--------------------------------------------------------------------------------
XXXXXX CORPORATION
AS ISSUER
AND
U.S. BANK NATIONAL ASSOCIATION
AS TRUSTEE
---------------------
INDENTURE
DATED AS OF OCTOBER 12, 2006
---------------------
4.00% CONVERTIBLE SENIOR NOTES DUE 2026
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CROSS-REFERENCE TABLE
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310 (a)(1) 5.10
(a) (2) 5.10
(a) (3) N/A
(a) (4) N/A
(a) (5) N/A
(b) 5.10, 5.08, 14.02
(c) N/A
311 (a) 5.11
(b) 5.11
(c) N/A
312(a) 2.05
(b) 14.03
(c) 14.03
313 (a) 5.06
(b) 5.06
(c) 5.06, 14.02
(d) 5.06
314 (a) 9.04
(a) (4) 9.04, 9.05, 14.06
(b) N/A
(c) (1) 14.05
(c) (2) 14.05
(c) (3) N/A
(d) N/A
(e) 14.06
(f) N/A
315 (a) 5.01 (b)
(b) 5.05, 14.02
(c) 5.01 (a)
(d) 5.01 (c)
(e) 4.14
316 (a) (last sentence) 2.09
(a) (1) (A) 4.05
(a) (1) (B) 4.04
(a) (2) N/A
(b) 4.07
(c) 7.04
317 (a) (1) 4.08
(a) (2) 4.09
(b) 2.04
318 (a) 14.01
(b) N/A
(c) 14.01
"N/A" means not applicable.
*This Cross-Reference Table shall not, for any purpose, be deemed to be a part
of the Indenture.
1
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..........................................................................1
Section 1.01 Definitions...............................................................................1
Section 1.02 Incorporation By Reference Of Trust Indenture Act.........................................11
Section 1.03 Rules Of Construction.....................................................................11
ARTICLE II THE NOTES ..........................................................................................12
Section 2.01 Form And Dating...........................................................................12
Section 2.02 Execution And Authentication..............................................................14
Section 2.03 Registrar, Paying Agent And Conversion Agent..............................................15
Section 2.04 Paying Agent To Hold Money In Trust.......................................................15
Section 2.05 Holder Lists..............................................................................15
Section 2.06 Transfer And Exchange.....................................................................15
Section 2.07 Replacement Notes.........................................................................16
Section 2.08 Outstanding Notes.........................................................................16
Section 2.09 Notes Held By The Company Or An Affiliate.................................................17
Section 2.10 Temporary Notes...........................................................................17
Section 2.11 Cancellation..............................................................................17
Section 2.12 Defaulted Interest........................................................................18
Section 2.13 CUSIP Numbers.............................................................................18
Section 2.14 Deposit Of Moneys.........................................................................18
Section 2.15 BookEntry Provisions For Global Notes.....................................................18
Section 2.16 Special Transfer Provisions...............................................................19
Section 2.17 Restrictive Securities Legends............................................................21
ARTICLE III SATISFACTION AND DISCHARGE........................................................................................23
Section 3.01 Satisfaction And Discharge Of Indenture...................................................23
Section 3.02 Deposited Monies To Be Held In Trust......................................................23
Section 3.03 Return Of Unclaimed Monies................................................................24
Section 3.04 Reinstatement.............................................................................24
ARTICLE IV DEFAULTS AND REMEDIES ..........................................................................................25
Section 4.01 Events Of Default.........................................................................25
Section 4.02 Acceleration Of Maturity; Rescission And Annulment........................................26
Section 4.03 Other Remedies............................................................................27
Section 4.04 Waiver Of Past Defaults...................................................................27
Section 4.05 Control By Majority.......................................................................28
Section 4.06 Limitation On Suit........................................................................28
Section 4.07 Unconditional Right Of Holders To Receive Payment.........................................28
Section 4.08 Collection Of Indebtedness And Suits For Enforcement By The Trustee.......................29
Section 4.09 Trustee May File Proofs Of Claim..........................................................29
Section 4.10 Restoration Of Rights And Remedies........................................................30
Section 4.11 Rights And Remedies Cumulative............................................................30
Section 4.12 Delay Or Omission Not Waiver..............................................................31
Section 4.13 Application Of Money Collected............................................................31
Section 4.14 Undertaking For Costs.....................................................................31
ARTICLE V THE TRUSTEE ..........................................................................................32
Section 5.01 Duties Of Trustee.........................................................................32
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Section 5.02 Rights Of Trustee.........................................................................33
