Exhibit 4.1
VEECO INSTRUMENTS INC.
4-1/8% Convertible Subordinated Notes
due 2008
----------------------------------------------------------
INDENTURE
Dated as of December 21, 2001
STATE STREET BANK AND TRUST
COMPANY, N.A.,
TRUSTEE
---------------------------------------------------------
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions....................................................1
SECTION 1.02 Other Definitions.............................................11
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.............12
SECTION 1.04 Rules of Construction.........................................12
SECTION 1.05 Acts of Holders...............................................12
ARTICLE 2
THE NOTES
SECTION 2.01 Form and Dating...............................................14
SECTION 2.02 Execution and Authentication..................................16
SECTION 2.03 Registrar, Paying Agent and Conversion Agent..................16
SECTION 2.04 Paying Agent to Hold Money and Notes in Trust.................17
SECTION 2.05 Noteholder Lists..............................................17
SECTION 2.06 Transfer and Exchange.........................................17
SECTION 2.07 Replacement Notes.............................................19
SECTION 2.08 Outstanding Notes; Determinations of Holders' Action..........19
SECTION 2.09 Temporary Notes...............................................20
SECTION 2.10 Cancellation..................................................21
SECTION 2.11 Persons Deemed Owners.........................................21
SECTION 2.12 Global Notes..................................................21
SECTION 2.13 CUSIP Numbers.................................................26
SECTION 2.14 Defaulted Interest............................................26
SECTION 2.15 Registration Default..........................................26
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 [Reserved]....................................................26
SECTION 3.02 Optional Redemption...........................................26
SECTION 3.03 Notice of Trustee.............................................27
SECTION 3.04 Selection of Notes to be Redeemed.............................27
SECTION 3.05 Notice of Redemption..........................................28
SECTION 3.06 Effect of Notice of Redemption................................28
SECTION 3.07 Deposit of Redemption Price...................................29
SECTION 3.08 Notes Redeemed in Part........................................29
SECTION 3.09 Conversion Arrangement on Call for Redemption.................29
SECTION 3.10 Repurchase of Notes at Option of the Holder
upon Change in Control........................................30
SECTION 3.11 Effect of Change in Control Repurchase Notice.................35
i
TABLE OF CONTENTS
-----------------
(continued)
PAGE
----
SECTION 3.12 Deposit of Change in Control Repurchase Price.................35
SECTION 3.13 Notes Purchased in Part.......................................36
SECTION 3.14 Covenant to Comply with Securities Laws upon Purchase of
Notes.........................................................36
SECTION 3.15 Repayment to the Company......................................36
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Principal, Premium, Interest on the Notes..........36
SECTION 4.02 SEC and Other Reports.........................................37
SECTION 4.03 Compliance Certificate........................................37
SECTION 4.04 Further Instruments and Acts..................................37
SECTION 4.05 Maintenance of Office or Agency...............................37
SECTION 4.06 Delivery of Certain Information...............................38
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets.....................38
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.............................................39
SECTION 6.02 Acceleration..................................................41
SECTION 6.03 Other Remedies................................................42
SECTION 6.04 Waiver of Past Defaults.......................................42
SECTION 6.05 Control by Majority...........................................42
SECTION 6.06 Limitation on Suits...........................................42
SECTION 6.07 Rights of Holders to Receive Payment..........................43
SECTION 6.08 Collection Suit by Trustee....................................43
SECTION 6.09 Trustee May File Proofs of Claim..............................43
SECTION 6.10 Priorities....................................................44
SECTION 6.11 Undertaking for Costs.........................................44
SECTION 6.12 Waiver of Stay, Extension or Usury Laws.......................44
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties and Responsibilities of the Trustee; During Default;
Prior to Default..............................................45
SECTION 7.02 Certain Rights of the Trustee.................................46
SECTION 7.03 Trustee Not Responsible for Recitals, Disposition of
Notes or Application of Proceeds Thereof......................47
ii
TABLE OF CONTENTS
-----------------
(continued)
PAGE
----
SECTION 7.04 Trustee and Agents May Hold Notes; Collections, etc...........47
SECTION 7.05 Moneys Held by Trustee........................................47
SECTION 7.06 Compensation and Indemnification of Trustee
and Its Prior Claim...........................................47
SECTION 7.07 Right of Trustee to Rely on Officers' Certificate, etc........48
SECTION 7.08 Conflicting Interests.........................................48
SECTION 7.09 Persons Eligible for Appointment as Trustee...................48
SECTION 7.10 Resignation and Removal; Appointment of Successor Trustee.....48
SECTION 7.11 Acceptance of Appointment by Successor Trustee................49
SECTION 7.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee........................................50
SECTION 7.13 Preferential Collection of Claims Against the Company.........50
SECTION 7.14 Reports by the Trustee........................................51
SECTION 7.15 Trustee to Give Notice of Default,
But May Withhold in Certain Circumstances.....................51
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Notes...............................51
SECTION 8.02 Repayment of the Company......................................51
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders....................................52
SECTION 9.02 With Consent of Holders.......................................52
SECTION 9.03 Compliance with Trust Indenture Act...........................53
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions........53
SECTION 9.05 Notation on or Exchange of Notes..............................54
SECTION 9.06 Trustee to Sign Supplemental Indentures.......................54
SECTION 9.07 Effect of Supplemental Indentures.............................54
SECTION 9.08 Reference in Notes to Supplemental Indentures.................54
ARTICLE 10
CONVERSION
SECTION 10.01 Conversion Right and Conversion Price.........................54
SECTION 10.02 Exercise of Conversion Right..................................55
SECTION 10.03 Fractions of Shares...........................................56
SECTION 10.04 Adjustment of Conversion Price................................56
SECTION 10.05 Notice of Adjustments of Conversion Price.....................64
SECTION 10.06 Notice Prior to Certain Actions...............................65
SECTION 10.07 Company to Reserve Common Stock...............................66
SECTION 10.08 Taxes on Conversions..........................................66
iii
TABLE OF CONTENTS
-----------------
(continued)
PAGE
----
SECTION 10.09 Covenant as to Common Stock...................................66
SECTION 10.10 Cancellation of Converted Notes...............................66
SECTION 10.11 Effect of Reclassification, Consolidation, Merger or Sale.....66
SECTION 10.12 Adjustment for Other Distributions............................67
SECTION 10.13 Responsibility of Trustee for Conversion Provisions...........68
ARTICLE 11
SUBORDINATION
SECTION 11.01 Agreement to Subordinate......................................69
SECTION 11.02 Liquidation; Dissolution; Bankruptcy..........................69
SECTION 11.03 Default on Designated Senior Indebtedness.....................69
SECTION 11.04 Acceleration of Notes.........................................70
SECTION 11.05 When Distribution Must Be Paid Over...........................71
SECTION 11.06 Notice by the Company.........................................71
SECTION 11.07 Subrogation...................................................71
SECTION 11.08 Relative Rights...............................................71
SECTION 11.09 Subordination May Not Be Impaired by the Company..............72
SECTION 11.10 Distribution or Notice to Representative......................72
SECTION 11.11 Rights of Trustee and Paying Agent............................72
ARTICLE 12
SECURITY
SECTION 12.01 Security......................................................73
ARTICLE 13
MEETINGS OF HOLDERS OF NOTES
SECTION 13.01 Purposes for Which Meetings May Be Called.....................75
SECTION 13.02 Call, Notice and Place of Meetings............................75
SECTION 13.03 Persons Entitled to Vote at Meetings..........................75
SECTION 13.04 Quorum; Action................................................76
SECTION 13.05 Determination of Voting Rights; Conduct
and Adjournment of Meetings...................................76
SECTION 13.06 Counting Votes and Recording Action of Meetings...............77
ARTICLE 14
MISCELLANEOUS
SECTION 14.01 Trust Indenture Act Controls..................................78
SECTION 14.02 Notices.......................................................78
SECTION 14.03 Communication by Holders with Other Holders...................79
SECTION 14.04 Certificate and Opinion as to Conditions Precedent............79
iv
TABLE OF CONTENTS
-----------------
(continued)
PAGE
----
SECTION 14.05 Statements Required in Certificate or Opinion.................79
SECTION 14.06 Separability Clause...........................................80
SECTION 14.07 Rules by Trustee, Paying Agent, Conversion Agent
and Registrar.................................................80
SECTION 14.08 Benefits of Indenture.........................................80
SECTION 14.09 Legal Holidays................................................80
SECTION 14.10 GOVERNING LAW.................................................80
SECTION 14.11 No Recourse Against Others....................................80
SECTION 14.12 Successors....................................................80
SECTION 14.13 Multiple Originals............................................81
EXHIBITS
Exhibit A-1 Form of Face of Global Note
Exhibit A-2 Form of Certificated Note
Exhibit B-1 Transfer Certificate
Exhibit C-1 Registration Rights Agreement
v
INDENTURE dated as of December 21, 2001 between VEECO
INSTRUMENTS INC., a Delaware corporation (the "Company"), and STATE STREET BANK
AND TRUST COMPANY, N.A., a national banking association, as Trustee hereunder
(the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 41/8% Convertible Subordinated Notes due 2008 (herein called the "Notes") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Notes, when the Notes are
executed by the Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid agreement of the
Company, in accordance with their and its terms, have been done. Further, all
things necessary to duly authorize the issuance of the Common Stock of the
Company issuable upon the conversion of the Notes, and to duly reserve for
issuance the number of shares of Common Stock issuable upon such conversion,
have been done.
The Notes will be partially secured pursuant to the terms of
the Pledge Agreement (as defined herein) by Pledged Securities (as defined
herein).
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act of 1939, as amended, that are required to
be a part of and to govern indentures qualified under the Trust Indenture Act of
1939, as amended.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(3) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
1
"ADDITIONAL PLEDGED SECURITIES" has the meaning specified in
the Pledge Agreement.
"AFFILIATE" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For purposes of this definition,
"control" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the rules
and procedures of the Depositary for such Note, in each case to the extent
applicable to such transaction and as in effect from time to time.
"BOARD OF DIRECTORS" means either the board of directors of
the Company or any duly authorized committee of such board.
"BOARD RESOLUTION" means a resolution duly adopted by the
Board of Directors, a copy of which, certified by the Secretary or an Assistant
Secretary of the Company to be in full force and effect on the date of such
certification, shall have been delivered to the Trustee.
"BUSINESS DAY" means each day of the year other than a
Saturday or a Sunday on which banking institutions are not required or
authorized to close in the City of New York or the city in which the principal
corporate trust office of the Trustee is located.
"CAPITAL STOCK" of any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"CERTIFICATED NOTES" means Notes that are in the form of the
Notes attached hereto as Exhibit A-2.
"CLOSING PRICE" of any security on any date of determination
means:
(1) the closing sale price (or, if no closing sale price is
reported, the last reported sale price) of such security on the New
York Stock Exchange on such date;
(2) if such security is not listed for trading on the New York
Stock Exchange on any such date, the closing sale price as reported in
the composite transactions for the principal U.S. securities exchange
on which such security is so listed;
(3) if such security is not so listed on a U.S. national or
regional securities exchange, the closing sale price as reported by the
NASDAQ National Market;
2
(4) if such security is not so reported, the last quoted bid
price for such security in the over-the-counter market as reported by
the National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the
mid-point of the last bid and ask prices of such security on such date
from at least three nationally recognized independent investment
banking firms retained for this purpose by the Company.
"CLOSING TIME" has the meaning specified in the Purchase
Agreement.
"COLLATERAL ACCOUNT" means an account established with the
Collateral Agent pursuant to the terms of the Pledge Agreement for the deposit
of the Pledged Securities to be purchased by the Company with a portion of the
proceeds from the sale of the Notes.
"COLLATERAL AGENT" means, initially, State Street Bank and
Trust Company, N.A., a national banking association, as collateral agent under
the Pledge Agreement.
"COMMON STOCK" means the Common Stock, par value $0.01 per
share, of the Company authorized at the date of this instrument as originally
executed. Subject to the provisions of Section 10.11, shares issuable on
conversion or repurchase of Notes shall include only shares of Common Stock or
shares of any class or classes of common stock resulting from any
reclassification or reclassifications thereof; provided, however, that if at any
time there shall be more than one such resulting class, the shares so issuable
on conversion of Notes shall include shares of all such classes, and the shares
of each such class then so issuable 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.
"COMMON STOCK" means any stock of any class of capital stock
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the issuer.
"COMPANY" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture, and, thereafter, "Company" shall mean
such successor. The foregoing sentence shall likewise apply to any subsequent
such successor or successors.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request
or order signed in the name of the Company by any two Officers.
"CONVERSION AGENT" means any person authorized by the Company
to convert Notes in accordance with Article 10 hereof.
"CORPORATE TRUST OFFICE" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, or such other address as the Trustee may designate from time to
time by notice to the Holders and the Company, or the principal
3
corporate trust office of any successor Trustee (or such other address as a
successor Trustee may designate from time to time by notice to the Holders and
the Company).
"DATE OF DELIVERY" has the meaning specified in the Purchase
Agreement.
"DEFAULT" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"DESIGNATED SENIOR INDEBTEDNESS" means the Company's Credit
Agreement, dated as of April 19, 2001, by and among the Company and Fleet
National Bank, as administrative agent, The Chase Manhattan Bank, as syndication
agent, HSBC Bank USA, as documentation agent and the lenders party thereto, as
amended from time to time, and any other Senior Indebtedness in which the
governing instrument or agreement expressly provides that such Senior
Indebtedness, subject to limitations and conditions in such instrument or
agreement, shall be "Designated Senior Indebtedness" for purposes of the
Indenture.
"DOLLAR" or "U.S.$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"EXCLUDED INDEBTEDNESS" means (a) Indebtedness of the Company
or any Subsidiary with a principal amount not in excess of $10.0 million which
is secured (in whole or part) by a mortgage in effect when the Company or any
Subsidiary acquires a business that owns the real property subject to the
mortgage, where the acquisition resulted in a default on the mortgage in
accordance with its terms and (b) Indebtedness existing on the date hereof not
in excess of $8.5 million to the extent the Company or any Subsidiary has
established a cash collateral or similar account that is available to one or
more holders of Senior Indebtedness to use to cure a default on such
Indebtedness.
"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
"GLOBAL NOTES" means Notes that are in the form of the Notes
attached hereto as Exhibit A-1.
"GUARANTEE" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, contingent or otherwise, in any manner (including, without
limitation, letters of credit and reimbursement agreements in respect thereof),
of all or any part of any Indebtedness.
"HOLDER" or "NOTEHOLDER" means a person in whose name a Note
is registered on the Registrar's books.
"INDEBTEDNESS" means, with respect to any Person, without
duplication:
(1) all indebtedness, obligations and other liabilities,
contingent or otherwise, of such person for borrowed money, and whether
or not the recourse of the obligee is to the whole of the assets of the
person or only a portion of the assets (including overdrafts,
4
foreign exchange contracts, currency exchange agreements and interest
rate protection agreements), all obligations, contingent or otherwise,
including reimbursement obligations, of such Person in connection with
any letters of credit, bank guarantees or bankers' acceptances issued
under letter of credit facilities, acceptance facilities or other
similar facilities, any loans or advances from banks, whether or not
evidenced by notes or similar instruments and all obligations incurred,
assumed or guaranteed by the person in connection with the acquisition
by it or by any Subsidiary of any business, assets or property;
(2) all obligations and other liabilities, contingent or
otherwise, of such person evidenced by credit or loan agreements,
bonds, debentures, notes or other written obligations, whether or not
the recourse of the lender is to all of the assets of the Person or to
only a portion thereof;
(3) all obligations and liabilities, contingent or otherwise,
in respect of leases of the person required, in conformity with GAAP,
to be accounted for as capitalized lease obligations on the balance
sheet of the Person;
(4) all obligations evidenced by a note or similar instrument
given in connection with acquisition of any businesses, properties or
assets of any kind;
(5) all 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;
(6) all obligations and other liabilities, contingent or
otherwise, in respect of leases or related documents, including a
purchase agreement, of the person in connection with the lease of real
property or improvements thereon (or any personal property included as
part of any such lease), which provides that the person is
contractually obligated to purchase or cause a third party to purchase
the leased property or pay an agreed upon residual value of the leased
property to the lessor and thereby guarantees a residual value of the
leased property to the lessor (whether or not such lease transaction is
characterized as an operating lease or a capitalized lease in
accordance with GAAP),
(7) all obligations, contingent or otherwise, with respect to
an interest rate, currency or other swap, cap, floor or collar
agreement, hedge agreement, forward contract or similar instrument or
agreement or foreign currency hedge, exchange, purchase or similar
instrument or agreement;
(8) pension plan obligations;
(9) all direct or indirect guarantees or similar agreements,
and obligations or liabilities, contingent or otherwise, to purchase or
otherwise acquire or otherwise assure a creditor against loss in
respect of indebtedness, obligations or liabilities of another person,
including a Subsidiary, of the kind described in clauses (1) through
(8);
(10) any indebtedness or other obligations described in
clauses (1) through (8) above secured by any mortgage, pledge, lien or
other encumbrance existing on property
5
owned or held by the person, regardless of whether the indebtedness or
other obligation has been assumed by the person; and
(11) 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 (10).
"INDENTURE" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof, including the provisions
of the TIA that are deemed to be a part hereof.
"INITIAL PLEDGED SECURITIES" has the meaning specified in the
Pledge Agreement.
"INITIAL PURCHASERS" means Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx &
Xxxxx Incorporated, Xxxxxxx Xxxxx Xxxxxx Inc. and Xxxxxx Xxxxxx Partners LLC.
"INTEREST PAYMENT DATE" means the Stated Maturity of an
installment of interest on the Notes.
"INTEREST RATE" means 4 1/8% per annum.
"ISSUE DATE" of any Note means the date on which the Note was
originally issued or deemed issued as set forth on the face of the Note.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset given to secure Indebtedness, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction with respect to any such lien, pledge, charge or
security interest).
"NOTES" has the meaning ascribed to it in the first paragraph
under the caption "Recitals of the Company".
"OFFICER" means the Chairman of the Board, the Vice Chairman,
the Chief Executive Officer, the President, any Executive Vice President, any
Senior Vice President, any Vice President, the Treasurer or the Secretary or any
Assistant Treasurer or Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing
the information specified in Sections 14.04 and 14.05, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.03 shall be signed by one authorized
financial or accounting Officer of the Company but need not contain the
information specified in Sections 14.04 and 14.05.
6
"144A GLOBAL NOTE" means a permanent Global Note in the form
of the Note attached hereto as Exhibit A-1, and that is deposited with and
registered in the name of the Depositary, representing Notes sold in reliance on
Rule 144A under the Securities Act.
"OPINION OF COUNSEL" means a written opinion, in form and
substance reasonably satisfactory to the Trustee, containing the information
specified in Sections 14.04 and 14.05, from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of, or counsel to, the
Company or the Trustee.
"OVER-ALLOTMENT OPTION" means the over-allotment option
granted by the Company to the Initial Purchasers to purchase up to an additional
$20,000,000 aggregate principal amount of Notes to cover over-allotments
pursuant to the Purchase Agreement.
"PERSON" or "PERSON" means any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or government or any agency or
political subdivision thereof, including any subdivision or ongoing business of
any such entity or substantially all of the assets of any such entity,
subdivision or business.
"PLEDGE AGREEMENT" means the Collateral Pledge and Security
Agreement, dated as of December 21, 2001, among the Company, the Trustee, the
Collateral Agent and the Securities Intermediary, as such agreement may be
amended, restated, supplemented or otherwise modified from time to time.
"PLEDGED SECURITIES" means the U.S. Government Obligations to
be purchased by the Company and held in the Collateral Account in accordance
with the Pledge Agreement.
"PRINCIPAL" of a Note means the principal amount due on the
Stated Maturity as set forth on the face of the Note.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of
December 18, 2001, among the Company and the Initial Purchasers.
"REDEEMABLE CAPITAL STOCK" means any class of the Company's
Capital Stock that, either by its terms, by the terms of any securities into
which it is convertible or exchangeable or by contract or otherwise, is, or upon
the happening of an event or passage of time would be, required to be redeemed
(whether by sinking fund or otherwise) prior to the date that is 91 days after
the Stated Maturity of the Notes or is redeemable at the option of the Holder
thereof at any time prior to such date, or is convertible into or exchangeable
for debt securities at any time prior to such date (unless it is convertible or
exchangeable solely at the Company's option).
"REDEMPTION DATE" or "REDEMPTION DATE" means the date
specified for redemption of the Notes in accordance with the terms of the Notes
and this Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE" shall have the
meaning set forth in paragraph 5 on the reverse side of the Notes.
7
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement of even date herewith among the Company and the Initial Purchasers
attached hereto as Exhibit C-1.
"REGULAR RECORD DATE" means, with respect to the interest
payable on any Interest Payment Date, the close of business on June 6 or
December 6 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date.
"RESPONSIBLE OFFICER" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject.
"RESTRICTED NOTE" means a Note required to bear the
restrictive legend set forth in the form of Note set forth in Exhibits A-1 and
A-2 of this Indenture.
"RESTRICTION TERMINATION DATE" means, with respect to any Note
or Common Stock issued upon conversion of any Note, the date that is two years
after the later of:
(1) the Issue Date of the Note, or, in the case of Common
Stock, the Issue Date of the Note upon the conversion of which such
Common Stock was issued; and
(2) the last date on which any "affiliate," as defined in Rule
144 (or successor provision) under the Securities Act, of the Company
was the owner of such Note or Common Stock.
