any computation under subsections (b), (d),
(e) and (f) of this Section 4.6, the current market price per share of Common
Stock (the "Current Market Price Per Share") on any date shall be deemed to be
the average of the daily Closing Prices for the 30 consecutive Trading Days
commencing 45 Trading Days before (i) the Determination Date or the Expiration
Date, as the case may be, with respect to distributions or tender offers under
subsection (f) of this Section 4.6 or (ii) the record date with respect to
distributions, issuances or other events requiring such computation under
subsection (b), (d) or (e) of this Section 4.6. The Closing Price for each day
(the "Closing Price") shall be the last reported sales price or, in case no such
reported sale takes place on such date, the average of the reported closing bid
and asked prices in either case on the New York Stock Exchange (the "NYSE") or
the Nasdaq National Market (the "NNM"), as applicable, or, if the Common Stock
is not listed or admitted to trading on the NYSE or the NNM, the principal
national securities exchange or quotation system on which the Common Stock is
quoted or listed or admitted to trading or, if not quoted or listed or admitted
to trading on any national securities exchange or quotation system, the closing
sales price or, in case no reported sale takes place, the average of the closing
bid and asked prices, as furnished by any two members of the National
Association of Securities Dealers, Inc. selected from time to time by the
Company for that purpose. If no such prices are available, the Current Market
Price Per Share shall be the fair value of a share of Common Stock as reasonably
determined in good faith by the Board of Directors (which shall be evidenced by
an Officers' Certificate delivered to the Trustee).
(h) In any case in which this Section 4.6 shall require that an
adjustment be made following a record date or a Determination Date or Expiration
Date, as the case may be, established for purposes
-35-
of this Section 4.6, the Company may elect to defer (but only until five
Business Days following the filing by the Company with the Trustee of the
certificate described in Section 4.9) issuing to the Holder of any Security
converted after such record date or Determination Date or Expiration Date the
shares of Common Stock and other capital stock of the Company issuable upon such
conversion over and above the shares of Common Stock and other capital stock of
the Company issuable upon such conversion only on the basis of the Conversion
Price prior to adjustment; and, in lieu of the shares the issuance of which is
so deferred, the Company shall issue or cause its transfer agent to issue due
bills or other appropriate evidence prepared by the Company of the right to
receive such shares. If any distribution in respect of which an adjustment to
the Conversion Price is required to be made as of the record date or
Determination Date or Expiration Date therefor is not thereafter made or paid by
the Company for any reason, the Conversion Price shall be readjusted to the
Conversion Price which would then be in effect if such record date had not been
fixed or such effective date or Determination Date or Expiration Date had not
occurred.
SECTION 4.7 No Adjustment
-------------
No adjustment in the Conversion Price shall be required unless the
adjustment would require an increase or decrease of at least 1% in the
Conversion Price as last adjusted; provided, however, that any adjustments which
-------- -------
by reason of this Section 4.7 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article 4 shall be made to the nearest cent or to the nearest one-
hundredth of a share, as the case may be.
No adjustment need be made for issuances of Common Stock pursuant to a
Company plan for reinvestment of dividends or interest or for a change in the
par value or a change to no par value of the Common Stock.
To the extent that the Securities become convertible into the right to
receive cash, no adjustment need be made thereafter as to the cash. Interest
will not accrue on the cash.
SECTION 4.8 Adjustment for Tax Purposes
---------------------------
The Company shall be entitled to make such reductions in the
Conversion Price, in addition to those required by Section 4.6, as it in its
discretion shall determine to be advisable in order that any stock dividends,
subdivisions of shares, distributions of rights to purchase stock or securities
or distributions of securities convertible into or exchangeable for stock
hereafter made by the Company to its stockholders shall not be taxable.
SECTION 4.9 Notice of Adjustment
--------------------
Whenever the Conversion Price or conversion privilege is adjusted, the
Company shall promptly mail to Securityholders a notice of the adjustment and
file with the Trustee an Officers' Certificate briefly stating the facts
requiring the adjustment and the manner of computing it. Unless and until the
Trustee shall receive an Officers' Certificate setting forth an adjustment of
the Conversion Price, the Trustee may assume without inquiry that the Conversion
Price has not been adjusted and that the last Conversion Price of which it has
knowledge remains in effect.
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SECTION 4.10 Notice of Certain Transactions
------------------------------
In the event that:
(1) the Company takes any action which would require an adjustment in
the Conversion Price;
(2) the Company consolidates or merges with, or transfers all or
substantially all of its property and assets to, another corporation and
shareholders of the Company must approve the transaction; or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice at least ten days before such date. Failure to mail such notice or
any defect therein shall not affect the validity of any transaction referred to
in clause (1), (2) or (3) of this Section 4.10.
SECTION 4.11 Effect of Reclassification, Consolidation, Merger or Sale
---------------------------------------------------------
on Conversion Privilege
-----------------------
If any of the following shall occur, namely: (a) any reclassification
or change of shares of Common Stock issuable upon conversion of the Securities
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination, or any
other change for which an adjustment is provided in Section 4.6); (b) any
consolidation or merger or combination to which the Company is a party other
than a merger in which the Company is the continuing corporation and which does
not result in any reclassification of, or change (other than in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination) in, outstanding shares of Common Stock;
or (c) any sale or conveyance as an entirety or substantially as an entirety of
the property and assets of the Company, directly or indirectly, to any person,
then the Company, or such successor, purchasing or transferee corporation, as
the case may be, shall, as a condition precedent to such reclassification,
change, combination, consolidation, merger, sale or conveyance, execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Security then outstanding shall have the right to convert such Security
into the kind and amount of shares of stock and other securities and property
(including cash) receivable upon such reclassification, change, combination,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock deliverable upon conversion of such Security immediately prior to
such reclassification, change, combination, consolidation, merger, sale or
conveyance. Such supplemental indenture shall provide for adjustments of the
Conversion Price which shall be as nearly equivalent as may be practicable to
the adjustments of the Conversion Price provided for in this Article 4. If, in
the case of any such consolidation, merger, combination, sale or conveyance, the
stock or other securities and property (including cash) receivable thereupon by
a holder of Common Stock include shares of stock or other securities and
property of a person other than the successor, purchasing or transferee
corporation, as the case may be, in such consolidation, merger, combination,
sale or conveyance, then such supplemental indenture shall also be executed by
such other person and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The provisions of
this Section 4.11 shall similarly apply to successive reclassifications,
changes, combinations, consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 4.11, the Company shall promptly file with the Trustee
(x) an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or other securities or property (including cash)
receivable by Holders of the
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Securities upon the conversion of their Securities after any such
reclassification, change, combination, consolidation, merger, sale or
conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with and (y) an Opinion of Counsel that
all conditions precedent have been complied with, and shall promptly mail notice
thereof to all Holders.
SECTION 4.12 Trustee's Disclaimer
--------------------
The Trustee shall have no duty to determine when an adjustment under
this Article 4 should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of that fact or the correctness
of any such adjustment, and shall be protected in relying upon, an Officers'
Certificate including the Officers' Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 4.9. The
Trustee makes no representation as to the validity or value of any securities or
assets issued upon conversion of Securities, and the Trustee shall not be
responsible for the Company's failure to comply with any provisions of this
Article 4.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 4.11, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 4.11.
SECTION 4.13 Voluntary Reduction
-------------------
The Company from time to time may voluntarily reduce the Conversion
Price by any amount for any period of time if the period is at least 20 days and
if the reduction is irrevocable during the period if the Board of Directors
approves such reduction and the Company provides 15 days prior notice of any
voluntary reduction in the Conversion Price; provided, however, that in no event
-------- -------
may the Company reduce the Conversion Price to be less than the par value of a
share of Common Stock.
ARTICLE 5
SUBORDINATION
SECTION 5.1 Agreement of Subordination
--------------------------
The Company covenants and agrees, and each Holder of Securities issued
hereunder by its acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article 5; and each
Person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and interest
(including Additional Interest, if any) on all Securities (including, but not
limited to, the Redemption Price with respect to the Securities called for
redemption or the Change in Control Purchase Price with respect to the
Securities subject to purchase in accordance with Article 3 as provided in this
Indenture) issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to the prior payment
in full in cash or other payment satisfactory to the holders of Senior
Indebtedness of all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article 5 shall prevent the occurrence of any
Default or Event of Default hereunder.
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SECTION 5.2 Payments to Holders
-------------------
No payment shall be made with respect to the principal of, or premium,
if any, or interest (including Additional Interest, if any) on the Securities
(including, but not limited to, the Redemption Price with respect to the
Securities to be called for redemption or the Change in Control Purchase Price
with respect to the Securities subject to purchase in accordance with Article 3
as provided in this Indenture), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 5.5, if:
(i) a default in the payment of principal, premium, interest, rent or
other obligations due on any Designated Senior Indebtedness occurs and is
continuing (or, in the case of Designated Senior Indebtedness for which there is
a period of grace, in the event of such a default that continues beyond the
period of grace, if any, specified in the instrument or lease evidencing such
Designated Senior Indebtedness), unless and until such default shall have been
cured or waived or shall have ceased to exist; or
(ii) a default, other than a payment default, on a Designated Senior
Indebtedness occurs and is continuing that then permits holders of such
Designated Senior Indebtedness to accelerate its maturity and the Trustee
receives a notice of the default (a "Payment Blockage Notice") from a
Representative or holder of Designated Senior Indebtedness.
