EXHIBIT 99.2
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AKAMAI TECHNOLOGIES, INC.,
Issuer,
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
------------------------
INDENTURE
Dated as of December 12, 2003
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1.0% Convertible Senior Notes Due 2033
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS; TRUST INDENTURE ACT...................................................................... 1
SECTION 1.01. DEFINITIONS.................................................................................... 1
SECTION 1.02. OTHER DEFINITIONS.............................................................................. 6
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.............................................. 7
SECTION 1.04. RULES OF CONSTRUCTION.......................................................................... 7
ARTICLE II THE NOTES ........................................................................................... 8
SECTION 2.01. FORM AND DATING................................................................................ 8
SECTION 2.02. EXECUTION AND AUTHENTICATION................................................................... 10
SECTION 2.03. REGISTRAR AND PAYING AGENT..................................................................... 10
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST............................................................ 11
SECTION 2.05. HOLDER LISTS................................................................................... 11
SECTION 2.06. TRANSFER AND EXCHANGE.......................................................................... 11
SECTION 2.07. REPLACEMENT NOTES.............................................................................. 15
SECTION 2.08. OUTSTANDING NOTES.............................................................................. 15
SECTION 2.09. TREASURY NOTES................................................................................. 16
SECTION 2.10. TEMPORARY NOTES; GLOBAL NOTES.................................................................. 16
SECTION 2.11. CANCELLATION................................................................................... 17
SECTION 2.12. DEFAULTED INTEREST............................................................................. 17
SECTION 2.13. CUSIP NUMBERS.................................................................................. 17
ARTICLE III REDEMPTION ......................................................................................... 17
SECTION 3.01. NOTICES TO TRUSTEE............................................................................. 17
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.............................................................. 17
SECTION 3.03. NOTICE OF REDEMPTION........................................................................... 18
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION................................................................. 19
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.................................................................... 19
SECTION 3.06. NOTES REDEEMED IN PART......................................................................... 19
SECTION 3.07. OPTIONAL REDEMPTION............................................................................ 19
SECTION 3.08. MANDATORY REDEMPTION........................................................................... 19
SECTION 3.09. PURCHASE OFFER................................................................................. 19
ARTICLE IV COVENANTS ........................................................................................... 21
SECTION 4.01. PAYMENT OF NOTES............................................................................... 22
SECTION 4.02. REPORTS........................................................................................ 22
SECTION 4.03. COMPLIANCE CERTIFICATE......................................................................... 22
SECTION 4.04. STAY, EXTENSION AND USURY LAWS................................................................. 23
SECTION 4.05. CORPORATE EXISTENCE............................................................................ 23
SECTION 4.06. TAXES.......................................................................................... 23
SECTION 4.07. [Reserved.].................................................................................... 23
SECTION 4.08. LIMITATION ON STATUS AS INVESTMENT COMPANY..................................................... 23
SECTION 4.09. SPECIAL INTEREST............................................................................... 24
ARTICLE V CONVERSION ........................................................................................... 24
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SECTION 5.01. CONVERSION PRIVILEGE........................................................................... 24
SECTION 5.02. CONVERSION PROCEDURE........................................................................... 25
SECTION 5.03. FRACTIONAL SHARES.............................................................................. 25
SECTION 5.04. TAXES ON CONVERSION............................................................................ 26
SECTION 5.05. COMPANY TO PROVIDE STOCK....................................................................... 26
SECTION 5.06. ADJUSTMENT OF CONVERSION PRICE................................................................. 26
SECTION 5.07. NO ADJUSTMENT.................................................................................. 29
SECTION 5.08. OTHER ADJUSTMENTS.............................................................................. 29
SECTION 5.09. ADJUSTMENTS FOR TAX PURPOSES................................................................... 29
SECTION 5.10. NOTICE OF ADJUSTMENT........................................................................... 30
SECTION 5.11. NOTICE OF CERTAIN TRANSACTIONS................................................................. 30
SECTION 5.12. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS, MERGERS OR SALES ON CONVERSION PRIVILEGE.......... 30
SECTION 5.13. TRUSTEE'S DISCLAIMER........................................................................... 31
ARTICLE VI REPURCHASES OF NOTES................................................................................. 32
SECTION 6.01. REPURCHASES OF NOTES AT THE OPTION OF THE HOLDER............................................... 32
SECTION 6.02. REPURCHASE OF NOTES UPON A CHANGE IN CONTROL................................................... 34
SECTION 6.03. EFFECT OF OPTION PURCHASE NOTICE............................................................... 34
SECTION 6.04. DEPOSIT OF PURCHASE PRICE...................................................................... 35
SECTION 6.05. SECURITIES PURCHASED IN PART................................................................... 35
SECTION 6.06. COVENANT TO COMPLY WITH SECURITIES LAWS........................................................ 35
SECTION 6.07. OTHER PROVISIONS SUBJECT HERETO................................................................ 35
ARTICLE VII SUCCESSORS ......................................................................................... 36
SECTION 7.01. LIMITATION ON MERGER, SALE OR CONSOLIDATION.................................................... 36
SECTION 7.02. SUCCESSOR CORPORATION SUBSTITUTED.............................................................. 36
ARTICLE VIII DEFAULTS AND REMEDIES.............................................................................. 37
SECTION 8.01. EVENTS OF DEFAULT.............................................................................. 37
SECTION 8.02. ACCELERATION................................................................................... 38
SECTION 8.03. OTHER REMEDIES................................................................................. 39
SECTION 8.04. WAIVER OF PAST DEFAULTS........................................................................ 39
SECTION 8.05. CONTROL BY MAJORITY............................................................................ 39
SECTION 8.06. LIMITATION ON SUITS............................................................................ 40
SECTION 8.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT........................................................... 40
SECTION 8.08. COLLECTION SUIT BY TRUSTEE..................................................................... 40
SECTION 8.09. TRUSTEE MAY FILE PROOFS OF CLAIM............................................................... 40
SECTION 8.10. PRIORITIES..................................................................................... 41
SECTION 8.11. UNDERTAKING FOR COSTS.......................................................................... 41
ARTICLE IX TRUSTEE ............................................................................................. 41
SECTION 9.01. DUTIES OF TRUSTEE.............................................................................. 41
SECTION 9.02. RIGHTS OF TRUSTEE.............................................................................. 42
SECTION 9.03. INDIVIDUAL RIGHTS OF TRUSTEE................................................................... 43
SECTION 9.04. TRUSTEE'S DISCLAIMER........................................................................... 43
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SECTION 9.05. NOTICE OF DEFAULTS............................................................................. 43
SECTION 9.06. REPORTS BY TRUSTEE TO HOLDERS.................................................................. 43
SECTION 9.07. COMPENSATION AND INDEMNITY..................................................................... 43
SECTION 9.08. REPLACEMENT OF TRUSTEE......................................................................... 44
SECTION 9.09. SUCCESSOR TRUSTEE BY MERGER, ETC............................................................... 45
SECTION 9.10. ELIGIBILITY; DISQUALIFICATION.................................................................. 45
SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.............................................. 45
ARTICLE X DISCHARGE OF INDENTURE................................................................................ 46
SECTION 10.01. TERMINATION OF COMPANY'S OBLIGATIONS.......................................................... 46
SECTION 10.02. REPAYMENT TO COMPANY.......................................................................... 46
ARTICLE XI AMENDMENTS, SUPPLEMENTS AND WAIVERS.................................................................. 46
SECTION 11.01. WITHOUT CONSENT OF HOLDERS.................................................................... 46
SECTION 11.02. WITH CONSENT OF HOLDERS....................................................................... 47
SECTION 11.03. COMPLIANCE WITH TRUST INDENTURE ACT........................................................... 47
SECTION 11.04. REVOCATION AND EFFECT OF CONSENTS............................................................. 48
SECTION 11.05. NOTATION ON OR EXCHANGE OF NOTES.............................................................. 48
SECTION 11.06. TRUSTEE PROTECTED............................................................................. 48
ARTICLE XII MISCELLANEOUS ...................................................................................... 49
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.................................................................. 49
SECTION 12.02. NOTICES....................................................................................... 49
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS................................................... 49
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT............................................ 49
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION................................................. 50
SECTION 12.06. RULES BY TRUSTEE AND AGENTS................................................................... 50
SECTION 12.07. LEGAL HOLIDAYS................................................................................ 50
SECTION 12.08. NO RECOURSE AGAINST OTHERS.................................................................... 50
SECTION 12.09. COUNTERPARTS AND FACSIMILE SIGNATURES......................................................... 51
SECTION 12.10. VARIABLE PROVISIONS........................................................................... 51
SECTION 12.11. GOVERNING LAW, SUBMISSION TO JURISDICTION..................................................... 51
SECTION 12.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS................................................. 52
SECTION 12.13. SUCCESSORS.................................................................................... 52
SECTION 12.14. SEVERABILITY.................................................................................. 52
SECTION 12.15. TABLE OF CONTENTS, HEADINGS, ETC.............................................................. 52
Exhibits
Exhibit A Form of Legends and Notes.............................................................................. A1
Exhibit B Form of Transfer Certificate for Transfer From Restricted Note to Global Note.......................... B1
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INDENTURE, dated as of December 12, 2003, between Akamai Technologies,
Inc., a Delaware corporation (the "COMPANY"), and U.S. Bank National
Association, a national banking association organized and existing under the
laws of the United States, as trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders (as defined in Section 1.01 hereof)
of the Company's 1.0% Convertible Senior Notes due 2033 (the "NOTES"):
ARTICLE I
DEFINITIONS; TRUST INDENTURE ACT
SECTION 1.01. DEFINITIONS.
"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"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"AGENT" means any Registrar, Paying Agent, New York Presenting Agent or
Conversion Agent.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or any
authorized committee of the Board of Directors.
"BOARD RESOLUTION" means a duly authorized resolution of the Board of
Directors.
"BUSINESS DAY" means any day that is not a Legal Holiday.
"CAPITAL STOCK" means any and all shares, interests, participations,
rights or other equivalents, however designated, of corporate stock, including,
without limitation, partnership interests.
"CHANGE IN CONTROL" means the occurrence of one or more of the
following events: (1) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the Company's assets to any Person or group of related Persons (a "Group")
(whether or not otherwise in compliance with the provisions hereof), other than
to any of the Company's Wholly-Owned Subsidiaries; (2) the approval by the
holders of the Company's Capital Stock of any plan or proposal for liquidation
or dissolution of the Company (whether or not otherwise in compliance with the
provisions hereof); (3) any Person or Group shall become the beneficial owner of
shares representing more than 50% of the aggregate ordinary voting power
represented by the Company's issued and outstanding voting stock; (4)
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the first day on which a majority of the members of the Company's board of
directors are not Continuing Directors; or (5) any consolidation by the Company
with, or merger by the Company with or into, another Person or any consolidation
by another Person with, or merger by another Person with or into, the Company,
in any such event other than pursuant to a transaction in which the Persons that
beneficially owned, directly or indirectly, the shares of the voting stock of
the Company immediately prior to such transaction, beneficially own, directly or
indirectly, immediately after such transaction, shares of voting stock of the
continuing or surviving corporation representing at least a majority of the
total voting power of all outstanding classes of voting stock of the continuing
or surviving corporation in substantially the same proportion as such ownership
immediately prior to the transaction. The term "beneficial owner" (including,
with correlative meanings, the terms "beneficially own" and "beneficially
owned") will be determined in accordance with Rules 13d-3 and 13d-5 promulgated
by the SEC under the Exchange Act or any successor provision, except that a
Person shall be deemed to have "beneficial ownership" of all shares of Common
Stock that the Person has the right to acquire, whether exercisable immediately
or only after the passage of time.
"CHANGE IN CONTROL OFFER" means a Purchase Offer.
"COMMON STOCK" means the common stock, par value $0.01 per share, of
the Company as the same exists at the date of the execution of this Indenture or
as such stock may be constituted from time to time.
"COMPANY" means the party named as such above until a successor
replaces it in accordance with Article VII and thereafter means the successor.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Company's board of directors who: (1) was a member of such board
of directors on the Issuance Date; or (2) was nominated for election or elected
to such board of directors with the approval of: (A) a majority of the
Continuing Directors who were members of such board at the time of such
nomination or election or (B) a nominating committee, a majority of which
committee shall be the Continuing Directors who were members of such board at
the time of such nomination or election.
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DEPOSITARY" shall mean The Depository Trust Company, its nominees and
their respective successors.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock, but excluding any Indebtedness that is
convertible into, or exchangeable for, Capital Stock.
"EXCESS PAYMENT" means the excess of (A) the aggregate of the cash and
value of other consideration paid by the Company or any of its Subsidiaries with
respect to shares of the Company acquired in a tender offer or other negotiated
transaction over (B) the market value of
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such acquired shares (by reference to the per share value of the shares
remaining outstanding) after giving effect to the completion of a tender offer
or other negotiated transaction.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE RATE CONTRACT" means, with respect to any Person, any
currency swap agreements, forward exchange rate agreements, foreign currency
futures or options, exchange rate collar agreements, exchange rate insurance and
other agreements or arrangements, or combination thereof, the principal purpose
of which is to provide protection against fluctuations in currency exchange
rates. An Exchange Rate Contract may also include an Interest Rate Agreement.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession,
which are in effect on the Issuance Date and are applied on a consistent basis.
"GUARANTEE" means a guarantee, other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner, including, without limitation, letters of credit and
reimbursement agreements in respect thereof, of all or any part of any
Indebtedness.
"HOLDER" means a Person in whose name a Note is registered in the
register referred to in Section 2.03.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit, or reimbursement agreements in respect thereof, or representing the
balance deferred and unpaid of the purchase price of any property (which
purchase price is due more than six months after the placing into service or
delivery of such property) including pursuant to capital leases and
sale-and-leaseback transactions, or representing any hedging obligations under
an Exchange Rate Contract or an Interest Rate Agreement, except any such balance
that constitutes an accrued expense or trade payable, if and to the extent any
of the foregoing indebtedness, other than obligations under an Exchange Rate
Contract or an Interest Rate Agreement, would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP, and also
includes, to the extent not otherwise included, the Guarantee of items which
would be included within this definition if incurred directly by such Person.
The amount of any Indebtedness outstanding as of any date shall be the accreted
value thereof, in the case of any Indebtedness issued with original issue
discount. Indebtedness shall not include liabilities for taxes of any kind.
"INDENTURE" means this Indenture, as amended from time to time.
"INITIAL PURCHASER" means Credit Suisse First Boston LLC.
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"INTEREST RATE AGREEMENT" means, with respect to any Person, any
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement the principal purpose of which is to
protect the party indicated therein against fluctuations in interest rates.
"ISSUANCE DATE" means the date on which the Notes are first
authenticated and issued.
"NOTES" has the meaning set forth in the preamble hereto.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate of the Company signed by
two Officers, one of whom must be the Chairman of the Board, the President, the
Treasurer or a Vice President of the Company.
"OPINION OF COUNSEL" means a written opinion 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.
"PERSON" means any person within the meaning of Sections 13(d)(3) and
14(d)(2) of the Exchange Act or any successor provision to either of the
foregoing.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of December
8, 2003, among the Company and the Initial Purchaser.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2 of the
Notes.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
relating to the Notes and the underlying Common Stock, dated December 12, 2003,
among the Company and the Initial Purchaser.