"RULE 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the United States Securities Act of
1933 (or any successor statute), as amended from time to time.
"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 such proceeding) and rent payable on or in
connection with, and all fees, costs, expenses and other amounts accrued or due
or in connection with, Indebtedness of the Company, whether outstanding on the
date of this Indenture or thereafter created, incurred, assumed, guaranteed or
in effect guaranteed by the Company (including all deferrals, renewals,
extensions or refundings of, or amendments, modifications or supplements to, the
foregoing), provided that the following shall not constitute Senior Indebtedness
:
(1) Indebtedness or any other obligations of the Company that
by their terms rank equal or junior in right of payment to the Notes;
8
(2) Indebtedness evidenced by the Notes;
(3) Indebtedness of the Company that is subordinate to its
general unsecured obligations by operation of law;
(4) accounts payable or other liabilities owed or owing by the
Company to trade creditors including guarantees thereof or instruments
evidencing such liabilities;
(5) amounts owed by the Company for compensation to employees
or for services rendered to it;
(6) Indebtedness of the Company to any Subsidiary or any other
Affiliate of the Company or any of such Affiliate's Subsidiaries, but
excluding any such Indebtedness pledged as security for any Senior
Indebtedness;
(7) Indebtedness of the Company evidenced by any guarantee of
any Indebtedness ranking equal or junior in right of payment to the
Notes; and
(8) Indebtedness which, when incurred and without respect to
any election under Section 1111(b) of Title 11 of the United States
Code, is without recourse to the Company.
whether outstanding on the date of this Indenture or thereafter created or
incurred (including all amendments to or refinancings of the foregoing).
Without limitation, "Senior Indebtedness" includes all amounts
payable on or in connection with, and all fees, costs, expenses and other
amounts accrued or due on or in connection with, Indebtedness of the Company
under the Company's Credit Agreement, dated as of April 19, 2001, by and among
the Company and Fleet National Bank, as Administrative Agent, The Chase
Manhattan Bank, as Syndication Agent, HSBC Bank USA, as Documentation Agent and
the Lenders Party thereto, as amended from time to time.
"SIGNIFICANT SUBSIDIARY" means, as of any date of
determination, a Subsidiary of the Company, including its Subsidiaries, that
meets any of the following conditions as of such date:
(i) the Company's and its other Subsidiaries' investments in
and advances to the Subsidiary exceed 10 percent of the total assets of
the Company and its Subsidiaries consolidated as of the end of of the
most recently completed fiscal year; or
(ii) the Company's and its other Subsidiaries' proportionate
share of the total assets of the Subsidiary exceeds 10 percent of the
total assets of the Company and its Subsidiaries consolidated as of the
end of the most recently completed fiscal year; or
(iii) the Company's and its other Subsidiaries' equity in the
income from continuing operations before income taxes, extraordinary
items and cumulative effect of a change in accounting principles of the
Subsidiary exceeds 10 percent of such income of
9
the Company and its Subsidiaries consolidated as of the end of the most
recently completed fiscal year.
"STATED MATURITY", when used with respect to any Note or any
installment of interest thereon, means the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable.
"SUBSIDIARY" means, as of any date of determination (i) a
corporation, a majority of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is directly or indirectly owned by the
Company, by one or more Subsidiaries of the Company or by the Company and one or
more Subsidiaries of the Company, (ii) a partnership in which the Company or a
Subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a Subsidiary of the Company or the Company
and one or more Subsidiaries of the Company, directly or indirectly has (x) at
least a majority ownership interest or (y) the power to elect or direct the
election of a majority of the directors or other governing body of such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on
the date of this Indenture, provided, however, that in the event the TIA is
amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
"TRADING DAY" means a day during which trading in the Common
Stock generally occurs on the New York Stock Exchange or, if the Common Stock is
not listed on the New York Stock Exchange, on the principal other national or
regional securities exchange on which the Common Stock is then listed or, if the
Common Stock is not listed on a national or regional securities exchange, on the
National Association of Securities Dealers Automated Quotation System or, if the
Common Stock is not quoted on the National Association of Securities Dealers
Automated Quotation System, on the principal other market on which the Common
Stock is then traded.
"TRUSTEE" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"UNITED STATES" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (its "possessions" including Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands).
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i)
direct obligations of the United States of America, the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by or acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the Notes, and shall also include a depository receipt
issued by a bank or trust company as custodian
10
with respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation for the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
SECTION 1.02 Other Definitions.
Defined in
Term Section
---- -------
"Act"...................................................................1.05(a)
"Agent Members".........................................................2.12
"Bankruptcy Law"........................................................6.01
"Change in Control".....................................................3.10(a)
"Change in Control Repurchase Date".....................................3.10(a)
"Change in Control Repurchase Notice"...................................3.10(d)
"Change in Control Repurchase Price"....................................3.10(a)
"Conversion Change Event"..............................................10.11
"Conversion Date"......................................................10.02
"Conversion Price".....................................................10.01
Conversion Right"......................................................10.01
"Current Market Price".................................................10.04(g)
"Custodian".............................................................6.01
"Depositary"............................................................2.01(a)
"DTC"...................................................................2.01(a)
"Event of Default"......................................................6.01
"Exchange Act"..........................................................3.10(a)
"excluded securities"..................................................10.04(d)
"fair market value"....................................................10.04(f)
"Legal Holiday"........................................................14.09
"Legend"................................................................2.06(f)
"Non-Electing Share"...................................................10.11
"Non-Payment Default"..................................................11.03(b)
"Notice of Default".....................................................6.01
"Paying Agent"..........................................................2.03
"Payment Blockage Period"..............................................11.03(b)
"Payment Default"......................................................11.03(a)
"Permitted Junior Securities" .........................................11.02
"QIB"...................................................................2.01(a)
"Record Date"..........................................................10.04(f)
"Reference Period".....................................................10.04(d)
"Registrar".............................................................2.03
"Rule 144A Information".................................................4.06
"Trigger Event"........................................................10.04(d)
11
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture Notes" means the Notes.
"indenture Note holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture Notes means the Company.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04 RULES OF CONSTRUCTION. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect from time to time;
(c) "or" is not exclusive;
(d) "including" means including, without limitation; and
(e) words in the singular include the plural, and words in the
plural include the singular.
SECTION 1.05 ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by (i) one or more instruments of substantially similar tenor signed by such
Holders in person or by their agent or proxy duly appointed in writing, (ii) the
record of Holders of Notes voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Notes duly
called and held in accordance with the provisions of Article 13 or (iii) a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record are delivered to the Trustee and, where it is hereby
expressly required, to the Company. The Trustee shall promptly deliver to the
Company copies of all such instruments and records delivered to the Trustee with
a courtesy copy to the Company's counsel at the address listed in Section 14.02
and, if pertaining to any conversion notice, with a courtesy
12
copy to the Common Stock transfer agent at American Stock Transfer & Trust
Company. Such instrument or instruments and record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
Holders signing such instrument or instruments and so voting at such meeting
pursuant to Section 13.06. Proof of execution of any such instrument or of a
writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
The ownership of Notes shall be proved by the register for the
Notes or by a certificate of the Registrar.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, or seek
the vote of the Holders, the Company may, at its option, by or pursuant to a
resolution of the Board of Directors, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of outstanding Notes
have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
outstanding Notes shall be computed as of such record date; provided that no
such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
Upon receipt by the Trustee from any Holder of (i) any notice of
default or breach referred to in Section 6.01(4), if such default or breach has
occurred and is continuing and the Trustee shall not have given such a notice to
the Company, (ii) any declaration of acceleration referred to in Section 6.02,
if an Event of Default has occurred and is continuing and the Trustee shall not
have given such a declaration to the Company, or (iii) any direction referred to
in
13
Section 6.05, if the Trustee shall not have taken the action specified in such
direction, then a record date shall automatically, and without any action by the
Company or the Trustee, be set for determining the Holders entitled to join in
such notice, declaration or direction, which record date shall be the close of
business on the tenth day (or, if such day is not a Business Day, the first
Business Day thereafter) following the day on which the Trustee receives such
notice, declaration or direction. Promptly after such receipt by the Trustee,
and as soon as practicable thereafter, the Trustee shall notify the Company and
the Holders of any such record date so fixed. The Holders on such record date
(or their duly appointed agents or proxies), and only such Persons, shall be
entitled to join in such notice, declaration or direction, whether or not such
Holders remain Holders after such record date; PROVIDED that, unless such
notice, declaration or direction shall have become effective by virtue of
Holders of the requisite principal amount of Notes on such record date (or their
duly appointed agents or proxies) having joined therein on or prior to the 90th
day after such record date, such notice, declaration or direction shall
automatically, and without any action by any Person, be canceled and of no
further effect. Nothing in this paragraph shall be construed to prevent a Holder
(or a duly appointed agent or proxy thereof) from giving, before or after the
expiration of such 90-day period, a notice, declaration or direction contrary to
or different from, or, after the expiration of such period, identical to, the
notice, declaration or direction to which such record date relates, in which
event a new record date in respect thereof shall be set pursuant to this
paragraph. In addition, nothing in this paragraph shall be construed to render
ineffective any notice, declaration or direction of the type referred to in this
paragraph given at any time to the Trustee and the Company by Holders (or their
duly appointed agents or proxies) of the requisite principal amount of Notes on
the date such notice, declaration or direction is so given.
(e) The provisions of this Section 1.05 are subject to the
provisions of Section 13.05.
ARTICLE 2
THE NOTES
SECTION 2.01 FORM AND DATING. The Notes and the Trustee's
certificate of authentication to be borne by such Notes shall be substantially
in the form annexed hereto as Exhibits A-1 and A-2, which are incorporated in
and made a part of this Indenture. The terms and provisions contained in the
form of Note shall constitute, and are hereby expressly made, a part of this
Indenture and to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Any of the Notes may have such letters, numbers or other marks
of identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the notes may be
listed or designated for issuance, or to conform to usage.
14
(a) GLOBAL NOTES. Notes offered and sold within the United
States to qualified institutional buyers as defined in Rule 144A ("QIBs") in
reliance on Rule 144A shall be issued, initially in the form of a 144A Global
Note, which shall be deposited with the Trustee at its Corporate Trust Office,
as custodian for, and registered in the name of, The Depository Trust Company
("DTC") or the nominee thereof (such depositary, or any successor thereto, and
any such nominee being hereinafter referred to as the "Depositary"), duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the 144A Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary as hereinafter provided.
(b) GLOBAL NOTES IN GENERAL. Each Global Note shall represent
such of the outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, repurchases and conversions.
Any adjustment of the aggregate principal amount of a Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee in accordance
with instructions given by the Holder thereof as required by Section 2.12 hereof
and shall be made on the records of the Trustee and the Depositary.
(c) BOOK-ENTRY PROVISIONS. This Section 2.01(c) shall apply
only to Global Notes deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(c), authenticate and deliver initially one or more Global
Notes that (a) shall be registered in the name of the Depositary, (b) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF
15
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO
ON THE REVERSE HEREOF."
(d) RESTRICTIVE LEGENDS. Until the Restriction Termination
Date, all Global Notes and all Certificated Notes shall bear the Legend, unless
such Notes have been transferred pursuant to a registration statement that has
been declared effective under the Securities Act. Until the Restriction
Termination Date, the Company covenants that any stock certificate representing
shares of Common Stock delivered by the Company upon conversion of any Notes
will bear the Legend, unless such shares have been sold pursuant to a
registration statement that has been declared effective under the Securities
Act.
(e) CERTIFICATED NOTES. Notes not issued as interests in the
Global Notes will be issued in certificated form substantially in the form of
Exhibit A-2 attached hereto.
SECTION 2.02 EXECUTION AND AUTHENTICATION. The Notes shall be
executed on behalf of the Company by any Officer, under its corporate seal
reproduced thereon. The signature of the Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at the time of the execution of the Notes the proper
Officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of authentication of such Notes.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder.
The Trustee shall authenticate and deliver Notes for original
issue in an aggregate principal amount of up to $200,000,000, or an aggregate
principal amount of up to $220,000,000 if the Over-Allotment Option is exercised
fully, upon a Company Order without any further action by the Company. The
aggregate principal amount of Notes outstanding at any time may not exceed the
amount set forth in the foregoing sentence, except as provided in Section 2.07.
The Notes shall be issued only in registered form without
coupons and only in denominations of $1,000 in principal amount and any integral
multiple thereof.
SECTION 2.03 REGISTRAR, PAYING AGENT AND CONVERSION AGENT. The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Notes may be presented for purchase or payment ("Paying Agent") and an
office or agency where Notes may be presented for conversion ("Conversion
Agent"). The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may have one or more co-registrars, one or more
additional paying agents and one or more additional conversion agents. The term
Paying Agent includes any additional paying agent, including any named pursuant
to Section 4.05. The term
16
Conversion Agent includes any additional conversion agent, including any named
pursuant to Section 4.05.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent, Conversion Agent or co-registrar (other than
the Trustee). The agreement shall implement the provisions of this Indenture
that relate to such agent. The Company shall notify the Trustee in writing of
the name and address of any such agent. If the Company fails to maintain a
Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor pursuant to Section 7.06.
The Company or any Subsidiary or an Affiliate of either of them may act as
Paying Agent, Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar,
Conversion Agent and Paying Agent in connection with the Notes.
SECTION 2.04 PAYING AGENT TO HOLD MONEY AND NOTES IN TRUST.
Except as otherwise provided herein, on or prior to each due date of payments in
respect of any Note, the Company shall deposit with the Paying Agent a sum of
money (in immediately available funds if deposited on the due date) sufficient
to make such payments when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent
shall hold in trust for the benefit of Noteholders or the Trustee all money held
by the Paying Agent for the making of payments in respect of the Notes and shall
notify the Trustee in writing of any default by the Company in making any such
payment. At any time during the continuance of any such default, the Paying
Agent shall, upon the written request of the Trustee, forthwith pay to the
Trustee all money so held in trust. If the Company, a Subsidiary or an Affiliate
of either of them acts as Paying Agent, it shall segregate the money held by it
as Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by it. Upon doing so, the Paying Agent shall
have no further liability for the money.
SECTION 2.05 NOTEHOLDER 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 Noteholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least
semiannually on June 6 and December 6 a listing of Noteholders dated within 13
days of the date on which the list is furnished and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Noteholders.
SECTION 2.06 TRANSFER AND EXCHANGE. Subject to Section 2.12,
(a) upon surrender for registration of transfer of any Note, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Noteholder or such Noteholder's attorney duly authorized in writing, at the
office or agency of the Company designated as Registrar or co-registrar pursuant
to Section 2.03, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Notes of any authorized denomination or denominations, of a like
aggregate principal amount. The Company shall not charge a service charge for
any registration of transfer or exchange, but the Company may require payment of
a sum sufficient to pay all taxes, assessments or other
17
governmental charges that may be imposed in connection with the transfer or
exchange of the Notes from the Noteholder requesting such transfer or exchange.
At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Noteholder or such Noteholder's attorney duly authorized in writing, at such
office or agency. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Holder making the exchange is entitled to receive.
The Company shall not be required to make, and the Registrar
need not register, transfers or exchanges of Notes selected for redemption
(except, in the case of Notes to be redeemed in part, the portion thereof not to
be redeemed) or any Notes in respect of which a Change in Control Repurchase
Notice (as defined in Section 3.10(d)) has been given and not withdrawn by the
Holder thereof in accordance with the terms of this Indenture (except, in the
case of Notes to be purchased in part, the portion thereof not to be purchased)
or any Notes for a period of 15 days before the mailing of a notice of
redemption of Notes to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so
long as a Global Note remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Note, in whole or in part, shall be made only
in accordance with Section 2.12 and this Section 2.06(b). Transfers of a Global
Note shall be limited to transfers of such Global Note in whole, or in part, to
nominees of the Depositary or to a successor of the Depositary or such
successor's nominee.
(c) Successive registrations and registrations of transfers
and exchanges as aforesaid may be made from time to time as desired, and each
such registration shall be noted on the register for the Notes.
(d) Any Registrar appointed pursuant to Section 2.03 shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Notes upon transfer or
exchange of Notes.
(e) No Registrar shall be required to make registrations of
transfer or exchange of Notes during any periods designated in the text of the
Notes or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) If Notes are issued upon the transfer, exchange or
replacement of Notes subject to restrictions on transfer and bearing the legends
set forth on the form of Note attached hereto as Exhibits A-1 and A-2 setting
forth such restrictions (collectively, the "Legend"), or if a request is made to
remove the Legend on a Note, the Notes so issued shall bear the Legend, or the
Legend shall not be removed, as the case may be, unless there is delivered to
the Company and the Registrar such satisfactory evidence, which shall include an
Opinion of Counsel, as may be reasonably required by the Company and the
Registrar, that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions
of Rule 144A or Rule 144 under the Securities Act or that such Notes are not
18
"restricted" within the meaning of Rule 144 under the Securities Act. Upon (i)
provision of such satisfactory evidence, or (ii) notification by the Company to
the Trustee and Registrar of the sale of such Note pursuant to a registration
statement that is effective at the time of such sale, the Trustee, at the
written direction of the Company, shall authenticate and deliver a Note that
does not bear the Legend. If the Legend is removed from the face of a Note and
the Note is subsequently held by an Affiliate of the Company, the Legend shall
be reinstated.
SECTION 2.07 REPLACEMENT NOTES. If (a) any mutilated Note is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Note, and there
is delivered to the Company and the Trustee such Note or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Note 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 Note or in
lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and
principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Note, pay or purchase such Note, as the case may be.
Upon the issuance of any new Notes under this Section 2.07,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 2.07 in lieu of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note 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 Notes duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.08 OUTSTANDING NOTES; DETERMINATIONS OF HOLDERS'
ACTION. Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it or delivered to it for cancellation,
those paid pursuant to Section 2.07 and those described in this Section 2.08 as
not outstanding. A Note does not cease to be outstanding because the Company or
an Affiliate thereof holds the Note; provided, however, that in determining
whether the Holders of the requisite principal amount of the outstanding Notes
are present at a meeting of Holders for quorum purposes have given or concurred
in any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the Notes or any
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be outstanding, except that, in determining
19
whether the Trustee shall be protected in making such calculation or in relying
upon any such determination as to the presence of a quorum or relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Notes which a Responsible Officer of the Trustee knows to be so owned shall be
so disregarded. Notes so owned that have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or such other obligor. Subject to the foregoing, only Notes
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles 6 and 9).
If a Note is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture,
on a Redemption Date, or on the Business Day following the Change in Control
Repurchase Date, or on Stated Maturity, money or securities, if permitted
hereunder, sufficient to pay Notes payable on that date, then immediately after
such Redemption Date, Change in Control Repurchase Date or Stated Maturity, as
the case may be, such Notes shall cease to be outstanding and interest on such
Notes shall cease to accrue; provided that, if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor reasonably satisfactory to the Trustee has been made.
If a Note is converted in accordance with Article 10, then
from and after the time of conversion on the conversion date, such Note shall
cease to be outstanding and interest shall cease to accrue on such Note.
SECTION 2.09 TEMPORARY NOTES. Pending the preparation of
definitive Notes, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as conclusively
evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to Section 2.03, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
20
SECTION 2.10 CANCELLATION. All Notes surrendered for payment,
purchase by the Company pursuant to Article 3, conversion, redemption or
registration of transfer or exchange shall, if surrendered to any person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee. The Company may not issue new Notes to
replace Notes it has paid or delivered to the Trustee for cancellation or that
any Holder has converted pursuant to Article 10. No Notes shall be authenticated
in lieu of or in exchange for any Notes cancelled as provided in this Section
2.10, except as expressly permitted by this Indenture. All cancelled Notes held
by the Trustee shall be destroyed by the Trustee and the Trustee shall, upon
request, deliver a certificate of destruction to the Company.
SECTION 2.11 PERSONS DEEMED OWNERS. Prior to due presentment
of a Note for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of the Note or the payment of any Redemption Price or Change in
Control Repurchase Price in respect thereof, and interest thereon, for the
purpose of conversion and for all other purposes whatsoever, whether or not such
Note be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 2.12 GLOBAL NOTES. (a) Notwithstanding any other
provisions of this Indenture or the Notes, (A) transfers of a Global Note, in
whole or in part, shall be made only in accordance with Section 2.06 and Section
2.12(a)(i), (B) transfer of a beneficial interest in a Global Note for a
Certificated Note shall comply with Section 2.06 and Section 2.12(a)(ii) below,
and (C) transfers of a Certificated Note shall comply with Section 2.06 and
Sections 2.12(a)(iii) and (iv) below.
(i) TRANSFER OF GLOBAL NOTE. A Global Note may not be
transferred, in whole or in part, to any Person other than the
Depositary or a nominee or any successor thereof, and no such transfer
to any such other Person may be registered; provided that this clause
(i) shall not prohibit any transfer of a Note that is issued in
exchange for a Global Note but is not itself a Global Note. No transfer
of a Note to any Person shall be effective under this Indenture or the
Notes unless and until such Note has been registered in the name of
such Person. Nothing in this Section 2.12(a)(i) shall prohibit or
render ineffective any transfer of a beneficial interest in a Global
Note effected in accordance with the other provisions of this Section
2.12(a).