Subject to the provisions of Section 5.5, if the Trustee receives any
Payment Blockage Notice pursuant to clause (ii) above, no subsequent Payment
Blockage Notice shall be effective for purposes of this Section unless and until
at least 365 days shall have elapsed since the initial effectiveness of the
immediately prior Payment Blockage Notice. No nonpayment default that existed
or was continuing on the date of delivery of any Payment Blockage Notice to the
Trustee (unless such default was waived, cured or otherwise ceased to exist and
thereafter subsequently reoccurred) shall be, or be made, the basis for a
subsequent Payment Blockage Notice.
The Company may and shall resume payments on and distributions in
respect of the Securities upon the earlier of:
(a) the date upon which the default is cured or waived or ceases to
exist, or
(b) in the case of a default referred to in clause (ii) above, 179
days pass after a Payment Blockage Notice is received, unless this Article 5
otherwise prohibits the payment or distribution at the time of such payment or
distribution.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company (whether voluntary or involuntary) or in bankruptcy, insolvency,
receivership or similar proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full in cash, or other payments
satisfactory to the holders of Senior Indebtedness, before any payment is made
on account of the principal of, premium, if any, or interest (including
Additional Interest, if any) on the Securities (except payments made pursuant to
Article 10 from monies deposited with the Trustee pursuant thereto prior to
commencement of proceedings for such dissolution, winding-up, liquidation or
reorganization); and upon any such dissolution or winding-up or liquidation or
reorganization of the Company or bankruptcy, insolvency, receivership or other
proceeding, any payment by the Company, or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee would be entitled, except for the
provision of this Article 5, shall (except as aforesaid) be paid by the Company
or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Holders of the Securities
or by the Trustee under this Indenture if received by them or it,
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directly to the holders of Senior Indebtedness (pro rata to such holders on the
--- ----
basis of the respective amounts of Senior Indebtedness held by such holders, or
as otherwise required by law or a court order) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay all
Senior Indebtedness in full in cash, or other payment satisfactory to the
holders of Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any payment or
distribution is made to the Holders of the Securities or to the Trustee.
For purposes of this Article 5, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article 5 with respect
to the Securities to the payment of all Senior Indebtedness which may at the
time be outstanding; provided that (i) the Senior Indebtedness is assumed by the
--------
new corporation, if any, resulting from any reorganization or readjustment, and
(ii) the rights of the holders of Senior Indebtedness (other than leases which
are not assumed by the Company or the new corporation, as the case may be) are
not, without the consent of such Holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article 7 shall not be deemed a dissolution, winding-
up, liquidation or reorganization for the purposes of this Section 5.2 if such
other corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article 7.
In the event of the acceleration of the Securities because of an Event
of Default, no payment or distribution shall be made to the Trustee or any
Holder of Securities in respect of the principal of, premium, if any, or
interest (including Additional Interest, if any) on the Securities (including,
but not limited to, the Redemption Price with respect to the Securities called
for redemption or the Change in Control Purchase Price with respect to the
Securities subject to purchase in accordance with Article 3 as provided in this
Indenture), except payments and distributions made by the Trustee as permitted
by the first or second paragraph of Section 5.5, until all Senior Indebtedness
has been paid in full in cash or other payment satisfactory to the holders of
Senior Indebtedness or such acceleration is rescinded in accordance with the
terms of this Indenture.
In the event that, notwithstanding the foregoing provisions, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (including, without limitation, by way
of setoff or otherwise), prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Securities before all Senior Indebtedness is paid
in full, in cash or other payment satisfactory to the holders of Senior
Indebtedness, or provision is made for such payment thereof in accordance with
its terms in cash or other payment satisfactory to the holders of Senior
Indebtedness, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full, in cash or other payment satisfactory to the holders of
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
Nothing in this Section 5.2 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 9.7. This Section 5.2 shall be subject
to the further provisions of Section 5.5.
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SECTION 5.3 Subrogation of Securities
-------------------------
Subject to the payment in full, in cash or other payment satisfactory
to the holders of Senior Indebtedness, of all Senior Indebtedness, the rights of
the Holders of the Securities shall be subrogated to the extent of the payments
or distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article 5 (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to other
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal, premium, if any, and interest (including Additional
Interest, if any) on the Securities shall be paid in full in cash or other
payment satisfactory to the holders of Senior Indebtedness; and, for the
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article 5, and no payment over pursuant to the provisions of this Article
5, to or for the benefit of the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment by the Company to or on account of the Senior
Indebtedness; and no payments or distributions of cash, property or securities
to or for the benefit of the Holders of the Securities pursuant to the
subrogation provisions of this Article 5, which would otherwise have been paid
to the holders of Senior Indebtedness shall be deemed to be a payment by the
Company to or for the account of the Securities. It is understood that the
provisions of this Article 5 are and are intended solely for the purposes of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article 5 or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon Default under this Indenture, subject
to the rights, if any, under this Article 5 of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article 5, the Trustee, subject to the provisions of Section 9.1, and
the Holders of the Securities shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon and all other facts pertinent thereto or to this Article 5.
SECTION 5.4 Authorization to Effect Subordination
-------------------------------------
Each Holder of a Security by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 5 and appoints the Trustee to act as the Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 5.3 hereof at least 30 days before the expiration of the time to file
such
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claim, the holders of any Senior Indebtedness or their representatives are
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Securities.
SECTION 5.5 Notice to Trustee
-----------------
The Company shall give prompt written notice in the form of an
Officers' Certificate to a Trust Officer of the Trustee and to any Paying Agent
of any fact known to the Company which would prohibit the making of any payment
of monies to or by the Trustee or any Paying Agent in respect of the Securities
pursuant to the provisions of this Article 5. Notwithstanding the provisions of
this Article 5 or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article 5, unless and until a
Trust Officer of the Trustee shall have received written notice thereof at the
Corporate Trust Office from the Company (in the form of an Officers'
Certificate) or a Representative or a holder or holders of Senior Indebtedness;
and before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 9.1, shall be entitled in all respects to assume that no
such facts exist; provided that if on a date not fewer than one Business Day
--------
prior to the date upon which by the terms hereof any such monies may become
payable for any purpose (including, without limitation, the payment of the
principal of, or premium, if any, or interest on any Security) the Trustee shall
not have received, with respect to such monies, the notice provided for in this
Section 5.5, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such monies and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such prior date. Notwithstanding anything in this Article 5 to the contrary,
nothing shall prevent any payment by the Trustee to the Holders of monies
deposited with it pursuant to Article 10, and any such payment shall not be
subject to the provisions of Article 5.
The Trustee, subject to the provisions of Section 9.1, shall be
entitled to rely on the delivery to it of a written notice by a Representative
or a person representing himself to be a holder of Senior Indebtedness to
establish that such notice has been given by a Representative or a holder of
Senior Indebtedness. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article 5, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 5, 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.
SECTION 5.6 Trustee's Relation to Senior Indebtedness
-----------------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 5 in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in Section 9.11 or elsewhere in this Indenture shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 5, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Section 9.1, the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall pay over or deliver to Holders of Securities,
the Company or any other person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article 5 or otherwise.
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SECTION 5.7 No Impairment of Subordination
------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
SECTION 5.8 Certain Conversions Deemed Payment
----------------------------------
For the purposes of this Article 5 only, (1) the issuance and delivery
of junior securities upon conversion of Securities in accordance with Article 4
shall not be deemed to constitute a payment or distribution on account of the
principal of (or premium, if any) or interest on Securities or on account of the
purchase or other acquisition of Securities, and (2) the payment, issuance or
delivery of cash (except in satisfaction of fractional shares pursuant to
Section 4.3), property or securities (other than junior securities) upon
conversion of a Security shall be deemed to constitute payment on account of the
principal of such Security. For the purposes of this Section 5.8, the term
"junior securities" means (a) shares of any stock of any class of the Company,
or (b) securities of the Company which are subordinated in right of payment to
all Senior Indebtedness which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a greater
extent than, the Securities are so subordinated as provided in this Article.
Nothing contained in this Article 5 or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its creditors
other than holders of Senior Indebtedness and the Holders, the right, which is
absolute and unconditional, of the Holder of any Security to convert such
Security in accordance with Article 4.
SECTION 5.9 Article Applicable to Paying Agents
-----------------------------------
If at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that the first
-------- -------
paragraph of Section 5.5 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
SECTION 5.10 Senior Indebtedness Entitled to Rely
------------------------------------
The holders of Senior Indebtedness (including, without limitation,
Designated Senior Indebtedness) shall have the right to rely upon this Article
5, and no amendment or modification of the provisions contained herein shall
diminish the rights of any such holder except in accordance with the last
paragraph of Section 11.2.