Section 5.03 Individual Rights Of Trustee..............................................................34
Section 5.04 Trustee's Disclaimer......................................................................35
Section 5.05 Notice Of Defaults........................................................................35
Section 5.06 Reports By Trustee To Holders.............................................................35
Section 5.07 Compensation And Indemnity................................................................35
Section 5.08 Replacement Of Trustee....................................................................36
Section 5.09 Successor Trustee By Merger, Etc..........................................................37
Section 5.10 Eligibility; Disqualification.............................................................37
Section 5.11 Preferential Collection Of Claims Against The Company.....................................37
ARTICLE VI CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE...............................................................37
Section 6.01 Company May Consolidate, Etc. Only On Certain Terms.......................................37
Section 6.02 Successor Person Substituted..............................................................38
ARTICLE VII AMENDMENTS, SUPPLEMENTS AND WAIVERS...............................................................................38
Section 7.01 Without Consent Of Holders Of Notes.......................................................38
Section 7.02 With Consent Of Holders Of Notes..........................................................39
Section 7.03 Compliance With Trust Indenture Act.......................................................40
Section 7.05 Notation On Or Exchange Of Notes..........................................................40
Section 7.06 Trustee To Sign Amendment, Etc............................................................41
ARTICLE VIII MEETING OF HOLDERS OF NOTES......................................................................................41
Section 8.01 Purposes For Which Meetings May Be Called.................................................42
Section 8.02 Call Notice And Place Of Meetings.........................................................42
Section 8.03 Persons Entitled To Vote At Meetings......................................................42
Section 8.04 Quorum; Action............................................................................42
Section 8.05 Determination Of Voting Rights; Conduct And Adjournment
Of Meetings...............................................................................43
Section 8.06 Counting Votes And Recording Action Of Meetings...........................................44
ARTICLE IX COVENANTS ..........................................................................................44
Section 9.01 Payment Of Notes..........................................................................44
Section 9.02 Maintenance Of Office Or Agency...........................................................44
Section 9.03 Limitation On Certain Transactions........................................................45
Section 9.04 Reports...................................................................................45
Section 9.05 Compliance Certificate....................................................................46
Section 9.06 Stay, Extension And Usury Laws............................................................46
Section 9.07 Corporate Existence.......................................................................46
Section 9.08 Notice Of Default.........................................................................46
Section 9.09 Maintenance Of Properties.................................................................46
Section 9.10 Payment Of Taxes And Other Claims.........................................................47
Section 9.11 Waiver Of Certain Covenants...............................................................47
ARTICLE X REDEMPTION OF NOTES ..........................................................................................47
Section 10.01 The Company's Right To Redeem; Notice To Trustee..........................................47
Section 10.02 Selection Of Notes To Be Redeemed.........................................................48
Section 10.03 Notice Of Redemption......................................................................48
Section 10.04 Effect Of Notice Of Redemption............................................................49
Section 10.05 Deposit Of Redemption Price...............................................................49
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Section 10.06 Notes Redeemed In Part....................................................................50
Section 10.07 Repayment To The Company..................................................................50
Section 10.08 Other Repurchases.........................................................................50
ARTICLE XI REPURCHASE OF NOTES AT THE OPTION OF HOLDERS ON SPECIFIC DATES.....................................................50
Section 11.01 Repurchase Of Notes At The Option Of Holders On Specific Dates............................50
Section 11.02 Effect Of Repurchase Notice...............................................................52
Section 11.03 Deposit Of Repurchase Price...............................................................53
Section 11.04 Notes Repurchased In Part.................................................................53
Section 11.05 Covenant To Comply With Securities Laws Upon Repurchase Of Notes..........................54
Section 11.06 Repayment To The Company..................................................................54
ARTICLE XII REPURCHASE OF NOTES AT OPTION OF THE HOLDERS UPON A
DESIGNATED EVENT ..........................................................................................54