(ii) RESTRICTIONS ON TRANSFER OF A BENEFICIAL INTEREST IN A
GLOBAL NOTE FOR A CERTIFICATED NOTE. A beneficial interest in a Global
Note may not be exchanged for a Certificated Note except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of notice of a transfer of a beneficial interest in a Global
Note in accordance with Applicable Procedures for a Certificated Note
in the form satisfactory to the Trustee, together with:
21
(a) so long as the Notes are Restricted Notes,
certification, in the form set forth in Exhibit B-1;
(b) written instructions to the Trustee to make, or
direct the Registrar to make, an adjustment on its books and
records with respect to such Global Note to reflect a decrease
in the aggregate principal amount of the Notes represented by
the Global Note, such instructions to contain information
regarding the Depositary account to be credited with such
decrease; and
(c) if the Company or Registrar so requests, an
opinion of counsel or other evidence reasonably satisfactory
to them as to the compliance with the restrictions set forth
in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Registrar, the aggregate principal amount of Notes represented by the
Global Note to be decreased by the aggregate principal amount of the
Certificated Note to be issued, shall issue such Certificated Note and shall
debit or cause to be debited to the account of the Person specified in such
instructions a beneficial interest in the Global Note equal to the principal
amount of the Certificated Note so issued.
(iii) TRANSFER AND EXCHANGE OF CERTIFICATED NOTES. When
Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated
Notes; or
(y) to exchange such Certificated Notes for an equal
principal amount of Certificated Notes of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met;
provided, however, that the Certificated Notes surrendered for transfer
or exchange:
(a) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory
to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such
Notes are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied
by the following additional information and documents, as
applicable:
(A) if such Certificated Notes are being
delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect; or
(B) if such Certificated Notes are being
transferred to the Company, a certification to that
effect; or
22
(C) if such Certificated Notes are being
transferred pursuant to an exemption from
registration, (i) a certification to that effect (in
the form set forth in Exhibits B-1, if applicable)
and (ii) if the Company or Registrar so requests, an
opinion of counsel or other evidence reasonably
satisfactory to them as to the compliance with the
restrictions set forth in the Legend.
(iv) RESTRICTIONS ON TRANSFER OF A CERTIFICATED NOTE FOR A
BENEFICIAL INTEREST IN A GLOBAL NOTE. A Certificated Note may not be
exchanged for a beneficial interest in a Global Note except upon
satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or
accompanied by appropriate instruments of transfer, in form reasonably
satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes,
certification, in the form set forth in Exhibit B-1, that such
Certificated Note is being transferred to a QIB in accordance
with Rule 144A; and
(b) written instructions directing the Trustee to
make, or to direct the Registrar to make, an adjustment on its
books and records with respect to such Global Note to reflect
an increase in the aggregate principal amount of the Notes
represented by the Global Note, such instructions to contain
information regarding the Depositary account to be credited
with such increase, then the Trustee shall cancel such
Certificated Note and cause, or direct the Registrar to cause,
in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the
aggregate principal amount of Notes represented by the Global
Note to be increased by the aggregate principal amount of the
Certificated Note to be exchanged, and shall credit or cause
to be credited to the account of the Person specified in such
instructions a beneficial interest in the Global Note equal to
the principal amount of the Certificated Note so cancelled. If
no Global Notes are then outstanding, the Company shall issue
and the Trustee shall authenticate, upon written order of the
Company in the form of an Officers' Certificate, a new Global
Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be
subject to the restrictions on transfer provided in the Legend including the
delivery of an Opinion of Counsel, if so provided. Whenever any Restricted Note
is presented or surrendered for registration of transfer or for exchange for a
Note registered in a name other than that of the Holder, such Note must be
accompanied by a certificate in substantially the form set forth in Exhibit B-1,
dated the date of such surrender and signed by the Holder of such Note, as to
compliance with such restrictions on transfer. The Registrar shall not be
required to accept for such registration of transfer or exchange any Note not so
accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the
transferability of any Note shall cease and terminate when such Note has been
sold pursuant to an effective registration statement under the Securities Act or
transferred in compliance with Rule 144 under the
23
Securities Act (or any successor provision thereto) or, if earlier, upon the
expiration of the holding period applicable to sales thereof under Rule 144(k)
under the Securities Act (or any successor provision). Any Note as to which such
restrictions on transfer shall have expired in accordance with their terms or
shall have terminated may, upon a surrender of such Note for exchange to the
Registrar in accordance with the provisions of this Section 2.12 (accompanied,
in the event that such restrictions on transfer have terminated by reason of a
transfer in compliance with Rule 144 or any successor provision, by an opinion
of counsel having substantial experience in practice under the Securities Act
and otherwise reasonably acceptable to the Company, addressed to the Company and
in form acceptable to the Company, to the effect that the transfer of such Note
has been made in compliance with Rule 144 or such successor provision), be
exchanged for a new Note, of like tenor and aggregate principal amount, which
shall not bear the restrictive Legend. The Company shall give notice to the
Trustee in writing of the filing of any registration statement registering the
Notes under the Securities Act and at least 15 business days notice prior to the
effectiveness of any such registration statement, and shall direct the Trustee
to forward a copy of each notice to the Holders. 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 Note (including any
transfers between or among DTC participants, members or beneficial owners in any
Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof. The Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the aforementioned opinion of
counsel or registration statement.
(d) In the event that Rule 144(k) as promulgated under the
Securities Act is amended to shorten the two-year restriction period, then
restrictions on transfer on the Notes and the Common Stock will be deemed to
refer to the shortened restriction period. The Company undertakes to inform the
Trustee in writing if such change to Rule 144(k) occurs and the effect (if any)
to the restrictions on transfer applicable to the Notes and Common Stock and
shall provide additional information (including an Opinion of Counsel and/or an
Officers' Certificate) if so requested by the Trustee.
(e) As used in the preceding two paragraphs of this Section
2.12, the term "transfer" encompasses any sale, pledge, transfer, hypothecation
or other disposition of any Note.
(f) The provisions of clauses (1), (2), (3) and (4) below
shall apply only to Global Notes:
(1) Notwithstanding any other provisions of this Indenture or
the Notes, except as provided in Section 2.12(a)(i), a Global Note
shall not be exchanged in whole or in part for a Note registered in the
name of any Person other than the Depositary or one or more nominees
thereof, provided that a Global Note may be exchanged for Notes
registered in the names of any person designated by the Depositary in
the event that (i) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Note or
such Depositary has ceased to be a "clearing agency" registered under
the
24
Exchange Act, and a successor Depositary is not appointed by the
Company within 90 days or (ii) an Event of Default has occurred and is
continuing with respect to the Notes. Any Global Note exchanged
pursuant to clause (i) above shall be so exchanged in whole and not in
part, and any Global Note exchanged pursuant to clause (ii) above may
be exchanged in whole or from time to time in part as directed by the
Depositary. Any Note issued in exchange for a Global Note or any
portion thereof shall be a Global Note; provided that any such Note so
issued that is registered in the name of a Person other than the
Depositary or a nominee thereof shall not be a Global Note.
(2) Notes issued in exchange for a Global Note or any portion
thereof shall be issued in definitive, fully registered form, without
interest coupons, shall have an aggregate principal amount equal to
that of such Global Note or portion thereof to be so exchanged, shall
be registered in such names and be in such authorized denominations as
the Depositary shall designate and shall bear the applicable legends
provided for herein. Any Global Note to be exchanged in whole shall be
surrendered by the Depositary to the Trustee, as Registrar. With regard
to any Global Note to be exchanged in part, either such Global Note
shall be so surrendered for exchange or, if the Trustee is acting as
custodian for the Depositary or its nominee with respect to such Global
Note, the principal amount thereof shall be reduced, by an amount equal
to the portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender
or adjustment, the Trustee shall authenticate and deliver the Note
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(3) Subject to the provisions of clause (5) below, the
registered Holder may grant proxies and otherwise authorize any Person,
including Agent Members (as defined below) and persons that may hold
interests through Agent Members, to take any action which a holder is
entitled to take under this Indenture or the Notes.
(4) In the event of the occurrence of any of the events
specified in clause (1) above, the Company will promptly make available
to the Trustee a reasonable supply of Certificated Notes in definitive,
fully registered form, without interest coupons.
(5) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on whose
behalf Agent Members may act shall have any rights under this Indenture
with respect to any Global Note registered in the name of the
Depositary or any nominee thereof, or under any such Global Note, and
the Depositary or such nominee, as the case may be, may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as
the absolute owner and holder of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the case
may be, or impair, as between the Depositary, its Agent Members and any
other person on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of the
rights of a holder of any Note.
25
SECTION 2.13 CUSIP NUMBERS. The Company in issuing the Notes
may use "CUSIP" numbers and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee in
writing of any change in the CUSIP numbers.
SECTION 2.14 DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Notes, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest, plus (to the extent lawful) any interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date. A
special record date, as used in this Section 2.14 with respect to the payment of
any defaulted interest, shall mean the 15th day next preceding the date fixed by
the Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before the subsequent special record date, the
Company shall mail to each Holder and to the Trustee a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest to be paid.
SECTION 2.15 REGISTRATION DEFAULT. The interest rate borne by
the Notes shall be increased upon a Registration Default as provided in the
Registration Rights Agreement. If a Registration Default occurs, the Company
shall deliver to the Trustee an Officers' Certificate stating (1) the increase
in the Interest Rate, (2) when such increase is effective, (3) the Holders which
are entitled to receive additional interest and the amount payable to each such
Holder and (4) when such additional interest is payable. Unless and until a
Responsible Officer of the Trustee receives such an Officer's Certificate, the
Trustee shall assume there has been no increase in the Interest Rate.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 [Reserved].
SECTION 3.02 OPTIONAL REDEMPTION. The Notes are not redeemable
prior to December 21, 2004. On and after December 21, 2004, the Company may, at
its option, redeem the Notes in whole at any time or in part from time to time,
on any date prior to Stated Maturity, upon notice as set forth in Section 3.05,
at the redemption price (expressed as percentages of the principal amount) set
forth in the table below:
26
PERIOD REDEMPTION PRICE
------ ----------------
December 21, 2004 through December 20, 2005 102.36%
December 21, 2005 through December 20, 2006 101.77%
December 21, 2006 through December 20, 2007 101.18%
Thereafter 100.59%
(the "Optional Redemption Price"), plus any interest accrued but not paid prior
to (but not including) the optional Redemption Date.
SECTION 3.03 NOTICE OF TRUSTEE. If the Company elects to
redeem Notes pursuant to the redemption provisions of Section 3.02, it shall
notify the Trustee in writing at least 30 days prior but not more than 60 days
prior to the Redemption Date of such intended Redemption Date, the principal
amount of Notes to be redeemed and the CUSIP numbers of the Notes to be
redeemed.
SECTION 3.04 SELECTION OF NOTES TO BE REDEEMED. If fewer than
all the Notes are to be redeemed, the Trustee shall select the particular Notes
to be redeemed from the outstanding Notes by a method that complies with the
requirements of any exchange on which the Notes are listed, or, if the Notes are
not listed on an exchange, on a pro rata basis or by lot or in accordance with
any other method the Trustee considers fair and appropriate. Notes and portions
thereof that the Trustee selects shall be in principal amounts equal to $1,000
or any whole multiple thereof.
If any Note selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Note so selected, the converted portion of such Note shall be deemed to be
the portion selected for redemption (provided, however, that the Holder of such
Note so converted and deemed redeemed shall not be entitled to any additional
interest payment as a result of such deemed redemption than such Holder would
have otherwise been entitled to receive upon conversion of such Note). Notes
which have been converted during a selection of Notes to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Notes selected for redemption and, in the case of
any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes shall
relate, in the case of any Notes redeemed or to be redeemed only in part, to the
portion of the principal amount of such Notes which has been or is to be
redeemed.
27
SECTION 3.05 NOTICE OF REDEMPTION. Notice of redemption shall
be given in the manner provided in Section 14.02 to the Holders of Notes to be
redeemed. Such notice shall be given not less than 20 nor more than 60 days
prior to the Redemption Date for redemption pursuant to Section 3.02.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and interest accrued and unpaid to,
but not including, the Redemption Date, if any;
(3) whether the Redemption Price will be payable in cash or
Common Stock or a combination thereof (if the Company elects to make
such payment with a combination of cash and Common Stock, such notice
shall provide the proportion of cash and Common Stock) pursuant to the
formula set forth in Section 3.10(a);
(4) if fewer than all the outstanding Notes are to be
redeemed, the aggregate principal amount of Notes to be redeemed and
the aggregate principal amount of Notes which will be outstanding after
such partial redemption;
(5) that on the Redemption Date the Redemption Price and
interest accrued and unpaid to, but not including, the Redemption Date,
if any, will become due and payable upon each such Note to be redeemed,
and that interest thereon shall cease to accrue on and after such date;
(6) the Conversion Price, the date on which the right to
convert the principal of the Notes to be redeemed will terminate and
the places where such Notes may be surrendered for conversion;
(7) the place or places where such Notes are to be surrendered
for payment of the Redemption Price and accrued and unpaid interest, if
any; and
(8) the CUSIP number of the Notes.
The notice given shall specify the last date on which
exchanges or transfers of Notes may be made pursuant to Section 2.06, and shall
specify the serial numbers of Notes and the portions thereof called for
redemption.
Notice of redemption of Notes to be redeemed at the election
of the Company shall be given by the Company to the Trustee pursuant to Section
3.03, who shall give notice to the Holders.
SECTION 3.06 EFFECT OF NOTICE OF REDEMPTION. Notice of
redemption having been given as provided in Section 3.05, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued and unpaid interest)
such Notes shall cease to bear interest. Upon surrender of any
28
such Note for redemption in accordance with such notice, such Note shall be paid
by the Company at the Redemption Price plus accrued and unpaid interest, if any,
to, but not including, the Redemption Date; provided, however, that the
installments of interest on Notes whose Stated Maturity is prior to or on the
Redemption Date shall be payable to the Holders of such Notes, or one or more
predecessor Notes, registered as such on the relevant Record Date according to
their terms and the provisions of Section 2.01.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the Interest Rate.
SECTION 3.07 DEPOSIT OF REDEMPTION PRICE. Prior to or on any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent an amount of money sufficient to pay the Redemption Price of all the Notes
to be redeemed on that Redemption Date, other than any Notes called for
redemption on that date which have been converted prior to the date of such
deposit, and accrued and unpaid interest, if any, on such Notes.
If any Note called for redemption is converted, any money
deposited with the Trustee or with a Paying Agent or so segregated and held in
trust for the redemption of such Note shall (subject to any right of the Holder
of such Note or any predecessor Note to receive interest as provided in Section
4.01) be paid to the Company on Company Request or, if then held by the Company,
shall be discharged from such trust.
SECTION 3.08 NOTES REDEEMED IN PART. Any Note which is to be
redeemed only in part shall be surrendered at an office or agency of the Company
designated for that purpose pursuant to Section 4.05 (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by the Holder
thereof or the Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Note without service charge, a new Note or Notes of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Note so
surrendered.
SECTION 3.09 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes called for redemption by an agreement with
one or more investment banks or other purchasers to purchase such Notes by
paying to the Trustee in trust for the Holders, on or prior to 11:00 a.m. New
York City time on the Redemption Date, an amount that, together with any amounts
deposited with the Trustee by the Company for the redemption of such Notes, is
not less than the Redemption Price of such Notes. The Company shall promptly
notify the Trustee in writing of any such agreement. Notwithstanding anything to
the contrary contained in this Article 3, the obligation of the Company to pay
the Redemption Price of such Notes shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such purchasers. If such an
agreement is entered into, any Notes not duly surrendered for conversion by the
Holders thereof may, at the option of the Company, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything
29
to the contrary contained in Article 10) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date, subject to payment of the above amount as aforesaid. The
Trustee shall hold and pay to the Holders whose Notes are selected for
redemption any such amount paid to it for purchase and conversion in the same
manner as it would moneys deposited with it by the Company for the redemption of
Notes. Without the Trustee's prior written consent, no arrangement between the
Company and such purchasers for the purchase and conversion of any Notes shall
increase or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Notes between the Company and such
purchasers, including the costs and expenses incurred by the Trustee in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture, except to the extent such loss, liability,
expense or cost results from Trustee's gross negligence or willful misconduct.
SECTION 3.10 REPURCHASE OF NOTES AT OPTION OF THE HOLDER UPON
CHANGE IN CONTROL.
(a) If there shall have occurred a Change in Control, all or
any portion of the Notes of any Holder equal to $1,000 or a whole multiple of
$1,000, not previously called for redemption, shall be repurchased by the
Company, at the option of such Holder, at a repurchase price equal to 100% of
the principal amount of the Notes to be repurchased, together with interest
accrued and unpaid to, but excluding, the repurchase date (the "Change in
Control Repurchase Price"), on the date (the "Change in Control Repurchase
Date") that is 45 Business Days after the Change in Control Repurchase Notice;
provided, however, if such Change in Control Repurchase Date occurs between the
close of business on any Regular Record Date and the opening of business on the
next succeeding Interest Payment Date, then the interest payable on such date
shall be paid to the Holders of such Notes, or one or more predecessor Notes,
registered as such on the relevant Regular Record Date according to their terms.
Subject to the fulfillment by the Company of the conditions
set forth in Section 3.10(b), the Company may elect to pay the Change in Control
Repurchase Price (to the extent not paid in cash) by delivering the number of
shares of Common Stock equal to (i) the Change in Control Repurchase Price
divided by (ii) 95% of the average of the Closing Prices per share of Common
Stock for the five consecutive Trading Days immediately preceding and including
the third Trading Day prior to the Change in Control Repurchase Date. As used in
this Section 3.10, the term "Common Stock" means the Common Stock or the common
stock of the successor or purchasing corporation, as the case may be.
Whenever in this Indenture (including Sections 2.01, 6.01(a)
and 6.07) or Exhibit A-1 annexed hereto there is a reference, in any context, to
the principal of any Note as of any time, such reference shall be deemed to
include reference to the Change in Control Repurchase Price payable in respect
to such Note to the extent that such Change in Control Repurchase Price is, was
or would be so payable at such time, and express mention of the Change in
Control Repurchase Price in any provision of this Indenture shall not be
construed as excluding the Change in Control Repurchase Price in those
provisions of this Indenture when such express
30
mention is not made; provided, however, that, for the purposes of Article 11
hereof, such reference shall be deemed to include reference to the Change in
Control Repurchase Price only to the extent the Change in Control Repurchase
Price is payable in cash or Common Stock or a combination thereof.
A "Change in Control" of the Company shall be deemed to have
occurred at such time after the original issuance of Notes when any of the
following events has occured:
(i) the acquisition, as evidenced by the filing with the
Commission of an executed report on Schedule 13D, by any person,
including any syndicate or group deemed to be a "person" under Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of beneficial ownership (determined in accordance with
Rule 13d-3 under the Exchange Act), directly or indirectly, through a
purchase, merger or other acquisition transaction or series of
transactions, of shares of the Capital Stock of the Company entitling
that person to exercise 50% or more of the total voting power of all
shares of such Capital Stock entitled to vote generally in elections of
directors, other than any acquisition by the Company, any of its
Subsidiaries or any employee benefit plans of the Company;
(ii) any consolidation or merger of the Company with or into
any other person, any merger of another person into the Company, or any
conveyance, transfer, sale, lease or other disposition of all or
substantially all of the Company's properties and assets to another
person, other than:
(A) any transaction (1) that does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of the Capital Stock of the Company or (2)
pursuant to which holders of the Capital Stock of the Company
immediately prior to the transaction are entitled to exercise,
directly or indirectly, 50% or more of the total voting power
of all shares of the Capital Stock of the Company entitled to
vote generally in the election of directors of the continuing
or surviving person immediately after the transaction; or
(B) any merger solely for the purpose of changing the
Company's jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding shares
of Common Stock solely into shares of common stock of the
surviving entity;
(iii) during any consecutive two-year period, individuals who
at the beginning of that two-year period constituted the Board of
Directors (together with any new directors whose election to the Board
of Directors, or whose nomination for election by the shareholders of
the Company, was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such
period or whose election or nomination for election was approved by the
Board of Directos or a nominating committee thereof, the majority of
the members of which meet the above criteria) cease for any reason to
constitute a majority of the Board of Directors then in office; or
31
(iv) the Company is liquidated or dissolved or a resolution is
passed by the Company's stockholders approving a plan of liquidation or
dissolution of the Company other than in a transaction which complies
with the provisions described in Article 5 of this Indenture.
Notwithstanding anything to the contrary set forth above, none
of the foregoing events shall constitute a Change in Control of the Company if
they occur in connection with a merger, consolidation, statutory share exchange,
sale of all or substantially all of the assets of the Company (whether or not
followed by a liquidation or dissolution of the Company) or similar business
combination transaction, if all of the consideration received by holders of
Common Stock immediately prior to consummation of the transaction (excluding
cash payments for fractional shares and for shares held by holders exercising
statutory dissenters rights) 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
business combination transaction, and as a result of such transaction the Notes
become convertible solely into such common stock.
(b) The following are conditions to the Company's election to
pay for the Change in Control Repurchase Price in Common Stock:
(i) The shares of Common Stock to be issued upon repurchase of
Notes hereunder:
(A) shall not require registration under any federal
securities law before such shares may be freely transferable
without being subject to any transfer restrictions under the
Securities Act upon repurchase or, if such registration is
required, such registration shall be completed and shall
become effective prior to the Change in Control Repurchase
Date; and
(B) shall not require registration with, or approval
of, any governmental authority under any state law or any
other federal law before shares may be validly issued or
delivered upon repurchase or if such registration is required
or such approval must be obtained, such registration shall be
completed or such approval shall be obtained prior to the
Change in Control Repurchase Date.