"SALE PRICE" means on any trading day the closing per share sale price
of the Common Stock (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 asked prices) on such date as reported on the NASDAQ
National Market or, if the shares of Common Stock are not listed on the NASDAQ
National Market, as reported by the NASDAQ system. In the absence of such
quotations, the Company shall be entitled to reasonably determine the Sale Price
on the basis of such quotations as it considers appropriate.
"SEC" means the Securities and Exchange Commission.
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"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHELF REGISTRATION STATEMENT" shall have the meaning set forth in the
Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Company which is a
"significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the
Securities Act and the Exchange Act, as such Regulation is in effect on the date
hereof.
"SPECIAL INTEREST" has the meaning set forth in Section 2 of the Notes.
"SUBSIDIARY" means any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock entitled, without regard to the occurrence of any contingency, to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of execution of this Indenture.
"TRADING PRICE" of the Notes on any date of determination means the
average of the secondary market bid quotations per $1,000 principal amount of
Notes obtained by the Conversion Agent for $5,000,000 in principal amount of the
Notes at approximately 3:30 p.m., New York City time, on such determination date
from three independent nationally recognized securities dealers the Company
selects, provided that if at least three such bids cannot reasonably be obtained
by the Conversion Agent, but two such bids are obtained, then the average of the
two bids shall be used, and if only one such bid can reasonably be obtained by
the Conversion Agent, this one bid shall be used. If the Conversion Agent cannot
reasonably obtain at least one bid for $5,000,000 in principal amount of the
Notes from a nationally recognized securities dealer or, in the Company's
reasonable judgment, the bid quotations are not indicative of the secondary
market value of the Notes, then the trading price of the Notes will be deemed to
be equal to the product of the number of shares of Common Stock issuable upon
conversion of $1,000 principal amount of the Notes on such date of determination
and the average of the Sale Prices for the 10 consecutive trading days ending
on, and including such date of determination, which average shall be subject to
adjustment to account for events requiring an adjustment to the Conversion
Price. The Conversion Agent shall have no obligation to determine the Trading
Price of the Notes unless the Company has requested such determination; and the
Company shall have no obligation to make such request unless a Holder provides
the Company with reasonable evidence that the trading price of the Notes is less
than 95% of the product of the Sale Price of Common Stock and the number of
shares issuable upon conversion of $1,000 principal amount of the Notes; at
which time, the Company shall instruct the Conversion Agent to determine the
trading price of the Notes beginning on the next trading day and on each
successive trading day until the trading price is greater than or equal to 95%
of the product of the Sale Price of the Common Stock and the number of shares of
Common Stock issuable upon conversion of $1,000 principal amount of the Notes.
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"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor.
"TRUST OFFICER" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"WHOLLY-OWNED SUBSIDIARY" of any specified Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly-Owned Subsidiaries of such Person or by one
or more Wholly-Owned Subsidiaries of such Person and such Person.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED
TERM IN SECTION
"ADJUSTMENT PURCHASE DATE".............................................................. 5.06
"AGENT MEMBER".......................................................................... 2.01
"BANKRUPTCY LAW"........................................................................ 8.01
"CHANGE IN CONTROL PAYMENT"............................................................. 6.02
"COMMENCEMENT DATE"..................................................................... 3.09
"COMPANY NOTICE"........................................................................ 6.01
"COMPANY NOTICE DATE"................................................................... 6.01
"CONVERSION AGENT"...................................................................... 2.03
"CONVERSION DATE"....................................................................... 5.02
"CONVERSION PRICE"...................................................................... 5.01
"CONVERSION SHARES"..................................................................... 5.06
"CURRENT MARKET PRICE".................................................................. 5.06
"CUSTODIAN"............................................................................. 8.01
"DISTRIBUTION DATE"..................................................................... 5.06
"DISTRIBUTION RECORD DATE".............................................................. 5.06
"EVENT OF DEFAULT"...................................................................... 8.01
"GLOBAL NOTE"........................................................................... 2.01
"GLOBAL NOTES LEGEND"................................................................... 2.01
"LEGAL HOLIDAY"........................................................................ 12.07
"NEW YORK PRESENTING AGENT"............................................................. 2.03
"OFFER AMOUNT".......................................................................... 3.09
"OPTION PURCHASE DATE".................................................................. 6.01
"OPTION PURCHASE NOTICE"................................................................ 6.01
"PAYING AGENT".......................................................................... 2.03
"PROCESS AGENT"........................................................................ 12.11
"PURCHASE DATE"......................................................................... 3.09
"PURCHASE OFFER"........................................................................ 3.09
"PURCHASE PRICE"........................................................................ 6.01
"QIBs".................................................................................. 2.01
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"REGISTRAR"............................................................................. 2.03
"REGULATION S".......................................................................... 2.01
"RESTRICTED NOTES"...................................................................... 2.01
"RESTRICTED NOTES LEGEND"............................................................... 2.01
"RIGHTS"................................................................................ 5.06
"RULE 144A"............................................................................. 2.01
"TENDER PERIOD"......................................................................... 3.09
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:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Notes means the Company or any other obligor on the
Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
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 consistently applied;
(c) "OR" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions;
(f) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement or successor sections or
rules adopted by the SEC from time to time; and
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(g) a reference to "$" or U.S. Dollars is to United States
dollars.
ARTICLE II
THE NOTES
SECTION 2.01. FORM AND DATING.
(a) GENERAL.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto, which is hereby incorporated by
reference and expressly made a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company).
The Company shall furnish any such legend not contained in Exhibit A to the
Trustee in writing. Each Note shall be dated the date of its authentication. The
Notes shall be in denominations of $1,000 and integral multiples thereof. The
terms and provisions of the Notes set forth in Exhibit A are 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. However, to the extent any provision of any
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling. The Notes represent "Designated
Senior Debt" as defined under the Company's existing 5 1/2% Convertible
Subordinated Notes due 2007.
(b) GLOBAL NOTES.
The Notes are being offered and sold by the Company pursuant to the
Purchase Agreement. The Notes shall be offered and sold to Qualified
Institutional Buyers ("QIBs") in reliance on Rule 144A under the Securities Act
("RULE 144A") or in transactions in reliance on Regulation S under the
Securities Act ("REGULATION S"), as provided in the Purchase Agreement. The
Notes shall be issued initially in the form of one or more permanent Global
Notes in definitive, fully registered form without interest coupons with the
Global Notes Legend ("GLOBAL NOTES LEGEND") and Restricted Notes Legend
("RESTRICTED NOTES LEGEND") set forth in Exhibit A hereto ("GLOBAL NOTE"), which
shall be deposited on behalf of the purchasers of the Notes represented thereby
with the Trustee, as custodian for the Depositary, and registered in the name of
the Depositary or a nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its nominee
as hereinafter provided.
So long as any Global Note is outstanding, owners of beneficial
interests therein may transfer their interests therein only in reliance on
Regulation S or to QIBs in reliance on Rule 144A in accordance with Section
2.06.
(c) BOOK-ENTRY PROVISIONS.
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This Section 2.01(c) shall apply only to the Global Note 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 for such Global
Note or Global Notes or the nominee of such Depositary and (b) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Trustee as custodian for the Depositary.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary or by the Trustee as the custodian of the
Depositary or under such Global Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner 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 impair, as between
the Depositary and its Agent Members, the operation of customary practices of
such Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Note.
(d) CERTIFICATED NOTES.
So long as the Depositary or its nominee is the registered owner of a
Note, the Depositary or such nominee, as the case may be, will be considered the
sole owner or Holder of the Notes represented by the Global Notes for all
purposes under the Indenture. Except as provided below, owners of beneficial
interests in a Global Note will not be entitled to have Notes represented by
such Global Note registered in their names, will not receive or be entitled to
receive physical delivery of certificated Notes, and will not be considered the
owners or holders thereof under the Indenture for any purpose, including with
respect to the giving of any directions, instructions or approvals to the
Trustee thereunder.
Other than as set forth below in this Section, certificated Notes will
be issued to owners of beneficial interests in Global Notes in exchange for
their interests in Global Notes only if (1) the Depositary (x) notifies the
Trustee in writing that the Depositary is no longer willing or able to act as a
depositary and the Company is unable to locate a qualified successor within 90
days, or (y) has ceased to be a clearing agency registered under the Exchange
Act, or (2) the Company, at its option, notifies the Trustee in writing that it
elects to cause the issuance of Notes in definitive form under the Indenture. In
either case, upon surrender by the Depositary of the Global Notes, certificated
Notes will be issued to each Person that the Depositary identifies as the
beneficial owner of the Notes represented by the Global Notes. In addition, the
Company will issue certificated Notes in exchange for interests in Global Notes
if an Event of Default has occurred and is continuing, in which case, upon
receipt of necessary information from the Depositary in accordance with its
procedures, the principal Registrar shall instruct the Depositary as to the
corresponding reduction to be made in the principal amount of the relevant
Global Note. Finally, at such time as all Global Notes cease to be outstanding
pursuant to clause (1) or (2) above, certificated Notes may be issued in
accordance with paragraphs (iii) and (iv) of Section
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2.06(a). Upon any such issuance, the Trustee shall register such certificated
Notes in the name of such Person or Persons (or the nominee of any thereof), and
cause the same to be delivered thereto. All such certificated Notes shall bear
the Restricted Notes Legend set forth in Exhibit A hereto (the "RESTRICTED
NOTES") unless otherwise provided in this Section 2.01(d) and Section 2.06(b)
hereof.
After a transfer of any Notes during the period of the effectiveness of
a Shelf Registration Statement with respect to the Notes and pursuant thereto,
all requirements for Restricted Notes Legends on such Notes will cease to apply;
and, in this case a certificated Note without a Restricted Notes Legend will be
available to the Holder of such Restricted Notes upon request (and surrender of
such Note bearing the Restricted Notes Legend for cancellation). The Company
shall give written notice to the Trustee, in the form of an Officer's
Certificate, of the effectiveness of the Shelf Registration Statement, on which
the Trustee and Registrant may rely.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office
at the time the Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of an authorized officer of the Trustee. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by an
Officer, authenticate one or more Notes for original issue up to an aggregate
principal amount stated in Section 6 of the Notes. The aggregate principal
amount of Notes outstanding at any time may not exceed $200,000,000 except as
provided in Section 2.07; provided that Notes in excess of $175,000,000 shall
not be issued other than pursuant to the option granted by the Company to the
Initial Purchaser as provided in the Purchase Agreement. In the event thereof,
the Company shall certify to the Trustee in an Officer's Certificate that such
issuance is pursuant to such option granted to the Initial Purchaser under the
Purchase Agreement.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders, the
Company or an Affiliate.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Notes may be presented
for registration of transfer or for exchange, payment and conversion
(collectively, the "NEW YORK PRESENTING AGENT"). The Company initially
designates U.S. Bank National Association, which is the Trustee, at its
corporate trust offices in the Borough of Manhattan, City of New York, State of
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New York to act as New York Presenting Agent. The Trustee is initially appointed
to act as Note registrar to maintain a register of transfers of the Notes (the
"REGISTRAR"), to act as paying agent with respect to the Notes ("PAYING AGENT")
and to act as agent for conversion of the Notes ("CONVERSION AGENT"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-Registrars, one or more additional Paying
Agents and one or more additional Conversion Agents in such other locations as
it shall determine. The term "Registrar" includes any co-Registrar, the term
"Paying Agent" includes any additional Paying Agent and the term "Conversion
Agent" includes any additional conversion agent. The Company may change any
Paying Agent, Registrar, New York Presenting Agent or Conversion Agent without
prior notice to any Holder. The Company shall notify the Trustee of the name and
address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar, Paying Agent, New York
Presenting Agent or Conversion Agent, the Trustee shall act as such. The Company
or any of its Affiliates may act as Paying Agent, Registrar, New York Presenting
Agent or Conversion Agent.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal or interest on the Notes, and will notify the Trustee of any default
by the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee
and to account for any money disbursed by it. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or an Affiliate
of the Company) shall have no further liability for the money. If the Company or
an Affiliate of the Company acts as Paying Agent, it shall segregate and hold in
a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee on or before each interest payment date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders.
SECTION 2.06. TRANSFER AND EXCHANGE.
Whenever Notes are presented to the Registrar or a co-Registrar with a
request to register a transfer or to exchange them for an equal principal amount
of Notes of other denominations, the Registrar shall register the transfer or
make the exchange if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Company shall issue and the
Trustee shall authenticate Notes at the Registrar's request. No service charge
shall be made to a Holder for any registration of transfer or exchange (except
as otherwise expressly permitted herein), but the Company may require payment of
a sum sufficient to cover any
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transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.10, 3.06 or 11.05 hereof).
The Company shall not be required (i) to issue, register the transfer
of or exchange any Note for a period beginning at the opening of business 15
days before the day of any selection of Notes to be redeemed under Section 3.02
hereof and ending at the close of business on the day of selection, or (ii) to
register the transfer, or exchange, of any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.
(a) 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, or of any
beneficial interest therein, shall only be made in reliance on Regulation S or
to QIBs in reliance on Rule 144A in accordance with Section 2.01(b), Section
2.01(d), Section 2.06(a) and Section 2.06(b); provided, however, that beneficial
interests in a Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the Restricted Notes
Legend and under the heading "Transfer Restrictions" in the Company's Offering
Memorandum dated December 8, 2003 with respect to the Notes.
(i) Transfer of Global Note to Depositary. Except for
transfers or exchanges made in accordance with clauses (ii)
through (iv) of this Section 2.06(a), transfers of a Global
Note shall be limited to transfers of such Global Note in
whole, but not in part, to nominees of the Depositary or to a
successor of the Depositary or such successor's nominee.
(ii) Restricted Note to Global Note. If an owner of a
Restricted Note registered in the name of such owner wishes at
any time to transfer such Restricted Note to a Person in
reliance on Rule 144A, such Holder may, subject to the rules
and procedures of the Depositary, exchange or cause the
exchange of such Restricted Note for an equivalent beneficial
interest in the Global Note. Upon receipt by the principal
Registrar of (1) surrender of the Restricted Note to be
transferred or exchanged, (2) instructions from the Company,
directing the principal Registrar (A) to credit or cause to be
credited a beneficial interest in the Global Note equal to the
principal amount of the Restricted Note to be exchanged or
transferred and (B) to cancel such Restricted Note to be
exchanged or transferred, (3) a written (or electronic) order
given in accordance with the Depositary's procedures
containing information regarding the participant account of
the Depositary to be credited and (4) a certificate in the
form of Exhibit B attached hereto given by the Holder of such
Restricted Note, then the principal Registrar will instruct
the Trustee to cancel such Restricted Note and will instruct
the Depositary to increase or cause to be increased the
principal amount of the Global Note by the principal amount of
the Restricted Note to be exchanged or transferred.