Section 12.01 Repurchase At The Option Of The Holder Upon A Designated Event............................54
Section 12.02 Notice Of Optional Repurchase To Be Provided By The Company...............................55
Section 12.03 Effect Of Designated Event Repurchase Notice..............................................56
Section 12.04 Deposit Of Designated Event Repurchase Price..............................................57
Section 12.05 Notes Repurchased In Part.................................................................58
Section 12.06 Covenant To Comply With Securities Laws Upon Designated Event
Repurchase Of Notes. .....................................................................58
Section 12.07 Repayment To The Company..................................................................58
ARTICLE XIII CONVERSION ..........................................................................................59
Section 13.01 Right To Convert..........................................................................59
Section 13.02 Conversion Procedures.....................................................................61
Section 13.03 Payment Upon Conversion...................................................................63
Section 13.04 Adjustment Of Conversion Rate.............................................................64
Section 13.05 Determination of the Make Whole Premium...................................................71
Section 13.06 Conversion After A Public Acquirer Change Of Control......................................73
Section 13.07 Adjustments of Average Prices.............................................................74
Section 13.08 Effect Of Reclassification, Consolidation, Merger Or Sale.................................74
Section 13.09 Taxes On Shares Issued....................................................................75
Section 13.10 Reservation Of Shares; Shares To Be Fully Paid; Compliance With
Governmental Requirements; Listing Of Common Stock .......................................76
Section 13.11 Payment Of Cash in Lieu of Common Stock...................................................76
Section 13.12 Responsibility Of Trustee.................................................................77
Section 13.13 Notice To Holders Prior To Certain Actions................................................77
Section 13.14 Company Determination Final...............................................................78
ARTICLE XIV OTHER PROVISIONS OF GENERAL APPLICATION...........................................................................78
Section 14.01 Trust Indenture Act Controls..............................................................78
Section 14.02 Notices...................................................................................78
Section 14.03 Communication By Holders With Other Holders...............................................79
Section 14.04 Acts Of Holders Of Notes..................................................................79
Section 14.05 Certificate And Opinion As To Conditions Precedent........................................80
Section 14.06 Statements Required In Certificate Or Opinion.............................................81
Section 14.07 Effect Of Headings And Table Of Contents..................................................81
Section 14.08 Successors And Assigns....................................................................81
Section 14.09 Separability Clause.......................................................................81
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Section 14.10 Benefits Of Indenture.....................................................................82
Section 14.11 Governing Law.............................................................................82
Section 14.12 Counterparts..............................................................................82
Section 14.13 Legal Holidays............................................................................82
Section 14.14 Recourse Against Others...................................................................82
EXHIBIT A FORM OF NOTE...........................................................................................A-1
EXHIBIT B FORM OF NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT..........................................B-1
EXHIBIT C FORM OF SURRENDER CERTIFICATE..........................................................................C-1
EXHIBIT D FORM OF COMMON STOCK RESTRICTIVE LEGEND................................................................D-1
iv
INDENTURE dated as of October 12, 2006 among XXXXXX CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware,
having its principal office at 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxx Xxxxx, Xxx Xxxx
00000 (the "COMPANY"), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association duly organized and existing under the laws of the United States, as
Trustee (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 4.00%
Convertible Senior Notes due 2026 (the "NOTES"), in substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture. All things necessary to
make (i) the Notes, when the Notes are executed by the Company and authenticated
and delivered hereunder and duly issued by the Company, the valid obligations of
the Company and (ii) this Indenture a valid agreement of the Company, in
accordance with the Notes and this Indenture's terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"ACT OF THE HOLDERS" when used with respect to any Holder of a Note,
has the meaning specified in Section 14.04(a).
"ADDITIONAL INTEREST" has the meaning specified in the Registration
Rights Agreement.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGENT" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"AGGREGATE SHARE CAP" has the meaning specified in Section 13.04(j).