(ii) The shares of Common Stock to be issued upon repurchase
of Notes hereunder are, or shall have been, approved for listing on the
Nasdaq National Market or the New York Stock Exchange or listed on
another national securities exchange, in any case, prior to the Change
in Control Repurchase Date.
(iii) All shares of Common Stock which may be issued upon
repurchase of Notes will be issued out of the Company's (or its
successors) authorized but unissued Common Stock and will, upon issue,
be duly and validly issued and fully paid and nonassessable and free of
any preemptive or similar rights granted by the Company.
32
(iv) If any of the conditions set forth in clauses (i) through
(iii) of this Section 3.08(b) are not satisfied in accordance with the
terms thereof, the Change in Control Repurchase Price shall be paid by
the Company only in cash.
(c) Unless the Company shall have theretofore called for
redemption all of the outstanding Notes, prior to or on the 30th day after the
occurrence of a Change in Control, the Company, or, at the written request and
expense of the Company prior to or on the 30th day after such occurrence, the
Trustee, shall give to all Holders, in the manner provided in Section 14.02,
notice of the occurrence of the Change in Control and of the repurchase right
set forth herein arising as a result thereof. The Company shall also deliver a
copy of such notice of a repurchase right to the Trustee. The notice shall
include a form of Change in Control Repurchase Notice (as defined in Section
3.10(d)) to be completed by the Holder and shall state:
(1) briefly, the events causing a Change in Control and the
date of such Change in Control;
(2) the date by which the Change in Control Repurchase Notice
pursuant to this Section 3.10 must be given;
(3) the Change in Control Repurchase Date;
(4) the Change in Control Repurchase Price;
(5) the name and address of the Paying Agent and the
Conversion Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that Notes as to which a Change in Control Repurchase
Notice has been given may be converted pursuant to Article 10 only if
the Change in Control Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(8) that Notes must be surrendered to the Paying Agent to
collect payment;
(9) that the Change in Control Repurchase Price for any Note
as to which a Change in Control Repurchase Notice has been duly given
and not withdrawn will be paid promptly following the later of the
Change in Control Repurchase Date and the time of surrender of such
Note as described in (8) above;
(10) briefly, the procedures the Holder must follow to
exercise rights under this Section 3.10;
(11) briefly, the conversion rights of the Notes;
(12) the procedures for withdrawing a Change in Control
Repurchase Notice;
(13) that, unless the Company defaults in making payment of
such Change in Control Repurchase Price, interest on Notes called for
redemption will cease to accrue on and after the Change in Control
Repurchase Date;
33
(14) the CUSIP number of the Notes; and
(15) whether the Change of Control Repurchase Price shall be
paid by the Company in cash or by delivery of shares of Common Stock or
a combination thereof, and if a combination thereof, such notice shall
provide the proportion of cash and Common Stock.
(d) A Holder may exercise its rights specified in Section
3.10(a) hereof upon delivery of a written notice of purchase (a "Change in
Control Repurchase Notice") to the Trustee on or prior to the 30th day after the
date of the Company's notice pursuant to 3.10(c) above, stating:
(1) the certificate number of the Note which the Holder will
deliver to be purchased;
(2) the portion of the principal amount of the Note which the
Holder will deliver to be purchased, which portion must be $1,000 or
any whole multiple thereof; and
(3) that such Note shall be purchased pursuant to the terms
and conditions specified in paragraph 6 on the reverse side of the
Notes.
The delivery of such Note to the Paying Agent prior to, on or
after the Change in Control Repurchase Date (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to the
receipt by the Holder of the Change in Control Repurchase Price therefor;
provided, however, that such Change in Control Repurchase Price shall be so paid
pursuant to this Section 3.10 only if the Note so delivered to the Paying Agent
shall conform in all respects to the description thereof set forth in the
related Change in Control Repurchase Notice.
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.10, a portion of a Note if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Note also apply to the purchase
of such portion of such Note.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.10 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Change in Control Repurchase Date and the time of delivery of the Note to the
Paying Agent in accordance with this Section 3.10.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change in Control Repurchase Notice
contemplated by this Section 3.10(d) shall have the right to withdraw such
Change in Control Repurchase Notice at any time prior to the close of business
on the Change in Control Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.11.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Repurchase Notice or written withdrawal
thereof.
34
SECTION 3.11 EFFECT OF CHANGE IN CONTROL REPURCHASE NOTICE.
Upon receipt by the Paying Agent of the Change in Control Repurchase Notice
specified in Section 3.10(d), the Holder of the Note in respect of which such
Change in Control Repurchase Notice was given shall (unless such Change in
Control Repurchase Notice is withdrawn as specified in the following two
paragraphs) thereafter be entitled to receive solely the Change in Control
Repurchase Price with respect to such Note. Such Change in Control Repurchase
Price shall be paid to such Holder, subject to receipt of consideration for the
Notes and/or Notes from the Holders by the Paying Agent, promptly following the
later of (x) the Change in Control Repurchase Date with respect to such Note
(provided the conditions in Section 3.10(d) have been satisfied) and (y) the
time of delivery of such Note to the Paying Agent by the Holder thereof in the
manner required by Section 3.10(d). Notes in respect of which a Change in
Control Repurchase Notice has been given by the Holder thereof may not be
converted pursuant to Article 10 on or after the date of the delivery of such
Change in Control Repurchase Notice unless such Change in Control Repurchase
Notice has first been validly withdrawn as specified in the following two
paragraphs.
A Change in Control Repurchase Notice may be withdrawn by
means of a written notice of withdrawal delivered to the office of the Paying
Agent in accordance with the Change in Control Repurchase Notice at any time
prior to the close of business on the Change in Control Repurchase Date
specifying:
(1) the certificate number of the Note in respect of which
such notice of withdrawal is being submitted,
(2) the principal amount of the Note with respect to which
such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Note which remains
subject to the original Change in Control Repurchase Notice and which
has been or will be delivered for purchase by the Company.
There shall be no repurchase of any Notes pursuant to Section
3.10 if there has occurred (prior to, on or after, as the case may be, the
giving, by the Holders of such Notes, of the required Change in Control
Repurchase Notice) and is continuing an Event of Default (other than a default
in the payment of the Change in Control Repurchase Price with respect to such
Notes). The Paying Agent will promptly return to the respective Holders thereof
any Notes (x) with respect to which a Change in Control Repurchase Notice has
been withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Change in Control Repurchase Price with respect to such Notes) in which case,
upon such return, the Change in Control Repurchase Notice with respect thereto
shall be deemed to have been withdrawn.
SECTION 3.12 DEPOSIT OF CHANGE IN CONTROL REPURCHASE PRICE.
Prior to 11:00 a.m. (New York City time) on the Business Day following the
Change in Control Repurchase Date the Company shall deposit with the Trustee or
with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of
either of them is acting as the Paying Agent, shall segregate and hold in trust
as provided in Section 2.04) an amount of money (in immediately
35
available funds if deposited on such Business Day) or Common Stock, or a
combination thereof, if permitted hereunder, sufficient to pay the aggregate
Change in Control Repurchase Price of all the Notes or portions thereof which
are to be purchased as of the Change in Control Repurchase Date.
SECTION 3.13 NOTES PURCHASED IN PART. Any Note which is to be
purchased only in part shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Xxxxxx's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Note, without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Note so surrendered which is not purchased.
SECTION 3.14 COVENANT TO COMPLY WITH SECURITIES LAWS UPON
PURCHASE OF NOTES. In connection with any offer to purchase or repurchase of
Notes under Section 3.10 hereof (provided that such offer or purchase
constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which term, as
used herein, includes any successor provision thereto) under the Exchange Act at
the time of such offer or purchase), the Company shall (i) comply with Rule
13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act which
may then be applicable, (ii) file the related Schedule TO (or any successor
schedule, form or report) or any other schedule required under the Exchange Act,
and (iii) otherwise comply with all federal and state securities laws so as to
permit the rights and obligations under Section 3.10 to be exercised in the time
and in the manner specified in Section 3.10.
SECTION 3.15 REPAYMENT TO THE COMPANY. The Trustee and the
Paying Agent shall return to the Company any cash or shares of Common Stock that
remain unclaimed as provided in paragraph 12 of the Notes, together with
interest or dividends, if any, thereon, held by them for the payment of the
Change in Control Repurchase Price; provided, however, that to the extent that
the aggregate amount of cash or shares of Common Stock deposited by the Company
pursuant to Section 3.12 exceeds the aggregate Change in Control Repurchase
Price of the Notes or portions thereof which the Company is obligated to
purchase as of the Change in Control Repurchase Date then promptly after the
Business Day following the Change in Control Repurchase Date the Trustee shall
return any such excess to the Company together with interest or dividends, if
any, thereon.
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF PRINCIPAL, PREMIUM, INTEREST ON THE
NOTES. The Company will duly and punctually pay the principal of and premium, if
any, and interest at the Interest Rate in respect of the Notes in accordance
with the terms of the Notes and this Indenture. The Company will deposit or
cause to be deposited with the Trustee as directed by the Trustee, no later than
11:00 a.m., New York time on the day of the Stated Maturity of any Note or
installment of interest, all payments so due in immediatley available funds.
Principal amount,
36
Redemption Price, Change in Control Repurchase Price and cash interest shall be
considered paid on the applicable date due if at 11:00 a.m., New York time on
such date (or, in the case of a Change in Control Repurchase Price, on the
Business Day following the applicable Change in Control Repurchase Date) the
Trustee or the Paying Agent holds, in accordance with this Indenture, money or
Notes, if permitted hereunder, sufficient to pay all such amounts then due.
The Company shall, to the extent permitted by law, pay cash
interest on overdue amounts at the rate per annum set forth in paragraph 1 on
the reverse side of the Notes, compounded semiannually, which interest shall
accrue from the date such overdue amount was originally due to the date payment
of such amount, including interest thereon, has been made or duly provided for.
All such overdue interest shall be payable on demand.
SECTION 4.02 SEC AND OTHER REPORTS. The Company shall file
with the Trustee, within 15 days after it files such annual and quarterly
reports, information, documents and other reports with the SEC, copies of its
annual report and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. If at any time the Company is not
subject to Section 13 or 15(d) of the Exchange Act, such reports shall be
provided at the times the Company would have been required to provide reports
had it continued to have been subject to such reporting requirements. The
Company also shall comply with the other provisions of TIA Section 314(a).
SECTION 4.03 COMPLIANCE CERTIFICATE. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 31, 2002) an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 4.04 FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05 MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in The Borough of Manhattan, the City of New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer, exchange, purchase, redemption or conversion and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The office of State Street Bank and Trust Company,
N.A., located at 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention:
Corporate Trust Administration, shall initially be such office or agency for all
of the aforesaid purposes. The Company shall give prompt written notice to the
Trustee of the location, and of any change in the location, of any such office
or agency (other than a change in the location of the office of the Trustee). If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations,
37
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 14.02.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York, for such purposes.
SECTION 4.06 DELIVERY OF CERTAIN INFORMATION. At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial holder of Notes or shares of Common Stock
issued upon conversion thereof, the Company will promptly furnish or cause to be
furnished Rule 144A Information (as defined below) to such Holder or any
beneficial holder of Notes or holder of shares of Common Stock issued upon
conversion of Notes, or to a prospective purchaser of any such security
designated by any such holder, as the case may be, to the extent required to
permit compliance by such Holder or holder with Rule 144A under the Securities
Act in connection with the resale of any such security. "Rule 144A Information"
shall be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. The
Company shall not consolidate with, merge with or into any other person, engage
in a statutory share exchange or convey, transfer or lease its properties and
assets substantially as an entirety to any person, unless:
(a) either (1) the Company shall be the continuing corporation
or (2) the person (if other than the Company) formed by such
consolidation or into which the Company is merged or the person which
acquires by conveyance, transfer or lease the properties and assets of
the Company substantially as an entirety (i) shall be organized and
validly existing under the laws of the United States and (ii) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form and substance reasonably satisfactory
to the Trustee, all of the obligations of the Company under the Notes
and this Indenture;
(b) at the time of such transaction, no Event of Default and
no event which, after notice or lapse of time, would become an Event of
Default, shall have happened and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, statutory share exchange, conveyance, transfer
or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this
Article
38
5 and that all conditions precedent herein provided for relating to
such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which, if such
assets were owned by the Company, would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
The successor person formed by such consolidation or into
which the Company is merged or the successor person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor had been named as the Company herein; and
thereafter, except in the case of a lease and obligations the Company may have
under a supplemental indenture pursuant to Section 10.11, the Company shall be
discharged from all obligations and covenants under this Indenture and the
Notes. Subject to Section 9.06, the Company, the Trustee and the successor
person shall enter into a supplemental indenture to evidence the succession and
substitution of such successor person and such discharge and release of the
Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT. An "Event of Default" occurs
if:
(1) the Company fails to pay when due the principal of or
premium, if any, on any of the Notes at maturity, upon redemption or
exercise of a repurchase right or otherwise, whether or not such
payment is prohibited by Article 11 of this Indenture;
(2) the Company fails to pay an installment of interest
(including additional interest, if any) on any of the Notes that
continues for 30 days after the date when due, whether or not such
payment is prohibited by Article 11 of this Indenture; provided that a
failure to make any of the first six scheduled interest payments on the
Notes on the applicable Interest Payment Dates will constitute an event
of default with no grace period or cure period;
(3) the Company fails to deliver shares of Common Stock,
together with cash in lieu of fractional shares, when such Common Stock
or cash in lieu of fractional shares is required to be delivered upon
conversion of a Note and such failure continues for 10 days after such
delivery date;
(4) the Company fails to perform or observe any other term,
covenant or agreement contained in the Notes or this Indenture for a
period of 60 days after receipt by the Company of a Notice of Default
(as defined in this Section 6.01);
(5) (A) one or more defaults in the payment of principal of or
premium, if any, on any of the Company's Indebtedness (other than
Excluded Indebtedness) aggregating
39
$10.0 million or more, when the same becomes due and payable at the
scheduled maturity thereof, and such default or defaults shall have
continued after any applicable grace period and shall not have been
cured or waived within a 30-day period after the date of a Notice of
Default or (B) any of the Company's Indebtedness (other than Excluded
Indebtedness) aggregating $10.0 million or more shall have been
accelerated or otherwise declared due and payable, or required to be
prepaid or repurchased (other than by regularly scheduled required
prepayment) prior to the scheduled maturity thereof and such
acceleration is not rescinded or annulled within a 30-day period after
a Notice of Default;
(6) the Company, or any Significant Subsidiary, or any
Subsidiaries of the Company which in the aggregate would constitute a
Significant Subsidiary pursuant to or under or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding or the
commencement of any case against it;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
(E) files a petition in bankruptcy or answer or
consent seeking reorganization or relief; or
(F) consents to the filing of such a petition or the
appointment of or taking possession by a Custodian; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary or any Subsidiaries of the Company
which in the aggregate would constitute a Significant
Subsidiary in an involuntary case or proceeding, or
adjudicates the Company or any Significant Subsidiary or any
Subsidiaries of the Company which in the aggregate would
constitute a Significant Subsidiary insolvent or bankrupt;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or any Subsidiaries of the Company
which in the aggregate would constitute a Significant
Subsidiary or for any substantial part of its or their
properties; or
40
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary or any Subsidiaries of
the Company which in the aggregate would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 days.
"Bankruptcy Law" means Title 11, United States Code,
or any similar federal or state law for the relief of debtors.
"Custodian" means any receiver, trustee, assignee,
liquidator, custodian or similar official under any Bankruptcy
Law;
A Default under clause (4) or (5) above is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25%
in aggregate principal amount of the Notes at the time outstanding notify the
Company and the Trustee, of the Default and the Company does not cure such
Default (and such Default is not waived) within the time specified in clause (4)
or (5) above after actual receipt of such notice. Any such notice must specify
the Default, demand that it be remedied and state that such notice is a "Notice
of Default".
The Company will deliver to the Trustee, within five Business
Days of becoming aware of the occurrence of an event specified in (1) through
(7) above, written notice thereof. In addition, the Company shall deliver to the
Trustee, within 30 days after it becomes aware of the occurrence thereof,
written notice of any event which with the lapse of time would become an Event
of Default under clause (4) or (5) above, its status and what action the Company
is taking or proposes to take with respect thereto.
SECTION 6.02 ACCELERATION. If an Event of Default (other than
an Event of Default specified in Section 6.01(6) or (7)) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least 25%
in aggregate principal amount of the Notes at the time outstanding by notice to
the Company and the Trustee, may declare the Notes due and payable at their
principal amount together with accrued interest; provided, that the Notes may
not be declared due and payable unless the Trustee has given at least five days
prior notice to all of the holders of Designated Senior Indebtedness known to
the Trustee. Upon a declaration of acceleration, such principal and accrued and
unpaid interest to the date of payment shall be immediately due and payable.
If an Event of Default specified in Section 6.01(6) or (7)
above occurs and is continuing, then the principal and the interest on all the
Notes shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Noteholders.
The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding, by notice to the Trustee (and without notice to
any other Noteholder) may rescind or annul an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of the
principal and any accrued cash interest that have become due solely as a result
of acceleration and if all amounts due to the Trustee under Section 7.06 have
been paid. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
41
SECTION 6.03 OTHER REMEDIES. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of the principal, the premium, if any, and any accrued cash interest on
the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if the Trustee does
not possess any of the Notes or produce any of the Notes in the proceeding. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of, or acquiescence in, the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 WAIVER OF PAST DEFAULTS. The Holders of a
majority in aggregate principal amount of the Notes at the time outstanding, by
notice to the Trustee (and without notice to any other Holder), may waive an
existing Default and its consequences except (1) an Event of Default described
in Section 6.01(1) or (2), (2) a Default in respect of a provision that under
Section 9.02 cannot be amended without the consent of each Holder affected or
(3) a Default which constitutes a failure to convert any Note in accordance with
the terms of Article 10. When a Default is waived, it is deemed cured, but no
such waiver shall extend to any subsequent or other Default or impair any
consequent right. This Section 6.04 shall be in lieu of Section 316(a)1(B) of
the TIA and such Section 316(a)1(B) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
SECTION 6.05 CONTROL BY MAJORITY. The Holders of a majority in
aggregate principal amount of the Notes at the time outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability unless the Trustee is offered indemnity reasonably
satisfactory to it against loss, liability or expense. This Section 6.05 shall
be in lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A) is
hereby expressly excluded from this Indenture, as permitted by the TIA.
SECTION 6.06 LIMITATION ON SUITS. A Holder may not pursue any
remedy with respect to this Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount
of the Notes at the time outstanding make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of such notice, request and offer of security or
indemnity; and
42
(5) the Holders of a majority in aggregate principal amount of
the Notes at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Noteholder may not use this Indenture to prejudice the
rights of any other Holder or to obtain a preference or priority over any other
Holder.
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the principal amount, premium, if any, plus Redemption
Price, Change in Control Repurchase Price or any accrued cash interest in
respect of the Notes held by such Holder, on or after the respective due dates
expressed in the Notes or any Redemption Date or Change in Control Repurchase
Date, and to convert the Notes in accordance with Article 10, or to bring suit
for the enforcement of any such payment on or after such respective dates or the
right to convert, shall not be impaired or affected adversely without the
consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE. If an Event of
Default described in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount owing with respect to the Notes and the
amounts provided for in Section 7.06.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Notes or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal amount, Redemption Price, Change in
Control Repurchase Price or any accrued cash interest in respect of the Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any such amount) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the
principal amount, Redemption Price, Change in Control Repurchase Price
or any accrued cash interest and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel or
any other amounts due the Trustee under Section 7.06) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
43
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.06.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES. If the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:
(1) to the Trustee for amounts due under Section 7.06;
(2) to Holders for amounts due and unpaid on the Notes for the
principal amount, Redemption Price, Change in Control Repurchase Price
or any accrued cash interest as the case may be, ratably, without
preference or priority of any kind, according to such amounts due and
payable on the Notes; and
(3) the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the Trustee)
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate
principal amount of the Notes at the time outstanding. This Section 6.11 shall
be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby
expressly excluded from this Indenture, as permitted by the TIA.
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal amount,
Redemption Price, Change in Control Repurchase Price or any accrued cash
interest in respect of Notes, or any interest on such amounts, as contemplated
herein, or which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee,
44
but will suffer and permit the execution of every such power as though no such
law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE;
DURING DEFAULT; PRIOR TO DEFAULT. The Trustee, prior to the occurrence of an
Event of Default hereunder and after the curing or waiving of all such Events of
Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default hereunder has occurred (which has not been cured or waived), the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all such Events of Default which may
have occurred:
(i) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 6.05 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
45
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 7.01 are in furtherance of and
subject to Sections 315 and 316 of the TIA.