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(iii) Global Note To Restricted Note. On and after such
time as owners of beneficial interests in Global Notes are
permitted under Section 2.01(d) to exchange their interests in
Global Notes for certificated Notes, if an owner of a
beneficial interest in a Global Note deposited with the
Depositary or with the Trustee as custodian for the Depositary
wishes to transfer its interest in such Global Note to a
Person who is required to take delivery thereof in the form of
a Restricted Note under Section 2.06(b), such owner may,
subject to the rules and procedures of the Depositary, cause
the transfer of such interest for one or more Restricted Notes
of any authorized denomination or denominations and of the
same aggregate principal amount. Subject to the terms of
Section 2.01(d) regarding the circumstances under which owners
of beneficial interests in Global Notes are entitled to
exchange such interests for certificated Notes, upon receipt
by the principal Registrar of (1) instructions from the
Depositary directing the principal Registrar to authenticate
and deliver one or more Restricted Notes of the same aggregate
principal amount as the beneficial interest in the Global Note
to be transfered, such instructions to contain the name or
names of the designated transferee or transferees, the
authorized denomination or denominations of the Restricted
Notes to be so issued and appropriate delivery instructions,
(2) a certificate in the form of Exhibit C attached hereto
given by the owner of such beneficial interest to the effect
set forth therein, and (3) such other 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, then the
principal Registrar will instruct the Depositary to reduce or
cause to be reduced such Global Note by the aggregate
principal amount of the beneficial interest therein to be
exchanged and to debit or cause to be debited from the account
of the Person making such transfer the beneficial interest in
the Global Note that is being transferred, and concurrently
with such reduction and debit the Company shall execute, and
the Trustee shall authenticate and deliver, one or more
Restricted Notes of the same aggregate principal amount in
accordance with the instructions referred to above. In the
event that certificated Notes are issued in place of
beneficial interests in Global Notes pursuant to 2.01(d) prior
to the effectiveness of a Shelf Registration Statement with
respect to such Notes, such Notes may be exchanged only in
accordance with such procedures 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 (including the
certification requirements intended to ensure that such
transfers comply with Rule 144A, Regulation S, Rule 144, or
any other available exemption from registration, as the case
may be).
(iv) Restricted Note To Restricted Note. On and after such
time as Holders of Restricted Notes are permitted to transfer
such Notes other than in reliance on Regulation S or to QIBs
in reliance on Rule 144A in certificated form pursuant to
Section 2.01(d), if a Holder of a Restricted Note wishes to
transfer such Restricted Note to a Person who is required to
take delivery thereof in the form of a Restricted Note, such
Holder may, subject to the restrictions on transfer set forth
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herein and in such Restricted Note, cause the exchange of such
Restricted Note for one or more Restricted Notes of any
authorized denomination or denominations and of the same
aggregate principal amount. Upon receipt by the principal
Registrar of (1) such Restricted Note, duly endorsed as
provided herein, (2) instructions from such Holder directing
the principal Registrar to authenticate and deliver one or
more Restricted Notes of the same aggregate principal amount
as the Restricted Note to be exchanged, such instructions to
contain the name or authorized denomination or denominations
of the Restricted Notes to be so issued and appropriate
delivery instructions, (3) a certificate from the Holder of
the Restricted Note to be exchanged in the form of Exhibit C
attached hereto, and (4) such other 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, then the
Registrar shall cancel or cause to be canceled such Restricted
Note and concurrently therewith, the Company shall execute,
and the Trustee shall authenticate and deliver, one or more
Restricted Notes of the same aggregate principal amount, in
accordance with the instructions referred to above.
(b) Upon any sale of a Note bearing the Restricted Notes Legend
(or any interest in a Global Note subject to the Restricted Notes Legend)
pursuant to Rule 144 under the Securities Act or an effective registration
statement under the Securities Act:
(i) (A) in the case of any Note that is a certificated
Note or a beneficial interest in a Global Note, the Registrar
shall permit the Holder thereof to exchange such Note or
interest for a certificated Note or a beneficial interest in a
Global Note, as the case may be, that does not bear or is
subject to, as the case may be, the legend set forth above and
rescind any restriction on the transfer of such Note or
interest (1) in the case of a sale or transfer pursuant to
Rule 144 under the Securities Act, upon delivery to the
Company such satisfactory evidence, which may include an
opinion of counsel licensed to practice law in the State of
New York, 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, Rule 144, Regulation S or
any other available exemption from registration under the
Securities Act or, with respect to Restricted Notes, that such
Notes are not "restricted" within the meaning of Rule 144
under the Securities Act or (2) in the case of a sale or
transfer pursuant to an effective registration statement under
the Securities Act; and
(ii) any Global Note shall not be subject to the
Restricted Notes Legend (such sales or transfers being subject
only to the provisions of Section 2.06(a)(i) and Section
2.01(d)).
Upon provision of such satisfactory evidence, the Trustee, at the
direction of the Company, shall authenticate and deliver Notes that do not bear
the Restricted Notes Legend.
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(c) Neither the Company nor the Trustee shall have any
responsibility for any actions taken or not taken by the Depositary and the
Company shall have no responsibility for any actions taken or not taken by the
Trustee as agent or custodian of the Depositary.
(d) Notwithstanding anything contained herein to the contrary,
neither the Trustee nor the Registrar shall be responsible for ascertaining
whether any purchase or transfer complies with the registration provisions of or
exemptions from the Securities Act, Rule 144A, Rule 144, Regulation S, or any
applicable state securities laws; provided, that if a certificate or other
written representation is specifically required by the express terms of this
Section 2.06 to be delivered to the Registrar or Trustee by a transferee of a
Note prior to registration of such transfer, the Trustee or Registrar, as the
case may be, shall be under a duty to receive and examine the same to determine
whether it conforms on its face to the requirements of this Section 2.06.
(e) Transfers of any Notes in certificated form not bearing the
Restricted Notes Legend shall not be subject to the restrictions and
requirements set forth in Section 2.06(a)(iv).
(f) Any transfer or exchange of a Note in certificated form shall
be accompanied by surrender of the certificated Note, endorsed or accompanied by
an instrument of transfer acceptable to the Registrar, executed by the Holder or
an attorney in fact acting on its behalf.
SECTION 2.07. REPLACEMENT NOTES.
If the Holder of a Note claims that the Note has been lost, destroyed
or wrongfully taken or if such Note is mutilated and is surrendered to the
Trustee, the Company shall issue and the Trustee shall authenticate a
replacement Note if the Trustee's and the Company's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of both to protect the Company,
the Trustee, any Agent or any authenticating agent from any loss which any of
them may suffer if a Note is replaced. The Company may charge for its expenses
in replacing a Note.
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 III hereof, the Company in its discretion may,
instead of issuing a new Note, pay or purchase such Note, as the case may be.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding.
15
If a Note is replaced pursuant to Section 2.07 hereof, paid, purchased,
redeemed, repurchased or converted, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced, paid, purchased,
redeemed, repurchased or converted Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
Except as set forth in Section 2.09 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or an Affiliate of the Company shall be considered as though they are
not outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that the Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES; GLOBAL NOTES.
(a) Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Notes in exchange for temporary Notes. Holders of temporary Notes shall be
entitled to all of the benefits of this Indenture.
(b) A Global Note deposited with the Depositary or with the
Trustee as custodian for the Depositary pursuant to Section 2.01 shall be
transferred to the beneficial owners thereof in the form of certificated Notes
only (i) in accordance with Section 2.01(d), and (ii) provided that such
transfer complies with the applicable provisions of Section 2.06(b).
(c) Any Global Note that is re-issued to the beneficial owners
thereof in the form of certificated Notes pursuant to Section 2.01(d) and this
Section 2.10 shall be surrendered by the Depositary to the Trustee to be so
transferred without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Note, an equal aggregate principal
amount of Notes of authorized denominations in the form of certificated Notes.
Any portion of a Global Note transferred pursuant to this Section 2.10 shall be
executed, authenticated and delivered as the Depositary shall direct. Any Note
in the form of certificated Notes delivered in exchange for an interest in the
Global Notes shall, except as otherwise provided by Section 2.06(b), bear the
Restricted Notes Legend set forth in Exhibit A hereto.
(d) Upon the occurrence of any of the events set forth in Section
2.01(d) requiring the issuance of certificated Notes in place of all beneficial
interests in Global Notes then outstanding, the Company will promptly make
available to the Trustee a reasonable supply of certificated Notes in
definitive, fully registered form without interest coupons.
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SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar, Paying Agent and Conversion Agent shall forward to
the Trustee any Notes surrendered to them for registration of transfer, exchange
or payment. The Trustee shall promptly cancel all Notes surrendered for
registration of transfer, exchange, payment, conversion, replacement or
cancellation and shall dispose of canceled Notes as the Company directs. The
Company may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company fails to make a payment of interest on the Notes, it
shall pay such defaulted interest plus any interest payable on the defaulted
interest, in any lawful manner. It may pay such defaulted interest, plus any
such interest payable on it, to the Persons who are Holders on a subsequent
special record date. The Company shall fix any such record date and payment
date, provided that no such record date shall be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before any
such record date, the Company shall mail to Holders a notice that states the
special record date, the related payment date and amount of such interest to be
paid.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption and other notices as a convenience to holders of Notes; 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 or notice of a Purchase Offer and that reliance may
be placed only on the other identification numbers printed on the Notes, and any
redemption or Purchase Offer shall not be affected by any defect in or omission
of such numbers. The Company will promptly notify the Trustee of any change in
the "CUSIP" numbers.
ARTICLE III
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of the Notes and Section 3.07 hereof, it shall notify the
Trustee in writing of the redemption date and the principal amount of Notes to
be redeemed. The Company shall give the notice provided for in this Section 3.01
at least 45 days before the redemption date, unless a shorter notice period
shall be satisfactory to the Trustee. The Company may not give notice of any
redemption if the Company has defaulted in payment of interest and the default
is continuing.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
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If less than all of the Notes are to be redeemed at any time, selection
of Notes for redemption will be made by the Trustee in compliance with the
requirements of any securities exchange on which the Notes are listed. In the
absence of any requirements of any securities exchange or if the Notes are not
listed, selection of the Notes to be redeemed will be made by lot, on a pro rata
basis or by any other method the Trustee considers fair and appropriate,
provided that no Notes of $1,000 or less will be redeemed in part. The Trustee
shall make the selection not more than 60 days and not less than 30 days before
the redemption date from Notes outstanding not previously called for redemption.
Notes and portions of Notes selected shall be in amounts of $1,000 or integral
multiples of $1,000. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. The Trustee
shall notify the Company promptly of the Notes or portions of Notes to be called
for redemption.
If any Note selected for partial redemption is converted in part after
such selection, the converted portion of such Note shall be deemed (so far as
may be) to be the portion to be selected for redemption. The Notes (or portions
thereof) so selected shall be deemed duly selected for redemption for all
purposes hereunder, notwithstanding that any such Note is converted in whole or
in part before the mailing of the notice of redemption. Upon any redemption of
less than all the Notes, the Company and the Trustee may treat as outstanding
any Notes surrendered for conversion during the period 15 days next preceding
the mailing of a notice of redemption and need not treat as outstanding any Note
authenticated and delivered during such period in exchange for the unconverted
portion of any Note converted in part during such period.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address. The notice
shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is to be redeemed in part only, the portion of the
principal amount thereof redeemed, and that, after the redemption date, upon
surrender of such Note, a new Note in principal amount equal to the unredeemed
portion thereof shall be issued in the name of the Holder thereof upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price plus accrued interest, if any;
(f) that interest on Notes called for redemption ceases to accrue
on and after the redemption date;
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(g) the paragraph of the Notes pursuant to which the Notes called
for redemption are being redeemed; and
(h) the "CUSIP" number of the Notes to be redeemed; and
(i) the current Conversion Price and the date on which the right
to convert such Notes or portions thereof into Common Stock of the Company will
expire.
At the Company's request, the Trustee shall give notice of redemption
in the Company's name and at the Company's expense; provided that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice, as provided in the
preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become due and payable on the redemption
date at the price set forth in the Note. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 1:00 pm (Boston time) on the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money (in immediately
available funds) sufficient to pay the redemption price of and accrued interest
on all Notes to be redeemed on that date unless theretofore converted into
Common Stock pursuant to the provisions hereof. The Trustee or the Paying Agent
shall return to the Company any money not required for that purpose.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
The Company may redeem all or any portion of the Notes, upon the terms
and at the redemption prices set forth in the Notes. Any redemption pursuant to
this Section 3.07 shall be made pursuant to the provisions of Section 3.01
through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth in Section 6.01 and 6.02, the Company shall not be
required to make mandatory redemption payments. The Company shall not be
required to make sinking fund payments with respect to the Notes.
SECTION 3.09. PURCHASE OFFER.
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(a) In the event that, pursuant to Section 6.02 hereof, the
Company shall commence an offer to all Holders of the Notes to purchase Notes
(the "PURCHASE OFFER"), the Company shall follow the procedures in this Section
3.09.
(b) The Purchase Offer shall remain open for a period specified by
the Company which shall be no less than 30 calendar days and no more than 45
calendar days following its commencement (the "COMMENCEMENT DATE") (as
determined in accordance with Section 6.02 hereof), except to the extent that a
longer period is required by applicable law (the "TENDER PERIOD"). Upon the
expiration of the Tender Period (the "PURCHASE DATE"), the Company shall
purchase the principal amount of all of the Notes required to be purchased
pursuant to Section 6.02 hereof (the "OFFER AMOUNT").
(c) If the Purchase Date is on or after an interest payment record
date and on or before the related interest payment date, any accrued interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest will be payable to
Holders who tender Notes pursuant to the Purchase Offer.
(d) The Company shall provide the Trustee with written notice of
the Purchase Offer at least 10 days before the Commencement Date.
(e) On or before the 30th day after a Change in Control occurs,
the Company or the Trustee (at the written request and expense of the Company,
the Company having provided to the Trustee the requisite information therefor)
shall send, by first class mail, a notice to the Trustee and each of the
Holders, which shall govern the terms of the Purchase Offer and shall state:
(i) that the Purchase Offer is being made pursuant to
this Section 3.09 and Section 6.02 hereof, that all Notes
validly tendered will be accepted for payment and the length
of time the Purchase Offer will remain open;
(ii) the purchase price (as determined in accordance with
Section 6.02 hereof) and the Purchase Date, and that all Notes
validly tendered will be accepted for payment;
(iii) that any Note or portion thereof not validly tendered
or accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of
the purchase price, any Note or portion thereof accepted for
payment pursuant to the Purchase Offer will cease to accrue
interest after the Purchase Date;
(v) that Holders electing to have a Note or portion
thereof purchased pursuant to any Purchase Offer will be
required to surrender the Note, with the form entitled "Option
of Holder to Elect Purchase" on the reverse of the Note
completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the
notice prior to the close of business on the third Business
Day preceding the Purchase Date;
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(vi) that Holders will be entitled to withdraw their
election if the Company, depositary or Paying Agent, as the
case may be, receives, not later than the close of business on
the second Business Day preceding the Purchase Date, or such
longer period as may be required by law, a letter or a
telegram, telex or facsimile transmission (receipt of which is
confirmed and promptly followed by a letter) setting forth the
name of the Holder, the principal amount of the Note or
portion thereof the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have
the Note or portion thereof purchased;
(vii) that Holders whose Notes were purchased only in part
will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 or an integral
multiple thereof in principal amount, and
(viii) the "CUSIP" number of the Notes to be purchased.
