EXHIBIT 4.2
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH BELOW. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS) AND (3) AGREES THAT IT WILL GIVE TO
EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
(OTHER THAN A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT), THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM 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. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
1
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF 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 SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE
INDENTURE.
2
REGISTERED [Face of Security]
NUMBER 1 $150,000,000
CUSIP 808905 AA 1 SCIOS INC.
5.50% CONVERTIBLE SUBORDINATED NOTE DUE 2009
SCIOS INC., a Delaware corporation (herein called the
"Company"), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of ONE HUNDRED FIFTY MILLION DOLLARS
($150,000,000) on August 15, 2009, and to pay interest thereon as provided on
the reverse hereof on the principal sum, until the principal hereof and any
unpaid and accrued interest is paid or duly provided for. The right to payment
of principal, premium, if any, and interest is subordinated to the rights of
Senior Indebtedness as set forth in the Indenture referred to on the reverse
side hereof.
Interest Payment Dates: February 15 and August 15, with the first
payment to be made on February 15, 2003.
Record Dates: February 1 and August 1.
3
IN WITNESS WHEREOF, SCIOS INC. has caused this instrument to
be duly signed.
SCIOS INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial
Officer
Dated: August 5, 2002
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities referred to
in the within-mentioned Indenture.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxx Mar
------------------------------------------
Authorized Officer
4
[REVERSE OF SECURITY]
SCIOS INC.
5.50% CONVERTIBLE SUBORDINATED NOTE DUE 2009
1. Interest. Scios Inc., a Delaware corporation (the "Company"), promises
to pay interest on the principal amount of this Security at the rate per annum
shown above. The Company will pay interest semi-annually in arrears on February
15 and August 15 of each year, with the first payment to be made on February 15,
2003. Interest on the Securities will accrue on the principal amount from the
most recent date to which interest has been paid or duly provided for or, if no
interest has been paid, from August 5, 2002. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The Holder of this Note is entitled to the benefits of the Pledge
Agreement, dated as of August 5, 2002, by and among the Company, Xxxxx Fargo
Bank, National Association, as the trustee (the "Trustee"), and Xxxxx Fargo
Bank, National Association, as collateral agent for the Trustee and the Holders
from time to time (the "Collateral Agent") and pursuant to which the Company has
placed in the Pledge Account cash or Pledged Securities sufficient to provide
for the payment of the first six interest payments on the Securities.
2. Maturity. The Securities will mature on August 15, 2009 unless earlier
converted, redeemed or repurchased pursuant to the terms hereof and the
Indenture.
3. Method of Payment. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the record date set forth on the face of
this Security next preceding the applicable interest payment date except that
(i) interest payable upon redemption or repurchase, unless the date of
redemption or repurchase is an interest payment date, will be payable to the
Person to whom the principal is payable and (ii) in the case of any Security or
portion of any Security that is converted into Common Stock during the period
from, but excluding, a record date for any interest payment date to, but
excluding, that interest payment date either (A) if the Security, or portion of
the Security, has been called for redemption on a redemption date that occurs
during that period, or is to be repurchased on a Repurchase Date that occurs
during that period, the Company will not be required to pay interest on that
interest payment date in respect of any Security, or portion of any Security,
that is so redeemed or repurchased; or (B) if otherwise, any Security or portion
of any Security that is not called for redemption but is submitted for
conversion during that period must be accompanied by funds equal to the interest
payable on that interest payment date on the principal amount so converted.
Holders must surrender Securities to a Paying Agent to collect the principal
payments. The Company will pay the principal, premium, if any, and interest in
money of the United States that at the time of payment is legal tender.
Principal and interest may, at the Company's option, be paid either (i) by check
mailed to the address of the Person entitled to the interest as it appears in
the register kept by the Registrar (provided (a) payments to the Depositary will
be made by wire transfer of immediately available funds to the account of the
Depositary or its nominee and (b) a Holder with an aggregate principal amount of
Securities in excess of $2 million will, at the written election of the Holder,
filed on or before the relevant record date with the Trustee, be paid by wire
transfer
5
in immediately available funds); or (ii) by transfer to an account maintained by
that Person located in the United States.
4. Paying Agent, Registrar, Conversion Agent. Initially, the Trustee will
act as Paying Agent, Registrar and Conversion Agent. The Company may change any
Paying Agent, Registrar or Conversion Agent without notice. The Company may act
in any such capacity.