ARTICLE 6
COVENANTS
SECTION 6.1 Payment of Securities
---------------------
The Company shall promptly make all payments in respect of the
Securities on the dates and in the manner provided in the Securities and this
Indenture. An installment of principal or interest or Additional Interest, if
any, shall be considered paid on the date it is due if the Paying Agent (other
than the Company) holds by 11:00 a.m., New York City time, on that date money,
deposited by the Company or an Affiliate thereof,
-43-
sufficient to pay the installment. The Company shall, to the fullest extent
permitted by law, pay interest on overdue principal (including premium, if any)
and overdue installments of interest at the rate borne by the Securities per
annum. The conversion of any Securities pursuant to Article 4 hereof, together
with the making of any cash payments required to be made in accordance with the
terms of the Securities and this Indenture, shall satisfy the Company's
obligations under this Section 6.1 with respect to such Securities.
Payment of the principal of (and premium, if any) and any interest on
the Securities shall be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York or at the
Corporate Trust Office of the Trustee in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
-------- -------
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address appears in the Register; provided further that
-------- -------
a Holder with an aggregate principal amount in excess of $2,000,000 will be paid
by wire transfer in immediately available funds at the election of such Holder.
SECTION 6.2 SEC Reports
-----------
The Company shall file all reports and other information and documents
which it is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, and within 15 days after it files them with the SEC, the Company
shall file copies of all such reports, information and other documents with the
Trustee.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 6.3 Compliance Certificates
-----------------------
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company (beginning with the fiscal year ending
December 31, 2001), an Officers' Certificate as to the signers' knowledge of the
Company's compliance with all conditions and covenants on its part contained in
this Indenture and stating whether or not the signers know of any Default or
Event of Default. If such signers know of such a Default or Event of Default,
the Officers' Certificate shall describe the Default or Event of Default and the
efforts to remedy the same. For the purposes of this Section 6.3, compliance
shall be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 6.4 Further Instruments and Acts
----------------------------
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
SECTION 6.5 Maintenance of Corporate Existence
----------------------------------
Subject to Article 7, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
-44-
SECTION 6.6 Rule 144A Information Requirements
----------------------------------
Within the period prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), the Company covenants and agrees that it shall, during any
period in which it is not subject to Section 13 or 15(d) under the Exchange Act,
make available to any Holder or beneficial holder of Securities or any Common
Stock issued upon conversion thereof which continue to be Restricted Securities
in connection with any sale thereof and any prospective purchaser of Securities
or such Common Stock designated by such Holder or beneficial holder, the
information required pursuant to Rule 144A(d)(4) under the Securities Act upon
the request of any Holder or beneficial holder of the Securities or such Common
Stock and it will take such further action as any Holder or beneficial holder of
such Securities or such Common Stock may reasonably request, all to the extent
required from time to time to enable such Holder or beneficial holder to sell
its Securities or Common Stock without registration under the Securities Act
within the limitation of the exemption provided by Rule 144A, as such Rule may
be amended from time to time. Upon the written request of any Holder or any
beneficial holder of the Securities or such Common Stock, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
SECTION 6.7 Stay, Extension and Usury Laws
------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law or other
law which would prohibit or forgive the Company from paying all or any portion
of the principal of, premium, if any, or interest (including Additional
Interest, if any) on the Securities as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and the Company (to the extent it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 6.8 Payment of Additional Interest
------------------------------
If Additional Interest is payable by the Company pursuant to the
Registration Rights Agreement, the Company shall deliver to the Trustee a
certificate to that effect stating (i) the amount of such Additional Interest
that is payable and (ii) the date on which such Additional Interest is payable.
Unless and until a Trust Officer of the Trustee receives such a certificate, the
Trustee may assume without inquiry that no such Additional Interest is payable.
If the Company has paid Additional Interest directly to the Persons entitled to
it, the Company shall deliver to the Trustee a certificate setting forth the
particulars of such payment.
ARTICLE 7
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1 Company May Consolidate, Etc., Only on Certain Terms
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person
(in a transaction in which the Company is not the surviving corporation) or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
(1) in case the Company shall consolidate with or merge into
another Person (in a transaction in which the Company is not the surviving
corporation) or convey, transfer or lease its
-45-
properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall be
a corporation or limited liability company organized and validly existing
under (i) the laws of the United States of America, any State thereof or
the District of Columbia or (ii) under the laws of a jurisdiction outside
the United States and has common stock or American Depository Shares
representing the common stock traded on a national securities exchange in
the United States or through Nasdaq National Market (provided, however,
that the Company shall deliver to the Trustee an Opinion of Counsel to the
effect that the Holders will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such transaction and will be
subject to U.S. federal income tax on the same amounts and at the same
times as would have been the case if such transaction had not occurred) and
(iii) shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and any premium and interest on
all the Securities and the performance or observance of every covenant of
this Indenture on the part of the Company to be performed or observed and
the conversion rights shall be provided for in accordance with Article 4,
by supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the Person (if other than the Company) formed
by such consolidation or into which the Company shall have been merged or
by the Person which shall have acquired the Company's assets;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 7.2 Successor Substituted
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 7.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
SECTION 7.3 Withholding Taxes
------------------
All payments made under or with respect to the Securities must be made
free and clear of and without withholding or deduction for or on account of any
present or future tax, duty, levy, impost, assessment or other governmental
charge of whatever nature (including penalties, interest and other liabilities
related thereto) imposed or levied by or on behalf of any jurisdiction from or
through which payment is made or in which the payor is organized, resident or
engaged in business for tax purposes or any province or territory thereof or by
any taxing authority therein (hereinafter "Taxes"), unless the Company is
required to withhold or deduct such Taxes by law or by the interpretation or
administration thereof. If the Company is so required to withhold or deduct any
amount for or on account of Taxes from any payment made under or with respect to
the Securities, the Company will pay such additional amounts ("Additional
Amounts") as may be necessary so that the net amount received by each Holder
after such withholding or deduction (including any withholding or
-46-
deduction with respect to Additional Amounts) will not be less than the amount
the Holder would have received if such Taxes had not been withheld or deducted;
provided, however, that no Additional Amounts will be payable with respect to
payments made to a Holder (an "Excluded Holder") to the extent such Holder is
subject to such Taxes by reason of its being connected with a foreign
jurisdiction thereof otherwise than by the mere holding of the Securities or the
receipt of payments thereunder or the enforcement of its rights and obligations
under the Securities. The Company will make such withholding or deduction and
remit the full amount deducted or withheld to the relevant authority as and when
required in accordance with applicable law. The Company will furnish to the
Holder, within 30 days after the payment of any Taxes, certified copies of tax
receipts evidencing such payment by the Company. The Company will upon written
request of each Holder (other than an Excluded Holder), reimburse each such
Holder for the amount of (i) any Taxes (including penalties, interest and
expenses arising therefrom or with respect thereto) imposed or levied and paid
by such Holder as a result of payments made under or with respect to the
Securities and (ii) any Taxes so levied or imposed and paid by such Holder with
respect to any reimbursement under the foregoing clause (i), but excluding any
such Taxes on such Holder's net income, so that the net amount received by such
Holder after such reimbursement will not be less than the net amount the Holder
would have received if Taxes (other than such Taxes on such Holder's net income)
on such reimbursement had not been imposed.
At least 30 days prior to each date on which payment under or with
respect to the Securities is due and payable (unless such obligation to pay
Additional Amounts arises shortly before or after the 30/th/ day prior to such
date, in which case promptly thereafter), if the Company is obligated to pay
Additional Amounts with respect to such payment, the Company will deliver to the
Trustee an Officers' Certificate stating the fact that such Additional Amounts
will be payable and the amounts so payable and setting forth such other
information as necessary to enable the Trustee to pay such Additional Amounts to
Holders of the Securities on the payment date.
The Company will pay any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies that
arise in any jurisdiction from the execution, delivery, enforcement or
registration of the Securities, the Indenture or any other document or
instrument in relation thereof, or the receipt of any payments with respect to
the Securities, excluding such taxes, charges or similar levies imposed by any
jurisdiction other than (i) any jurisdiction in which the Company is organized,
resident or engaged in business for tax purposes, (ii) any jurisdiction in which
any successor to the Company is organized, resident or engaged in business for
tax purposes or (iii) any jurisdiction in which a Paying Agent is located. In
addition, the Company will agree to indemnify the Holders (on an after-tax
basis) for any such Taxes paid by such Holders.
The obligations described under this heading shall survive any
termination, defeasance or discharge of the Indenture.
ARTICLE 8
DEFAULT AND REMEDIES
SECTION 8.1 Events of Default
-----------------
An "Event of Default" shall occur if:
(1) the Company defaults in the payment of any interest or Additional
Interest, if any, payable to all holders of Securities (as defined in the
Registration Rights Agreement) on any Security when the same becomes due
and payable and the default continues for a period of 30 days, whether or
not such payment shall be prohibited by the provisions of Article 5 hereof;
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(2) the Company defaults in the payment of any principal of
(including, without limitation, any premium, if any, on) any Security when
the same becomes due and payable (whether at maturity, upon redemption, on
a Change in Control Purchase Date or otherwise), whether or not such
payment shall be prohibited by the provisions of Article 5 hereof;
(3) the Company fails to comply with any of its other agreements
contained in the Securities or this Indenture and the default continues for
the period and after the notice specified below;
(4) the Company fails to give notice to the Trustee and each Holder of
a Change in Control in accordance with Section 3.8(b);
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in
an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property; or
(iv) makes a general assignment for the benefit of its creditors;
or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case or
proceeding;
(ii) appoints a Custodian of the Company or for all or
substantially all of the property of the Company; or
(iii) orders the liquidation of the Company;
and in each case the order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means Title 11 of the United States Code (or
any successor thereto) or any similar federal or state law for the relief of
debtors. The term "Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
A Default under clause (3) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding notify the Company and the
Trustee, of the Default, and the Company does not cure the Default within 60
days after receipt of such notice. The notice given pursuant to this Section
8.1 must specify the Default, demand that it be remedied and state that the
notice is a "Notice of Default." When any Default under this Section 8.1 is
cured, it ceases.
The Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a Trust Officer
at the Corporate Trust Office of the Trustee by the Company, a Paying Agent, any
Holder or any agent of any Holder.
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SECTION 8.2 Acceleration
------------
If an Event of Default (other than an Event of Default specified in
clause (5) or (6) of Section 8.1) occurs and is continuing, the Trustee may, by
notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding may, by notice to the Company and the
Trustee, declare all unpaid principal on the Securities then outstanding (if not
then due and payable) to be due and payable upon any such declaration, and the
same shall become and be immediately due and payable. If an Event of Default
specified in clause (5) or (6) of Section 8.1 occurs, all unpaid principal of
the Securities then outstanding shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder. The Holders of a majority in aggregate principal amount of the
Securities then outstanding by notice to the Trustee may rescind an acceleration
and its consequences if (a) all existing Events of Default, other than the
nonpayment of the principal of the Securities which has become due solely by
such declaration of acceleration, have been cured or waived; (b) to the extent
the payment of such interest is lawful, interest (calculated at the rate per
annum borne by the Securities) on overdue installments of interest and overdue
principal, which has become due otherwise than by such declaration of
acceleration, has been paid; and (c) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
SECTION 8.3 Other Remedies
--------------
If an Event of Default occurs and is continuing, the Trustee may, but
shall not be obligated to, pursue any available remedy by proceeding at law or
in equity to collect the payment of the principal of or interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 8.4 Waiver of Defaults and Events of Default
----------------------------------------
Subject to Sections 8.7 and 11.2, the Holders of a majority in
principal amount of the Securities then outstanding by notice to the Trustee may
waive an existing Default or Event of Default and its consequence, except a
Default or Event of Default (i) in the payment of the principal of or interest,
if any, including the Redemption Price upon redemption pursuant to Section 3.1,
on any Security, (ii) in respect of a failure by the Company to convert any
Securities into Common Stock, or (iii) any Default or Event of Default in
respect of any provision of this Indenture or the Securities which, under
Section 11.2, cannot be modified or amended without the consent of the Holder of
each Security affected. When a Default or Event of Default is waived, it is
cured and ceases.
SECTION 8.5 Control by Majority
-------------------
The Holders of a majority in principal amount of the Securities then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of another Holder or the Trustee, or that may involve
the Trustee in personal liability unless the Trustee is offered indemnity
satisfactory to it; provided, however, that the Trustee may take any other
-------- -------
action deemed proper by the Trustee which is not inconsistent with such
direction.
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SECTION 8.6 Limitations on Suits
--------------------
No Holder has any right to institute any proceeding under this
Indenture, or for the appointment of a receiver or a trustee, or for any other
remedy with respect to this Indenture or the Securities (except actions for
payment of overdue principal or interest or for the conversion of the Securities
pursuant to Article 4) unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities make a written request to the Trustee to institute
such proceeding as trustee;
(3) such Holder or Holders offer reasonable indemnity to the
Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Securities then outstanding.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 8.7 Rights of Holders to Receive Payment and to Convert
---------------------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of the principal of and interest, if
any, including the Redemption Price upon redemption pursuant to Section 3.1, on
the Security, on or after the respective due dates therefor, to convert such
Security in accordance with Article 4 and to bring suit for the enforcement of
any such payment on or after such respective dates or the right to convert, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
SECTION 8.8 Collection Suit by Trustee
--------------------------
If an Event of Default in the payment of principal or interest
specified in clause (1) or (2) of Section 8.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or another obligor on the Securities for the whole amount of
principal and accrued interest remaining unpaid, together with, to the extent
that payment of such interest is lawful, interest on overdue principal and on
overdue installments of interest, in each case at the rate per annum borne by
the Securities and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 8.9 Trustee May File Proofs of Claim
--------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor on the Securities), its creditors or its property
-50-
and shall be entitled and empowered to collect and receive any money or other
property payable or deliverable on any such claims and to distribute the same
and to take any other action with respect to such claims, including
participation as a member of any official committee of creditors appointed in
the matters as it deems necessary or advisable, and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 9.7, and to the extent that such payment of the reasonable compensation,
expenses, disbursements and advances in any such proceedings shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
property which the Holders may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or, on behalf of any Holder, to authorize, accept or
adopt any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 8.10 Priorities
----------
If the Trustee collects any money pursuant to this Article 8, it shall
pay out the money in the following order:
First, to the Trustee for amounts due under Section 9.7;
Second, to the holders of Senior Indebtedness to the extent required
by Article 5;
Third, to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Fourth, to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 8.10.
SECTION 8.11 Undertaking for Costs
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 8.11 does not apply to a suit made by the Trustee, a
suit by a Holder pursuant to Section 8.7, or a suit by Holders of more than 10%
in principal amount of the Securities then outstanding.
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ARTICLE 9
TRUSTEE
SECTION 9.1 Duties of Trustee
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. The Trustee, however, shall examine any certificates and
opinions which by any provision hereof are specifically required to be
delivered to the Trustee to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of subsection
(b) of this Section 9.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 8.5.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers unless the Trustee shall have received adequate indemnity in
its opinion against potential costs and liabilities incurred by it relating
thereto.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to subsections (a), (b), (c) and (d) of this Section 9.1.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
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SECTION 9.2 Rights of Trustee
-----------------
Subject to Section 9.1:
(a) The Trustee may rely conclusively on any document believed
by it to be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall conform
to Section 12.4(b). The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Certificate or Opinion.
(c) The Trustee may act through its agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any such action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(h) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
Default is received by the Trustee at the Corporate Trust Office, and such
notice references the Securities and this Indenture.
(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
-53-
SECTION 9.3 Individual Rights of Trustee
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 9.10 and 9.11.
SECTION 9.4 Trustee's Disclaimer
--------------------
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 9.5 Notice of Default or Events of Default
--------------------------------------
If a Default or an Event of Default occurs and is continuing and if it
is known to a Trust Officer of the Trustee, the Trustee shall mail to each
Securityholder notice of the Default or Event of Default within 90 days after it
occurs. However, the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding notice
is in the interests of Securityholders, except in the case of a Default or an
Event of Default in payment of the principal of or interest on any Security.
SECTION 9.6 Reports by Trustee to Holders
-----------------------------
If such report is required by TIA Section 313, within 60 days after
each May 15, beginning with May 15, 2002, the Trustee shall mail to each
Securityholder a brief report dated as of such May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Section 313(b)(2) and
(c).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Securities are listed or quoted. The Company shall notify
the Trustee whenever the Securities become listed on any stock exchange or
listed or admitted to trading on any quotation system and any changes in the
stock exchanges or quotation systems on which the Securities are listed or
admitted to trading and of any delisting thereof.
SECTION 9.7 Compensation and Indemnity
--------------------------
The Company shall pay to the Trustee from time to time such
compensation (as agreed to from time to time by the Company and the Trustee in
writing) for its services. The Company shall reimburse the Trustee upon request
for all reasonable, actual disbursements, expenses and advances incurred or made
by it. Such expenses may include the reasonable, actual compensation,
disbursements and expenses of the Trustee's agents and counsel. All rights,
protections and benefits of the Trustee shall extend to the Trustee acting as
Conversion Agent, Paying Agent, Registrar, Primary Registrar or other Agent with
respect hereto.
The Company shall indemnify the Trustee or any predecessor Trustee
(which for purposes of this Section 9.7 shall include its officers, directors,
employees and agents) for, and hold it harmless against, any and all loss,
liability or expense (including reasonable legal fees and expenses) incurred by
it in connection with the acceptance or administration of its duties under this
Indenture or any action or failure to act as authorized or within the discretion
or rights or powers conferred upon the Trustee hereunder including the
reasonable costs and expenses of the Trustee and its counsel in defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The Trustee shall notify the Company
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promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company need not pay for any settlement without its written
consent, which shall not be unreasonably withheld.
The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it resulting from its own
willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section 9.7, the
Trustee shall have a senior claim to which the Securities are hereby made
subordinate on all money or property held or collected by the Trustee, except
such money or property held in trust to pay the principal of and interest on the
Securities. The obligations of the Company under this Section 9.7 shall survive
the satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (5) or (6) of Section 8.1 occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law. The provisions of this Section shall
survive the termination of this Indenture.
SECTION 9.8 Replacement of Trustee
----------------------
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities then outstanding may remove the
Trustee by so notifying the Trustee and may, with the Company's written consent,
appoint a successor Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 9.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. The resignation or removal of a Trustee shall not be effective until a
successor Trustee shall have delivered the written acceptance of its appointment
as described below.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of 10% in principal amount of the Securities then outstanding may
petition any court of competent jurisdiction for the appointment of a successor
Trustee at the expense of the Company.