SECTION 7.02 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of
and subject to the TIA and subject to Section 7.01:
(a) the Trustee may rely, and shall be protected in acting or
refraining from acting upon, any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, Note or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Company;
(c) the Trustee may consult with counsel of its selection and
any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture with the
request, order or direction of any of the Noteholders pursuant to the
provisions of this Indenture, unless such Noteholders shall have
offered to the Trustee reasonable security or indemnity satisfactory to
the Trustee against the costs, expenses and liabilities which might be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all such Events of Default, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal,
bond, debenture, note, coupon, security, or other paper or document
unless requested in writing to do so by the Holders of not less than a
majority in aggregate principal amount of the Notes then outstanding;
provided that, if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee
46
by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Company or, if paid by
the Trustee or any predecessor trustee, shall be repaid by the Company
upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
SECTION 7.03 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION
OF NOTES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein and
in the Notes, except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any of the Notes or of the proceeds thereof.
SECTION 7.04 TRUSTEE AND AGENTS MAY HOLD NOTES; COLLECTIONS,
ETC. The Trustee or any agent of the Company or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 7.08 and 7.13, if operative, may otherwise deal with the Company and
receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not the Trustee or such agent.
SECTION 7.05 MONEYS HELD BY TRUSTEE. Subject to the provisions
of Section 8.02 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Company or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 7.06 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND
ITS PRIOR CLAIM. The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) to be agreed to in writing by the Trustee and the
Company, and the Company covenants and agrees to pay or reimburse the Trustee
and each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including (i) the reasonable
compensation and the expenses and disbursements of its counsel and of all agents
and other persons not regularly in its employ and (ii) interest at the prime
rate on any disbursements and advances made by the Trustee and not paid by the
Company within 5 days after receipt of an invoice for such disbursement or
advance) except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify the Trustee and
each predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its
47
part, arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and its duties hereunder, including the
costs and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Company under this Section
7.06 to compensate and indemnify the Trustee and each predecessor Trustee and to
pay or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the Notes upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Notes, and the Notes are
hereby effectively subordinated to such senior claim to such extent. The
provisions of this Section 7.06 shall survive the termination of this Indenture.
When the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 6.01 (6) and (7), the expenses (including the
reasonable fees and expenses of its counsel) and the compensation for services
in connection therewith are to constitute expenses of administration under any
bankruptcy law.
SECTION 7.07 RIGHT OF TRUSTEE TO RELY ON OFFICERS'
CERTIFICATE, ETC. Subject to Sections 7.01 and 7.02, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee.
SECTION 7.08 CONFLICTING INTERESTS. If the Trustee has or
shall acquire a conflicting interest within the meaning of the TIA, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the TIA.
SECTION 7.09 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The
Trustee shall at all times be a corporation or banking association and the
Trustee and its parent corporation shall at all times have a combined capital
and surplus of at least $10,000,000. If such corporation or banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for the
purposes of this Section 7.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 7.09, the Trustee shall resign immediately in the manner and with the
effect specified in Section 7.10.
SECTION 7.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Notes by giving
written notice of resignation to the Company and by mailing notice thereof by
first class mail to the Holders of Notes at their last addresses as they shall
appear on the Note register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee or trustees by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed and have accepted appointment within 30 days
48
after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Noteholder who has been a bona fide Holder of a Note for at
least six months may, subject to the provisions of Section 7.11, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 7.08 with respect to any Notes after written request therefor
by the Company or by any Noteholder who has been a bona fide Holder of
a Note for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any Noteholder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 7.11, any Noteholder who has been a bona
fide Holder of a Note for at least six months may on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee. If no successor trustee
shall have been appointed and have accepted appointment within 30 days after a
notice of removal has been given, the removed trustee may petition a court of
competent jurisdiction for the appointment of a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Notes at the time outstanding may at any time remove the Trustee and appoint
a successor trustee by delivering to the Trustee so removed, to the successor
trustee so appointed and to the Company the evidence provided for in Section
1.05 of the action in that regard taken by the Noteholders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section 7.10 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.
SECTION 7.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 7.10 shall execute and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all
49
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as trustee hereunder; but, nevertheless, on the
written request of the Company or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all such rights,
powers, duties and obligations. Upon request of any such successor trustee, the
Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in
this Section 7.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09.
Upon acceptance of appointment by any successor trustee as
provided in this Section 7.11, the Company shall mail notice thereof by first
class mail to the Holders of Notes at their last addresses as they shall appear
in the register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 7.10.
If the Company fails to mail such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 7.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS OF TRUSTEE. Any corporation or banking association into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
banking association succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation or banking association shall be qualified under
the provisions of Section 7.08 and eligible under the provisions of Section
7.09, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such Notes
so authenticated; and, in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificate shall have the full force and
effect that this Indenture provides for the certificate of authentication of the
Trustee; provided, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 7.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY. The Trustee shall comply with the provisions of Section 311 of the TIA.
50
SECTION 7.14 REPORTS BY THE TRUSTEE. (a) The Trustee shall
transmit to Holders and other persons such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the TIA on or
before July 15 in each year that such report is required, such reports to be
dated as of the immediately preceding May 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be furnished to the Company and be filed by the Trustee
with each stock exchange upon which the Notes are listed and also with the SEC.
The Company agrees to notify the Trustee when and as the Notes become admitted
to trading on any national securities exchange.
SECTION 7.15 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY
WITHHOLD IN CERTAIN CIRCUMSTANCES. The Trustee shall transmit to the Holders, as
the names and addresses of such Holders appear on the Note register, notice by
mail of all Defaults which have occurred, such notice to be transmitted within
90 days after the occurrence thereof, unless such defaults shall have been cured
before the giving of such notice; provided that, except in the case of Default
in the payment of the principal of, interest on, or other similar obligation
with respect to, any of the Notes, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee,
or a trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
best interests of the Holders.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 DISCHARGE OF LIABILITY ON NOTES. When (i) all
outstanding Notes will become due and payable within one year of their Stated
Maturity or (ii) all outstanding Notes are scheduled for redemption within one
year and, in either case, the Company has deposited with the Trustee cash
sufficient to pay and discharge all outstanding Notes on the date of their
Stated Maturity or the scheduled date of redemption, then the Company may
discharge its obligations under this Indenture while Notes remain outstanding;
provided that the Company shall remain obligated to issue shares upon conversion
of the Notes. The Trustee shall join in the execution of a document prepared by
the Company acknowledging satisfaction and discharge of this Indenture on demand
of the Company accompanied by an Officers' Certificate and Opinion of Counsel
and at the cost and expense of the Company.
SECTION 8.02 REPAYMENT OF THE COMPANY. The Trustee and the
Paying Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the Notes
that remains unclaimed for two years, subject to applicable unclaimed property
law. After return to the Company, Holders entitled to the money or securities
must look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person and the Trustee and the Paying
Agent shall have no further liability to the Noteholders with respect to such
money or securities for that period commencing after the return thereof.
51
ARTICLE 9
AMENDMENTS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS. The Company and the
Trustee may amend this Indenture or the Notes without the consent of any
Holder for the purposes of, among other things:
(1) adding to the Company's covenants for the benefit of the
Holders;
(2) surrendering any right or power conferred upon the
Company;
(3) providing for conversion rights of Holders if any
reclassification or change of Common Stock or any consolidation,
merger, statutory share exchange or other business combination or sale
of all or substantially all of the Company's assets occurs;
(4) reducing the Conversion Price, provided that the reduction
will not adversely affect the interests of Holders in any material
respect;
(5) complying with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(6) making any changes or modifications to this Indenture
necessary in connection with the registration of the Notes under the
Securities Act as contemplated by the Registration Rights Agreement,
provided that this action does not adversely affect the interests of
the Holders in any material respect;
(7) curing any ambiguity, omission, inconsistency or
correcting or supplementing any defective provision contained in this
Indenture; provided that such modification or amendment does not, in
the good faith opinion of the Board of Directors and the Trustee,
adversely affect the interests of the Holders in any material respect;
or
(8) adding or modifying any other provisions which the Company
and the Trustee may deem necessary or desirable and which will not
adversely affect the interests of the Holders in any material respect;
(9) complying with Article 5; or
(10) providing for uncertificated Notes in addition to the
Certificated Notes so long as such uncertificated Notes are in
registered form for purposes of the Internal Revenue Code of 1986, as
amended.
SECTION 9.02 WITH CONSENT OF HOLDERS. With the written consent
of the Holders of at least a majority in aggregate principal amount of the Notes
at the time outstanding or by the adoption of a resolution at a meeting of
Holders at which a quorum is present by at least a majority in aggregate
principal amount of the Notes represented at the meeting, the Company may modify
and amend this Indenture or the Notes and waive noncompliance by the
52
Company. However, without the consent of each Holder affected, a modification,
amendment or waiver to this Indenture or the Notes may not:
(1) change the maturity of the principal of or any installment
of interest on any Note (including any payment of additional interest);
(2) reduce the principal amount of, or premium, if any, or
interest on (including any payment of additional interest), any Note;
(3) reduce the Interest Rate or interest (including additional
interest) on any Note;
(4) change the currency of payment of principal of, premium,
if any, or interest of any Note;
(5) impair the right to institute suit for the enforcement of
any payment on or with respect to, or conversion of, any Note;
(6) except as otherwise permitted or contemplated by
provisions of this Indenture concerning corporate reorganizations,
adversely affect the repurchase option of Holders upon a Change in
Control or the conversion rights of Holders;
(7) modify the provisions of this Indenture relating to the
pledge of securities as contemplated in Article 12 in a manner adverse
to the Holders;
(8) modify the subordination provisions of the Notes in a
manner adverse to the Holders; or
(9) reduce the percentage in aggregate principal amount of
Notes outstanding necessary to modify or amend this Indenture or to
waive any past default.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective,
the Company shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall comply with the
TIA.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND
ACTIONS. Until an amendment, waiver or other action by Holders becomes
effective, a consent thereto by a Holder of a Note hereunder is a continuing
consent by the Holder and every subsequent Holder of that Note or portion of the
Note that evidences the same obligation as the consenting Holder's Note, even if
notation of the consent, waiver or action is not made on the Note. However, any
such Holder or subsequent Holder may revoke the consent, waiver or action as to
such Holder's Note or portion of the Note if the Trustee receives written notice
of revocation before the date
53
the amendment, waiver or action becomes effective. After an amendment, waiver or
action becomes effective, it shall bind every Noteholder.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Notes so modified
as to conform, in the opinion of the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding Notes.
SECTION 9.06 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The
Trustee shall sign any supplemental indenture authorized pursuant to this
Article 9 if the amendment contained therein does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall be entitled to receive, and (subject to
the provisions of Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.
SECTION 9.07 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.08 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the opinion of the Company and the Trustee, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding Notes.
ARTICLE 10
CONVERSION
SECTION 10.01 CONVERSION RIGHT AND CONVERSION PRICE. Subject
to and upon compliance with the provisions of this Article, at the option of the
Holder thereof, any Note or any portion of the principal amount thereof which is
$1,000 or a whole multiple of $1,000 may be converted (the "Conversion Right")
at the principal amount thereof, or of such portion thereof, into duly
authorized, fully paid and nonassessable shares of Common Stock, at the
Conversion Price, determined as hereinafter provided, in effect at the time of
conversion. The Conversion Right shall expire, subject to the immediately
following paragraph, at the close of business on the date of the Stated Maturity
of the Notes.
54
In case a Note or portion thereof is called for redemption,
the Conversion Right in respect of the Note or the portion so called shall
expire at the close of business on the Business Day immediately preceding the
Redemption Date, unless the Company defaults in making the payment due upon
redemption. In the case of a Change in Control for which the Holder exercises
its repurchase right with respect to a Note or portion thereof, the Conversion
Right in respect of the Note or portion thereof shall expire at the close of
business on the Business Day immediately preceding the Change in Control
Repurchase Date.
The price at which shares of Common Stock shall be delivered
upon conversion (the "Conversion Price") shall be initially equal to $38.51 per
share of Common Stock. The Conversion Price shall be adjusted in certain
instances as provided in paragraphs (a), (b), (c), (d), (e), (f), (h) and (i) of
Section 10.04 and Section 10.12 hereof.
SECTION 10.02 EXERCISE OF CONVERSION RIGHT. To exercise the
Conversion Right, the Holder of any Note to be converted shall surrender such
Note duly endorsed or assigned to the Company or in blank, at the office of any
Conversion Agent, accompanied by a duly signed conversion notice substantially
in the form attached to the Note to the Company stating that the Holder elects
to convert such Note or, if less than the entire principal amount thereof is to
be converted, the portion thereof to be converted.
Notes surrendered for conversion 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 shall be accompanied by payment in New
York Clearing House funds or other funds acceptable to the Company of an amount
equal to the interest to be received on such succeeding Interest Payment Date on
the principal amount of Notes being surrendered for conversion.
Notes duly converted pursuant to this Article 10 shall be
deemed to have been converted immediately prior to the close of business on the
day of surrender of such Notes for conversion in accordance with the foregoing
provisions (the "Conversion Date"), and at such time the rights of the Holders
of such Notes as Holders shall cease, and the Person or Persons entitled to
receive the Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such Common Stock at such time. As
promptly as practicable on or after the Conversion Date, the Company shall cause
to be issued and delivered to such Conversion Agent a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share as provided
in Section 10.03.
In the case of any Note which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Note or
Notes of authorized denominations in aggregate principal amount equal to the
unconverted portion of the principal amount of such Notes.
If shares of Common Stock to be issued upon conversion of a
Restricted Note, or shares of Common Stock and Notes to be issued upon
conversion of a Restricted Note in part only, are to be registered in a name
other than that of the Holder of such Restricted Note, such Holder must deliver
to the Conversion Agent a certificate in substantially the form set forth in the
form of Note set forth in Exhibit A annexed hereto, dated the date of surrender
of such
55
Restricted Note and signed by such Holder, as to compliance with the
restrictions on transfer applicable to such Restricted Note. Neither the Trustee
nor any Conversion Agent, Registrar or Transfer Agent shall be required to
register in a name other than that of the converting Holder, shares of Common
Stock or Notes issued upon conversion of any such Restricted Note not so
accompanied by a properly completed certificate.
If a certificate of Common Stock is issued upon the conversion
of a Note that is subject to restrictions on transfer and bearing the Legend or
the transfer, exchange or replacement of a certificate of Common Stock subject
to restrictions on transfer and bearing the Legend, or if a request is made to
remove the Legend on a certificate of Common Stock, the certificate of Common
Stock so issued shall bear the Legend, or the Legend shall not be removed, as
the case may be, unless there is delivered to the Company and the Common Stock
transfer agent (currently, American Stock Transfer & Trust Company), such
satisfactory evidence, which shall include an Opinion of Counsel, as may be
reasonably required by the Company, that neither the Legend nor the restrictions
on transfer set forth therein are required to ensure that transfers thereof
comply with the provisions of Rule 144A or Rule 144 under the Securities Act or
that such certificate of Common Stock is not "restricted" within the meaning of
Rule 144 under the Securities Act. Upon (i) provision of such satisfactory
evidence, or (ii) notification by the Company to the Common Stock transfer agent
of the sale of such Common Stock pursuant to a registration statement that is
effective at the time of such sale, the Common Stock transfer agent, at the
written direction of the Company, shall deliver a certificate of Common Stock
that does not bear the Legend. If the Legend is removed from the certificate of
Common Stock and the Common Stock is subsequently held by an Affiliate of the
Company, the Legend shall be reinstated.
The Company hereby initially appoints the Trustee as the
Conversion Agent.
SECTION 10.03 FRACTIONS OF SHARES. No fractional shares of
Common Stock shall be issued upon conversion of any Note or Notes. If more than
one Note shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issued upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Notes (or
specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock which would otherwise be issued upon conversion of any Note or
Notes (or specified portions thereof), the Company shall pay a cash adjustment
in respect of such fraction (calculated to the nearest one-100th of a share) in
an amount equal to the same fraction of the Closing Price per share of the
Common Stock as of the Trading Day immediately preceding the date of Conversion
Date.
SECTION 10.04 ADJUSTMENT OF CONVERSION PRICE. The Conversion
Price shall be subject to adjustments, calculated by the Company, from time to
time as follows:
(a) In case the Company shall hereafter pay a dividend or make
distribution to all holders of the outstanding Common Stock in shares of
Common Stock, the Conversion Price in effect at the opening of business on the
Record Date shall be reduced by multiplying such Conversion Price by a fraction:
56
(1) the numerator of which shall be the number of shares of
Common Stock outstanding at the close of business on the Record Date
(as defined in Section 10.4(f)) fixed for such determination, and
(2) the denominator of which shall be the sum of such number
of shares of Common Stock and the total number of shares of Common
Stock constituting such dividend or other distribution.
Such reduction shall become effective immediately after the opening of business
on the day following the Record Date. If any dividend or distribution giving
rise to an adjustment pursuant to described in this Section 10.04(a) is declared
but not so paid or made, the Conversion Price shall again be adjusted to the
Conversion Price which would then be in effect if such dividend or distribution
had not been declared.
(b) In case the outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day immediately following the day
upon which such subdivision becomes effective shall be proportionately
reduced, and conversely, in case the outstanding shares of Common Stock shall
be combined into a lesser number of shares of Common Stock, the Conversion
Price in effect at the opening of business on the day immediately following
the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be, to
become effective immediately after the opening of business on the day
immediately following the day upon which such subdivision or combination
becomes effective.
(c) In case the Company shall issue rights or warrants (other than any
rights or warrants referred to in Section 10.04(d)) to all holders of its
outstanding shares of Common Stock entitling such holders 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) that is less
than the Current Market Price (as defined in Section 10.04(g)) on the Record
Date fixed for the determination of stockholders entitled to receive such
rights or warrants, the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in
effect at the opening of business on the date after such Record Date by a
fraction:
(1) the numerator of which shall be the number of shares of
Common Stock outstanding at the close of business on the Record Date
plus the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase (or the
aggregate conversion price of the convertible securities so offered)
would purchase at such Current Market Price, and
(2) the denominator of which shall be the number of shares of
Common Stock outstanding on the close of business on the Record Date
plus the total number of additional shares of Common Stock so offered
for subscription or purchase (or into which the convertible securities
so offered are convertible).
57
Such adjustment shall become effective immediately after the opening of business
on the day immediately following the Record Date fixed for determination of
stockholders entitled to receive such rights or warrants. To the extent that
shares of Common Stock (or securities convertible into Common Stock) are not
delivered pursuant to such rights or warrants, upon the expiration or
termination of such rights or warrants the Conversion Price shall be readjusted
to the Conversion Price which would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made on the basis of the
delivery of only the number of shares of Common Stock (or securities convertible
into Common Stock) actually delivered thereunder. In the event that, after the
Record Date is fixed, such rights or warrants are not so issued, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such date fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In determining whether any
rights or warrants entitle the holders to subscribe for or purchase shares of
Common Stock at less than such Current Market Price, and in determining the
aggregate offering price of such shares of Common Stock, there shall be taken
into account any and all consideration received for such rights or warrants, the
value of such consideration if other than cash, to be determined by the Board of
Directors.
(d) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock shares of any class of capital stock of the
Company (other than any dividends or distributions to which Section 10.04(a)
applies) or evidences of its indebtedness or other assets, including
securities, but excluding (1) any rights or warrants referred to in Section
10.04(c), (2) any dividends or distributions in connection with a Conversion
Change Event (as defined in Section 10.11) to which Section 10.11 applies and
(3) dividends and distributions paid exclusively in cash (the securities
described in the foregoing clauses (1), (2) and (3) hereinafter in this
Section 10.04(d) called the "excluded securities"), then, in each such case,
subject to the second succeeding paragraph of this Section 10.04(d), the
Conversion Price shall be adjusted so that the same shall be equal to the
price determined by multiplying the Conversion Price in effect immediately
prior to the close of business on the Record Date with respect to such
distribution by a fraction:
(1) the numerator of which shall be the Current Market Price
(determined as provided in Section 10.04(g)) on such date less the fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and set forth in a Board Resolution)
on such date of the portion of the securities so distributed (other
than excluded securities) applicable to one share of Common Stock
(determined on the basis of the number of shares of the Common Stock
outstanding on the Record Date), and
(2) the denominator of which shall be such Current Market
Price.
Such reduction shall become effective immediately prior to the opening of
business on the day immediately following the Record Date. However, in the event
that the then fair market value (as so determined by the Board of Directors) of
the portion of the securities so distributed (other than excluded securities)
applicable to one share of Common Stock is equal to or greater than the Current
Market Price on the Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive upon
conversion of a Note (or any portion thereof) an amount of the securities so
distributed (other than excluded securities) equal to the amount that such
Holder would have received had such Holder converted such Note
58
(or portion thereof) immediately prior to such Record Date. In the event that
such dividend or distribution is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
such dividend or distribution had not been declared.
If the Board of Directors determines the fair market value of
any distribution for purposes of this Section 10.04(d) by reference to the
actual or when issued trading market for any securities comprising all or part
of such distribution (other than excluded securities), it must in doing so
consider the prices in such market over the same period (the "Reference Period")
used in computing the Current Market Price pursuant to Section 10.04(f) to the
extent possible, unless the Board of Directors in a Board Resolution determines
in good faith that determining the fair market value during the Reference Period
would not be in the best interest of the Holder.