(f) On or prior to 1:00 pm (Boston time) on the Purchase Date, the
Company shall irrevocably deposit with the Trustee or a Paying Agent in
immediately available funds an amount equal to the Offer Amount to be held for
payment in accordance with the terms of this Section 3.09. On the Purchase Date,
the Company shall, to the extent lawful, (i) accept for payment the Notes or
portions thereof properly tendered pursuant to the Purchase Offer, (ii) deliver
or cause the Depositary or Paying Agent to deliver to the Trustee Notes so
accepted and (iii) deliver to the Trustee an Officers' Certificate stating such
Notes or portions thereof have been accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Depositary, the Paying Agent
or the Company, as the case may be, shall promptly (but in any case not later
than ten (10) calendar days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Note equal in
principal amount to any unpurchased portion of the Note surrendered, provided
that each new Note will be in a principal amount of $1,000 or an integral
multiple thereof. Any Notes not so accepted shall be promptly mailed or
delivered by or on behalf of the Company to the Holder thereof. The Company will
publicly announce in a newspaper of general circulation the results of the
Purchase Offer on or as soon as practicable after the Purchase Date.
The Purchase Offer shall be made by the Company in compliance with all
applicable provisions of the Exchange Act, and all applicable tender offer rules
promulgated thereunder, and shall include all instructions and materials
necessary to enable such Holders to tender their Notes. The Company's obligation
to make a Purchase Offer will be satisfied if a third party makes the Purchase
Offer in the manner and at the times and otherwise in compliance in all material
respects with the requirements applicable to a Purchase Offer made by us and
purchases all Notes properly tendered and not withdrawn under the Purchase
Offer.
ARTICLE IV
COVENANTS
21
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay the principal of, and premium, if any, and
interest on, the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest shall be considered paid on the date
due if the Paying Agent (other than the Company or an Affiliate of the Company)
holds on that date money designated for and sufficient to pay all principal,
premium, if any, and interest then due. To the extent lawful, the Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on (i) overdue principal and premium, if any, at the rate borne
by the Notes, compounded semiannually; and (ii) overdue installments of interest
(without regard to any applicable grace period) at the same rate, compounded
semiannually.
Whenever in this Indenture or the Notes there is mentioned, in any
context, the payment of principal (and premium, if any), Offer Amount, interest
or any other amount payable under or with respect to any Note, such mention
shall be deemed to include mention of the payment of Special Interest provided
for in Section 2 of the Notes to the extent that, in such context, Special
Interest is, was or would be payable in respect thereof pursuant to the
provisions of Section 2 of the Notes, and express mention of the payment of
Special Interest (if applicable) in any provisions hereof shall not be construed
as excluding Special Interest in those provisions hereof where such express
mention is not made (if applicable).
SECTION 4.02. REPORTS.
Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company shall file with the SEC and
furnish to the Trustee, all quarterly and annual financial information required
to be contained in a filing with the SEC on Forms 10-Q and 10-K, including a
"Management's Discussion and Analysis of Results of Operations and Financial
Condition" and, with respect to the annual information only, a report thereon by
the Company's certified independent accountants, in each case, as required by
the rules and regulations of the SEC as in effect on the Issuance Date. The
Trustee shall be under no obligation or duty to review such reports, such
delivery to it being for the purpose of having the same on file with the Trustee
and available for examination.
SECTION 4.03. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under, and complied with the covenants
and conditions contained in, this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his knowledge the
Company has kept, observed, performed and fulfilled each and every covenant, and
complied with the covenants and conditions contained in this Indenture and is
not in default in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he may have
knowledge) and that to the best of his knowledge no event has
22
occurred and remains in existence by reason of which payments on account of the
principal or of interest, if any, on the Notes are prohibited. One of the
Officers signing such Officers' Certificate shall be either the Company's
principal executive officer, principal financial officer or principal accounting
officer.
The Company will, so long as any of the Notes are outstanding, deliver
to the Trustee forthwith upon becoming aware of any Default or Event of Default,
an Officers' Certificate specifying such Default or Event of Default.
Immediately upon the occurrence of any Registration Default giving rise
to Special Interest or the cure of any such Registration Default, the Company
shall give the Trustee written notice thereof and of the event giving rise to
such Registration Default or the cure of any such Registration Default (such
notice to be contained in an Officers' Certificate) and prior to receipt of such
Officers' Certificate the Trustee shall be entitled to assume that no such
Registration Default has occurred or been cured, as the case may be.
SECTION 4.04. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.05. CORPORATE EXISTENCE.
Subject to Article VII hereof, to the extent permitted by law the
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and the corporate, partnership or
other existence of each subsidiary of the Company in accordance with the
respective organizational documents of each subsidiary and the rights (charter
and statutory), licenses and franchises of the Company; provided, however, that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any subsidiary,
if the preservation thereof is no longer desirable in the conduct of the
business of the Company and its subsidiaries taken as a whole.
SECTION 4.06. TAXES.
The Company shall, and shall cause each of its subsidiaries to, pay
prior to delinquency all material taxes, assessments and governmental levies,
except as contested in good faith and by appropriate proceedings.
SECTION 4.07. [Reserved.].
SECTION 4.08. LIMITATION ON STATUS AS INVESTMENT COMPANY.
23
The Company shall not, and shall not permit any Subsidiary to, conduct
its business in a fashion that would cause the Company to be required to be
registered as an "investment company" (as that term is defined in the Investment
Company Act of 1940, as amended).
SECTION 4.09. SPECIAL INTEREST.
If Special Interest is payable by the Company pursuant to Section 2 of
the Notes, the Company shall deliver to the Trustee a certificate to that effect
stating (i) the amount of such Special Interest that is payable and (ii) the
date on which such Special Interest is payable. Unless and until a Trust Officer
of the Trustee receives such a certificate, the Trustee may assume without
inquiry that no such Special Interest is payable. If the Company has paid
Special Interest directly to the persons entitled to it, the Company shall
deliver to the Trustee a certificate setting forth the particulars of such
payment.
ARTICLE V
CONVERSION
SECTION 5.01. CONVERSION PRIVILEGE.
A Holder of a Note may convert it into fully paid and nonassessable
shares of Common Stock as provided in Section 12 of the Note, except that, with
respect to any Note called for redemption, such conversion right shall terminate
at the close of business on the second Business Day immediately preceding the
redemption date (unless the Company shall default in making the redemption
payment when it becomes due, in which case the conversion right shall terminate
on the date such default is cured). The number of shares of Common Stock
issuable upon conversion of a Note is determined by dividing the principal
amount of such Note by the conversion price in effect on the Conversion Date
(the "CONVERSION PRICE").
The initial Conversion Price is stated in Section 12 of the Notes and
is subject to adjustment as provided in this Article V.
A Holder may convert a portion of a Note equal to any integral multiple
of $1,000. Provisions of this Indenture that apply to conversion of all of a
Note also apply to conversion of a portion of it.
The Trustee shall have no duty to make the calculations described in
Section 12(iv) of the Notes or to determine whether the Notes are convertible
pursuant to such Section. For the avoidance of doubt, the Company shall make the
calculations described in Section 12(iv) of the Note, using the Trading Price
provided by the Trustee.
The Trustee shall be entitled at its sole discretion to consult with
the Company and to request the assistance of the Company in connection with the
Trustee's duties and obligations pursuant to Section 12(iv) of the Note
(including without limitation the calculation or determination of the Trading
Price), and the Company agrees, if requested by the Trustee, to cooperate with,
and provide assistance to, the Trustee in carrying out its duties under Section
24
12(iv) of the Note; provided, however, that nothing herein shall be construed to
relieve the Trustee of its duties pursuant to Section 12(iv) of the Note.
SECTION 5.02. CONVERSION PROCEDURE.
To convert a Note, a Holder must satisfy the requirements in Section 12
of the Notes. The date on which the Holder satisfies all of those requirements
is the conversion date (the "CONVERSION DATE"). As soon as practicable after the
Conversion Date, the Company shall deliver to the Holder through the Conversion
Agent a certificate for the number of whole shares of Common Stock issuable upon
the conversion and a check for any fractional share determined pursuant to
Section 5.03 hereof. The Person in whose name the certificate is registered
shall become the stockholder of record on the Conversion Date and, as of such
date, such Person's rights as a Holder of Notes hereunder shall cease (such
Person's rights as a Holder of Transfer Restricted Securities, if any, under the
Registration Rights Agreement, however, shall continue so long as such Person
holds such Transfer Restricted Securities); provided, however, that no surrender
of a Note on any date when the stock transfer books of the Company shall be
closed shall be effective to constitute the Person entitled to receive the
shares of Common Stock upon such conversion as the stockholder of record of such
shares of Common Stock on such date, but such surrender shall be effective to
constitute the Person entitled to receive such shares of Common Stock as the
stockholder of record thereof for all purposes at the close of business on the
next succeeding day on which such stock transfer books are open; provided
further, however, that such conversion shall be at the Conversion Price in
effect on the date that such Note shall have been surrendered for conversion, as
if the stock transfer books of the Company had not been closed.
If any Notes are converted during the period after any record date but
before the next interest payment date, interest on such Notes will be paid on
the next interest payment date, notwithstanding such conversion, to the Holder
on the record date of such Notes. However, any Notes that are delivered to the
Company for conversion after any record date but before the next interest
payment date must, except as described in the next sentence, be accompanied by a
payment equal to the interest payable (but excluding Special Interest, if any)
on such interest payment date on the principal amount of Notes being converted.
Payment of such an amount to the Company will not be required if, during that
period between a record date and the next interest payment date, the Notes are
delivered for conversion on or after the date that the Company has issued a
notice of redemption notice and prior to the date of redemption. If any Notes
are converted after an interest payment date but on or before the next record
date, no interest will be paid on those convertible notes.
If a Holder converts more than one Note at the same time, the number of
whole shares of Common Stock issuable upon the conversion shall be based on the
total principal amount of Notes converted.
Upon surrender of a Note that is converted in part, the Trustee shall
authenticate for the Holder a new Note equal in principal amount to the
unconverted portion of the Note surrendered.
SECTION 5.03. FRACTIONAL SHARES.
25
The Company will not issue fractional shares of Common Stock upon
conversion of a Note. In lieu thereof, the Company will pay an amount in cash
based upon the Sale Price of the Common Stock on the trading day prior to the
date of conversion.
SECTION 5.04. TAXES ON CONVERSION.
The issuance of certificates for shares of Common Stock upon the
conversion of any Note shall be made without charge to the converting Holder for
such certificates or for any tax in respect of the issuance of such
certificates, and such certificates shall be issued in the respective names of,
or in such names as may be directed by, the Holder or Holders of the converted
Note; provided, however, that in the event that certificates for shares of
Common Stock are to be issued in a name other than the name of the Holder of the
Note converted, such Note, when surrendered for conversion, shall be accompanied
by an instrument of transfer, in form satisfactory to the Company, duly executed
by the registered Holder thereof or his duly authorized attorney; and provided
further, however, that the Company shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issuance and delivery
of any such certificates in a name other than that of the Holder of the
converted Note, and the Company shall not be required to issue or deliver such
certificates unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid or is
not applicable.
SECTION 5.05. COMPANY TO PROVIDE STOCK.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, solely for
the purpose of issuance upon conversion of Notes as herein provided, a
sufficient number of shares of Common Stock to permit the conversion of all
outstanding Notes for shares of Common Stock. All shares of Common Stock which
may be issued upon conversion of the Notes shall be duly authorized, validly
issued, fully paid and nonassessable when so issued. Shares of Common Stock
issuable upon conversion of a Restricted Note shall bear such restrictive
legends as the Company shall provide in accordance with applicable law. If
shares of Common Stock are to be issued upon conversion of a Restricted Note and
they are to be registered in a name other than that of the holder of such
Restricted Note, then the Person in whose name such shares of Common Stock are
to be registered must deliver to the Trustee a certificate satisfactory to the
Company and signed by such Person as to compliance with the restrictions on
transfer contained in such restrictive legends.
SECTION 5.06. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price shall be subject to adjustment from time to time
as follows:
(a) In case the Company shall (1) pay a dividend in shares of
Common Stock to holders of Common Stock, (2) make a distribution in shares of
Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of
Common Stock into a greater number of shares of Common Stock or (4) combine its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, the Conversion Price in effect immediately prior to such action shall be
adjusted so that the Holder of any Note thereafter surrendered for conversion
shall
26
be entitled to receive the number of shares of Common Stock which he would have
owned immediately following such action had such Notes been converted
immediately prior thereto. Any adjustment made pursuant to this subsection (a)
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to
substantially all holders of Common Stock entitling them (for a period
commencing no earlier than the record date for the determination of holders of
Common Stock entitled to receive such rights or warrants and expiring not more
than 45 days after such record date) to subscribe for or purchase shares of
Common Stock (or securities convertible into Common Stock) at a price per share
less than the Current Market Price (as determined pursuant to subsection (f)
below) of the Common Stock on such record date, the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
on such record date, plus the number of shares of Common Stock which the
aggregate offering price of the offered shares of Common Stock (or the aggregate
conversion price of the convertible securities so offered) would purchase at
such Current Market Price, and of which the denominator shall be the number of
shares of Common Stock outstanding on such record date plus the number of
additional shares of Common Stock offered (or into which the convertible
securities so offered are convertible). Such adjustments shall become effective
immediately after such record date.
(c) In case the Company shall distribute to all holders of Common
Stock shares of capital stock of the Company other than Common Stock, evidences
of indebtedness or other assets (other than cash dividends out of current or
retained earnings), or shall distribute to substantially all holders of Common
Stock rights or warrants to subscribe for securities (other than those referred
to in subsection (b) above), then in each such case the Conversion Price shall
be adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such distribution by
a fraction of which the numerator shall be the Current Market Price (determined
as provided in subsection (f) below) of the Common Stock on the record date
mentioned below less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive evidence of such fair market
value and described in a Board Resolution) of the portion of the assets so
distributed or of such subscription rights or warrants applicable to one share
of Common Stock, and of which the denominator shall be such Current Market Price
of the Common Stock. Such adjustment shall become effective immediately after
the record date for the determination of the holders of Common Stock entitled to
receive such distribution. Notwithstanding the foregoing, in the event that the
Company shall distribute rights or warrants (other than those referred to in
subsection (b) above) ("RIGHTS") pro rata to holders of Common Stock, the
Company may, in lieu of making any adjustment pursuant to this Section 5.06,
make proper provision so that each Holder of a Note who converts such Note (or
any portion thereof) after the record date for such distribution and prior to
the expiration or redemption of the Rights shall be entitled to receive upon
such conversion, in addition to the shares of Common Stock issuable upon such
conversion (the "CONVERSION SHARES"), a number of Rights to be determined as
follows: (i) if such conversion occurs on or prior to the date for the
distribution to the holders of Rights of separate
27
certificates evidencing such Rights (the "DISTRIBUTION DATE"), the same number
of Rights to which a holder of a number of shares of Common Stock equal to the
number of Conversion Shares is entitled at the time of such conversion in
accordance with the terms and provisions of and applicable to the Rights; and
(ii) if such conversion occurs after the Distribution Date, the same number of
Rights to which a holder of the number of shares of Common Stock into which the
principal amount of the Note so converted was convertible immediately prior to
the Distribution Date would have been entitled on the Distribution Date in
accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any
time distribute to all holders of its Common Stock cash (including any
distributions of cash out of current or retained earnings of the Company but
excluding any cash that is distributed as part of a distribution requiring a
Conversion Price adjustment pursuant to paragraph (c) of this Section 5.06) the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying such Conversion Price in effect immediately prior to
the effectiveness of the Conversion Price reduction contemplated by this
paragraph (d) by a fraction of which the numerator shall be the Current Market
Price per share (determined as provided in paragraph (f) of this Section 5.06)
of the Common Stock on the date fixed for determining the stockholders entitled
to such distribution (the "DISTRIBUTION RECORD DATE") less the amount of such
cash so distributed applicable to one share (based on the pro rata portion of
the aggregate amount of such cash, divided by the shares of Common Stock
outstanding on the Distribution Record Date) of Common Stock and the denominator
shall be such Current Market Price per share (determined as provided in
paragraph (f) of this Section 5.06) of the Common Stock on the Distribution
Record Date, such reduction to become effective immediately prior to the opening
of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by
the Company or any Subsidiary for all or any portion of the Common Stock shall
be consummated, if an Excess Payment is made in respect of such tender offer or
other negotiated transaction, the Conversion Price shall be reduced so that the
same shall equal the price determined by multiplying such Conversion Price in
effect immediately prior to the effectiveness of the Conversion Price reduction
contemplated by this paragraph (e) by a fraction of which the numerator shall be
the Current Market Price per share (determined as provided in paragraph (f) of
this Section 5.06) of the Common Stock on the date of payment of such current
negotiated transaction consideration or expiration of such current tender offer,
as the case may be (the "ADJUSTMENT PURCHASE DATE") less the amount of such
Excess Payments (based on the pro rata portion of the aggregate amount of such
Excess Payments, divided by the shares of Common Stock outstanding on the
Adjustment Purchase Date) of Common Stock and the denominator shall be such
Current Market Price per share (determined as provided in paragraph (f) of this
Section 5.06) of the Common Stock on the Adjustment Purchase Date, such
reduction to become effective immediately prior to the opening of business on
the day following the Adjustment Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any
date shall be deemed to be the average of the Sale Prices for the shorter of (i)
ten consecutive trading days ending on the last full trading day on the exchange
or market referred to in determining
28
such Sale Prices prior to the time of determination or (ii) the period
commencing on the date next succeeding the first public announcement of the
issuance of such rights or such warrants or such other distribution or such
negotiated transaction through such last full trading day on the exchange or
market referred to in determining such Sale Prices prior to the time of
determination.