If the Trustee fails to comply with Section 9.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee and be released from its obligations (exclusive of any
liabilities that the retiring Trustee may have incurred while acting as Trustee)
hereunder, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.
-55-
A retiring Trustee shall not be liable for the acts or omissions of
any successor Trustee after its succession.
Notwithstanding replacement of the Trustee pursuant to this Section
9.8, the Company's obligations under Section 9.7 shall continue for the benefit
of the retiring Trustee.
SECTION 9.9 Successor Trustee by Merger, Etc.
---------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets (including the
administration of this Indenture) to, another corporation, the resulting,
surviving or transferee corporation, without any further act, shall be the
successor Trustee, provided such transferee corporation shall qualify and be
eligible under Section 9.10. Such successor Trustee shall promptly mail notice
of its succession to the Company and each Holder.
SECTION 9.10 Eligibility; Disqualification
-----------------------------
The Trustee shall always satisfy the requirements of paragraphs (1),
(2) and (5) of TIA Section 310(a). The Trustee (or its parent holding company)
shall have a combined capital and surplus of at least $50,000,000. If at any
time the Trustee shall cease to satisfy any such requirements, it shall resign
immediately in the manner and with the effect specified in this Article 9. The
Trustee shall be subject to the provisions of TIA Section 310(b). Nothing
herein shall prevent the Trustee from filing with the SEC the application
referred to in the penultimate paragraph of TIA Section 310(b).
SECTION 9.11 Preferential Collection of Claims Against Company
-------------------------------------------------
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 10.1 Satisfaction and Discharge of Indenture
---------------------------------------
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for and except as further provided below),
and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(i) all Securities theretofore authenticated and delivered
(other than (x) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.7 and
(y) Securities for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Company as provided in Section
10.3) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation (x) have become due and payable, (y) will
become due and payable at the Final Maturity Date
-56-
within ninety days, or (z) have been called for redemption within
ninety days under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of clause (i) or (ii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Trustee or a Paying
Agent (other than the Company or any of its Affiliates) as trust funds in trust
for the purpose cash in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest or Redemption Price, as the case may
be, to the date of such deposit (in the case of Securities which have become due
and payable) or to the Final Maturity Date or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.7 shall survive and,
if money shall have been deposited with the Trustee pursuant to subclause (y) or
(z) of clause (1)(ii) of this Section, the provisions of Sections 2.3, 2.4, 2.5,
2.6, 2.7, 2.12, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13 and 12.5, Article 4, the last
paragraph of Section 6.2 and this Article 10, shall survive until the Securities
have been paid in full.
SECTION 10.2 Application of Trust Money
--------------------------
Subject to the provisions of Section 10.3, the Trustee or a Paying
Agent shall hold in trust, for the benefit of the Holders, all money deposited
with it pursuant to Section 10.1 and shall apply the deposited money in
accordance with this Indenture and the Securities to the payment of the
principal of and interest on the Securities. Money so held in trust shall not
be subject to the subordination provisions of Article 5.
SECTION 10.3 Repayment to Company
--------------------
The Trustee and each Paying Agent shall promptly pay to the Company
upon request any excess money (i) deposited with them pursuant to Section 10.1
and (ii) held by them at any time.
The Trustee and each Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest that
remains unclaimed for two years after a right to such money has matured;
provided, however, that the Trustee or such Paying Agent, before being required
-------- -------
to make any such payment, may at the expense of the Company cause to be mailed
to each Holder entitled to such money notice that (x) such money remains
unclaimed and (y) after a date specified therein, which shall be at least 30
days from the date of such mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company, Holders
entitled to money must look to the Company for payment as general creditors.
SECTION 10.4 Reinstatement
-------------
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 10.2 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under
-57-
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 10.1 until such time as the Trustee or
such Paying Agent is permitted to apply all such money in accordance with
Section 10.2; provided, however, that if the Company has made any payment of the
-------- -------
principal of or interest on any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive any such payment from the money held by the Trustee
or such Paying Agent.
ARTICLE 11
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 11.1 Without Consent of Holders
--------------------------
The Company and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Securityholder:
(a) to comply with Sections 4.11 and 7.1;
(b) to provide for uncertificated Securities in addition to or
in place of certificated Securities (provided that the uncertificated Securities
are issued in registered form for purposes of Section 163(f) of the Code, or in
a manner such that the uncertificated Securities are described in Section
163(f)(2)(B) of the Code);
(c) to comply with the provisions of the TIA;
(d) to comply with any requirements of the SEC in connection
with qualifying, or maintaining qualification of this Indenture under the TIA;
(e) to appoint a successor Trustee;
(f) to cure any ambiguity, defect or inconsistency;
(g) to make any other change that does not adversely affect the
rights of any Securityholder; or
(h) to provide for the issuance of Add On Securities under the
conditions specified in Section 2.15.
SECTION 11.2 With Consent of Holders
-----------------------
The Company and the Trustee may amend or supplement this Indenture or
the Securities with the written consent of the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding. The Holders of
at least a majority in aggregate principal amount of the Securities then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Securities without notice to any
Securityholder. However, notwithstanding the foregoing but subject to Section
11.4, without the written consent of each Securityholder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section 8.4, may not:
(a) change the stated maturity of the principal of, or interest
on, any Security;
-58-
(b) reduce the principal amount of, or any premium or interest
on, any Security;
(c) reduce the amount of principal payable upon acceleration of
the maturity of any Security;
(d) change the place or currency of payment of principal of, or
any premium or interest on, any Security;
(e) impair the right to institute suit for the enforcement of
any payment on, or with respect to, any Security;
(f) modify the subordination provisions of Article 5 in a manner
materially adverse to the Holders of Securities;
(g) adversely affect the right of Holders to convert Securities
other than as provided in or under Article 4 of this Indenture;
(h) reduce the percentage of the aggregate principal amount of
the outstanding Securities whose Holders must consent to a modification or
amendment of this Indenture; and
(i) modify any of the provisions of this Section or Section 8.4,
except to increase any such percentage or to provide that specified additional
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each outstanding Security affected thereby.
It shall not be necessary for the consent of the Holders under this
Section 11.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 11.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver. An amendment or supplement under this Section 11.2 or under Section
11.1 may not make any change that adversely affects the rights under Article 5
of any holder of an issue of Senior Indebtedness unless the holders of that
issue, pursuant to its terms, consent to the change.
SECTION 11.3 Compliance with Trust Indenture Act
-----------------------------------
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as in effect at the date of such amendment or
supplement.
SECTION 11.4 Revocation and Effect of Consents
---------------------------------
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective.
-59-
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(a) through (i) of Section 11.2. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
SECTION 11.5 Notation on or Exchange of Securities
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
SECTION 11.6 Trustee to Sign Amendments, Etc.
--------------------------------
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 11 if the amendment or supplemental
indenture does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, in its sole discretion,
but need not sign it. In signing or refusing to sign such amendment or
supplemental indenture, the Trustee shall be entitled to receive and, subject to
Section 9.1, shall be fully protected in relying upon, an Opinion of Counsel
stating that such amendment or supplemental indenture is authorized or permitted
by this Indenture. The Company may not sign an amendment or supplemental
indenture until the Board of Directors approves it, which approval shall be
confirmed by an Officers' Certificate of the Company to such effect.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1 Trust Indenture Act Controls
----------------------------
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the TIA through
operation of Section 318(c) thereof, such imposed duties shall control.
SECTION 12.2 Notices
-------
Any notice, request or communication shall be given in writing and
delivered in person, by telecopier, overnight courier guaranteed next day
delivery, or mailed by first-class mail, postage prepaid, addressed as follows:
If to the Company:
ChipPAC, Inc.
00000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
-60-
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to the Trustee:
Firstar Bank, N.A.
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Such notices or communications shall be effective when received.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
by first-class mail to it at its address shown on the register kept by the
Primary Registrar.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication to a Securityholder is mailed in
the manner provided above, it is duly given, whether or not the addressee
receives it.
SECTION 12.3 Communications by Holders with Other Holders
--------------------------------------------
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Primary Registrar and
any other person shall have the protection of TIA Section 312(c).
SECTION 12.4 Certificate and Opinion as to Conditions Precedent
--------------------------------------------------
(a) Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall furnish to
the Trustee at the request of the Trustee:
(1) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent (including any covenants,
compliance with which constitutes a condition precedent), if any, provided
for in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent (including any covenants,
compliance with which constitutes a condition precedent) have been complied
with.
-61-
(b) Each Officers' Certificate and Opinion of Counsel with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with; provided,
--------
however, that with respect to matters of fact an Opinion of Counsel may
-------
rely on an Officers' Certificate or certificates of public officials.
SECTION 12.5 Record Date for Vote or Consent of Securityholders
--------------------------------------------------
The Company (or, in the event deposits have been made pursuant to
Section 10.1, the Trustee) may set a record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date shall not be
more than thirty (30) days prior to the date of the commencement of solicitation
of such action. Notwithstanding the provisions of Section 11.4, if a record
date is fixed, those persons who were Holders of Securities at the close of
business on such record date (or their duly designated proxies), and only those
persons, shall be entitled to take such action by vote or consent or to revoke
any vote or consent previously given, whether or not such persons continue to be
Holders after such record date.