Rights or warrants distributed by the Company to all holders
of Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Common
Stock;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances of Common
Stock,
shall be deemed not to have been distributed for purposes of this Section
10.04(d) (and no adjustment to the Conversion Price under this Section 10.04(d)
will be required) until the occurrence of the earliest Trigger Event. If the
exercisability of such right or warrant is subject to subsequent events, upon
the occurrence of which such right or warrant shall become exercisable to
purchase different securities, evidences of indebtedness or other assets or
entitle the holder to purchase a different number or amount of the foregoing or
to purchase any of the foregoing at a different purchase price, then the
occurrence of each such event shall be deemed to be the date of issuance and
Record Date with respect to a new right or warrant (and a termination or
expiration of the existing right or warrant without exercise by the holder
thereof). In addition, in the event of any distribution (or deemed distribution)
of rights or warrants, or any Trigger Event or other event (of the type
described in the preceding sentence) with respect thereto, that resulted in an
adjustment to the Conversion Price under this Section 10.04(d):
(1) in the case of the distribution by the Company of any
such rights or warrants which shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion
Price shall be readjusted upon such final redemption or repurchase to
give effect to such distribution or Trigger Event, as the case may be,
as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder of Common Stock
with respect to such rights or warrant (assuming such holder had
retained such rights or warrants), made to all holders of Common Stock
as of the date of such redemption or repurchase, and
59
(2) in the case of the distribution by the Company of such
rights or warrants all of which shall have expired or been terminated
without exercise, the Conversion Price shall be readjusted as if such
rights and warrants had never been issued.
The provisions of this paragraph shall not apply to the Company's preferred
stock purchase rights issuable pursuant to the rights agreement dated as of
March 13, 2001, as amended as of September 6, 2001, between the Company and
American Stock Transfer & Trust Company, as rights agent.
For purposes of this Section 10.04(d) and Sections 10.04(a),
10.04(b) and 10.04(c), any dividend or distribution to which this Section
10.04(d) is applicable that also includes shares of Common Stock, a subdivision
or combination of Common Stock to which Section 10.04(b) applies, or rights or
warrants to subscribe for or purchase shares of Common Stock to which Section
10.04(c) applies (or any combination thereof), there shall be deemed instead to
be:
(3) a dividend or distribution of the evidences of
indebtedness, assets, shares of capital stock, rights or warrants other
than such shares of Common Stock or such rights or warrants or such
subdivision or combination to which Sections 10.04(a), 10.04(b) and
10.04(c) apply, respectively (and any Conversion Price reduction
required by this Section 10.04(d) with respect to such dividend or
distribution shall then be made), immediately followed by
(4) a dividend or distribution of such shares of Common Stock
or such rights or warrants or such subdivision or combination(and any
further Conversion Price reduction required by Sections 10.04(a),
10.04(b) and 10.04(c) with respect to such dividend or distribution
shall then be made), except:
(A) the Record Date of such dividend or distribution
shall be substituted as (x) "the date fixed for the
determination of stockholders entitled to receive such
dividend or other distribution", "Record Date fixed for such
determinations" and "Record Date" within the meaning of
Section 10.04(a), (y) "the day upon which such subdivision
becomes effective" and "the day upon which such combination
becomes effective" within the meaning of Section 10.04(b), and
(z) as "the date fixed for the determination of stockholders
entitled to receive such rights or warrants", "the Record Date
fixed for the determination of the stockholders entitled to
receive such rights or warrants" and such "Record Date" within
the meaning of Section 10.04(c), and
(B) any shares of Common Stock included in such
dividend or distribution shall not be deemed "outstanding at
the close of business on the date fixed for such
determination" within the meaning of Section 10.04(a) and any
reduction or increase in the number of shares of Common Stock
resulting from such subdivision or combination shall be
disregarded in connection with such dividend or distribution.
60
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash that is
distributed upon a Conversion Change Event to which Section 10.11 applies or as
part of a distribution referred to in Section 10.04(d)) or the Company or any of
its Subsidiaries purchase any of the Common Stock pursuant to tender offers or
exchange offers, in an aggregate amount that, together with: (1) the aggregate
amount of any other such dividends and distributions to all holders of Common
Stock made exclusively in cash within the 12 months immediately preceding the
date of payment of such distribution, and in respect of which no adjustment
pursuant to this Section 10.04(e) has been made, and (2) the excess of (i) the
aggregate of any cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and set forth in a Board
Resolution) of any non-cash consideration payable in respect of any tender offer
or exchange offer by the Company or any of its Subsidiaries for all or any
portion of the Common Stock concluded within the 12 months immediately preceding
the date of such distribution, and in respect of which no adjustment pursuant to
this Section 10.04(e) hereof has been made over (ii) the product of (A) the
average of the Closing Prices of the Common Stock for each of the five Trading
Days to and including the Trading Day immediately preceding the date of
announcement of such tender offer or exchange offer multiplied by (B) the number
of shares of Common Stock purchased pursuant to such tender offer or exchange
offer, exceeds 10% of the product of the Current Market Price of the Common
Stock (determined as provided in Section 10.04(f)) on, as applicable, (x) the
Record Date with respect to such dividend or distribution times the number of
shares of Common Stock outstanding on such date or (y) the Trading Day
immediately preceding such announcement date for such tender offer or exchange
offer in respect of which such sum is calculated times the number of shares of
Common Stock outstanding on such date, then and in each such case, immediately
after the close of business on such date, the Conversion Price shall be reduced
so that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the close of business on such Record Date
or Trading Day by a fraction:
(i) the numerator of which shall be equal to the Current
Market Price on the Record Date or the Trading Day immediately
preceding the date of announcement of such tender offer or exchange
offer, as applicable, less an amount equal to the quotient of (x) the
excess of such combined amount over such 10% and (y) the number of
shares of Common Stock outstanding on such Record Date or Trading Day,
and
(ii) the denominator of which shall be equal to the Current
Market Price on such date.
However, in the event that the quotient of clauses (x) and (y) in clause (i)
above is equal to or greater than the Current Market Price on the Record Date or
the Trading Day immediately preceding such announcement date for such tender
offer or exchange offer, as applicable, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder shall have the right to
receive upon conversion of a Note (or any portion thereof) the amount of cash
such Holder would have received had such Holder converted such Note (or portion
thereof) immediately prior to such Record Date or Trading Day. In the event that
such dividend or distribution is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
such dividend or distribution had not been declared.
61
Such reduction (if any) shall become effective immediately prior to the opening
of business on the day following the later of the Record Date and the Trading
Day immediately preceding such announcement date for such tender offer or
exchange offer . In the event that the Company is obligated to purchase shares
pursuant to any such tender offer or exchange offer, but the Company is
permanently prevented by applicable law from effecting any such purchases or all
such purchases are rescinded, the Conversion Price shall again be adjusted to be
the Conversion Price which would then be in effect if such tender offer or
exchange offer had not been made. If the application of this Section 10.04(e) to
any tender offer or exchange offer would result in an increase in the Conversion
Price, no adjustment shall be made for such tender offer or exchange offer under
this Section 10.04(e).
(f) For purposes of this Section 10.04, the following terms
shall have the meanings indicated:
(1) "Current Market Price" shall mean the average of the daily
Closing Prices per share of Common Stock for the ten consecutive
Trading Days immediately prior to the date in question; provided,
however, that if:
(i) the "ex" date (as hereinafter defined) for any
event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion
Price pursuant to Section 10.04(a), (b), (c), (d), or (e)
occurs during such ten consecutive Trading Days, the Closing
Price for each Trading Day prior to the "ex" date for such
other event shall be adjusted by multiplying such Closing
Price by the same fraction by which the Conversion Price is so
required to be adjusted as a result of such other event;
(ii) the "ex" date for any event (other than the
issuance or distribution requiring such computation) that
requires an adjustment to the Conversion Price pursuant to
Section 10.04(a), (b), (c), (d), or (e) occurs on or after the
"ex" date for the issuance or distribution requiring such
computation and prior to the day in question, the Closing
Price for each Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such Closing
Price by the reciprocal of the fraction by which the
Conversion Price is so required to be adjusted as a result of
such other event; and
(iii) the "ex" date for the issuance or distribution
requiring such computation is prior to the day in question,
after taking into account any adjustment required pursuant to
clause (i) or (ii) of this proviso, the Closing Price for each
Trading Day on or after such "ex" date shall be adjusted by
adding thereto the amount of any cash and the fair market
value (as determined by the Board of Directors in a manner
consistent with any determination of such value for purposes
of Section 10.04(d) or (e), whose determination shall be
conclusive and set forth in a Board Resolution) of the
evidences of indebtedness, shares of capital stock or assets
being distributed applicable to one share of Common Stock as
of the close of business on the day before such "ex" date.
62
For purposes of any computation under Section 10.04(e), the Current Market Price
of the Common Stock on any date shall be deemed to be the average of the daily
Closing Prices per share of Common Stock for such day and the next two
succeeding Trading Days; provided, however, that if the "ex" date for any event
(other than the tender offer requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Section 10.04(a), (b), (c), (d),
or (e) occurs on or after the last time tenders or exchanges could have been
made pursuant to the tender or exchange offer requiring such computation and
prior to the day in question, the Closing Price for each Trading Day on and
after the "ex" date for such other event shall be adjusted by multiplying such
Closing Price by the reciprocal of the fraction by which the Conversion Price is
so required to be adjusted as a result of such other event. For purposes of this
paragraph, the term "ex" date, when used:
(A) with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the relevant
exchange or in the relevant market from which the Closing Price was
obtained without the right to receive such issuance or distribution;
(B) with respect to any subdivision or combination of shares
of Common Stock, means the first date on which the Common Stock trades
regular way on such exchange or in such market after the time at which
such subdivision or combination becomes effective, and
(C) with respect to any tender or exchange offer, means the
first date on which the Common Stock trades regular way on such
exchange or in such market after the as of the last time tenders or
exchanges could have been made pursuant to such offer.
Notwithstanding the foregoing, whenever successive adjustments to the Conversion
Price are called for pursuant to this Section 10.04, such adjustments shall be
made to the Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 10.04 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.
(2) "fair market value" shall mean the amount which a willing
buyer would pay a willing seller in an arm's length transaction.
(3) "Record Date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of
Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is
exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property (whether
such date is fixed by the Board of Directors or by statute, contract or
otherwise).
(g) The Company may make such reductions in the Conversion
Price, in addition to those required by Section 10.04(a), (b), (c), (d) or (e),
as the Board of Directors considers to be advisable to avoid or diminish any
income tax to holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
63
To the extent permitted by applicable law, the Company from
time to time may reduce the Conversion Price by any amount for any period of
time if the period is at least 20 days and the reduction is irrevocable during
the period and the Board of Directors determines in good faith that such
reduction would be in the best interests of the Company, which determination
shall be conclusive and set forth in a Board Resolution. Whenever the Conversion
Price is reduced pursuant to the preceding sentence, the Company shall mail to
the Trustee and each Holder at the address of such Holder as it appears in the
Register a notice of the reduction at least 15 days prior to the date the
reduced Conversion Price takes effect, and such notice shall state the reduced
Conversion Price and the period during which it will be in effect.
(h) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the Conversion Price then in effect; provided, however, that any adjustments
which by reason of this Section 10.04(h) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article 10 shall be made by the Company and shall be
made to the nearest cent or to the nearest one hundredth of a share, as the case
may be. No adjustment need be made for a change in the par value or no par value
of the Common Stock.
(i) In any case in which this Section 10.04 provides that an
adjustment shall become effective immediately after a Record Date for an event,
the Company may defer until the occurrence of such event (i) issuing to the
Holder of any Note converted after such Record Date and before the occurrence of
such event the additional shares of Common Stock issuable upon such conversion
by reason of the adjustment required by such event over and above the Common
Stock issuable upon such conversion before giving effect to such adjustment and
(ii) paying to such Holder any amount in cash in lieu of any fraction of a share
of Common Stock pursuant to Section 10.03.
(j) For purposes of this Section 10.04, the number of shares
of Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company.
SECTION 10.05 NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the Conversion Price is adjusted as herein provided (other than in the
case of an adjustment pursuant to the second paragraph of Section 10.04(g) for
which the notice required by such paragraph has been provided), the Company
shall promptly file with the Trustee and any Conversion Agent other than the
Trustee an Officers' Certificate setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based.
Promptly after delivery of such Officers' Certificate, the Company shall prepare
a notice stating that the Conversion Price has been adjusted and setting forth
the adjusted Conversion Price and the date on which each adjustment becomes
effective, and shall mail such notice to each Holder at the address of such
Holder as it appears in the Register within 20 days of the effective date of
such adjustment. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
64
SECTION 10.06 NOTICE PRIOR TO CERTAIN ACTIONS. In case at any
time after the date hereof:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of
its capital surplus or its consolidated retained earnings;
(2) the Company shall authorize the granting to all holders of
its Common Stock of rights or warrants to subscribe for or purchase any
shares of capital stock of any class (or of securities convertible into
shares of capital stock of any class) or of any other rights;
(3) there shall occur any reclassification of the Common Stock
of the Company (other than a subdivision or combination of its
outstanding Common Stock, a change in par value, a change from par
value to no par value or a change from no par value to par value), or
any merger, consolidation, statutory share exchange or other business
combination to which the Company is a party and for which approval of
any stockholders of the Company is required, or the sale, transfer or
conveyance of all or substantially all of the assets of the Company; or
(4) there shall occur the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
the Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Notes pursuant to Section 4.05, and shall cause to be
provided to the Trustee and all Holders in accordance with Section 12.02, at
least 20 days (or 10 days in any case specified in clause (1) or (2) above)
prior to the applicable record or effective date hereinafter specified, a notice
stating:
(A) the date on which a record is to be taken for the
purpose of such dividend, distribution, rights or warrants,
or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be
determined, or
(B) the date on which such reclassification, merger,
consolidation, statutory share exchange, business combination,
sale, transfer, conveyance, dissolution, liquidation or
winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such
reclassification, merger, consolidation, statutory share
exchange, business combination, sale, transfer, conveyance,
dissolution, liquidation or winding up.
Neither the failure to give such notice nor any defect therein
shall affect the legality or validity of the proceedings or actions described in
clauses (1) through (4) of this Section 10.06.
65
SECTION 10.07 COMPANY TO RESERVE COMMON STOCK. The Company
shall at all times use its best efforts to reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Notes, the full number of shares of fully
paid and nonassessable Common Stock then issuable upon the conversion of all
Notes outstanding.
SECTION 10.08 TAXES ON CONVERSIONS. Except as provided in the
next sentence, the Company will pay any and all taxes (other than taxes on
income) and duties that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Notes pursuant hereto. A Holder
delivering a Note for conversion shall be liable for and will be required to pay
any tax or duty which may be payable in respect of any transfer involved in the
issue and delivery of shares of Common Stock in a name other than that of the
Holder of the Note or Notes to be converted, and no such issue or delivery shall
be made unless the Person requesting such issue has paid to the Company the
amount of any such tax or duty, or has established to the satisfaction of the
Company that such tax or duty has been paid.
SECTION 10.09 COVENANT AS TO COMMON STOCK. The Company
covenants that all shares of Common Stock which are issued upon conversion of
Notes will upon issue be fully paid and nonassessable and, except as provided in
Section 10.08, the Company will pay all taxes, liens and charges with respect to
the issue thereof.
SECTION 10.10 CANCELLATION OF CONVERTED NOTES. All Notes
delivered for conversion shall be delivered to the Trustee to be canceled by or
at the direction of the Trustee, which shall dispose of the same as provided in
Section 2.10.
SECTION 10.11 EFFECT OF RECLASSIFICATION, CONSOLIDATION,
MERGER OR SALE. If any of following events occur, namely:
(1) any reclassification or change of the outstanding shares
of Common Stock (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a
subdivision or combination),
(2) any merger, consolidation, statutory share exchange or
other business combination of the Company with another corporation as a
result of which holders of Common Stock shall be entitled to receive
stock, securities or other property or assets (including cash) with
respect to or in exchange for such Common Stock or
(3) any sale or conveyance of the properties and assets of the
Company as, or substantially as, an entirety to any other corporation
as a result of which holders of Common Stock shall be entitled to
receive stock, securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock,
(each of the foregoing a "Conversion Change Event") the Company or the successor
or purchasing corporation, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the TIA as in force at the date
of execution of such supplemental indenture if such supplemental indenture is
then required to so comply) providing that each Note shall be convertible into
the kind and amount of shares of stock and other securities or property or
assets (including cash) which such Holder would have been entitled to
66
receive upon such Conversion Change Event had such Notes been converted into
Common Stock immediately prior to such Conversion Change Event assuming such
holder of Common Stock did not exercise its rights of election, if any, as to
the kind or amount of securities, cash or other property receivable upon such
Conversion Change Event (provided that, if the kind or amount of securities,
cash or other property receivable upon such Conversion Change Event is not the
same for each share of Common Stock in respect of which such rights of election
shall not have been exercised ("Non-Electing Share"), then for the purposes of
this Section 10.11 the kind and amount of securities, cash or other property
receivable upon such Conversion Change Event for each Non-Electing Share shall
be deemed to be the kind and amount so receivable per share by a plurality of
the Non-Electing Shares). Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 10. If, in the case of any such
Conversion Change Event, the stock or other securities and assets receivable
thereupon by a holder of shares of Common Stock includes shares of stock or
other securities and assets of a corporation other than the successor or
purchasing corporation, as the case may be, in such Conversion Change Event,
then such supplemental indenture shall also be executed by such other
corporation and shall contain such additional provisions to protect the
interests of the Holders of the Notes as the Board of Directors shall reasonably
consider necessary by reason of the foregoing, including to the extent
practicable the provisions providing for the repurchase rights set forth in
Section 3.10 hereof.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder, at the address of such
Holder as it appears on the Register, within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of such
supplemental indenture.
The above provisions of this Section 10.11 shall similarly
apply to successive reclassifications, changes in Common Stock, mergers,
consolidations, statutory share exchanges, other business combinations, sales
and conveyances.
If this Section 10.11 applies to any event or occurrence,
Section 10.04 hereof shall not apply.
SECTION 10.12 ADJUSTMENT FOR OTHER DISTRIBUTIONS. If, after
the Issue Date of the Securities, the Company pays a dividend or makes a
distribution to all holders of its Common Stock consisting of Capital Stock
of any class or series, or similar equity interests, of or relating to a
Subsidiary or other business unit of the Company, the Conversion Price shall
be adjusted in accordance with the formula:
P' = P x 1/(1 + F/M)
where:
P' = the adjusted Conversion Price.
P = the current Conversion Price.
M = the average of the Post-Distribution Prices of the Common Stock for
the 10 trading days commencing on and including the fifth trading day after the
date on which "ex-dividend
67
trading" commences for such dividend or distribution on the principal United
States exchange or market on which such securities are then listed or quoted
(the "Ex-Dividend Date").
F = the fair market value of the securities distributed in respect of
each share of Common Stock, which shall mean the number of securities
distributed in respect of each share of Common Stock multiplied by the average
of the Post-Distribution Prices of those securities distributed for the 10
trading days commencing on and including the fifth trading day after the
Ex-Dividend Date.
"Post-Distribution Price" of Capital Stock or any similar
equity interest on any date means the closing per unit sale price (or, if no
closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average ask
prices) on such date for trading of such units on a "when issued" basis without
due bills (or similar concept) as reported in the composite transactions for the
principal United States securities exchange or market on which such Capital
Stock or equity interest is traded or, if the Capital Stock or equity interest,
as the case may be, is not listed on a United States national or regional
securities exchange or market, as reported by the National Association of
Securities Dealers Automated Quotation System or by the National Quotation
Bureau Incorporated; provided that if on any date such units have not traded on
a "when issued" basis, the Post-Distribution Price shall be the closing per unit
sale price (or, if no closing sale price is reported, the average of the bid and
ask prices or, if more than one in either case, the average of the average bid
and the average ask prices) on such date for trading of such units on a "regular
way" basis without due bills (or similar concept) as reported in the composite
transactions for the principal United States securities exchange on which such
Capital Stock or equity interest is traded or, if the Capital Stock or equity
interest, as the case may be, is not listed on a United States national or
regional securities exchange, as reported by the National Association of
Securities Dealers Automated Quotation System or by the National Quotation
Bureau Incorporated. In the absence of such quotation, the Company shall be
entitled to determine the Post-Distribution Price on the basis of such
quotations, which reflect the post-distribution value of the Capital Stock or
equity interests as it considers appropriate.
SECTION 10.13 RESPONSIBILITY OF TRUSTEE FOR CONVERSION
PROVISIONS. The Trustee, subject to the provisions of Section 7.01, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of Notes to determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the nature or intent of
any such adjustments when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee, subject to the provisions of Section 7.01, nor any
Conversion Agent shall be accountable with respect to the validity or value (of
the kind or amount) of any Common Stock, or of any other securities or property,
which may at any time be issued or delivered upon the conversion of any Note;
and it or they do not make any representation with respect thereto. Neither the
Trustee, subject to the provisions of Section 7.01, nor any Conversion Agent
shall be responsible for any failure of the Company to make any cash payment or
to issue, transfer or deliver any shares of stock or share certificates or other
securities or property upon the surrender of any Note for the purpose of
conversion; and the Trustee, subject to the provisions of Section 7.01, and any
Conversion Agent shall not be responsible or liable for any failure of the
Company to comply with any of the covenants of the Company contained in this
Article.
68
ARTICLE 11
SUBORDINATION
SECTION 11.01 AGREEMENT TO SUBORDINATE. The Company agrees,
and each Holder by accepting a Note agrees, that the Indebtedness, interest and
other obligations of any kind evidenced by the Notes and this Indenture are
subordinated in right of payment, to the extent and in the manner provided in
this Article 11, to the prior payment in full in cash of all Senior Indebtedness
(whether outstanding on the date hereof or hereafter created, incurred, assumed
or guaranteed), and that such subordination is for the benefit of the holders of
Senior Indebtedness.