(g) In any case in which this Section 5.06 shall require that an
adjustment be made immediately following a record date, the Company may elect to
defer (but only until five Business Days following the filing by the Company
with the Trustee of the certificate described in Section 5.10 hereof) issuing to
the Holder of any Note converted after such record date the shares of Common
Stock and other Capital Stock of the Company issuable upon such conversion over
and above the shares of Common Stock and other Capital Stock of the Company
issuable upon such conversion only on the basis of the Conversion Price prior to
adjustment; and, in lieu of the shares the issuance of which is so deferred, the
Company shall issue or cause its transfer agents to issue due bills or other
appropriate evidence of the right to receive such shares.
SECTION 5.07. NO ADJUSTMENT.
No adjustment in the Conversion Price shall be required until
cumulative adjustments amount to 1.0% or more of the Conversion Price as last
adjusted; provided, however, that any adjustments which by reason of this
Section 5.07 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Article V
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 rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest. No
adjustment need be made for a change in the par value or no par value of the
Common Stock.
SECTION 5.08. OTHER ADJUSTMENTS.
(a) In the event that, as a result of an adjustment made pursuant
to Section 5.06 hereof, the Holder of any Note thereafter surrendered for
conversion shall become entitled to receive any shares of Capital Stock of the
Company other than shares of its Common Stock, thereafter the Conversion Price
of such other shares so receivable upon conversion of any Note shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to Common Stock contained in this
Article V.
(b) In the event that shares of Common Stock are not delivered
after the expiration of any of the rights or warrants referred to in Section
5.06(b) and Section 5.06(c) hereof, the Conversion Price shall be readjusted to
the Conversion Price which would otherwise be in effect had the adjustment made
upon the issuance of such rights or warrants been made on the basis of delivery
of only the number of shares of Common Stock actually delivered.
SECTION 5.09. ADJUSTMENTS FOR TAX PURPOSES.
The Company may make such reductions in the Conversion Price, in
addition to those required by Section 5.06 hereof, as it determines to be
advisable in order that any stock dividend, subdivision of shares, distribution
or rights to purchase stock or securities or distribution of
29
securities convertible into or exchangeable for stock made by the Company to its
stockholders will not be taxable to the recipients thereof.
SECTION 5.10. NOTICE OF ADJUSTMENT.
Whenever the Conversion Price is adjusted, the Company shall promptly
mail to Holders at the addresses appearing on the Registrar's books a notice of
the adjustment and file with the Trustee an Officers' Certificate briefly
stating the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence of the correctness of such adjustment.
Unless and until a Trust Officer of the Trustee shall receive written notice of
an adjustment of the Conversion Price, the Trustee may assume without inquiry
that the Conversion Price has not been adjusted and that the last Conversion
Price of which it has knowledge remains in effect.
SECTION 5.11. NOTICE OF CERTAIN TRANSACTIONS.
In the event that:
(1) the Company takes any action which would require an
adjustment in the Conversion Price;
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 5.12; or
(3) there is a dissolution or liquidation of the Company;
the Company shall mail to Holders at the addresses appearing on the
Registrar's books and the Trustee a notice stating the proposed record or
effective date, as the case may be, to permit a Holder of a Note to convert such
Note into shares of Common Stock prior to the record date for or the effective
date of the transaction in order to receive the rights, warrants, securities or
assets which a Holder of shares of Common Stock on that date may receive. The
Company shall mail the notice at least 15 days before such date; however,
failure to mail such notice or any defect therein shall not affect the validity
of any transaction referred to in clause (1), (2) or (3) of this Section 5.11.
SECTION 5.12. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS, MERGERS OR SALES ON
CONVERSION PRIVILEGE.
If any of the following shall occur, namely: (i) any reclassification
or change of outstanding shares of Common Stock issuable upon conversion of
Notes (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),
(ii) any consolidation or merger to which the Company is a party other than a
merger in which the Company is the continuing corporation and which does not
result in any reclassification of, or change (other than a change in name, or
par value, or from par value to no par value, or from no par value to par value
or as a result of a subdivision or combination) in, outstanding shares of Common
Stock or (iii) any sale or conveyance of all or substantially all of the
property or business of the Company as an entirety, then the Company, or
30
such successor or purchasing corporation, as the case may be, shall, as a
condition precedent to such reclassification, change, consolidation, merger,
sale or conveyance, execute and deliver to the Trustee a supplemental indenture
in form reasonably satisfactory to the Trustee providing that the Holder of each
Note then outstanding shall have the right to convert such Note into the kind
and amount of shares of stock and other securities and property (including cash)
receivable upon such reclassification, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock deliverable upon
conversion of such Note immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Price
provided for in this Article V. The foregoing, however, shall not in any way
affect the right a Holder of a Note may otherwise have, pursuant to clause (ii)
of the last sentence of subsection (c) of Section 5.06 hereof, to receive Rights
upon conversion of a Note. If in the case of any such consolidation, merger,
sale or conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Common Stock includes shares of stock or
other securities and property of a corporation other than the successor or
purchasing corporation, as the case may be, in such consolidation, merger, sale
or conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Notes as the Board of Directors of the Company
shall reasonably consider necessary by reason of the foregoing. The provision of
this Section 5.12 shall similarly apply to successive consolidations, mergers,
sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 5.12, the Company shall promptly file with the Trustee
an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or securities or property (including cash) receivable
by Holders of the Notes upon the conversion of their Notes after any such
reclassification, change, consolidation, merger, sale or conveyance and any
adjustment to be made with respect thereto.
SECTION 5.13. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this
Article V should be made, how it should be made or what such adjustment should
be, but may accept as conclusive evidence of the correctness of any such
adjustment, and shall be protected in relying upon the Officers' Certificate
with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 5.10 hereof. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of Notes,
and the Trustee shall not be responsible for the Company's failure to comply
with any provisions of this Article V.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 5.12, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 5.12 hereof.
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ARTICLE VI
REPURCHASES OF NOTES
SECTION 6.01. REPURCHASES OF NOTES AT THE OPTION OF THE HOLDER.
(a) Notes shall be purchased by the Company at the option of the
Holder on December 15, 2010, December 15, 2013, December 15, 2018, December 15,
2023 and December 15, 2028 (each an "OPTION PURCHASE DATE") at a price equal to
100% of the principal amount of the Notes to be purchased plus any accrued and
unpaid interest to such Option Purchase Date (the "PURCHASE PRICE"). Purchases
of Notes hereunder shall be made, at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a
written notice of purchase (an "OPTION PURCHASE NOTICE")
during the period beginning at any time from the opening of
business on the date that is 20 Business Days prior to the
relevant Option Purchase Date until the close of business two
Business Days prior to such Option Purchase Date stating:
a. the certificate number of the Note which the Holder
will deliver to be purchased or the appropriate Depositary
procedures, as applicable,
b. the portion of the principal amount of the Note which
the Holder will deliver to be purchased, which portion must be
in principal amount of $1,000 or an integral multiple thereof,
if less than all of the Notes are being repurchased,
c. that such Note shall be purchased by the Company as
of the Option Purchase Date pursuant to the terms and
conditions specified in Section 10 of the Note and in this
Indenture, and
(2) Delivery of such Note to the Paying Agent prior to,
on or after the Option Purchase Date at the offices of the
Paying Agent, such delivery being a condition to receipt by
the Holder of the Purchase Price therefor; provided, however,
that such Purchase Price shall be paid pursuant to this
Section 6.01 only if the Note so delivered to the Paying Agent
shall conform in all respects to the description thereof in
the related Option Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 6.01, a portion of a Note, only 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 6.01 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Option Purchase
Date and the time of delivery of the Note.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Option Purchase Notice contemplated by this Section
6.01(a) shall have the right to
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withdraw such Option Purchase Notice at any time prior to the close of business
two Business Days prior to the Option Purchase Date by delivery of a written
notice of withdrawal to the Paying Agent specifying (i) the certificate number,
if any, of the Note in respect of which such notice of withdrawal is being
submitted, (ii) the principal amount of the Note with respect to which such
notice of withdrawal is being submitted or otherwise comply with the appropriate
Depositary procedures, and (iii) the principal amount, if any, of such Note
which remains subject to the original Option Purchase Notice and which has been
or will be delivered for purchase by the Company.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Option Purchase Notice or written notice of withdrawal thereof.
(b) The Notes to be purchased on any Option Purchase Date pursuant
to Section 6.01(a) shall be paid for in U.S. legal tender ("cash").
At least one Business Day before each Company Notice Date (as defined
below), the Company shall deliver an Officers' Certificate to the Trustee
specifying:
(i) the information required by Section 6.01(d) in the
Company Notice,
(ii) whether the Company desires the Trustee to give the
Company Notice required by Section 6.01(d), and
(iii) the principal amount of the Notes plus accrued and
unpaid interest.
(c) The Company Notice, as provided in Section 6.01(d), shall be
sent to Holders not less than 20 Business Days prior to such Option Purchase
Date (the "COMPANY NOTICE DATE").
(d) In connection with any purchase of Notes pursuant to Section
10 of the Notes, the Company shall give notice to Holders setting forth
information specified in this Section 6.01(d) (the "COMPANY NOTICE").
Each Company Notice shall include a form of Option Purchase Notice to
be completed by a Holder and shall state:
(i) the Purchase Price;
(ii) the name and address of the Paying Agent and the
Conversion Agent;
(iii) that Notes as to which an Option Purchase Notice has
been given may be converted, if they are otherwise convertible
pursuant to Article V hereof and Section 12 of the Notes, if
the applicable Option Purchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(iv) that Notes must be surrendered to the Paying Agent to
collect payment;
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(v) that the Purchase Price for any security as to which
an Option Purchase Notice has been given and not withdrawn
will be paid promptly following the later of the Option
Purchase Date and the time of surrender of such Note as
described in clause (iv);
(vi) the procedures the Holder must follow to exercise its
rights under this Section 6.01 and a brief description of
those rights;
(vii) briefly, the conversion rights of the Notes;
(viii) the procedures for withdrawing an Option Purchase
Notice;
(ix) that, unless the Company defaults in making payment
on Notes for which an Option Purchase Notice has been
submitted, interest, if any, on such Notes will cease to
accrue on the Option Purchase Date; and
(x) the CUSIP number and ISIN number of the Notes.
At the Company's request, the Trustee shall give such Company Notice in
the Company's name and at the Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be prepared by the Company.
(e) The Company shall deposit cash at the time and in the manner
as provided in Section 6.04, sufficient to pay the aggregate Purchase Price of
all Notes to be purchased pursuant to this Section 6.01.
SECTION 6.02. REPURCHASE OF NOTES UPON A CHANGE IN CONTROL
(a) Upon the occurrence of a Change in Control, each Holder of
Notes shall have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the Purchase Offer at a purchase price equal to 100% of the
principal amount thereof plus accrued and unpaid interest to the date of
purchase (the "CHANGE IN CONTROL PAYMENT").
(b) On or before the 30th day following any Change in Control, the
Company shall give written notice to the Trustee and shall mail to each Holder
the notice provided by Section 3.09(e).
SECTION 6.03. EFFECT OF OPTION PURCHASE NOTICE
Upon receipt by the Paying Agent of the Option Purchase Notice
specified in Section 6.01(a), the Holder of the Note in respect of which such
Option Purchase Notice was given shall (unless such Option Purchase Notice is
withdrawn) thereafter be entitled to receive solely the Purchase Price with
respect to such Note. Such Purchase Price shall be paid to such Holder, subject
to receipts of funds by the Paying Agent, as soon as practicable following the
later of (x) the Option Purchase Date with respect to such Note (provided the
conditions in Section 6.01(a) have been satisfied) and (y) the time of delivery
of such Note to the Paying Agent by the Holder
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thereof in the manner required by Section 6.01(a). Notes in respect of which an
Option Purchase Notice has been given by the Holder thereof may not be converted
pursuant to Article V hereof on or after the date of the delivery of such Option
Purchase Notice unless such Option Purchase Notice has first been validly
withdrawn.
SECTION 6.04. DEPOSIT OF PURCHASE PRICE
Prior to 10:00 a.m. (local time in the City of New York) on the Option
Purchase Date, the Company shall deposit with the Trustee or with the Paying
Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is
acting as the Paying Agent, shall segregate and hold in trust) an amount of cash
(in immediately available funds if deposited on such Business Day) sufficient to
pay the aggregate Option Purchase Price of all the Notes or portions thereof
which are to be purchased as of the Option Purchase Date.
SECTION 6.05. SECURITIES PURCHASED IN PART.
Any certificated 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 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 portion of the principal amount of the Note so
surrendered which is not purchased.
SECTION 6.06. COVENANT TO COMPLY WITH SECURITIES LAWS
When complying with the provisions of Article VI 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 and Rule 14e-1 (or any successor provision) under the
Exchange Act, if applicable (ii) file the related Schedule TO (or any successor
schedule, form or report) under the Exchange Act, if applicable, and (iii)
otherwise comply with all Federal and state securities laws so as to permit the
rights and obligations under Article VI to be exercised in the time and in the
manner specified.
SECTION 6.07. OTHER PROVISIONS SUBJECT HERETO
The Trustee and the Paying Agent shall return to the Company any cash
that remains unclaimed as provide in Section 5 of the Note, together with
interest, if any, thereon (subject to the provisions of Section 9.01(f)), held
by them for the payment of the Purchase Price; provided, however; that to the
extent that the aggregate amount of cash deposited by the Company pursuant to
Section 6.04 exceeds the aggregate Purchase Price of the Notes or portions
thereof which the Company is obligated to purchase as of the Option Purchase
Date, then, unless otherwise agreed in writing with the Company, promptly after
the Business Day following the Option Purchase Date, the Trustee shall return
any such excess to the Company together with interest, if any, thereon (subject
to the provisions of Section 9.01(f)).