"BANKRUPTCY LAW" means Title 11 of the U.S. Code or any similar
federal, state or foreign law for the relief of debtors.
"BID SOLICITATION AGENT" means an independent nationally recognized
securities dealer selected by the Company to solicit market bid quotations for
the Notes, which shall in no event be an Affiliate of the Company. The Bid
Solicitation Agent shall initially be the Trustee.
"BOARD OF DIRECTORS" means either the board of directors of the Company
or any committee of such board empowered to act for it with respect to this
Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company duly adopted by such Board of
Directors and in full force and effect on the date of such certification and
delivered to the Trustee.
"BUSINESS DAY" when used with respect to any Place of Payment or Place
of Conversion, means each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in that Place of Payment or Place of
Conversion, as the case may be, are authorized or obligated by law to close.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests (however designated, whether voting or non-voting)
in common stock (or other ordinary shares or other common equity interests or
American Depository Shares or similar instruments representing interests
therein) of such Person, whether now outstanding or issued after the date of
this Indenture.
"CASH PERCENTAGE" has the meaning specified in Section 13.11.
"CHANGE IN CONTROL" means the occurrence of any of the following events
at any time after the Notes are originally issued:
(1) a "person" or "group" within the meaning of Section 13(d)
of the Exchange Act other than the Company, its Subsidiaries or its or
their employee benefit plans, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of
50% or more of the total outstanding voting power of all shares of the
Company's Voting Shares;
(2) a sale, transfer, lease, conveyance or other disposition
of all or substantially all of the Company's property or assets to any
"person" or "group" (as defined in Section 13(d) of the Exchange Act),
including any group acting for the purpose of acquiring, holding,
voting or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act; or
(3) the Company merges or consolidates with or into any other
Person (other than one of the Company's wholly-owned Subsidiaries) or
another Person (other than one of the Company's wholly-owned
Subsidiaries) merges with or into the Company, unless either: (a) the
Persons that "beneficially owned," directly or indirectly, the
Company's Voting Shares immediately prior to the transaction have the
entitlement to exercise, directly or indirectly, 50% or more of the
total voting power of all Voting Shares of the surviving or continuing
corporation; or (b) at least 90% of the consideration (excluding cash
2
payments for fractional shares) is common stock or American Depository
Receipts that are listed on, or immediately after the transaction or
event will be listed on, a U.S. national securities exchange and as a
result of such consolidation or merger, upon conversion of the Notes,
cash and the Remaining Shares, if any, will be payable at the Company's
option in cash, shares of such common stock and associated rights or a
combination thereof.
"COMMON STOCK" means shares of the common stock, par value $0.01 per
share, of the Company existing on the date of this Indenture or as such stock
may be constituted from time to time. However, subject to the provisions of
Section 13.08, shares issuable on conversion or repurchase of Notes shall
include only shares of the class designated as Common Stock, par value $0.01 per
share, of the Company at the date of execution of this Indenture or shares of
any class or classes resulting from any reclassification or reclassifications
thereof provided that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable shall be substantially in
the proportion that the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"COMPANY" means the corporation named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"CONVERSION AGENT" has the meaning specified in Section 2.03.
"CONVERSION DATE" has the meaning specified in Section 13.02.
"CONVERSION NOTICE" has the meaning specified in Section 13.02.
"CONVERSION PRICE" has the meaning specified in the Notes.
"CONVERSION RATE" means, at any time, $1,000 divided by the Conversion
Price in effect at such time, rounded to three decimal places (rounded up if the
fourth decimal place thereof is 5 or more and otherwise rounded down).
"CORPORATE TRUST OFFICE" means the office at which the trust
administered by this Indenture is administered, which office at the date of this
Indenture is located at U.S. Bank National Association at 00 Xxxxxxxxxx Xxxxxx,
Xx. Xxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services (XxXxxx
Corporation 4.00% Convertible Senior Notes due 2026), or at any other time at
such other address as the Trustee may designate from time to time by notice to
the Company, and for purposes of Section 9.02 shall be U.S. Bank Trust National
Association, an Affiliate of the Trustee, at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Services.