SECTION 11.02 LIQUIDATION; DISSOLUTION; BANKRUPTCY. In the
event of any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relating to the Company or to its assets, or any liquidation,
dissolution or other winding-up of the Company, whether voluntary or
involuntary, or any assignment for the benefit of creditors or other marshaling
of assets or liabilities of the Company (except in connection with the
consolidation or merger of the Company or its liquidation or dissolution
following the conveyance, transfer or lease of its properties and assets
substantially upon the terms and conditions described in Article 5), the holders
of Senior Indebtedness will be entitled to receive payment in full in cash of
all Senior Indebtedness, or provision shall be made for such payment in full,
before the Noteholders will be entitled to receive any payment or distribution
of any kind or character (other than with respect to the Initial Pledged
Securities pledged as security for the Notes as set forth in Article 12 or any
payment or distribution in the form of equity securities or subordinated
securities of the Company or any successor obligor that, in the case of any such
subordinated securities, are subordinated in right of payment to all Senior
Indebtedness that may at the time be outstanding to at least the same extent as
the Notes are so subordinated (such equity securities or subordinated securities
hereinafter being "Permitted Junior Securities")) on account of principal of, or
premium, if any, or additional interest, if any, or interest on the Notes; and
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than a payment or distribution in
the form of Permitted Junior Securities), by set-off or otherwise, to which the
Noteholders or the Trustee would be entitled but for the provisions of this
Article 11 shall be paid by the liquidating trustee or agent or other person
making such payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness to the
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
SECTION 11.03 DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS. (a)
No payment or distribution of any assets of the Company of any kind or
character, whether in cash, property or securities (other than Permitted Junior
Securities), may be made by or on behalf of the Company on account of principal
of, premium, if any, or interest on the Notes or on account of the purchase,
redemption or other acquisition of Notes upon the occurrence of any Payment
Default until such Payment Default shall have been cured or waived in writing or
shall have
69
ceased to exist or such Designated Senior Indebtedness shall have been
discharged or paid in full in cash, except with respect to the Initial Pledged
Securities as set forth in Section 11.04. "Payment Default" shall mean a default
in payment, whether at scheduled maturity, upon scheduled installment, by
acceleration or otherwise, of principal of, or premium, if any, or interest on
Designated Senior Indebtedness beyond any applicable grace period.
Upon the occurrence of any default or event of default with
respect to Designated Senior Indebtedness, other than any Payment Default
pursuant to which the maturity thereof may be accelerated (a "Non-Payment
Default") and receipt by the Trustee with respect to the Notes of written notice
thereof from the trustee or other representative of holders of Designated Senior
Indebtedness, of a Non-Payment Default, no payment or distribution of any assets
of the Company of any kind or character, whether in cash, property or securities
(other than Permitted Junior Securities), may be made by or on behalf of the
Company on account of principal of, premium, if any, or interest on the Notes or
on account of the purchase, redemption or other acquisition of Notes during a
Payment Blockage Period (as defined below).
The Payment Blockage Period shall mean the period (each, a
"Payment Blockage Period") that will commence upon the date of receipt by the
Trustee of written notice from the trustee or such other representative of the
holders of the Designated Senior Indebtedness in respect of which the
Non-Payment Default exists and shall end on the earliest of:
(i) 179 days thereafter (provided that any Designated Senior
Indebtedness as to which notice was given shall not theretofore have
been accelerated);
(ii) the date on which such Non-Payment Default is cured,
waived or ceases to exist;
(iii) the date on which such Designated Senior Indebtedness is
discharged or paid in full; and
(iv) the date on which such Payment Blockage Period shall have
been terminated by written notice to the Trustee or the Company from
the trustee or such other representative initiating such Payment
Blockage Period,
after which the Company will resume making any and all required payments in
respect of the Notes, including any missed payments unless a Payment Default
then exists. In any event, not more than one Payment Blockage Period may be
commenced during any period of 365 consecutive days. No Non-Payment Default that
existed or was continuing on the date of the commencement of any Payment
Blockage Period will be, or can be made, the basis for the commencement of a
subsequent Payment Blockage Period, unless such Non-Payment Default has been
cured or waived for a period of not less than 90 consecutive days subsequent to
the commencement of such initial Payment Blockage Period.
SECTION 11.04 ACCELERATION OF NOTES. If payment of the Notes
is accelerated because of an Event of Default, the Company shall promptly notify
holders of Senior Indebtedness of the acceleration. The holders of Senior
Indebtedness, outstanding at the time of acceleration, shall be entitled to
payment in full, in cash or other payment satisfactory to the holders of Senior
Indebtedness, of all obligations with respect to such Senior Indebtedness before
70
the Holders of Notes are entitled to receive any payment or other distribution,
except with respect to the Initial Pledged Securities pledged as security
pursuant to Article 12.
SECTION 11.05 WHEN DISTRIBUTION MUST BE PAID OVER. In the
event that, notwithstanding the provisions of Sections 11.02 and 11.03, any
payment or distribution of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or any Holder which is prohibited
by such provisions, then and in such event such payment shall be held in trust
for the benefit of, and shall be paid over and delivered by such Trustee or
Holder to, the trustee or any other representative of holders of Senior
Indebtedness, as their interest may appear, for application to Senior
Indebtedness remaining unpaid until all such Senior Indebtedness has been paid
in full in cash after giving effect to any concurrent distribution to or for the
holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior 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 shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
11, except if such payment is made as a result of the willful misconduct or
gross negligence of the Trustee.
SECTION 11.06 NOTICE BY THE COMPANY. The Company shall
promptly notify the Trustee and the Paying Agent of any facts known to the
Company that would cause a payment of any obligations with respect to the Notes
to violate this Article 11, but failure to give such notice shall not affect the
subordination of the Notes to the Senior Indebtedness as provided in this
Article 11.
SECTION 11.07 SUBROGATION. After all Senior Indebtedness is
paid in full and until the Notes are paid in full, Holders shall be subrogated
(equally and ratably with all other Indebtedness that is equal in right of
payment to the Notes) to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness to the extent that distributions
otherwise payable to the Holders have been applied to the payment of Senior
Indebtedness. A distribution made under this Article 11 to holders of Senior
Indebtedness that otherwise would have been made to Holders is not, as between
the Company and Holders, a payment by the Company of the Notes.
SECTION 11.08 RELATIVE RIGHTS. This Article 11 defines the
relative rights of Holders and holders of Senior Indebtedness. Nothing in this
Indenture shall: (i) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms; (ii) affect the relative
rights of Holders and creditors of Holders other than their rights in relation
to holders of Senior Indebtedness; or (iii) prevent the Trustee or any Holder
from exercising its available remedies upon a Default or Event of Default,
subject to the notice requirement in Section 6.02 and to rights of holders and
owners of Senior Indebtedness to receive distributions and payments otherwise
payable to Holders of Notes. If the Company fails because of this
71
Article 11 to pay principal of or interest on a Note on the Stated Maturity
date, the failure is still a Default or Event of Default.
SECTION 11.09 SUBORDINATION MAY NOT BE IMPAIRED BY THE
COMPANY. No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
Without in any way limiting the generality of this Section
11.09, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing or
releasing the subordination provided in this Article 11 or the obligations
hereunder of the Holders to the holders of Senior Indebtedness, do any one or
more of the following: (a) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding or secured; (b) sell, exchange, release, foreclose against or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company, and Subsidiary thereof or any other Person.
SECTION 11.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of any Senior
Indebtedness, the distribution may be made and the notice given to their trustee
or representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 11, the Trustee and the Holders of Notes shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such representative(s) or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, all holders of the Senior Indebtedness and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 11.
SECTION 11.11 RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 11 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment or distribution by the
Trustee, and the Trustee and the Paying Agent may continue to make payments on
the Notes, unless a Responsible Officer of the Trustee shall have received at
its Corporate Trust Office at least three Business Days prior to the date of
such payment written notice of facts that would cause the payment of any
obligations with respect to the Notes to violate this Article 11. Only the
Company or a representative of the holders of Designated Senior Indebtedness may
give the notice. Nothing in this Article 11 shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.06.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
72
ARTICLE 12
SECURITY
SECTION 12.01 SECURITY.
(a) At the Closing Time, the Company shall (i) enter into the
Pledge Agreement and comply with the terms and provisions thereof and (ii)
purchase the Initial Pledged Securities to be pledged to the Collateral Agent
for the benefit of the Trustee and the ratable benefit of the Holders in such
amount as will be sufficient upon receipt of scheduled interest and principal
payments of such Initial Pledged Securities, as computed by the Company and
verified for mathematical accuracy by Xxxxx & Young LLP, independent public
accountants, or another nationally recognized firm of independent public
accountants selected by the Company, to provide for payment in full of the first
six scheduled interest payments due on the Notes. The Initial Pledged Securities
shall be pledged by the Company to the Collateral Agent for the benefit of the
Trustee and the ratable benefit of the Holders and shall be held by the
Collateral Agent in the Collateral Account pending disposition pursuant to the
Pledge Agreement.
(b) On each relevant Date of Delivery (if such Date of
Delivery is different from the Closing Time), the Company shall (i) enter into a
supplement to the Pledge Agreement and comply with the terms and provisions
thereof and (ii) purchase the Additional Pledged Securities to be pledged to the
Collateral Agent for the benefit of the Trustee and the ratable benefit of the
Holders in such amount as will be sufficient upon receipt of scheduled interest
and principal payments of such Additional Pledged Securities, as computed by the
Company and verified for mathematical accuracy by Xxxxx & Young LLP, independent
public accountants, or another nationally recognized firm of independent public
accountants selected by the Company, to provide for payment in full of the first
six scheduled interest payments due on the Notes issued in connection therewith,
or transfer to the Collateral Account the cash necessary to enable the
Collateral Agent to purchase the Additional Pledged Securities in accordance
with the provisions of the Pledge Agreement. The Additional Pledged Securities
shall be pledged by the Company to the Collateral Agent for the benefit of the
Trustee and the ratable benefit of the Holders and shall be held by the
Collateral Agent in the Collateral Account pending disposition pursuant to the
Pledge Agreement.
(c) Each Holder, by its acceptance of a Note, consents and
agrees to the terms of the Pledge Agreement (including, without limitation, the
provisions providing for foreclosure and release of the Pledged Securities) as
the same may be in effect or may be amended from time to time in writing by the
parties thereto (provided that no amendment that would materially adversely
affect the rights of the Holders may be effected without the consent of each
Holder affected thereby), and authorizes and directs the Trustee and the
Collateral Agent to enter into the Pledge Agreement and to perform its
respective obligations and exercise its respective rights thereunder in
accordance therewith. The Company will do or cause to be done all such acts and
things as may be necessary or proper, or as may be required by the provisions of
the Pledge Agreement, to assure and confirm to the Trustee and the Collateral
Agent the security interest in the Pledged Securities contemplated hereby, by
the Pledge Agreement or any part thereof, as from time to time constituted, so
as to render the same available for the security and benefit of this Indenture
and of the Notes secured hereby, according to the intent and purpose herein
expressed. The Company shall take, or shall cause to be taken, upon request of
the Trustee or
73
the Collateral Agent, any and all actions reasonably required to cause the
Pledge Agreement to create and maintain, as security for the obligations of the
Company under this Indenture and the Notes as provided in the Pledge Agreement,
valid and enforceable first priority perfected liens in and on all the Pledged
Securities, in favor of the Collateral Agent for the benefit of the Trustee and
the ratable benefit of the Holders, superior to and prior to the rights of third
Persons and subject to no other Liens.
(d) The release of any Pledged Securities pursuant to the
Pledge Agreement will not be deemed to impair the security under this Indenture
in contravention of the provisions hereof if and to the extent the Pledged
Securities are released pursuant to this Indenture and the Pledge Agreement. To
the extent applicable, the Company shall cause Section 314(d) of the TIA
relating to the release of property or securities from the Lien and security
interest of the Pledge Agreement and relating to the substitution therefor of
any property or securities to be subjected to the Lien and security interest of
the Pledge Agreement to be complied with. Any certificate or opinion required by
Section 314(d) of the TIA may be made by an Officer of the Company, except in
cases where Section 314(d) of the TIA requires that such certificate or opinion
be made by an independent Person, which Person shall be an independent engineer,
appraiser or other expert selected by the Company.
(e) The Company shall cause Section 314(b) of the TIA,
relating to Opinions of Counsel regarding the Lien under the Pledge Agreement,
to be complied with. The Trustee may, to the extent permitted by Section 7.01
and 7.02 hereof, accept as conclusive evidence of compliance of the foregoing
provisions the appropriate statements contained in such Opinions of Counsel.
(f) The Trustee and the Collateral Agent may, in their sole
discretion and without the consent of the Holders, on behalf of the Holders,
take all actions it deems necessary or appropriate in order to (i) enforce any
of the terms of the Pledge Agreement and (ii) collect and receive any and all
amounts payable in respect of the obligations of the Company thereunder. The
Trustee and the Collateral Agent shall have the authority necessary in order to
institute and maintain such suits and proceedings as the Trustee and the
Collateral Agent may deem expedient to preserve or protect its interests and the
interests of the Holders in the Pledged Securities (including the authority to
institute and maintain suits or proceedings to restrain the enforcement of, or
compliance with, any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders, the
Collateral Agent or the Trustee).
(g) Beyond the exercise of reasonable care in the custody and
preservation thereof, the Trustee and the Collateral Agent shall have no duty as
to any Pledged Securities in their possession or any income thereon or as to
preservation of rights against prior parties or any other rights pertaining
thereto, and the Trustee and the Collateral Agent shall not be responsible for
filing any financing or continuation statements or recording any documents or
instruments in any public office at any time or times or otherwise perfecting or
maintaining the perfection of any security interest in the Pledged Securities.
The Trustee and the Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Securities in its
possession if the Pledged Securities are accorded treatment substantially equal
to
74
that which it accords its own property or property held in similar accounts and
shall not be liable or responsible for any loss or diminution in the value of
any of the Pledged Securities, by reason of the act or omission of the
Collateral Agent, any carrier, forwarding agency or other agent or bailee
selected by the Trustee in good faith.
(h) The Trustee shall not be responsible for the existence,
genuineness or value of any of the Pledged Securities or for the validity,
perfection, priority or enforceability of the Liens in any of the Pledged
Securities, whether impaired by operation of law or otherwise, for the validity
or sufficiency of the Pledged Securities or any agreement or assignment
contained therein, for the validity of the title of the Company to the Pledged
Securities, for insuring the Pledged Securities or for the payment of taxes,
charges, assessments or Liens upon the Pledged Securities or otherwise as to the
maintenance of the Pledged Securities. The Trustee shall have no duty to
ascertain or inquire as to the performance or observance of any of the terms of
this Indenture or the Pledge Agreement by the Company or the Collateral Agent.
ARTICLE 13
MEETINGS OF HOLDERS OF NOTES
SECTION 13.01 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A
meeting of Holders of Notes may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Notes.
SECTION 13.02 CALL, NOTICE AND PLACE OF MEETINGS. (a) The
Trustee may at any time call a meeting of Holders of Notes for any purpose
specified in Section 13.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York as the Trustee shall determine.
Notice of every meeting of Holders of Notes, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 14.02, not less
than 20 nor more than 90 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount at
Stated Maturity of the outstanding Notes shall have requested the Trustee to
call a meeting of the Holders of Notes for any purpose specified in Section
13.01, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 20 days after receipt of such
request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Notes in the amount
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in paragraph (a)
of this Section.
SECTION 13.03 PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of Notes, a Person shall be (a) a
Holder of one or more outstanding Notes on the applicable record date or (b) a
Person appointed by an instrument in writing as
75
proxy for a Holder or Holders of one or more outstanding Notes by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 13.04 QUORUM; ACTION. The Persons entitled to vote a
majority in aggregate principal amount at Stated Maturity of the outstanding
Notes shall constitute a quorum. In the absence of a quorum within 30 minutes of
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Notes, be dissolved. In any other case, the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such reconvened meeting, such reconvened meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such reconvened meeting (subject to repeated
applications of this sentence). Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 13.02(a), except that such notice
need be given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage of the principal amount at Stated
Maturity of the outstanding Notes which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum, the Persons entitled to vote 25% in aggregate
principal amount at Stated Maturity of the outstanding Notes at the time shall
constitute a quorum for the taking of any action set forth in the notice of the
original meeting.
At a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid, any resolution and all matters (except
as limited by the proviso to Section 10.02) shall be effectively passed and
decided if passed or decided by not less than a majority in aggregate principal
amount at Stated Maturity of the outstanding Notes represented and entitled to
vote at such meeting.
Any resolution passed or decisions taken at any meeting of
Holders of Notes duly held in accordance with this Section shall be binding on
all the Holders of Notes, whether or not present or represented at the meeting.
The Trustee shall, in the name and at the expense of the Company, notify all the
Holders of Notes of any such resolutions or decisions pursuant to Section 14.02.
SECTION 13.05 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Notes in regard to proof of the holding
of Notes and of the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any
76
such regulations, the holding of Notes shall be proved in the manner specified
in Section 1.05 and the appointment of any proxy shall be proved in the manner
specified in Section 1.05.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be the Trustee) of the meeting, unless the meeting
shall have been called by the Company or by Holders of Notes as provided in
Section 13.02(b), in which case the Company or the Holder of Notes calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in aggregate principal amount
at Stated Maturity of the outstanding Notes represented at the meeting.
(c) At any meeting, each Holder of a Note or proxy shall be
entitled to one vote for each $1,000 principal amount at Stated Maturity of
Notes held or represented by him; PROVIDED, HOWEVER, that no vote shall be cast
or counted at any meeting in respect of any Note challenged as not outstanding
and ruled by the chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Note or proxy.
(d) Any meeting of Holders of Notes duly called pursuant to
Section 13.02 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in aggregate principal amount at Stated
Maturity of the outstanding Notes represented at the meeting, and the meeting
may be held as so adjourned without further notice.
SECTION 13.06 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of Notes shall
be by written ballots on which shall be subscribed the signatures of the Holders
of Notes or of their representatives by proxy and the principal amounts and
serial numbers of the outstanding Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Notes shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 14.02 and, if applicable, Section 14.04.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
77
ARTICLE 14
MISCELLANEOUS
SECTION 14.01 TRUST INDENTURE ACT CONTROLS. If any provision
of this Indenture limits, qualifies, or conflicts with another provision which
is required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 14.02 NOTICES. Any request, demand, authorization,
notice, waiver, consent, election, communication or other act of Noteholders
shall be in writing and delivered in person or mailed by first-class mail,
postage prepaid, addressed as follows or transmitted by facsimile transmission
(confirmed by guaranteed overnight courier) to the following addresses:
if to the Company:
Veeco Instruments Inc.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
if to the Trustee:
State Street Bank and Trust Company, N.A.
00 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration (Veeco Instruments
Convertible Subordinated Notes due 2008)
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
The Company or the Trustee by notice given to the other in the
manner provided above may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication given to a Noteholder shall be in
writing and mailed to the Noteholder, by first-class mail, postage prepaid, at
the Noteholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed
78
within the time prescribed. Such notice shall be conclusively deemed to have
been given and received by Noteholders when such notice is mailed, whether or
not such Noteholder receives such notice.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee. In case by
reason of the suspension of or irregularities in regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification of Noteholders as shall be made with the approval of the
Trustee, which approval shall not be unreasonably withheld, shall constitute a
sufficient notification to such Noteholders for every purpose hereunder.
If the Company mails a notice or communication to the
Noteholders, it shall mail a copy to the Trustee and each Registrar, Paying
Agent, Conversion Agent or co-registrar.
SECTION 14.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar, the Paying Agent, the Conversion Agent and
anyone else shall have the protection of TIA Section 312(c).
SECTION 14.04 CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT. Upon any request or application by the Company to the Trustee or any
Paying Agent to take any action under this Indenture, the Company shall furnish
to the Trustee or the Paying Agent:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied
with;
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such application or request, no additional certificate or
opinion need be furnished.
SECTION 14.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate or Opinion of Counsel with respect to compliance with
a covenant or condition provided for in this Indenture (excluding certificates
provided by officers as to defaults) shall include:
(1) a statement that each person making such Officers'
Certificate or Opinion of Counsel 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 Officers' Certificate or Opinion of Counsel are
based;
79
(3) a statement that, in the opinion of each such person, that
he or she has made such examination or investigation as is necessary to
enable such person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of such person,
such covenant or condition has been complied with.
SECTION 14.06 SEPARABILITY CLAUSE. In case any provision in
this Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 14.07 RULES BY TRUSTEE, PAYING AGENT, CONVERSION AGENT
AND REGISTRAR. The Trustee may make reasonable rules for action by or a meeting
of Noteholders. The Registrar, Conversion Agent and the Paying Agent may make
reasonable rules for their functions.
SECTION 14.08 BENEFITS OF INDENTURE. Except as provided in the
next sentence, nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors and
assigns hereunder and the Holders of Notes, any benefit or legal or equitable
right, remedy or claim under this Indenture. The provisions of Article 11 are
intended to be for the benefit of, and shall be enforceable directly by, the
holders of Senior Indebtedness.