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ARTICLE VII
SUCCESSORS
SECTION 7.01. LIMITATION ON MERGER, SALE OR CONSOLIDATION.
The Company may not, directly or indirectly, consolidate with or merge
with or into, or sell, lease or otherwise dispose of all or substantially all of
its assets, on a consolidated basis, whether in a single transaction or a series
of related transactions, to another person or group of affiliated persons, other
than to its Wholly-Owned Subsidiaries, unless:
(a) either: (i) in the case of a merger or consolidation, the
Company is the surviving entity; or (ii) the resulting, surviving or transferee
entity is a corporation organized under the laws of the United States, any state
thereof or the District of Columbia and expressly assumes by supplemental
indenture all of the Company's obligations in connection with the Notes and the
Indenture; and
(b) no Default or Event of Default shall exist immediately before
or after giving effect on a pro forma basis to such transaction.
Upon any permitted consolidation or merger or any permitted sale, lease
or other disposition of all or substantially all of the assets of the Company in
accordance with the foregoing, the successor corporation formed by such
consolidation or into which the Company is merged or to which such sale, lease
or other disposition is made, shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under the Indenture with the same
effect as if such successor corporation had been named therein in the same
manner as the Company is named, and when a successor corporation duly assumes
all of the obligations of the Company pursuant hereto and pursuant to the Notes,
the Company will be released from its obligations under the Indenture and the
Notes, except as to any obligations that arise from or as a result of such
transaction.
For purposes of the foregoing, the transfer, by lease, assignment, sale
or otherwise, of all or substantially all of the properties and assets of one or
more Subsidiaries, which properties and assets, if held by the Company instead
of such Subsidiary, would constitute all or substantially all of the Company's
properties and assets, shall be deemed to be the transfer of all or
substantially all of the Company's properties and assets. This Section 7.01 will
not apply to a sale, assignment, transfer, conveyance or other disposition of
assets between or among the Company and any of its Wholly-Owned Subsidiaries.
SECTION 7.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company undertaken in accordance with Section 7.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person has been named as the Company herein.
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ARTICLE VIII
DEFAULTS AND REMEDIES
SECTION 8.01. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(a) the Company defaults in the payment of interest on any Note
when the same becomes due and payable and the Default continues for a period of
30 days after the date due and payable;
(b) the Company defaults in the payment of the principal of any
Note when the same becomes due and payable at maturity, upon optional
redemption, in connection with a repurchase of Notes at the option of a Holder
under Section 6.01 or 6.02 hereof, upon declaration or otherwise;
(c) the Company fails to observe or perform for a period of 30
days after notice from the Trustee to the Company any covenant or agreement
contained in Article VI and Section 7.01 hereof (other than, in the case of
Sections 6.01 and 6.02, a failure to repurchase Notes at the option of a Holder)
hereof;
(d) the Company fails to observe or perform any other covenant or
agreement contained in this Indenture or the Notes, required by it to be
performed and the failure continues for a period of 60 days after notice from
the Trustee to the Company or from the Holders of 25% in aggregate principal
amount of the then outstanding Notes to the Company and the Trustee stating that
such notice is a "Notice of Default";
(e) the failure by the Company or any Significant Subsidiary to
make any payment at final stated maturity, including any applicable grace
period, in respect of its Indebtedness (other than non-recourse obligations) in
an amount in excess of $15 million, and continuance of such failure for 30 days
after written notice is 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
Notes outstanding stating that such notice is a "Notice of Default".
(f) A default by the Company or any Significant Subsidiary with
respect to any of the Company's Indebtedness (other than non-recourse
obligations), which default results in the acceleration of Indebtedness in an
amount in excess of $15 million.
(g) failure by the Company or any of its Subsidiaries that is a
Significant Subsidiary or any group of two or more Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary to pay final judgments for the
payment of money (other than any judgment as to which a reputable insurance
company has accepted liability subject to customary terms) aggregating in excess
of $5.0 million, which judgments are not paid, discharged or stayed within 60
days after their entry;
37
(h) the Company or any of its Subsidiaries that is a Significant
Subsidiary or any group of two or more Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary pursuant to or within the meaning of
any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against
it in an involuntary case in which it is the debtor;
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its
creditors; or
(v) generally is unable to pay its debts as the same
become due; or
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
a. is for relief against the Company or any of its
Subsidiaries that is a Significant Subsidiary or any group of
two or more Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an involuntary case;
b. appoints a Custodian of the Company or any of its
Subsidiaries that is a Significant Subsidiary or any group of
two or more Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary or for all or
substantially all of its property;
c. orders the liquidation of the Company or any of its
Subsidiaries that is a Significant Subsidiary or any group of
two or more Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary, and the order or decree
remains unstayed and in effect for 60 days after entry
thereof.
The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors or the protection of
creditors. The term "CUSTODIAN" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
SECTION 8.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified in
clauses (h) or (i) of Section 8.01 hereof) occurs and is continuing, the Trustee
by notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes by notice to the Company and the Trustee,
may declare all the Notes to be due and payable. Upon such declaration, the
principal of, premium, if any, and interest on the Notes shall be due and
payable immediately. If an Event of Default specified in clause (h) or (i) of
Section 8.01 hereof occurs,
38
such an amount shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
If the Notes have been declared due and payable as a result of the
acceleration of Indebtedness prior to its express maturity pursuant to Section
8.01(f), such declaration shall be automatically rescinded if the holders of
such Indebtedness have rescinded or annulled the declaration of acceleration in
respect of that Indebtedness or such Indebtedness has been discharged within 30
days after such acceleration in accordance with the mortgage, indenture or
instrument under which it was issued and if (i) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and
(ii) all existing Events of Default have been cured or waived except nonpayment
of principal or interest on the Notes that has become due solely because of the
acceleration of the Notes.
Except as otherwise provided in the immediately preceding paragraph,
the Holders of a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may rescind an acceleration and its consequences
(i) if the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction and (ii) if all existing Events of Default have been
cured or waived except nonpayment of principal or interest on the Notes that has
become due solely because of the acceleration of the Notes.
SECTION 8.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal or 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 it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION 8.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of all of the Holders of the Notes
waive an existing Default or Event of Default and its consequences except a
continuing Default or Event of Default in the payment of the principal of or
interest on any Note. When a Default or Event of Default is waived, it is cured
and ceases; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
SECTION 8.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
it. However, the Trustee may refuse to follow any
39
direction that conflicts with law or this Indenture, is unduly prejudicial to
the rights of other Holders, or would involve the Trustee in personal liability.
SECTION 8.06. LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the
Notes only if:
(a) the Holder gives to the Trustee notice of a continuing Event
of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 8.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, and interest on the Note, on
or after the respective due dates expressed in the Note, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder.
SECTION 8.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 8.01(a) or (b), hereof
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 of
principal and interest remaining unpaid on the Notes and interest on overdue
principal and interest and such further amount as shall be sufficient to cover
the costs and, to the extent lawful, expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 8.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
the Holders allowed in any judicial proceedings relative to the Company, its
creditors or its property. Nothing contained herein 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
40
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 8.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 9.07 hereof;
Second: to Holders for amounts due and unpaid on the Notes for
principal and interest (and Special Interest, if applicable), ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders made pursuant to this Section 8.10.
SECTION 8.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 8.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 8.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE IX
TRUSTEE
SECTION 9.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default: (i) the
Trustee need perform only those duties that are specifically set forth in this
Indenture and no others and (ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform on their face to the requirements of this Indenture.
41
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that: (i) this paragraph does not limit the effect of
paragraph (b) of this Section 9.01; (ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts and (iii) the
Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to Section
8.05 hereof.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section 9.01.
(e) The Trustee may refuse to perform any duty or exercise any
right or power (including, without limitation, as requested or directed by a
Holder) unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 9.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee shall not be charged with knowledge of any Event
of Default under subsections (c), through (i) (and subsection (a) or (b) if the
Trustee does not act as Paying Agent) of Section 8.01 or of the identity of any
Significant Subsidiary or of any group of two or more Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary unless either (1) a Trust
Officer of the Trustee assigned to its corporate trust department shall have
actual knowledge thereof, or (2) the Trustee shall have received written notice
thereof in accordance with Section 12.02 hereof from the Company or any Holder.
(f) The grant of any permissive rights, power or authority
hereunder to the Trustee shall not be construed to be a duty.
42
SECTION 9.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
9.10 and 9.11 hereof.
SECTION 9.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in the Indenture or any statement in the Notes other
than its authentication or for compliance by the Company with the Registration
Rights Agreement.
SECTION 9.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment on any Note, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Holders.
SECTION 9.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after the reporting date stated in Section 12.10, the
Trustee shall mail to Holders a brief report dated as of such reporting date
that complies with TIA Section 313(a) if and to the extent required by such
Section 313(a). The Trustee also shall comply with TIA Section 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA Section
313(c).
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange on which the Notes are listed. The
Company shall notify the Trustee when the Notes are listed on any stock
exchange.
SECTION 9.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder as to which the Company and the Trustee
shall from time to time mutually agree in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such disbursements
and expenses may include the reasonable disbursements, compensation and expenses
of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any claims, demands,
expenses (including but not limited to reasonable compensation, fees,
disbursements and expenses of the
43
Trustee's agents and counsel), losses, damages or liabilities incurred by it,
except as set forth in the next paragraph, arising out of, related to, or in
connection with the acceptance or administration of this trust and its rights or
duties hereunder, including the reasonable costs and expenses, and the costs and
expenses of enforcing this Indenture (including this Section 9.07) against the
Company and of defending itself against any claim (whether asserted by the
Company, or any Holder or any other person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees, disbursements and expenses of such counsel. The Company need
not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through the Trustee's negligence or
bad faith.
To secure the Company's payment obligations in this Section 9.07, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee, except money or property held in trust to pay
principal and interest on particular Notes.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 8.01(h) or (i) hereof occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
All amounts owing to the Trustee under this Section 9.07 shall be
payable by the Company in United States dollars.
SECTION 9.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 9.08.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 9.10 hereof, unless
the Trustee's duty to resign is stayed as provided in TIA Section 310(b);
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
44
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 9.10 hereof, unless the
Trustee's duty to resign is stayed as provided in TIA Section 310(b), any Holder
who has been a bona fide Holder of a Note for at least six months may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 9.07 hereof. Notwithstanding replacement of the Trustee pursuant to
this Section 9.08 hereof, the Company's obligations under Section 9.07 hereof
shall continue for the benefit of the retiring trustee with respect to expenses
and liabilities incurred by it prior to such replacement.
SECTION 9.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business (including the
administration of this Indenture) to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
SECTION 9.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (5). The Trustee shall always have a
combined capital and surplus as stated in Section 12.10 hereof. The Trustee is
subject to TIA Section 310(b).
SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
45
ARTICLE X
DISCHARGE OF INDENTURE
SECTION 10.01. TERMINATION OF COMPANY'S OBLIGATIONS.
This Indenture shall cease to be of further effect (except that the
Company's obligations under Sections 9.07 and 10.02 hereof shall survive) when
all outstanding Notes theretofore authenticated and issued have been delivered
to the Trustee for cancellation and the Company has paid all sums payable
hereunder.
SECTION 10.02. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal or interest that remains
unclaimed for two years after the date upon which such payment shall have become
due (subject to the requirements of any abandoned property laws that may be
applicable); provided, however, that the Company shall have first caused notice
of such payment to the Company to be mailed to each Holder entitled thereto no
less than 30 days prior to such payment. After payment to the Company, the
Trustee and the Paying Agent shall have no further liability with respect to
such money and Holders entitled to the money must look to the Company for
payment as general creditors unless any applicable abandoned property law
designates another Person.
ARTICLE XI
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 11.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend or supplement this Indenture or
the Notes without the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Sections 5.12 and 7.01 hereof;
(c) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(d) to make any change that provides additional rights or benefits
to the Holders of the Notes;
(e) to make any change that does not adversely affect the legal
rights hereunder of any Holder; or
(f) to qualify the Indenture under the TIA or to comply with the
requirements of the SEC in order to maintain the qualification of the Indenture
under the TIA.
46
SECTION 11.02. WITH CONSENT OF HOLDERS.
Subject to Section 8.07 hereof, the Company and the Trustee may amend
or supplement this Indenture or the Notes with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Notes. Subject to Sections 8.04 and 8.07 hereof, the Holders of a majority in
principal amount of the Notes then outstanding may also waive noncompliance in a
particular instance by the Company with any provision of this Indenture or the
Notes. However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section 11.02 may not:
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Note or alter the provisions of Section 7 of the Notes in a manner adverse to
the Holders;
(c) reduce the rate of or change the time for payment or accrual
of interest on any Note;
(d) waive a continuing default or Event of Default in the payment
of the principal of or interest on any Note, except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal amount
of the Notes and a waiver of the payment default that resulted from such
acceleration;
(e) make any Note payable in money other than that stated in the
Note;
(f) make any change in Section 8.04 or 8.07 hereof;
(g) waive a redemption payment with respect to any Note;
(h) impair the right to convert the Notes into Common Stock or to
require the Company to repurchase the Notes at the option of the Holders;
(i) modify Article V or VI in a manner adverse to the Holders of
Notes; and
(j) make any change in the foregoing amendment and waiver
provisions of this Article XI.
To secure a consent of the Holders under this Section 11.02, it shall
not be necessary for the Holders to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section 11.02
becomes effective, the Company shall mail to Holders a notice briefly describing
the amendment or waiver.
SECTION 11.03. COMPLIANCE WITH TRUST INDENTURE ACT.
47
Every amendment to this Indenture or the Notes shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
SECTION 11.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
his Note or portion of a Note if the Trustee receives the notice of revocation
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Notes have
consented to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such Persons continue to
be Holders after such record date. No consent shall be valid or effective for
more than 90 days after such record date unless consents from Holders of the
principal amount of Notes required hereunder for such amendment or waiver to be
effective shall have also been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective it shall
bind every Holder, unless it is of the type described in any of clauses (a)
through (j) of Section 11.02 hereof. In such case, the amendment or waiver shall
bind each Holder who has consented to it and every subsequent Holder that
evidences the same debt as the consenting Holder's Note.
SECTION 11.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment or
waiver on any Note thereafter authenticated. The Company in exchange for all
Notes may issue and the Trustee shall authenticate new Notes that reflect the
amendment or waiver.
Failure to make such notation on a Note or to issue a new Note as
aforesaid shall not affect the validity and effect of such amendment or waiver.
SECTION 11.06. TRUSTEE PROTECTED.
The Trustee shall sign all supplemental indentures, except that the
Trustee may, but need not, sign any supplemental indenture that adversely
affects its rights, obligations or protections. Upon request by the Company to
sign any amendment or supplement, the Trustee shall be entitled to request and
receive from the Company, and to rely upon, an Opinion of Counsel and Officer's
Certificate to the effect that such supplement or amendment is authorized or
permitted under this Article XI.