SECTION 12.6 Rules by Trustee, Paying Agent, Registrar and Conversion
--------------------------------------------------------
Agent
-----
The Trustee may make reasonable rules (not inconsistent with the terms
of this Indenture) for action by or at a meeting of Holders. Any Registrar,
Paying Agent or Conversion Agent may make reasonable rules for its functions.
SECTION 12.7 Legal Holidays
--------------
A "Legal Holiday" is a Saturday, Sunday or a day on which state or
federally chartered banking institutions in New York, New York and the state in
which the Corporate Trust Office is located are not required to be open. If a
payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a regular record date is a Legal Holiday, the record
shall not be affected.
SECTION 12.8 Governing Law
-------------
This Indenture and the Securities shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
-62-
SECTION 12.9 No Adverse Interpretation of Other Agreements
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10 No Recourse Against Others
--------------------------
All liability described in paragraph 18 of the Securities of any
director, officer, employee or shareholder, as such, of the Company is waived
and released.
SECTION 12.11 Successors
----------
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 12.12 Multiple Counterparts.
----------------------
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent the same agreement.
SECTION 12.13 Separability
------------
In case any provisions in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.14 Table of Contents, Headings, Etc.
---------------------------------
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 12.15 Improper Payments
-----------------
Each Holder, by acceptance of its Security, agrees with the Company
and with each other Holder that in the event that notwithstanding the provisions
of this Indenture, it receives any payment or distribution in respect of its
Security contrary to the provisions of this Indenture, such payment or
distribution shall be received and held in trust for the benefit of, and shall
upon demand of the Company or the Trustee be forthwith paid over and delivered
to, the Trustee, which shall pay and deliver such amount to the Persons then
entitled thereto in accordance with this Indenture.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
as of the date and year first above written.
CHIPPAC, INC.
By:________________________________
Name:
Title:
FIRSTAR BANK, N.A.,
as Trustee
By:________________________________
Name:
Title:
S-1
EXHIBIT A
---------
[FORM OF FACE OF SECURITY]
[Unless this certificate is presented by an authorized representative
of the Depository Trust Company to the Company or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by an authorized
representative of the Depository Trust Company (and any payment hereon is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of the depository trust company), any transfer, pledge or other
use hereof for value or otherwise by or to any person is wrongful since the
registered owner hereof, Cede & Co., has an interest herein. This security is a
Global Security within the meaning of the Indenture hereinafter referred to and
is registered in the name of a depositary or a nominee thereof. This security is
exchangeable for securities registered in the name of a person other than the
depositary or its nominee only in the limited circumstances described in the
Indenture and, unless and until it is exchanged in whole or in part for
securities in definitive form, this security may not be transferred except as a
whole by the depositary to a nominee of the depositary or by a nominee of the
depositary to the depositary or another nominee of the depositary or by the
depositary or any such nominee to a successor depositary or a nominee of such
successor depositary.]/1/
[This security (or its predecessor) was originally issued in a
transaction exempt from registration under the United States Securities Act of
1933, as amended (the "Securities Act"), and this security and the shares of
common stock issuable upon conversion thereof may not be offered, sold or
otherwise transferred in the absence of such registration or an applicable
exemption therefrom. Each purchaser of this security is hereby notified that
the seller of this security may be relying on the exemption from the provisions
of Section 5 of the Securities Act provided by Rule 144A thereunder.]/2/
[The holder of this security agrees for the benefit of the company
that (a) this security and the shares of common stock issuable upon conversion
thereof may be offered, resold, pledged or otherwise transferred, only [(i) in
the United States to a person whom the seller reasonably believes is a qualified
institutional buyer (as defined in Rule 144A under the Securities Act) in a
transaction meeting the requirements of Rule 144A,] (ii) outside the United
States in an offshore transaction in accordance with Rule 904 under the
Securities Act, (iii) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available) or (iv) pursuant
to an effective registration statement under the Securities Act, in each of
cases (i) through (iv) in accordance with any applicable securities laws of any
state of the United States, and (b) the holder will, and each subsequent holder
is required to, notify any purchaser of this security from it of the resale
restrictions referred to in (a) above. In any case, the holder hereof will not,
directly or indirectly, engage in any hedging transactions with regard to this
security except as permitted under the Securities Act.]/2/
[The holder of this security is entitled to the benefits of a
Registration Rights Agreement (as such term is defined in the Indenture referred
to on the reverse hereof) and, by its acceptance hereof, agrees to be bound by
and to comply with the provisions of such Registration Rights Agreement.]/2/
_______________________
/1/ These paragraphs to be included only if the Security is a Transfer
Restricted Security.
/2/ [These paragraphs should be included only if the Security is a Global
-
Security.
A-1
This security may not be sold or transferred to, and each purchaser by
its purchase of this security shall be deemed to have represented and covenanted
that it is not acquiring this security for or on behalf of, and will not
transfer this security to, any pension or welfare plan as defined in Section
3(1) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") except that such purchase for or on behalf of a pension or welfare
plan shall be permitted:
(i) to the extent such purchase is made by or on behalf of a bank
collective investment fund maintained by the purchaser in which no plan
(together with any other plans maintained by the same employer or employee
organization) has an interest in excess of 10% of the total assets in such
collective investment fund, and the other applicable conditions of
Prohibited Transaction Class Exemption 91-38 issued by the Department of
Labor are satisfied;
(ii) to the extent such purchase is made by or on behalf of an
insurance company pooled separate account maintained by the purchaser in
which, at any time while these securities are outstanding, no plan
(together with any other plans maintained by the same employer or employee
organization) has an interest in excess of 10% of the total of all assets
in such pooled separate account, and the other applicable conditions of
Prohibited Transaction Class Exemption 90-1 issued by the Department of
Labor are satisfied;
(iii) to the extent such purchase is made on behalf of a plan by (A)
an investment adviser registered under the Investment Advisers Act of 1940,
as amended (the "1940 Act"), that had as of the last day of its most recent
fiscal year total assets under its management and control in excess of
$50.0 million and had stockholders' or partners' equity in excess of
$750,000, as shown in its most recent balance sheet prepared in accordance
with generally accepted accounting principles, or (B) a bank as defined in
Section 202(a)(2) of the 1940 Act with equity capital in excess of $1.0
million as of the last day of its most recent fiscal year, or (C) an
insurance company which is qualified under the laws of more than one state
to manage, acquire or dispose of any assets of a pension or welfare plan,
which insurance company has as of the last day of its most recent fiscal
year, net worth in excess of $1.0 million and which is subject to
supervision and examination by a State authority having supervision over
insurance companies and, in any case, such investment adviser, bank or
insurance company is otherwise a qualified professional asset manager, as
such term is used in Prohibited Transaction Class Exemption 84-14 issued by
the Department of Labor, and the assets of such plan when combined with the
assets of other plans established or maintained by the same employer (or
affiliate thereof) or employee organization and managed by such investment
adviser, bank or insurance company, do not represent more than 20% of the
total client assets managed by such investment adviser, bank or insurance
company at the time of the transaction, and the other applicable conditions
of such exemption are otherwise satisfied;
(iv) to the extent such plan is a governmental plan (as defined as
Section 3(33) of ERISA) which is not subject to the provisions of Title 1
of ERISA or Section 401 of the Internal Revenue Code of 1986, as amended
(the "Code");
(v) to the extent such purchase is made by or on behalf of an
insurance company using the assets of its general account, the reserves and
liabilities for the general account contracts held by or on behalf of any
plan, together with any other plans maintained by the same employer (or its
affiliates) or employee organization, do not exceed 10% of the total
reserves and liabilities of the insurance company general account
(exclusive of separate account liabilities), plus surplus as set forth in
the National Association of Insurance Commissioners Annual Statement filed
with the state of domicile of the insurer, in accordance with Prohibited
Transaction Class Exemption 95-60, and the other applicable conditions of
such exemption are otherwise satisfied;
A-2
(vi) to the extent purchase is made by an in-house asset manager
within the meaning of Part IV(a) of Prohibited Transaction Class Exemption
96-23, such manager has made or properly authorized the decision for such
plan to purchase this security, under circumstances such that Prohibited
Transaction Class Exemption 96-23 is applicable to the purchase and holding
of this security; or
(vii) to the extent such purchase will not otherwise give rise to a
transaction described in Section 406 or Section 4975(c)(1) of the Code for
which a statutory or administrative exemption is unavailable.
A-3
CHIPPAC, INC.
CUSIP: ___________ No. ___
8% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2011
ChipPAC, Inc., a Delaware corporation (the "Company", which term shall
include any successor corporation under the Indenture referred to on the reverse
hereof), promises to pay to , or registered assigns, the principal
sum of Dollars ($ ) on June 15, 2011 [or such
greater or lesser amount as is indicated on the Schedule of Exchanges of
Securities on the other side of this Security]/3/
Interest Payment Dates: June 15 and December 15, beginning ____________, 2001
Record Dates: June 1 and December 1
This Security is convertible as specified on the other side of this
Security. Additional provisions of this Security are set forth on the other
side of this Security.
SIGNATURE PAGE FOLLOWS
----------------------
_____________________
/3/ This phrase should be included only if the Security is a Global Security.
A-4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CHIPPAC, INC.