SECTION 14.09 LEGAL HOLIDAYS. A "Legal Holiday" is any day
other than a Business Day. If any specified date (including a date for giving
notice) is a Legal Holiday, the action shall be taken on the next succeeding
business day that is not a Legal Holiday, and, if the action to be taken on such
date is a payment in respect of the Notes, no interest, if any, shall accrue for
the intervening period.
SECTION 14.10 GOVERNING LAW. THIS INDENTURE AND THE NOTES WILL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
SECTION 14.11 NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Notes or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Noteholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes.
SECTION 14.12 SUCCESSORS. All agreements of the Company in
this Indenture and the Notes shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
80
SECTION 14.13 MULTIPLE ORIGINALS. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
81
IN WITNESS WHEREOF, the undersigned, being duly authorized,
have executed this Indenture on behalf of the respective parties hereto as of
the date first above written.
VEECO INSTRUMENTS INC.
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------------------
Name: Xxxx X. Xxxx, Xx.
Title: Executive Vice President, Chief
Financial Officer and
Secretary
STATE STREET BANK AND TRUST
COMPANY, N.A.,
as Trustee
By: /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Vice President
EXHIBIT A-1
[FORM OF FACE OF GLOBAL NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AS SET FORTH BELOW.
BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT); (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE
LATER OF THE INITIAL ISSUANCE OF THE NOTE EVIDENCED HEREBY AND THE LAST DATE ON
WHICH VEECO INSTRUMENTS INC. (THE "COMPANY") OR ANY "AFFILIATE" (AS DEFINED IN
RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF THE NOTE (THE
"RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED
HEREBY OR THE COMMON STOCK ISSUED UPON CONVERSION OF SUCH NOTE, EXCEPT (A) TO
THE COMPANY OR ANY AFFILIATE THEREOF, (B) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM REGISTRATION PROVIDED UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (D) PURSUANT TO A REGISTRATION
A-1-1
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED
HEREBY BEFORE THE RESTRICTION TERMINATION DATE (OTHER THAN A TRANSFER PURSUANT
TO CLAUSE 2(D) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON
THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS NOTE
TO STATE STREET BANK AND TRUST COMPANY, N.A., AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE). THE HOLDER MUST, PRIOR TO SUCH TRANSFER (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE), FURNISH TO STATE STREET BANK AND TRUST
COMPANY, N.A., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON ANY
TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(D) ABOVE OR UPON OR
AFTER THE RESTRICTION TERMINATION DATE.
A-1-2
VEECO INSTRUMENTS INC.
4 1/8% Convertible Subordinated Notes due 2008
CUSIP NO. __________
No.: __
Issue Date: December 21, 2001
VEECO INSTRUMENTS INC., a Delaware corporation, promises to pay to Cede
& Co. or registered assigns, the principal sum of [_______________] DOLLARS
($[_____________]) on December 21, 2008.
This Note shall bear interest as specified on the other side of this
Note. This Note is convertible as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side of
this Note.
Dated: December 21, 2001 VEECO INSTRUMENTS INC.
By
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST
COMPANY, N.A.,
as Trustee, certifies that this
is one of the Notes referred
to in the within-mentioned Indenture (as
defined on the other side of this Note).
By
---------------------------------------
Authorized Signatory
Dated:
-----------------------------------
A-1-3
[FORM OF REVERSE SIDE OF NOTE]
4 1/8% Convertible Subordinated Note due 2008
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture unless otherwise indicated.
1. Cash Interest.
The Company promises to pay interest at the Interest Rate in cash on
the principal amount of this Note. The Company will pay cash interest
semiannually in arrears on June 21 and December 21 of each year (each an
"Interest Payment Date"), beginning on June 21, 2002, to Holders of record at
the close of business on the preceding June 6 and December 6 (whether or not a
business day) (each a "Regular Record Date"), as the case may be, immediately
preceding such Interest Payment Date. Cash interest on the Notes will accrue
from the most recent date to which interest has been paid or duly provided or,
if no interest has been paid, from the Issue Date. Cash interest will be
computed on the basis of a 360-day year of twelve 30-day months. The Company
shall pay cash interest on overdue principal, or if shares of Common Stock (or
cash in lieu of fractional shares) in respect of a conversion of this Note in
accordance with the terms of Article 10 of the Indenture are not delivered when
due, at the rate borne by the Notes, and it shall pay interest in cash on
overdue installments of cash interest at the same rate to the extent lawful. All
such overdue cash interest shall be payable on demand.
Upon a Registration Default, the interest rate borne by the Notes shall
be increased as provided in the Registration Rights Agreement.
Any amount of additional interest will be payable in cash semiannually,
in arrears, on each Interest Payment Date and will cease to accrue on the date
the Registration Default is cured. The Holder of this Security is entitled to
the benefits and is subject to the obligations of the Registration Rights
Agreement.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of the principal of, premium, if any, and cash interest
on this Note and in respect of Redemption Prices and Change in Control
Repurchase Prices to Holders who surrender Notes to a Paying Agent to collect
such payments in respect of the Notes. The Company will pay cash amounts in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may make such cash
payments by check payable in such money. A Holder with an aggregate principal
amount in excess of $5,000,000 will be paid by wire transfer in immediately
available funds at the election of such Holder. Any payment required to be made
on any day that is not a Business Day will be made on the next succeeding
Business Day.
3. Paying Agent, Conversion Agent and Registrar.
Initially, State Street Bank and Trust Company, N.A. (the "Trustee"),
will act as Paying Agent, Conversion Agent and Registrar. The Company may
appoint and change any Paying
A-1-4
Agent, Conversion Agent, Registrar or co-registrar without notice, other than
notice to the Trustee except that the Company will maintain at least one Paying
Agent in the State of New York, City of New York, The Borough of Manhattan,
which shall initially be an office or agency of the Trustee. The Company or any
of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Notes under an Indenture dated as of December
21, 2001 (the Indenture"), between the Company and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as in effect from time to time
(the "TIA"). Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Notes are subject to all such
terms, and Noteholders are referred to the Indenture and the TIA for a statement
of those terms.
The Notes are general unsecured obligations of the Company (except as
provided in Paragraph 16 hereof) limited to $200,000,000 aggregate principal
amount, or $220,000,000 aggregate principal amount if the Over-Allotment Option
is exercised fully (subject to Section 2.07 of the Indenture). The Indenture
does not limit other indebtedness of the Company, secured or unsecured.
Optional Redemption.
This Note is not redeemable prior to December 21, 2004. This Note may
be redeemed in whole or in part, upon not less than 20 nor more than 60 days
notice, at any time on or after December 21, 2004 and prior to Stated Maturity,
at the option of the Company, at the redemption price (expressed as percentages
of the principal amount) set forth in the table below if redeemed during the
periods below, plus any interest accrued but not paid prior to (but not
including) the Optional Redemption Date.
PERIOD REDEMPTION PRICES
------ -----------------
December 21, 2004 through December 20, 2005 102.36%
December 21, 2005 through December 20, 2006 101.77%
December 21, 2006 through December 20, 2007 101.18%
Thereafter 100.59%
If fewer than all the Notes are to be redeemed, the Trustee shall
select the particular Notes to be redeemed from the outstanding Notes by the
methods as provided in the Indenture. If any Note selected for partial
redemption is converted in part before termination of the conversion right with
respect to the portion of the Note so selected, the converted portion of such
Note shall be deemed to be the portion selected for redemption (provided,
however, that the Holder of such Note so converted and deemed redeemed shall not
be entitled to any additional
A-1-5
interest payment as a result of such deemed redemption than such Holder would
have otherwise been entitled to receive upon conversion of such Note). Notes
which have been converted during a selection of Notes to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection.
On and after the Redemption Date, interest ceases to accrue on Notes or
portions of Notes called for redemption, unless the Company defaults in the
payment of the Redemption Price and accrued and unpaid interest.
Notice of redemption will be given by the Company to the Holders as
provided in the Indenture.
No sinking fund is provided for the Notes.
6. Repurchase by the Company at the Option of the Holder.
If a Change in Control occurs, the Holder, at the Holder's option,
shall have the right, in accordance with the provisions of the Indenture, to
require the Company to repurchase the Notes (or any portion of the principal
amount hereof that is at least $1,000 or any whole multiple thereof, provided
that the portion of the principal amount of this Note to be outstanding after
such repurchase is at least equal to $1,000) at the Change in Control Repurchase
Price in cash or Common Stock or a combination thereof, plus any interest
accrued and unpaid to the Change in Control Repurchase Date.
Subject to the conditions provided in the Indenture, the Company may
elect to pay the Change in Control Repurchase Price (to the extent not paid in
cash) by delivering a number of shares of Common Stock equal to (i) the Change
in Control Repurchase Price divided by (ii) 95% of the average of the Closing
Prices per share for the five consecutive Trading Days immediately preceding and
including the third Trading Day prior to the Change in Control Repurchase Date.
No fractional shares of Common Stock will be issued upon repurchase of
any Notes. Instead of any fractional share of Common Stock which would otherwise
be issued upon conversion of such Notes, the Company shall pay a cash adjustment
as provided in the Indenture.
A Change in Control Repurchase Notice will be given by the Company to
the Holders as provided in the Indenture. To exercise a repurchase right, a
Holder must deliver to the Trustee a written notice as provided in the
Indenture.
Holders have the right to withdraw any Change in Control Repurchase
Notice by delivering to the Paying Agent a written notice of withdrawal in
accordance with the provisions of the Indenture.
7. Notice of Redemption.
Notice of an optional redemption will be mailed at least 20 days but
not more than 60 days before the Redemption Date to each Holder of Notes to be
redeemed at the Holder's registered address. If money sufficient to pay the
Redemption Price of all Notes (or portions
A-1-6
thereof) to be redeemed on the Redemption Date is deposited with the Paying
Agent prior to or on the Redemption Date, immediately after such Redemption Date
interest ceases to accrue on such Notes or portions thereof. Notes in
denominations larger than $1,000 of principal amount may be redeemed in part but
only in whole multiples of $1,000 of principal amount.
8. Conversion.
Subject to the next two succeeding sentences, a Holder of a Note may
convert it into Common Stock of the Company at any time before the close of
business on December 21, 2008. If the Note is called for redemption, the Holder
may convert it at any time before the close of business on the Business Day
preceding the Redemption Date. A Note in respect of which a Holder has delivered
a Change in Control Repurchase Notice exercising the option of such Holder to
require the Company to purchase such Note may be converted only if such notice
of exercise is withdrawn in accordance with the terms of the Indenture.
The initial Conversion Price shall be equal to $38.51 per share of
Common Stock, subject to adjustment in certain events described in the
Indenture. The Company shall pay a cash adjustment as provided in the Indenture
in lieu of any fractional share of Common Stock.
To convert a Note, a Holder must (1) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Conversion Agent, (2) surrender the Note
to the Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by the Conversion Agent, the Company or the Trustee and
(4) pay any transfer or similar tax, if required.
9. Conversion Arrangement on Call for Redemption.
Any Notes called for redemption, unless surrendered for conversion
before the close of business on the Business Day preceding the Redemption Date,
may be deemed to be purchased from the Holders of such Notes at an amount not
less than the Redemption Price, by one or more investment bankers or other
purchasers who may agree with the Company to purchase such Notes from the
Holders, to convert them into Common Stock of the Company and to make payment
for such Notes to the Trustee in trust for such Holders.
10. Denominations; Transfer; Exchange.
The Notes are in fully registered form, without coupons, in
denominations of $1,000 of principal amount and whole multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Notes selected for redemption (except, in the case of a Note to be redeemed
in part, the portion of the Note not to be redeemed) or any Notes in respect of
which a Change in Control Repurchase Notice has been given and not withdrawn
(except, in the case of a Note to be purchased in part, the portion of the Note
not to be purchased) or any Notes for a period of 15 days before the mailing of
a notice of redemption of Notes to be redeemed.
11. Persons Deemed Owners.
A-1-7
The registered Holder of this Note may be treated as the owner of this
Note for all purposes.
12. Unclaimed Money or Notes.
The Trustee and the Paying Agent shall return to the Company upon
written request any money or Notes held by them for the payment of any amount
with respect to the Notes that remains unclaimed for two years, subject to
applicable unclaimed property law. After return to the Company, Holders entitled
to the money or Notes must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.
13. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in aggregate principal amount of the Notes at the time
outstanding and (ii) certain Defaults may be waived with the written consent of
the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding. Subject to certain exceptions set forth in the Indenture, without
the consent of any Noteholder, the Company and the Trustee may amend the
Indenture or the Notes to cure any ambiguity, omission, defect or inconsistency,
or to comply with Article 5 of the Indenture, to provide for uncertificated
Notes in addition to or in place of certificated Notes or to make any change
that does not adversely affect the rights of any Noteholder, or to comply with
any requirement of the SEC in connection with the qualification of the Indenture
under the TIA.
14. Defaults and Remedies.
Under the Indenture, Events of Default include (1) the Company fails to
pay when due the principal of or premium, if any, on any of the Notes at
maturity, upon redemption or exercise of a repurchase right or otherwise,
whether or not such payment is prohibited by Article 11 of the Indenture; (2)
the Company fails to pay an installment of interest (including additional
interest, if any) on any of the Notes that continues for 30 days after the date
when due, whether or not such payment is prohibited by Article 11 of the
Indenture; provided that a failure to make any of the first six scheduled
interest payments on the Notes on the applicable Interest Payment Dates will
constitute an event of default with no grace period or cure period; (3) the
Company fails to deliver shares of Common Stock, together with cash in lieu of
fractional shares, when such Common Stock or cash in lieu of fractional shares
is required to be delivered upon conversion of a Note and such failure continues
for 10 days after such delivery date; (4) the Company fails to perform or
observe any other term, covenant or agreement contained in the Notes or the
Indenture for a period of 60 days after written notice of such failure,
requiring the Company to remedy the same, shall have been given to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding; (5) (A) one or more
defaults in the payment of principal of or premium, if any, on any of the
Company's Indebtedness (other than Excluded Indebtedness) aggregating $10.0
million or more, when the same becomes due and payable at the scheduled maturity
thereof, and such default or defaults shall have continued after any applicable
grace period and shall not have been cured or waived within a 30-day period
after the date of such default or (B) any of the Company's Indebtedness (other
than Excluded Indebtedness) aggregating $10.0 million or more
A-1-8
shall have been accelerated or otherwise declared due and payable, or required
to be prepaid or repurchased (other than by regularly scheduled required
prepayment) prior to the scheduled maturity thereof and such acceleration is not
rescinded or annulled within a 30-day period after the date of such
acceleration; and (6) certain events of bankruptcy, insolvency or reorganization
with respect to the Company or any Significant Subsidiary or any Subsidiaries of
the Company which in the aggregate would constitute a Significant Subsidiary. If
an Event of Default (other than an Event of Default specified in clause (6) or
(7) of Section 6.01 of the Indenture) occurs and is continuing, the Trustee, or
the Holders of at least 25% in aggregate principal amount of the Notes at the
time outstanding, may declare all the Notes to be due and payable immediately
after giving at least five days prior notice to the holders of Designated Senior
Indebtedness. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Notes becoming due and payable immediately upon the
occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes, except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security satisfactory to
it. Subject to certain limitations, Holders of a majority in aggregate principal
amount of the Notes at the time outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Noteholders notice
of any continuing Default (except a Default in payment of amounts specified in
clause (1) or (2) above) if it determines that withholding notice is in their
interests.
15. Subordination
The payment of principal of, premium, if any, and interest on the Notes
will be subordinated in right of payment, as set forth in the Indenture, to the
prior payment in full in cash of all Senior Indebtedness whether outstanding on
the date of the Indenture or thereafter incurred.
16. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
17. Security
The Company has entered into the Pledge Agreement and purchased and
pledged to the Collateral Agent for the benefit of the Trustee and the ratable
benefit of the Holders Pledged Securities in an amount sufficient upon receipt
of scheduled interest and principal payments on such securities to provide for
the payment in full of the first six scheduled interest payments due on the
Notes. The Pledged Securities will be pledged by the Company to the Collateral
Agent for the ratable benefit of the Holders and will be held by the Collateral
Agent in the Collateral Account pending disbursement pursuant to the Pledge
Agreement.
18. No Recourse Against Others.
A-1-9
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Noteholder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
19. Authentication.
This Note shall not be valid until an authorized signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Note.
20. Abbreviations.
Customary abbreviations may be used in the name of a Noteholder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
21. GOVERNING LAW.
THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES THEREOF.
----------------------
The Company will furnish to any Noteholder upon written request and
without charge a copy of the Indenture which has in it the text of this Note in
larger type. Requests may be made to:
Veeco Instruments Inc.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Investor Relations
A-1-10
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Note, fill in the form below: To convert this Note into Common Stock of the Company,
check the box:
I or we assign and transfer this Note to /_/
-------------------------------------------------------
------------------------------------------------------- To convert only part of this Note, state the principal
amount to be converted (which must be $1,000 or an
(Insert assignee' soc. sec. or tax ID no.) integral multiple of $1,000):
$
------------------------------------------------------- -------------------------
------------------------------------------------------- If you want the stock certificate made out in another
person's name, fill in the form below:
-------------------------------------------------------
(Print or type assignee's name, address and zip code)
-----------------------------------------------------
-----------------------------------------------------
(Insert other person's social sec. or tax ID no.)
And irrevocably appoint
-----------------------------------------------------
_____________________ agent to transfer this Note on the
books of the Company. The agent may substitute another to -----------------------------------------------------
act for him.
-----------------------------------------------------
-----------------------------------------------------
(Print or type other person's name, address and zip
code)
--------------------------------------------------------------------------------
Date: _____________________ Your Signature:___________________________________
--------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee*:_______________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee
A-1-11
EXHIBIT A-2
[Form of Certificated Note]
THIS NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE, THE
SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
TBY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT); (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE
LATER OF THE INITIAL ISSUANCE OF THE NOTE EVIDENCED HEREBY AND THE LAST DATE ON
WHICH
VEECO INSTRUMENTS INC. (THE "COMPANY") OR ANY "AFFILIATE" (AS DEFINED IN
RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF THE NOTE (THE
"RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED
HEREBY OR THE COMMON STOCK ISSUED UPON CONVERSION OF SUCH NOTE, EXCEPT (A) TO
THE COMPANY OR ANY AFFILIATE THEREOF, (B) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM REGISTRATION PROVIDED UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER); AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO
CLAUSE 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY BEFORE THE RESTRICTION
TERMINATION DATE (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE), THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS NOTE TO STATE STREET BANK AND
TRUST COMPANY, N.A., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE). THE
HOLDER MUST, PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
2(D) ABOVE), FURNISH TO STATE STREET BANK AND TRUST COMPANY, N.A., AS TRUSTEE
(OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM
A-2-1
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THIS LEGEND WILL BE REMOVED UPON ANY TRANSFER OF THE NOTE EVIDENCED HEREBY
PURSUANT TO CLAUSE 2(D) ABOVE OR UPON OR AFTER THE RESTRICTION TERMINATION DATE.
[THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE ON SATISFACTION OF
THE CONDITIONS SPECIFIED IN THE INDENTURE.]
A-2-2
VEECO INSTRUMENTS INC.
4 1/8% Convertible Subordinated Notes due 2008
CUSIP NO.
No.:
Issue Date:
VEECO INSTRUMENTS INC., a Delaware corporation, promises to pay to Cede
& Co. or registered assigns, the principal sum of [___________] DOLLARS
($[__________]) on December 21, 2008.
This Note shall bear interest as specified on the other side of this
Note. This Note is convertible as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side of
this Note.
Dated: VEECO INSTRUMENTS INC.
By
--------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Trustee, certifies that this
is one of the Notes referred
to in the within-mentioned Indenture (as
defined on the other side of this Note).
By
-------------------------------------
Authorized Signatory
Dated:
---------------------------------
A-2-3
[Text of Reverse Side of Note]
Use Exhibit A-1 Text
A-2-4
EXHIBIT B-1
Transfer Certificate
In connection with any transfer of any of the Notes within the period
prior to the expiration of the holding period applicable to the sales thereof
under Rule 144(k) under the Securities Act of 1933, as amended (the "Securities
Act") (or any successor provision), the undersigned registered owner of this
Note hereby certifies with respect to $____________ principal amount of the
above-captioned Notes presented or surrendered on the date hereof (the
"Surrendered Notes") for registration of transfer, or for exchange or conversion
where the Notes issuable upon such exchange or conversion are to be registered
in a name other than that of the undersigned registered owner (each such
transaction being a "transfer"), that such transfer complies with the
restrictive legend set forth on the face of the Surrendered Notes for the reason
checked below:
/_/ A transfer of the Surrendered Notes is made to the Company or
any Subsidiaries; or
/_/ The transfer of the Surrendered Notes complies with Rule 144A
under the U.S. Securities Act of 1933, as amended (the
"Securities Act"); or
/_/ The transfer of the Surrendered Notes is pursuant to an
effective registration statement under the Securities Act, or
/_/ The transfer of the Surrendered Notes is pursuant to another
available exemption from the registration requirement of the
Securities Act.
and unless the box below is checked, the undersigned confirms that, to the
undersigned's knowledge, such Notes are not being transferred to an "affiliate"
of the Company as defined in Rule 144 under the Securities Act (an "Affiliate").
/_/ The transferee is an Affiliate of the Company.
DATE:
Signature(s)
(If the registered owner is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of
such registered owner must be stated.)
A-2-1
EXHIBIT C-1
Registration Rights Agreement
C-1-1