5. Indenture. The Company issued the Securities under an Indenture, dated
as of August 5, 2002 (the "Indenture"), between the Company and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code [sec][sec]. 77aaa-77bbbb) (the "Act") as in effect on the date of the
Indenture. The Securities are subject to all such terms, and Holders are
referred to the Indenture and the Act for a statement of such terms. The
Securities are general unsecured subordinated obligations of the Company limited
to a maximum of $150,000,000 aggregate principal amount (plus such additional
amount (up to an aggregate of $175,000,000) purchased by the Initial Purchasers
pursuant to the option described in Section 2.2 of the Indenture), except as
otherwise provided in the Indenture (except for Securities issued in
substitution for destroyed, mutilated, lost or stolen Securities). Terms used
herein which are defined in the Indenture have the meanings assigned to them in
the Indenture.
6. Optional Redemption by the Company. At any time on or after August 19,
2005, the Company may redeem the Securities on at least 30 days' notice as a
whole or, from time to time, in part at the following prices, expressed as a
percentage of the principal amount, together with accrued interest to, but
excluding, the date fixed for redemption:
Redemption
Period Price
-------- -----------
Beginning August 19, 2005 and ending on August 14, 2006.......................................... 103.143%
Beginning August 15, 2006 and ending on August 14, 2007.......................................... 102.357%
Beginning August 15, 2007 and ending on August 14, 2008.......................................... 101.571%
Beginning August 15, 2008 and ending on August 14, 2009.......................................... 100.786%
Any accrued interest becoming due on the date fixed for redemption will be
payable to the holders of record on the relevant record date of the Securities
being redeemed.
7. Notice of Redemption. Notice of redemption pursuant to paragraph 6 will
be mailed at least 30 days before the redemption date to each Holder of
Securities to be redeemed at its registered address. Securities in denominations
larger than $1,000 principal amount may be redeemed in part but only in whole
multiples of $1,000 principal amount. On and after the redemption date interest
ceases to accrue on Securities or portions of them called for redemption.
8. Repurchase at Option of Holder. Pursuant to Section 3.8 of the
Indenture, within 30 days after a Change in Control occurs, the Company is
required to give notice of the Change in Control to the Holders. Each Holder has
the right, at its option, to require the Company to repurchase all or any
portion of the Securities on a date fixed by the Company not more than 60 days
after the occurrence of a Change in Control. The Repurchase Price will be 100%
of the principal amount of the Securities submitted for repurchase, plus accrued
and unpaid interest to,
6
but excluding, the Repurchase Date. If a Repurchase Date is an interest payment
date, then the interest payable on that date will be paid to the holder of
record on the relevant record date. Subject to the conditions of Section 3.8 of
the Indenture, the Company may elect to pay the Repurchase Price (to the extent
not paid in cash) by delivering the number of shares of Common Stock equal to
(i) the Repurchase Price (to the extent not paid in cash) divided by (ii) 95% of
the average of the Closing Prices per share of the Common Stock for the five
Trading Days immediately preceding and including the third Trading Day preceding
the Repurchase Date.
9. Conversion. A Holder of a Security may convert the principal of such
Security into Common Stock at any time after the date of original issuance of
the Security to the close of business on the business day prior to the close of
business on August 15, 2009, or (x) if the Security is called for redemption by
the Company, the Holder may convert it at any time before the close of business
on the date that is one business day before the date fixed for such redemption,
or (y) if the Security is to be repurchased by the Company pursuant to paragraph
8 hereof, the Holder may convert it at any time before the close of business on
the date that is one business day before the date fixed for such repurchase. The
initial Conversion Price is $39.30 per share of Common Stock, subject to
adjustment in certain circumstances as set forth in Section 10.6 of the
Indenture. To determine the number of shares issuable upon conversion of a
Security, divide each $1,000 of the principal amount to be converted by the
Conversion Price in effect on the conversion date and round the result to the
nearest 1/100th share. The Company is not required to issue fractional shares of
Common Stock upon conversion and, instead, will pay a cash amount as provided in
Section 10.3 of the Indenture. Except as provided in Article Ten of the
Indenture, no payment or adjustment for the principal of, premium, if any,
interest on or liquidated damages with respect to, the Securities or for
dividends on any Common Stock will be made. If a Holder surrenders a Security
for conversion between the record date for the payment of interest and the next
interest payment date, such Security, when surrendered for conversion, must be
accompanied by payment of an amount equal to the interest thereon which the
registered Holder on such record date is to receive. The following sentence does
not apply in the case of such Security or portions of such Security called for
redemption or subject to repurchase following a Change in Control during that
period. A Security which the Holder has elected to be repurchased may be
converted only if the Holder withdraws its election to have such Security
repurchased in accordance with the terms of the Indenture before the close of
business on the business day prior to the Repurchase Date.