"CURRENT MARKET PRICE" has the meaning specified in Section 13.04.
"DAILY CONVERSION VALUE" means, for each of the 40 consecutive Trading
Days during the Observation Period, 2.5% of the product of (1) the applicable
Conversion Rate and (2) the Daily VWAP of Common Stock on such day.
3
"DAILY SETTLEMENT AMOUNT" has the meaning specified in Section 13.03.
"DAILY VWAP" means, for each of the 40 consecutive Trading Days during
the Observation Period, the per share volume-weighted average price as displayed
under the heading "Bloomberg VWAP" on Bloomberg page "LCRY Equity AQR" in
respect of the period from 9:30 A.M. to 4:00 P.M. (New York City time) on such
Trading Day (or if such volume-weighted average price is unavailable, the market
value of one share of Common Stock on such Trading Day as the Board of Directors
of the Company determines in good faith using a volume-weighted method);
provided that after the consummation of a Designated Event in which the
consideration is comprised entirely of cash, "Daily VWAP" means the cash price
per share received by holders of Common Stock in such Designated Event.
"DEFAULT" means an event that is, or after notice or lapse of time or
both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 2.12.
"DEFAULTED INTEREST SPECIAL RECORD DATE" has the meaning specified in
Section 2.12.
"DEPOSITARY" means The Depository Trust Company, its nominees and their
respective successors.
"DESIGNATED EVENT" means a Change in Control or a Termination of
Trading.
"DESIGNATED EVENT COMPANY NOTICE" has the meaning specified in Section
12.02.
"DESIGNATED EVENT REPURCHASE DATE" has the meaning specified in Section
12.01.
"DESIGNATED EVENT REPURCHASE NOTICE" has the meaning specified in
Section 12.01.
"DESIGNATED EVENT REPURCHASE PRICE" has the meaning specified in
Section 12.01.
"DESIGNATED EVENT REPURCHASE RIGHT" has the meaning specified in
Section 12.01.
"DOLLAR," "U.S. DOLLAR" or "U.S. $" means a dollar or other equivalent
unit in such coin or currency of the United States as at the time shall be legal
tender for the payment of public and private debts.
"EFFECTIVE DATE" has the meaning specified in Section 13.05.
"EVENT OF DEFAULT" has the meaning specified in Section 4.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EX DATE" means, with respect to any dividend, distribution or issuance
on shares of Common Stock or any other equity security, the first Trading Day on
which the shares of Common Stock or such other equity security does not
automatically transfer the right to receive such dividend, distribution or
issuance from the seller of Common Stock or such other equity security to its
buyer.
4
"FAIR MARKET VALUE" has the meaning specified in Section 13.04.
"GLOBAL NOTE" has the meaning specified in Section 2.01(e).
"HOLDER" means the Person in whose name the Note is registered in the
Register.