48
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
This Indenture is subject to the provisions of the TIA that are
required to be incorporated into this Indenture (or, prior to the registration
of the Notes pursuant to the Registration Rights Agreement, would be required to
be incorporated into this Indenture if it were qualified under the TIA), and
shall, to the extent applicable, be governed by such provisions. If any
provision of this Indenture limits, qualifies, or conflicts with another
provision which is required (or would be so required) to be incorporated in this
Indenture by the TIA, the incorporated provision shall control.
SECTION 12.02. NOTICES.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in Person or mailed by first class
mail to the other's address stated in Section 12.10 hereof. The Company or the
Trustee by notice to the other may designate additional or different addresses
for subsequent notices or communications.
Any notice or communication to a Holder shall be mailed by first class
mail to his address shown on the register kept by the Registrar. Failure to mail
a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
All other notices or communications shall be in writing.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by the Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
49
(a) 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
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than pursuant to Section 4.03)
shall include:
(a) a statement that the Person signing such certificate or
rendering such opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, such Person
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
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by, or a meeting of,
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07. LEGAL HOLIDAYS.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which banking
institutions in the State of New York or St. Xxxx, Minnesota are not required to
be open. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If any other operative
date for purposes of this Indenture shall occur on a Legal Holiday then for all
purposes the next succeeding day that is not a Legal Holiday shall be such
operative date.
SECTION 12.08. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, incorporator or shareholder of the
Company, as such, 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. Each
50
Holder by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Notes.
SECTION 12.09. COUNTERPARTS AND FACSIMILE SIGNATURES.
This Indenture may be executed by manual or facsimile signature in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 12.10. VARIABLE PROVISIONS.
The first certificate pursuant to Section 4.03 hereof shall be for the
fiscal year ended on December 31, 2003.
The reporting date for Section 9.06 hereof is September 15, of each
year. The first reporting date is September 15, 2004.
The Trustee shall always have a combined capital and surplus of at
least $100,000,000 as set forth in its most recent published annual report of
condition.
The Company's address is:
Akamai Technologies, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
The Trustee's address is:
U.S. Bank National Association
Corporate Trust Services
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Akamai Technologies, Inc. -- $175,000,000 Convertible Senior
Notes due 2033
SECTION 12.11. GOVERNING LAW, SUBMISSION TO JURISDICTION.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE
AND THE NOTES.
To the extent permitted by applicable law, the Company irrevocably
submits to the nonexclusive jurisdiction of any federal or state court in the
Borough of Xxxxxxxxx, Xxxx xxx Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, in
any suit or proceeding based on or arising under this Indenture and the Notes
and irrevocably agrees that all claims in respect of such suit or proceeding may
be determined in any such court. The Company irrevocably and fully waives
51
the defense of an inconvenient forum to the maintenance of such suit or
proceeding. The Company hereby irrevocably designates and appoints Corporation
Service Company as the authorized agent of the Company upon whom process may be
served in any such suit or proceeding (the "PROCESS AGENT"), it being understood
that the designation and appointment of the Process Agent as such authorized
agent shall become effective immediately without any further action on the part
of the Company. The Company represents to the Trustee that it has notified the
Process Agent of such designation and appointment and that the Process Agent has
accepted the same. The Company hereby irrevocably authorizes and directs the
Process Agent to accept such service. The Company further agrees that service of
process upon the Process Agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding. Nothing
herein shall affect the right of the Trustee or any Holder to serve process in
any other manner permitted by law. In the event that Corporation Service Company
ceases to be the Process Agent, the Company agrees that it will take any and all
action, including the execution and filing of any and all such documents and
instruments as may be necessary to validly designate and appoint an alternate
agent as Process Agent, and to maintain such designation and appointment in full
force and effect so long as the Company has any outstanding obligations under
this Indenture or the Notes, on terms that are reasonably acceptable to the
Trustee. To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
hereunder and thereunder, to the extent permitted by law.
SECTION 12.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or an Affiliate. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 12.13. 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.
SECTION 12.14. SEVERABILITY.
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 12.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
52
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
AKAMAI TECHNOLOGIES, INC., as Company
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Chi C. Ma
---------------------------------
Name: Chi C. Ma
Title: Vice President
53
EXHIBIT A
AKAMAI TECHNOLOGIES, INC.
[GLOBAL NOTES LEGEND]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC 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 THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[RESTRICTED NOTES LEGEND]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY AND
THE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS
HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON
CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE
A-1
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV)
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. IN ANY CASE, THE HOLDER
HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING
TRANSACTIONS WITH REGARD TO THIS SECURITY EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT.
AKAMAI TECHNOLOGIES, INC.
1.0% CONVERTIBLE SENIOR NOTE DUE 2033
GLOBAL NOTE
No. R-1 CUSIP No.
________ ISIN No.
_________ $ _______________________
Akamai Technologies, Inc., a Delaware corporation (hereinafter called
the "Company", which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of ___________________ dollars
($___________), on December 15, 2033.
Interest Payment Dates: June 15 and December 15: commencing June 15,
2004.
Record Dates: June 1 and December 1.
Reference is made to the further provisions of this Note hereinafter
set forth, which will, for all purposes, have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
A-2
AKAMAI TECHNOLOGIES, INC.,
a Delaware corporation
[Seal]
By: ____________________________
Name:
Title:
Attest: ____________
Secretary
A-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
U.S. Bank National Association, as
Trustee
By: _______________________________________
Name:
Authorized Signatory
Dated: ___________________
A-4
1.0% CONVERTIBLE SENIOR NOTE DUE 2033
GLOBAL NOTE
1. INTEREST. AKAMAI TECHNOLOGIES, INC., a Delaware corporation
(the "COMPANY"), is the issuer of 1.0% Convertible Senior Notes due 2033 (the
"Notes"). The Notes will accrue interest at a rate of 1.0% per annum. The
Company promises to pay interest on the Notes in cash semiannually on each June
15 and December 15, commencing on June 15, 2004, to Holders of record on the
immediately preceding June 1 and December 1, respectively. Interest on the Notes
will accrue from the most recent date to which interest has been paid, or if no
interest has been paid, from December 12, 2003. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. The Company will pay interest
on overdue principal at the interest rate borne by the Notes, compounded
semiannually, and, to the extent permitted by law, it shall pay interest on
overdue installments of interest (without regard to any applicable grace period)
at the same interest rate compounded semiannually.
2. REGISTRATION RIGHTS. The holder of this Note (and the Common
Stock issuable upon conversion hereof) is entitled to the benefits of a
Registration Rights Agreement, dated as of December 12, 2003, among the Company
and the Initial Purchaser (the "REGISTRATION RIGHTS AGREEMENT"). Pursuant to the
Registration Rights Agreement the Company has agreed for the benefit of the
holders of Transfer Restricted Securities (as defined in the Registration Rights
Agreement), that (i) it will, at its cost, within 90 days after the closing of
the sale of the Notes (the "CLOSING"), file a shelf registration statement (the
"SHELF REGISTRATION STATEMENT") with the Securities and Exchange Commission (the
"COMMISSION") with respect to resales of the Notes and the Common Stock issuable
upon conversion thereof, (ii) it will use its reasonable best efforts to cause
such Shelf Registration Statement to be declared effective within 210 days after
the Closing, and (iii) it will use its reasonable best efforts to keep such
Shelf Registration Statement continuously effective under the Securities Act,
subject to certain exceptions specified in the Registration Rights Agreement,
until the second anniversary of the date of the Closing. If (a) the Company
fails to file the Shelf Registration Statement required by the Registration
Rights Agreement on or before the date specified above for such filing, (b) such
Shelf Registration Statement is not declared effective by the Commission on or
prior to the date specified above for such effectiveness, or (c) the Shelf
Registration Statement is declared effective but thereafter ceases to be
effective or useable in connection with resales of Transfer Restricted
Securities during the periods specified in the Registration Rights Agreement
without being succeeded immediately by a post-effective amendment to such Shelf
Registration Statement that cures such failure and is itself declared effective
immediately (each such event referred to in clauses (a) through (c) above a
"REGISTRATION DEFAULT"), then the Company will pay special interest to each
Holder of Transfer Restricted Securities as described below. Notwithstanding the
foregoing, as set forth in the Registration Rights Agreement, the Company will
be permitted to suspend use of the prospectus that is part of the Shelf
Registration Statement during certain periods of time and in certain
circumstances relating to pending corporate developments and public filings with
the
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SEC and similar events, and such a suspension shall not be deemed a Registration
Default provided it does not last in excess of 60 days in the aggregate during
any 12-month period. With respect to the first 90-day period immediately
following the occurrence of a Registration Default, the Company shall pay
special interest to each Holder of Transfer Restricted Securities in an amount
equal to an increase in the annual interest rate on the Notes of 0.25% ("SPECIAL
INTEREST") and with respect to any subsequent period, additional amounts equal
to an increase in the annual interest rate on the Notes of 0.25% until all
Registration Defaults have been cured. In the event that this Note, or any
portion thereof, shall have been converted into shares of Common Stock pursuant
to Section 12 hereof, the amount payable under this Section 2 per share of
Common Stock shall be determined by dividing (x) the amount that would have been
payable hereunder on the aggregate principal amount so converted by (y) the
number of shares of Common Stock issued upon such conversion. All accrued
Special Interest shall be paid by the Company on each Interest Payment Date for
which Special Interest is owed to the holders of Transfer Restricted Securities
by wire transfer of immediately available funds or by federal funds check.
Following the cure of all Registration Defaults, the application of Special
Interest will cease. THE PROVISIONS OF THIS SECTION 2 SHALL SURVIVE ANY
CONVERSION OF THE NOTES INTO SHARES OF COMMON STOCK PURSUANT TO SECTION 12
HEREOF, AND MAY BE ENFORCED BY THE HOLDER OF COMMON STOCK ISSUED UPON CONVERSION
OF THIS NOTE.
3. PAYMENTS. All payments made by the Company on this Note shall
be made without deduction or withholding for or on account of, any and all
present or future taxes, duties, assessments, or governmental charges of
whatever nature unless the deduction or withholding of such taxes, duties,
assessments or government charges is then required by law.
4. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the record date for the next interest payment date
even though Notes are canceled after the record date and on or before the
interest payment date. Holders must surrender Notes to a Paying Agent to collect
principal and premium payments. The Company will pay principal, premium, if any,
interest, and Special Interest, if any, 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 pay principal, premium, if any, interest and Special
Interest, if any, by check payable in such money. It may mail an interest or
Special Interest check to a Holder's registered address. Upon the request of a
Holder who holds an aggregate principal amount of at least $5.0 million,
principal, premium, if any, interest, and Special Interest, if any, shall be
paid by wire transfer of immediately available funds to an account previously
specified in writing by such Holder to the Company and the Trustee.
5. PAYING AGENT, CONVERSION AGENT AND REGISTRAR. The Trustee will
act as Paying Agent, Conversion Agent and Registrar and will maintain an office
or agency in the City of New York, New York at which the notes may be presented
for payment, transfer or exchange. The Company may change any Paying Agent,
Conversion Agent or Registrar without prior notice. The Company or any of its
Affiliates may act in any such capacity.
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6. INDENTURE. The Company issued the Notes under an Indenture,
dated as of December 12, 2003 (the "INDENTURE"), between the Company and U.S.
Bank National Association, as Trustee. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA")
as in effect on the date of the Indenture. The Notes are subject to, and
qualified by, all such terms, certain of which are summarized hereon, and
Holders are referred to the Indenture and such Act for a statement of such
terms. The Notes are unsubordinated and unsecured general obligations of the
Company limited to $200,000,000 in aggregate principal amount.
7. REDEMPTION. At any time on or after December 15, 2010, the
Company may redeem any portion of the Notes, in whole, or in part, on at least
30 days' but no more than 60 days' notice, for cash at a redemption price equal
to 100% of the principal amount, together with accrued and unpaid interest and
Special Interest thereon, to, but excluding, the redemption date.
In the event the Company redeems less than all of the outstanding
Notes, the Notes to be redeemed shall be selected by the Trustee in accordance
with Section 3.02 of the Indenture. The Company may not give notice of any
redemption if the Company has defaulted in payment of interest and the default
is continuing.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder of the Notes to be redeemed at his address of record. The Notes in
denominations larger than $1,000 may be redeemed in part but only in integral
multiples of $1,000. In the event of a redemption of less than all of the Notes,
the Notes will be chosen for redemption by the Trustee in accordance with the
Indenture. On and after the redemption date, interest ceases to accrue on the
Notes or portions of them called for redemption.
If this Note is redeemed subsequent to a record date with respect to
any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest will be paid to the Person in whose name
this Note is registered at the close of business on such record date.
9. RANKING. The Notes represent "Designated Senior Debt" as
defined under the Company's existing 5 1/2% Convertible Subordinated Notes due
2007.
10. REPURCHASE AT OPTION OF HOLDER. Subject to the terms and
conditions of the Indenture, the Company shall become obligated to repurchase,
at the option of the Holder, all or any portion of the Notes held by such Holder
on any Option Purchase Date in integral multiples of $1,000, if less than all of
the Notes are being redeemed, at a Purchase Price in cash equal to 100% of the
principal amount of the Note, plus accrued and unpaid interest and Special
Interest, if any, to the Option Purchase Date. To exercise such right, a Holder
shall deliver to the Company an Option Purchase Notice containing the
information set forth in the Indenture at any time from the opening of business
on the date that is 20 Business Days prior to such Option
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Purchase Date until the close of business two Business Days prior to such Option
Purchase Date, and shall deliver the Notes to the Paying Agent as set forth in
the Indenture.
Holders have the right to withdraw any Option Purchase Notice by
delivering to the Paying Agent a written notice of withdrawal in accordance with
the provisions of the Indenture.
If cash sufficient to pay the Purchase Price of all Notes or portions
thereof to be purchased on the Option Purchase Date is deposited with the Paying
Agent on the Option Purchase Date, interest ceases to accrue on such Notes or
portions thereof immediately after such Option Purchase Date, and the Holder
thereof shall have no other rights as such other than the right to receive the
Purchase Price upon surrender of such Note.
11. REPURCHASE UPON A CHANGE IN CONTROL. If there is a Change in
Control, the Company shall be required to offer to repurchase on the Purchase
Date all outstanding Notes at a purchase price equal to 100% of the aggregate
principal amount thereof, plus accrued and unpaid interest and Special Interest,
if any, to the Purchase Date. Holders of Notes that are subject to an offer to
purchase will receive a Change in Control Offer from the Company in accordance
with Section 3.09 of the Indenture and may elect to have such Notes or portions
thereof in authorized denominations purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below. Upon the occurrence of a
Change in Control, Holders may also have the right to surrender Notes for
conversion to Common Stock pursuant to Section 12 hereof.
12. CONVERSION. The holder of any Note has the right, exercisable
at any time following the Issuance Date and prior to the close of business (New
York time) on the date of the Note's maturity, to convert the principal amount
thereof (or any portion thereof that is an integral multiple of $1,000) into
shares of Common Stock at the initial Conversion Price of $15.45 per share,
subject to adjustment, under certain circumstances as set forth in the
Indenture, except that if a Note is called for redemption, the conversion right
will terminate at the close of business on the second Business Day immediately
preceding the date fixed for redemption.