To convert a Security a Holder must (1) complete and sign the
Conversion Notice, with appropriate signature guarantee, on the back of the
Security, (2) surrender the Security to a Conversion Agent, (3) furnish
appropriate endorsements and transfer documents if required by the Registrar or
Conversion Agent, (4) pay the amount of interest, if any, the Holder may be paid
as provided in the second to last sentence of the above paragraph and (5) pay
any transfer or similar tax if required. A Holder may convert a portion of a
Security if the portion is $1,000 principal amount or an integral multiple of
$1,000 principal amount.
Any shares issued upon conversion of a Security shall bear the Private
Placement Legend until after the expiration of the holding period applicable to
sales of Securities under Rule 144(k) of the Securities Act.
10. Subordination. The Securities are subordinated in right of payment, in
the manner and to
7
the extent set forth in the Indenture, to the prior payment in full of all
Senior Indebtedness. Each Holder by accepting a Security agrees to such
subordination and authorizes the Trustee to give it effect.
11. Denominations, Transfer, Exchange. The Securities are in registered
form without coupons in denominations of $1,000 principal amount and whole
multiples of $1,000 principal amount. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Registrar need not exchange or register the transfer
of any Security selected for redemption in whole or in part. Also, it need not
exchange or register the transfer of any Securities for a period of 10 Business
Days before the mailing of a notice of redemption of the Securities selected to
be redeemed.
12. Persons Deemed Owners. The registered Holder of a Security may be
treated as the owner of such Security for all purposes.
13. Merger or Consolidation. The Company shall not consolidate with, or
merge into any other Person, in a transaction in which the Company is not the
surviving corporation, or convey, transfer or lease its properties and assets
substantially as an entirety to, any Person unless, among other things, the
successor, if any, is a corporation organized under the laws of the United
States, any State thereof or the District of Columbia and such corporation
assumes by supplemental indenture all the obligations of the Company under the
Securities and the Indenture, and immediately after giving effect to the
transaction no Default or Event of Default shall have occurred and be
continuing.
Notwithstanding the foregoing, any Subsidiary of the Company may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company or any other Subsidiary or Subsidiaries of the Company.
14. Amendments, Supplements and Waivers. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or the consent of
any Holder, the Indenture or the Securities may be amended or supplemented,
among other things, to cure any ambiguity, omission, defect or inconsistency, to
provide for uncertificated Securities in addition to certificated Securities, to
comply with Sections 5.1 and 10.7 of the Indenture or to make any change that
does not adversely affect the rights of any Holder.
15. Defaults and Remedies. An Event of Default includes the occurrence of
any or the following: default in payment of the principal of or any premium on
the Securities when due; default for 30 days in payment of interest on the
Securities when due, provided that a failure to make any of the first six
scheduled interest payments on the Securities within three (3) Business Days
after the applicable interest payment dates will constitute an Event of Default
with no additional grace or cure periods; failure by the Company to perform any
other covenant in the
8
Indenture for 60 days after receipt of the notice to it required by the
Indenture; certain events of bankruptcy or insolvency; default in the payment of
certain Indebtedness of the Company or any of its Significant Subsidiaries,
provided such default is not cured, waived or rescinded within 30 days after
receipt of the notice to it required by the Indenture; and the Pledge Agreement
shall cease to be in full force and effect or enforceable in accordance with its
terms. If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Securities then
outstanding may declare all the Securities to be due and payable, subject to
certain limitations contained in the Indenture. Holders may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities then outstanding may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders notice of any
continuing Default or Event of Default (except a Default or Event of Default in
payment of principal or interest) if it determines that withholding notice is in
their interests. The Company must furnish an annual compliance certificate to
the Trustee.