By:______________________________
Name:
Title:
Attest:
By: ______________________________
Name:
Title:
Dated:
Trustee's Certificate of Authentication:
This is one of the Securities referred
to in the within-mentioned Indenture.
FIRSTAR BANK, N.A.,
as Trustee
__________________________________
Authorized Signatory
By:
A-5
[FORM OF REVERSE SIDE OF SECURITY]
CHIPPAC, INC.
8% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2011
1. Interest
--------
ChipPAC, Inc. a Delaware corporation (the "Company", which term shall
include any successor corporation under the Indenture hereinafter referred to),
promises to pay interest on the principal amount of this Security at the rate of
8% per annum. The Company shall pay interest semiannually on June 15 and
December 15 of each year, commencing December 15, 2001. Interest on the
Securities shall accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from June 22, 2001; provided, however,
-------- -------
that if there is not an existing Default in the payment of interest and if this
Security is authenticated between a record date referred to on the face hereof
and the next succeeding interest payment date, interest shall accrue from such
interest payment date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Any reference herein to interest accrued or payable as
of any date shall include any Additional Interest accrued or payable on such
date as provided in the Registration Rights Agreement.
2. Method of Payment
-----------------
The Company shall pay interest on this Security (except defaulted
interest) to the person who is the Holder of this Security at the close of
business on June 1 or December 1, as the case may be, next preceding the related
interest payment date. The Holder must surrender this Security to a Paying
Agent to collect payment of principal. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may, however, pay
principal and interest in respect of any Certificated Security by check or wire
payable in such money; provided, however, that a Holder with an aggregate
-------- -------
principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder. The Company may
mail an interest check to the Holder's registered address. Notwithstanding the
foregoing, so long as this Security is registered in the name of a Depositary or
its nominee, all payments hereon shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
3. Paying Agent, Registrar and Conversion Agent
--------------------------------------------
Initially, Firstar Bank, N.A. (the "Trustee", which term shall include
any successor trustee under the Indenture hereinafter referred to) will act as
Paying Agent, Registrar, Primary Registrar and Conversion Agent. The Company
may change any Paying Agent, Registrar or Conversion Agent without notice to the
Holder. The Company or any of its Subsidiaries may, subject to certain
limitations set forth in the Indenture, act as Paying Agent or Registrar.
4. Indenture, Limitations
----------------------
This Security is one of a duly authorized issue of Securities of the
Company designated as its 8% Convertible Subordinated Notes Due June 15, 2011
(the "Securities"), issued under an Indenture dated as of June 15, 2001
(together with any supplemental indentures thereto, the "Indenture"), between
the Company and the Trustee. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of this Security
include those stated in the Indenture and those required by or made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended, as in
effect on the date of the Indenture. This
Security is subject to all such terms, and the Holder of this Security is
referred to the Indenture and said Act for a statement of them. The Securities
are subordinated unsecured obligations of the Company. Subject to the conditions
set forth in Section 2.15 of the Indenture, the Company may issue additional
Securities ("Add On Securities"). The Indenture does not limit other debt of the
Company, secured or unsecured, including Senior Indebtedness.
5. Provisional and Optional Redemption
-----------------------------------
(a) The Company may redeem any portion of the Securities at any time
prior to June 15, 2004 (a "Provisional Redemption"), upon giving notice as set
forth in Section 6, at a redemption price equal to $1,000 per $1,000 principal
amount of the Securities redeemed plus accrued and unpaid interest, if any (such
amount, the "Provisional Redemption Price"), to but excluding the date of
redemption (the "Provisional Redemption Date") if (1) the Closing Price of the
Common Stock has exceeded 150% of the Conversion Price for at least 20 Trading
Days within a period of any 30 consecutive Trading Days ending on the Trading
Day prior to the date of mailing of the notice of Provisional Redemption (the
"Notice Date"), and (2) a shelf registration statement covering resales of the
Securities and the Common Stock issuable upon conversion thereof is effective
and available for use and is expected to remain effective and available for use
for the 30 days following the Provisional Redemption Date unless registration is
no longer required.
(b) Except as set forth in clause (a) of this Section 5, the Company
shall not have the option to redeem the Securities pursuant to this Section 5
prior to June 15, 2004. Thereafter, the Company shall have the option to redeem
any portion of the Securities (an "Optional Redemption") upon giving notice as
set forth in Section 6. The Optional Redemption Prices (expressed as
percentages of the principal amount) are as follows for Securities redeemed
during the periods set forth below:
Period Redemption Price
------ ----------------
Beginning on June 15, 2004 and ending on June 14, 2005....... 104.00%
Beginning on June 15, 2005 and ending on June 14, 2006....... 103.33%
Beginning on June 15, 2006 and ending on June 14, 2007....... 102.67%
Beginning on June 15, 2007 and ending on June 14, 2008....... 102.00%
Beginning on June 15, 2008 and ending on June 14, 2009....... 101.33%
Beginning on June 15, 2009 and ending on June 14, 2010....... 100.67%
Beginning on June 15, 2010 and thereafter.................... 100.00%
in each case together with accrued interest up to but not including the date of
redemption (the "Optional Redemption Date"); provided that if the Optional
--------
Redemption Date falls after an interest payment record date and on or before an
interest payment date, then the interest payment will be payable to the Holders
in whose names the Securities are registered at the close of business on the
relevant record date for payment of such interest.
6. Notice of Redemption
--------------------
Notice of redemption will be mailed by first-class mail at least 20
days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. Securities in
denominations larger than $1,000 may be redeemed in part, but only in whole
multiples of $1,000. On and after the Redemption Date, subject to the deposit
with the Paying Agent of funds sufficient to pay the Redemption Price plus
accrued interest, if any, accrued to, but excluding, the Redemption Date,
interest shall cease to accrue on Securities or portions of them called for
redemption.
X-0
0. Xxxxxxxx of Securities at Option of Holder Upon a Change in Control
-------------------------------------------------------------------
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase all or any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Securities held by
such Holder on the date that is not less than 20 nor more than 30 Business Days
after the date on which the Company provides Holders notice of the occurrence of
a Change in Control (or, if the Company has not provided such, 40 Business Days
following the occurrence of a Change of Control), at a purchase price equal to
100% of the principal amount thereof together with accrued interest up to, but
excluding, the Change in Control Purchase Date. The Holder shall have the right
to withdraw any Change in Control Purchase Notice (in whole or in a portion
thereof that is $1,000 or an integral multiple of $1,000 in excess thereof) at
any time prior to the close of business on the Business Day next preceding the
Change in Control Purchase Date by delivering a written notice of withdrawal to
the Paying Agent in accordance with the terms of the Indenture.
8. Conversion
----------
A Holder of a Security may convert the principal amount of such
Security (or any portion thereof equal to $1,000 or any integral multiple of
$1,000 in excess thereof) into shares of Common Stock at any time prior to the
close of business on June 15, 2011; provided, however, that if the Security is
-------- -------
called for redemption or subject to purchase upon a Change in Control, the
conversion right will terminate at the close of business on the Business Day
immediately preceding the Redemption Date or the Change in Control Purchase
Date, as the case may be, for such Security or such earlier date as the Holder
presents such Security for redemption or purchase (unless the Company shall
default in making the redemption payment or Change in Control Purchase Price, as
the case may be, when due, in which case the conversion right shall terminate at
the close of business on the date such default is cured and such Security is
redeemed or purchased). The initial Conversion Price is $9.96 per share,
subject to adjustment under certain circumstances. The number of shares of
Common Stock issuable upon conversion of a Security is determined by dividing
the principal amount of the Security or portion thereof converted by the
Conversion Price in effect on the Conversion Date. No fractional shares will be
issued upon conversion; in lieu thereof, an amount will be paid in cash based
upon the Closing Price (as defined in the Indenture) of the Common Stock on the
Trading Day immediately prior to the Conversion Date. To convert a Security, a
Holder must (a) complete and manually sign the conversion notice set forth below
and deliver such notice to a Conversion Agent, (b) surrender the Security to a
Conversion Agent, (c) furnish appropriate endorsements and transfer documents if
required by a Registrar or a Conversion Agent, and (d) pay any transfer or
similar tax, if required. Securities so surrendered for conversion (in whole or
in part) during the period from the close of business on any regular record date
to the opening of business on the next succeeding interest payment date
(excluding Securities or portions thereof which are either (i) called for
redemption or (ii) subject to purchase following a Change in Control, in either
case, on a date during the period beginning at the close of business on a
regular record date and ending at the opening of business on the first Business
Day after the next succeeding interest payment date, or if such interest payment
date is not a Business Day, the second such Business Day) shall also be
accompanied by payment in funds acceptable to the Company of an amount equal to
the interest payable on such interest payment date on the principal amount of
such Security then being converted, and such interest shall be payable to such
registered Holder notwithstanding the conversion of such Security, subject to
the provisions of this Indenture relating to the payment of defaulted interest
by the Company. Except as otherwise provided in this paragraph, no payment or
adjustment will be made for accrued interest on a converted Security. If the
Company defaults in the payment of interest payable on such interest payment
date, the Company shall promptly repay such funds to such Holder. A Holder may
convert a portion of a Security equal to $1,000 or any integral multiple
thereof. A Security in respect of which a Holder had delivered a Change in
Control Purchase Notice exercising the option of such Holder to require the
Company to purchase such Security may be converted only if the Change in Control
Purchase Notice is withdrawn in accordance with the terms of the Indenture.