Holders may surrender Notes for conversion into Common Stock as
follows:
i. Conversion Based on Sales Price of Common Stock. Commencing
after March 31, 2004, Holders may surrender Notes in integral multiples
of $1,000 principal amount for conversion into shares of the Company's
Common Stock, on any Business Day during any calendar quarter if the
Sale Price of the Common Stock for at least 20 trading days in the
period of 30 consecutive trading days ending on the last trading day of
the previous quarter is more than 120% of the Conversion Price per
share of the Common Stock on such last trading day.
ii. Conversion Upon Redemption. A Holder may surrender for
conversion any Note called for redemption as specified in Section 7 of
the Notes and in the Indenture at any time prior to the close of
business two Business Days prior to the redemption date, even if it is
not otherwise convertible at such time.
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iii. Conversion Upon Occurrence of Certain Corporate Transactions.
If the Company elects to: (a) distribute to all holders of Common Stock
certain rights entitling them to purchase shares of Common Stock at
less than the Current Market Price of the Common Stock as of the
Business Day prior to the date of declaration for such distribution or
(b) distribute to all holders of Common Stock, assets, debt securities
or certain rights to purchase the Company's securities, which
distribution has a per share value exceeding 15% of the Sale Price of
the Common Stock on the trading day preceding the declaration date for
such distribution, the Company must notify the Holders of the Notes at
least 20 days prior to the ex-dividend date for such distribution. Once
the Company has given such notice, Holders may surrender their Notes
for conversion at any time until the earlier of the close of business
on the Business Day prior to the ex-dividend date or the Company's
announcement that such distribution will not take place, even if the
Notes are not otherwise convertible at such time; provided that a
Holder may not exercise this right to convert if the Holder will
otherwise participate in the distribution without conversion.
If the Company is a party to a consolidation, merger or
binding share exchange pursuant to which Common Stock would be
converted into cash, securities or other property (other than if such
property consists of shares of voting common stock of the surviving
person that are, or upon issuance will be, traded on a United States
national securities exchange or approved for trading on an established
automated over-the-counter trading market in the United States, and
such shares represent at least 95% of the aggregate fair market value
(as determined by the Company's board of directors) of such property),
a Holder may surrender Notes for conversion at any time from and after
the date which is 15 days prior to the anticipated effective date of
the transaction until 15 days after the actual effective date of such
transaction. If the Company is a party to a consolidation, merger or
binding share exchange pursuant to which Common Stock is converted into
cash, securities or other property, then at the effective time of the
transaction, the right to convert a Note into Common Stock will be
changed into a right to convert such Note into the kind and amount of
cash, securities or other property which the Holder would have received
if the Holder had converted its Notes immediately prior to the
transaction.
iv. Conversion Upon Satisfaction of Trading Price Condition. A
Holder may surrender any of its Notes for conversion into Common Stock
during the five trading day period immediately following any ten
consecutive trading day period in which the Trading Price per $1,000
principal amount of the Notes (as determined following a request by a
Holder of the Notes in accordance with the procedures described in the
Indenture) for each day of such ten day period was less than 95% of the
product of the Sale Price per share of the Common Stock on that day
multiplied by the number of shares of Common Stock issuable upon
conversion of $1,000 principal amount of the Notes; provided, however,
that if, on the day before any conversion pursuant to this Section
12(iv) that is on or after December 15, 2028, the Sale Price per share
of the Company's Common Stock is greater than 100%, but less than 120%,
of the Conversion Price, then a Holder surrendering Notes for such
conversion will receive, in lieu of a number of shares
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of Common Stock based on the Conversion Price, Common Stock equal to
the principal amount of such Holder's Notes so surrendered, plus
accrued and unpaid interest, as of the Conversion Date. Any shares of
Common Stock delivered will be valued at the greater of (x) the
Conversion Price on the Conversion Date and (y) the average Sale Price
of the Company's Common Stock for a five trading day period commencing
on the third trading day after the Conversion Date. The Company will
deliver such shares of Common Stock to such Holder on the ninth trading
day following the Conversion Date.
To convert a Note, a holder must (1) complete and sign a conversion
notice substantially in the form set forth below, (2) surrender the Note to a
Conversion Agent, (3) furnish appropriate endorsements or transfer documents if
required by the Registrar or Conversion Agent and (4) pay any transfer or
similar tax, if required. No payment or adjustment will be made for accrued and
unpaid interest on a converted Note, but if any holder surrenders a Note for
conversion after the close of business on the record date for the payment of an
installment of interest and prior to the opening of business on the next
interest payment date, then, notwithstanding such conversion, the interest
payable on such interest payment date shall be paid to the holder of such Note
on such record date. Any Notes that are, however, delivered to the Company for
conversion after any record date but before the next interest payment date must,
except as described in the next sentence, be accompanied by a payment equal to
the interest payable on such interest payment date on the principal amount of
such Notes being converted. Payments to the Company described in the preceding
sentence shall not be required if, during that period between a record date and
the next interest payment date, a conversion occurs on or after the date that
the Company has issued a redemption notice and prior to the date of redemption
stated in such notice. If any Notes are converted after an interest payment date
but on or before the next record date, no interest will be paid on those Notes.
The number of shares issuable upon conversion of a Note is determined by
dividing the principal amount of the Note converted by the Conversion Price in
effect on the Conversion Date. No fractional shares will be issued upon
conversion but a cash adjustment will be made for any fractional interest.
A note in respect of which a holder has delivered an "Option of Holder
to Elect Purchase" form appearing below exercising the option of such holder to
require the Company to purchase such Note may be converted only if the notice of
exercise is withdrawn as provided above and in accordance with the terms of the
Indenture. The above description of conversion of the Notes is qualified by
reference to, and is subject in its entirety by, the more complete description
thereof contained in the Indenture.
13. DENOMINATIONS, TRANSFER, EXCHANGE. The notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered, and Notes may be exchanged, as
provided in 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 exchange or register the transfer of any Note or portion of a Note
selected for redemption (except the unredeemed portion of any Note being
redeemed in part). Also, it need not exchange or register the transfer of any
Note for a period of 15 days before a selection of Notes to be redeemed.
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14. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
15. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent shall
pay the money back to the Company at its written request. After that, Holders of
Notes entitled to the money must look to the Company for payment unless an
abandoned property law designates another Person and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
16. DEFAULTS AND REMEDIES. The Notes shall have the Events of
Default set forth in Section 8.01 of the Indenture. Subject to certain
limitations in the Indenture, if an Event of Default occurs and is continuing,
the Trustee by notice to the Company or the Holders of at least 25% in aggregate
principal amount of the then outstanding Notes by notice to the Company and the
Trustee may declare all the Notes to be due and payable immediately, except that
in the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization, all unpaid principal and interest accrued on the
Notes shall become due and payable immediately without further action or notice.
The Holders of a majority in principal amount of the Notes then outstanding by
written notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes issued under the Indenture may direct the
Trustee in its exercise of any trust or power. The Company must furnish annually
compliance certificates to the Trustee. The above description of Events of
Default and remedies is qualified by reference, and subject in its entirety, to
the more complete description thereof contained in the Indenture.
17. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for Notes), and any existing default may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Notes. Without the consent of any Holder, the Indenture or the Notes may be
amended, among other reasons, to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for assumption of the Company's obligations to Holders, to
make any change that does not adversely affect the rights of any Holder or to
qualify the Indenture under the TIA or to comply with the requirements of the
SEC in order to maintain the qualification of the Indenture under the TIA.
18. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its
individual or any other capacity may become the owner or pledgee of the Notes
and may otherwise deal with the Company or an Affiliate with the same rights it
would have, as if it were not Trustee,
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subject to certain limitations provided for in the Indenture and in the TIA. Any
Agent may do the same with like rights.
19. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or shareholder of the Company, as such, 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. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Notes.
20. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW YORK
SHALL GOVERN THE INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
21. AUTHENTICATION. The Notes shall not be valid until
authenticated by the manual signature of an authorized officer of the Trustee or
an authenticating agent.
22. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and UGMA (= Uniform Gifts to
Minors Act).
The Company will furnish to any Holder of the Notes upon written
request and without charge a copy of the Indenture. Request may be made to:
Akamai Technologies, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
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ASSIGNMENT FORM
TO ASSIGN THIS NOTE, FILL IN THE FORM BELOW:
I. ASSIGNMENT
I, or we, assign this Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
________________________________________________________________________________
(Please insert Social Security or other identifying number of assignee)
________________________________________________________________________________
and irrevocably appoint _______________ agent to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
Dated: _______________________ Signed: _________________________________________
(Sign exactly as your name appears on
the other side of this Note)
Print Name:______________________________________
Signature Guarantee:*______________________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
_____________________________
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II. TRANSFEROR REPRESENTATIONS
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later of the
date of original issuance of such Notes and the last date, if any, on which such
Notes were owned by the Company or any Affiliate of the company, the undersigned
confirms that such Notes are being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company or any Subsidiary thereof; or
(2) [ ] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
(3) [ ] pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933, as amended; or
(4) [ ] pursuant to the exemption from registration under the
Securities Act of 1933, as amended, other than under Rule 144A
or Rule 144; or
(5) [ ] pursuant to an effective registration statement under the
Securities Act of 1933, as amended.
Unless one of the items is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof; provided, however, that if item (3) or (4) is
checked, the Company or the Trustee may require, prior to registering any such
transfer of the Notes, in their sole discretion, such written legal opinions,
certifications and other information as the Trustee or the Company have
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended.
________________________________
CHECK IF APPLICABLE
[ ] The undersigned represents and warrants that it is, or at some
time during which it held this Security was, an Affiliate of
the Company.
If (A) above is checked and if the undersigned was not an
Affiliate of the Company at all times during which it held
this Note, indicate the periods during which the undersigned
was an Affiliate of the Company:
If (A) above is checked and if the Transferee will not pay the
full purchase price for the transfer of this Note on or prior
to the date of transfer, indicate when such purchase price
will be paid:
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THE UNDERSIGNED HEREBY AGREES THAT, UNLESS THE BOX ABOVE UNDER ITEM (A) IS
CHECKED, THE UNDERSIGNED SHALL BE DEEMED TO HAVE REPRESENTED THAT IT IS NOT NOR
HAS IT BEEN AT ANY TIME DURING WHICH IT HELD THIS NOTE AN AFFILIATE, AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF THE COMPANY.
_____________________________________________
(Signature)
Signature Guarantee* ______________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
_________________________________
III. TRANSFEREE REPRESENTATIONS
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:___________________ Signed:_____________________________
Name:
NOTICE:To be executed by an executive
Officer
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TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED
The undersigned represents and warrants that it is not a "U.S. Person"
(as defined in Regulation S under the Securities Act of 1933, as amended).
Dated:___________________ Signed:_____________________________
Name:
NOTICE: To be executed by an
executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 3.09 or Section 6.02 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Note purchased by the Company
pursuant to Section 3.09 or Section 6.02 of the Indenture, state the amount you
want to be purchased (in denominations of $1,000 or any integral multiple
thereof):
$__________________
Dated: _______________________ Signed: ______________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:*__________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
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ELECTION TO CONVERT
To: Akamai Technologies, Inc.
The undersigned owner of this Note hereby irrevocably exercise the
option to convert this Note, or the portion below designated, into Common Stock
of Akamai Technologies, Inc. in accordance with the terms of the Indenture
referred to in this Note, and directors that the shares issuable and deliverable
upon conversion, together with any check in payment for fractional shares, be
issued in the name of and delivered to the undersigned, unless a different name
has been indicated in the assignment below. If the shares are to be issued in
the name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto.
Any holder of Notes, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Note, agrees to be bound by
the terms of the Registration Rights Agreement relating to the Common Stock
issuable upon conversion of the Notes.
Date:
In Whole In Part as follows:
[ ] [ ]
Portions of Note to be converted ($1,000 or integral multiples
thereof): $____________
___________________________
Signature
Please print or Typewrite Name and Address,
Including Zip code, and Social Security or
Other Identifying Number:
Signature Guarantee:*__________________
* Signature must be guaranteed by a commercial bank, trust company or
member firm of the New York Stock Exchange
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SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Global Note shall be $ ________________ .
The following increases or decreases in the principal amount of this Global Note
have been made:
Amount of
decrease in Amount of Signature of
principal increase in Signature of authorized officer of
amount of principal Principal amount authorized officer of Trustee or
this Global amount of this of this Global Trustee or Notes Securities
Note Global Note Note Custodian Custodian
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AKAMAI TECHNOLOGIES, INC.
1.0% CONVERTIBLE SENIOR NOTE DUE 2033
No. D-1 CUSIP No. _______
ISIN No. ___________
$_________________
Akamai Technologies, Inc., a Delaware corporation (hereinafter called
the "Company", which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of ___________________ dollars
($___________), on December 15, 2033.
Interest Payment Dates: June 15 and December 15: commencing June 15,
2004.
Record Dates: June 1 and December 1.
Reference is made to the further provisions of this Note hereinafter
set forth, which will, for all purposes, have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
AKAMAI TECHNOLOGIES, INC.,
a Delaware corporation
[Seal]
By: ____________________________________
Name:
Title:
Attest: ____________
Secretary
A-20
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
U.S. Bank National Association,
as Trustee
By: _______________________
Name:
Authorized Signatory
Dated: ___________________
A-21
EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM
RESTRICTED NOTE TO GLOBAL NOTE
RULE 144A TRANSFER CERTIFICATE
U.S. Bank National Association
Corporate Trust Services
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Corporate Trust Administration
Re:______Akamai Technologies, Inc. 1.0% Convertible Senior Notes due 2033 (the
"NOTES")
Reference is hereby made to the Indenture, dated of December 12, 2003
(the "INDENTURE"), between Akamai Technologies, Inc., as Issuer, and U.S. Bank
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the respective meanings given them in the Indenture.
This letter relates to $[___________] principal amount of Restricted
Note (CUSIP No. ________; ISIN No.__________) registered, in either case, in the
name of [name of transferor] (the "TRANSFEROR") to effect the transfer of the
Notes in exchange for an equivalent beneficial interest in the Global Note.
In connection with such request, and in respect of such Notes the
Transferor does hereby certify that such Notes are being transferred in
accordance with (i) the transfer restrictions set forth in the Notes and (ii)
Rule 144A under the United States Securities Act of 1933, as amended, to a
transferee that the Transferor reasonably believes is purchasing the Notes for
its own account or an account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
[Name of Transferor],
By:____________________________
Name:
Title:
Dated:
cc: Akamai Technologies, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
C-1
EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM GLOBAL NOTE OR
RESTRICTED NOTE TO RESTRICTED NOTE
RESTRICTED NOTE TRANSFER CERTIFICATE
U.S. Bank National Association
Corporate Trust Services
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Re:______Akamai Technologies, Inc. 1.0% Convertible Senior Notes due 2033 (the
"NOTES")
Reference is hereby made to the Indenture, dated as of December 12,
2003 (the "INDENTURE"), between Akamai Technologies, Inc., as Issuer, and U.S.
Bank National Association, as Trustee. Capitalized terms used but not defined
herein shall have the respective meanings given them in the Indenture.
This letter relates to $[___________] aggregate principal amount of
Notes which are [held in the form of the [Global] [Restricted] Note (CUSIP No.
[________] ISIN No. [__________]) [with the Depositary] in the name of [name of
transferor] (the "TRANSFEROR") to effect the transfer of the Notes.
In connection with such request, and in respect of such Notes, the Transferor
does hereby certify that such Notes are being transferred (i) in accordance with
the transfer restrictions set forth in the Notes and (ii) in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
[Name of Transferor],
By:____________________________
Name:
Title:
Dated:
cc: Akamai Technologies, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