16. Registration Rights. The Holders are entitled to shelf registration
rights as set forth in the Registration Rights Agreement. The Holders shall be
entitled to receive liquidated damages in certain circumstances, all as set
forth in the Registration Rights Agreement.
17. Trustee Dealings with Company. The Trustee under the Indenture, or any
banking institution serving as successor Trustee thereunder, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
18. No Recourse Against Others. No past, present or future director,
officer, employee or shareholder, as such, of the Company shall have any
liability for any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
19. Authentication. This Security shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
20. 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 entirety), JT TEN (= joint tenants with right of survivorship and
not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to
Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
SCIOS INC.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
ATTENTION: General Counsel
9
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
______________________________________
________________________________________________________________________________
(please print or type name and address)
________________________________________________________________________________
________________________________________________________________________________
the within Security and all rights thereunder, and hereby irrevocably
constitutes and appoints
________________________________________________________________________________
attorney to transfer the Security on the books of the Company with full power of
substitution in the premises.
Dated:_________________________ NOTICE: The signature on this assignment
must correspond with the name as it
appears upon the face of the within
Security in every particular without
alteration or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee: ___________________________________________________________
(Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.)
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act") covering resales of this Security
(which effectiveness shall have been suspended or terminated at the date of the
transfer) and (ii) _________________ the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with
transfer:
10
[Check One]
(1) ____ to the Company or a Subsidiary thereof; or
(2) ____ pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
(3) ____ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933,
as amended) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form of
which letter can be obtained from the Trustee); or
(4) ____ pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933, as amended; or
(5) ____ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) ____ pursuant to another available exemption from the registration
statement requirements of the Securities Act of 1933, as
amended.
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
(If the Security is transferred to an Affiliate, the restrictive legend must
remain on the Security for two years following the date of the transfer).
Unless one of the items is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the name of any
Person other than the registered Holder thereof; provided, however, that if item
(3), (4) or (6) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Securities, in their sole discretion, such
written legal opinions, certifications (including an investment letter in the
case of box (3)) 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.
If none of the foregoing items are checked, the Trustee or
Registrar shall not be obligated to register this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 2.16 of the Indenture
shall have been satisfied.
Dated: ________________________ Signed:_______________________________
(Sign exactly as name appears
on the other side of this
Security)
11
Signature Guarantee: ___________________________________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security 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, as amended, 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 transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Dated: ______________________________ ___________________________________
NOTICE: To be executed by an
executive officer
12
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box:
[ ]
To convert only part of this Security, state the principal amount to be
converted (must be in multiples of $1,000):
$_______________________________________________________________________________
If you want the stock certificate made out in another person's name, fill in the
form below:
________________________________________________________________________________
(Insert other person's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type other person's name, address and zip code)
_______________________________________________________
Date:____________________ Signature(s):______________________
_________________________________
(Signatures must be guaranteed by
an "eligible guarantor
institution" meeting the
requirements of the Registrar,
which requirements include
membership or participation in
the Security Transfer Agent
Medallion Program ("STAMP") or
such other "signature guarantee
program" as may be determined by
the Registrar in addition to, or
in substitution for, STAMP, all
in accordance with the Securities
Exchange Act of 1934, as
amended.)
13
Signature(s) guaranteed by:_____________________________________________________
(Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include membership
or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the
Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.)
14
OPTION OF HOLDER TO ELECT PURCHASE NOTICE
If you want to elect to have this Security purchased by the
Company pursuant to Section 3.8 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 3.8 of the Indenture, state the
principal amount:
$___________________________________
(in an integral multiple of $1,000)
Date:_________________________ Signature(s):_______________________________
____________________________________________
(Sign exactly as your name(s) appear(s) on
the other side of this Security)
Signature(s) guaranteed by: ____________________________________________
(Signatures must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Registrar, which
requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.)
15
SCHEDULE OF EXCHANGES OF SECURITIES
The following exchanges, redemptions, repurchases or conversion of a
part of this Global Security have been made:
Principal Amount of this
Global Security Following Amount of Decrease in Amount of Increase in
Such Decrease Date of Authorized Signatory of Principal Amount of Principal Amount of
Exchange (or Increase) Securities Custodian this Global Security this Global Security
---------------------- -------------------- -------------------- --------------------
16