A-8
9. Conversion Arrangement on Call for Redemption
---------------------------------------------
Any Securities called for redemption, unless surrendered for
conversion before the close of business on the Business Day immediately
preceding the Redemption Date, may be deemed to be purchased from the Holders of
such Securities at an amount not less than the Redemption Price, together with
accrued interest, if any, to, but not including, the Redemption Date, by one or
more investment bankers or other purchasers who may agree with the Company to
purchase such Securities from the Holders, to convert them into Common Stock of
the Company and to make payment for such Securities to the Paying Agent in trust
for such Holders.
10. Subordination
-------------
The indebtedness evidenced by the Securities is, to the extent and in
the manner provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness of the Company. Any
Holder by accepting this Security agrees to and shall be bound by such
subordination provisions and authorizes the Trustee to give them effect. In
addition to all other rights of Senior Indebtedness described in the Indenture,
the Senior Indebtedness shall continue to be Senior Indebtedness and entitled to
the benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any terms of any instrument relating to the Senior
Indebtedness or any extension or renewal of the Senior Indebtedness.
11. Denominations, Transfer, Exchange
---------------------------------
The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. A Holder may register the transfer
of or exchange 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 or other governmental charges that may
be imposed in relation thereto by law or permitted by the Indenture.
12. Persons Deemed Owners
---------------------
The Holder of a Security may be treated as the owner of it for all
purposes.
13. Unclaimed Money
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent will pay the money back to the
Company at its written request. After that, Holders entitled to money must look
to the Company for payment.
14. Amendment, Supplement and Waiver
--------------------------------
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Securities then outstanding, and an existing Default
or Event of Default and its consequence or compliance with any provision of the
Indenture or the Securities may be waived in a particular instance with the
consent of the Holders of a majority in principal amount of the Securities then
outstanding. Without the consent of or notice to any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Securities to, among
other things, cure any ambiguity, defect or inconsistency or make any other
change that does not adversely affect the rights of any Holder.
A-9
15. Successor Corporation
---------------------
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture in accordance with the terms
and conditions of the Indenture, the predecessor corporation will (except in
certain circumstances specified in the Indenture) be released from those
obligations.
16. Defaults and Remedies
---------------------
Under the Indenture, an Event of Default includes: (i) default for 30
days in payment of any interest on any Securities; (ii) default in payment of
any principal (including, without limitation, any premium, if any) on the
Securities when due; (iii) failure by the Company for 60 days after notice to it
to comply with any of its other agreements contained in the Indenture or the
Securities; (iv) failure by the Company to give notice to the Trustee and
Holders of a Change in Control in accordance with the Indenture; and (v) certain
events of bankruptcy, insolvency or reorganization of the Company. If an Event
of Default (other than as a result of certain events of bankruptcy, insolvency
or reorganization of the Company) occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities then outstanding
may declare all unpaid principal to the date of acceleration on the Securities
then outstanding to be due and payable immediately, all as and to the extent
provided in the Indenture. If an Event of Default occurs as a result of certain
events of bankruptcy, insolvency or reorganization of the Company, unpaid
principal of the Securities then outstanding shall become due and payable
immediately without any declaration or other act on the part of the Trustee or
any Holder, all as and to the extent provided in the Indenture. Holders may not
enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in principal amount of the Securities then outstanding may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default (except a Default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company is required to file periodic reports with the Trustee as
to the absence of Default.
17. Trustee Dealings with the Company
---------------------------------
Firstar Bank, N.A., the Trustee under the Indenture, in its individual
or any other capacity, may make loans to, accept deposits from and perform
services for the Company or an Affiliate of the Company, and may otherwise deal
with the Company or an Affiliate of the Company, as if it were not the Trustee.
18. No Recourse Against Others
--------------------------
A director, officer, employee or shareholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture nor for any claim based on, in respect of or by
reason of such obligations or their creation. The Holder of this Security by
accepting this Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of this Security.
19. Authentication
--------------
This Security shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this Security.
A-10
20. Abbreviations and Definitions
-----------------------------
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors Act).
All terms defined in the Indenture and used in this Security but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
21. Indenture to Control; Governing Law
-----------------------------------
In the case of any conflict between the provisions of this Security
and the Indenture, the provisions of the Indenture shall control. This Security
shall be governed by, and construed in accordance with, the laws of the State of
New York, without regard to principles of conflicts of law.
The Company will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Requests may be made to: ChipPAC,
Inc., 00000 Xxxx Xxxx, Xxxxxxx, XX 00000, Attention: Xxxxxx Xxxxxxxx.
A-11
ASSIGNMENT FORM
----------------
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
________________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
Date:_____________________ __________________________________________________
(Sign exactly as your name appears on the other
side of this Security)
*Signature guaranteed by:
By:____________________________
* Signature(s) must be guaranteed by a qualified guarantor institution
with membership in an approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934.
CONVERSION NOTICE
-----------------
To convert this Security into Common Stock of the Company, check the
box: [_]
To convert only part of this Security, state the principal amount to
be converted (must be $1,000 or a multiple of $1,000): $____________.
If you want the stock certificate made out in another person's name,
fill in the form below:
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
Your Signature:
Date:_____________________ __________________________________________________
(Sign exactly as your name appears on the other
side of this Security)
*Signature guaranteed by:
By:________________________________
* Signature(s) must be guaranteed by a qualified guarantor institution
with membership in an approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934.
OPTION TO ELECT REPURCHASE
UPON A CHANGE OF CONTROL
------------------------
To: ChipPAC, Inc.
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from ChipPAC, Inc. (the "Company") as to the
occurrence of a Change in Control with respect to the Company and requests and
instructs the Company to redeem the entire principal amount of this Security, or
the portion thereof (which is $1,000 or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this
Security at the Change in Control Purchase Price, together with accrued interest
to, but excluding, such date, to the registered Holder hereof.
Date:______________________ __________________________________________________
Signature(s)
Signature(s) must be guaranteed by a qualified
guarantor institution with membership in an
approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange Act of
1934.
__________________________________________________
Signature Guaranty
Principal amount to be redeemed (in an
integral multiple of $1,000, if less than
all):
__________________________________
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without
alteration or any change whatsoever.
SCHEDULE OF EXCHANGES OF SECURITIES/4/
-------------------------------------
The following exchanges, redemptions, repurchases or conversions of a
part of this global Security have been made:
Principal Amount of
this Global Security
Following Such Amount of Decrease in Amount of Increase in
Decrease Date of Authorized Signatory of Principal Amount of this Principal Amount of this
Exchange (or Increase) Securities Custodian Global Security Global Security
------------------------ ------------------------- -------------------------- ---------------------------
___________________________
/4/ This schedule should be included only if the Security is a Global
Security.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF TRANSFER RESTRICTED SECURITIES/5/
-----------------------------------------------
Re: 8% Convertible Subordinated Securities Due June 15, 2011 (the "Securities")
of ChipPAC, Inc.
This certificate relates to $_______ principal amount of Securities
owned in (check applicable box)
[_] book-entry or [_] definitive form by ________________ (the
"Transferor").
The Transferor has requested a Registrar or the Trustee to
exchange or register the transfer of such Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with transfer restrictions relating to the Securities as provided in Section
2.12 of the Indenture, dated as of June 15, 2001, between ChipPAC, Inc. and
Firstar Bank, N.A. (the "Indenture"), and the transfer of such Security is being
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Securities Act") (check applicable box) or the transfer
or exchange, as the case may be, of such Security does not require registration
under the Securities Act because (check applicable box):
[_] Such Security is being transferred pursuant to an effective
registration statement under the Securities Act.
[_] Such Security is being acquired for the Transferor's own account,
without transfer.
[_] Such Security is being transferred to the Company or a Subsidiary
(as defined in the Indenture) of the Company.
[_] Such Security is being transferred to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as defined in Rule
144A or any successor provision thereto ("Rule 144A") under the Securities Act)
that is purchasing for its own account or for the account of a "qualified
institutional buyer", in each case to whom notice has been given that the
transfer is being made in reliance on such Rule 144A, and in each case in
reliance on Rule 144A.
[_] Such Security is being transferred pursuant to and in compliance
with an exemption from the registration requirements under the Securities Act in
accordance with Rule 144 (or any successor thereto) ("Rule 144") under the
Securities Act.
[_] Such Security is being transferred pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act
(other than an exemption referred to above) and as a result of which such
Security will, upon such transfer, cease to be a "restricted security" within
the meaning of Rule 144 under the Securities Act.
_________________________________
/5/ This certificate should only be included if this Security is a Transfer
Restricted Security.
-2-
The Transferor acknowledges and agrees that, if the transferee will
hold any such Securities in the form of beneficial interests in a global
Security which is a "restricted security" within the meaning of Rule 144 under
the Securities Act, then such transfer can only be made pursuant to Rule 144A
under the Securities Act and such transferee must be a "qualified institutional
buyer" (as defined in Rule 144A).
Date:_______________________ ________________________________________
(Insert Name of Transferor)