"INDEBTEDNESS" when used with respect to any Person, and without
duplication means:
(1) all indebtedness, obligations and other liabilities
(contingent or otherwise) of such Person for borrowed money (including
obligations in respect of overdrafts, foreign exchange contracts,
currency exchange agreements, Interest Rate Protection Agreements, and
any loans or advances from banks, whether or not evidenced by notes or
similar instruments) or evidenced by bonds, debentures, notes or other
instruments for the payment of money, or incurred in connection with
the acquisition of any property, services or assets (whether or not the
recourse of the lender is to the whole of the assets of such Person or
to only a portion thereof), other than any account payable or other
accrued current liability or obligation to trade creditors incurred in
the ordinary course of business in connection with the obtaining of
materials or services;
(2) all reimbursement obligations and other liabilities
(contingent or otherwise) of such Person with respect to letters of
credit, bank guarantees, bankers' acceptances, surety bonds,
performance bonds or other guaranty of contractual performance;
(3) all obligations and liabilities (contingent or otherwise)
in respect of (a) leases of such Person required, in conformity with
generally accepted accounting principles, to be accounted for as
capitalized lease obligations on the balance sheet of such Person and
(b) any lease or related documents (including a purchase agreement) in
connection with the lease of real property which provides that such
Person is contractually obligated to purchase or cause a third party to
purchase the leased property and thereby guarantee a minimum residual
value of the leased property to the landlord and the obligations of
such Person under such lease or related document to purchase or to
cause a third party to purchase the leased property;
(4) all obligations of such Person (contingent or otherwise)
with respect to an interest rate or other swap, cap or collar agreement
or other similar instrument or agreement or foreign currency hedge,
exchange, purchase or similar instrument or agreement;
(5) all direct or indirect guaranties or similar agreements by
such Person in respect of, and obligations or liabilities (contingent
or otherwise) of such Person to purchase or otherwise acquire or
otherwise assure a creditor against loss in respect of, indebtedness,
obligations or liabilities of another Person of the kind described in
clauses (1) through (4);
(6) any indebtedness or other obligations described in clauses
(1) through (5) secured by any mortgage, pledge, lien or other
encumbrance existing on property which is owned or held by such Person,
regardless of whether the indebtedness or other obligation secured
thereby shall have been assumed by such Person; and
5
(7) any and all deferrals, renewals, extensions, refinancings,
replacements, restatements and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or
liability of the kind described in clauses (1) through (6).
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including the provisions of the TIA that are deemed to be a part hereof.
"INITIAL PURCHASER" means Xxxxx and Company, LLC.
"INTEREST PAYMENT DATE" means each April 15 and October 15, beginning
April 15, 2007.
"INTEREST RATE PROTECTION AGREEMENT" means, with respect to any Person,
any interest rate swap agreement, interest rate cap or collar agreement or other
financial agreement or arrangement designed to protect such Person against
fluctuations in interest rates, as in effect from time to time.
"LAST REPORTED SALES PRICE" means, on any date, the closing sale price
per share 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 ask prices) on that date as reported
in composite transactions for the principal U.S. national or regional securities
exchange on which the Common Stock is listed for trading. If Common Stock is not
listed for trading on a U.S. national or regional securities exchange on the
relevant date, the "last reported sale price" shall be the last quoted bid price
for Common Stock in the over-the-counter market on the relevant date as reported
by the National Quotation Bureau or similar organization. If Common Stock is not
so quoted, the "last reported sales price" shall be the average of the mid-point
of the last bid and ask prices for Common Stock on the relevant date from each
of at least three nationally recognized independent investment banking firms
selected by the Company for this purpose.
"MAJORITY OWNER" means a "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act) of more than 50% of the total voting power of all shares
of another Person's Capital Stock that are entitled to vote generally in the
election of directors.
"MAKE WHOLE PREMIUM" has the meaning specified in Section 13.05.
"MAKE WHOLE PREMIUM DESIGNATED EVENT" means a Termination of Trading or
an event described in clauses (2) or (3) of the definition of Change in Control.
"MAKE WHOLE STOCK CAP" has the meaning specified in Section 13.05.
"MAKE WHOLE TABLE" has the meaning specified in Section 13.05.
"MARKET DISRUPTION EVENT" means (1) a failure by the primary United
States national securities exchange in which the Common Stock is listed or
admitted to trading to open during its regular trading session or (2) the
occurrence or existence prior to 1:00 P.M. on any Trading Day for the Common
Stock for an aggregate one half hour period of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted
by the stock exchange or otherwise) in the Common Stock or in any options,
contracts or future contracts relating to the Common Stock.
6
"MATURITY" means the date on which the principal of such Note becomes
due and payable as therein or herein provided, whether at its Maturity Date or
by acceleration, conversion, call for redemption, exercise of a Repurchase Right
or Designated Event Repurchase Right, or otherwise.
"MATURITY DATE" has the meaning specified in Section 2.01(b).
"MEASUREMENT PERIOD" has the meaning specified in Section 13.01.
"NON-ELECTING SHARE" has the meaning specified in Section 13.08.
"NASDAQ GLOBAL MARKET" means the National Association of Securities
Dealers Automated Quotation Global Market or any successor national securities
exchange in the placecountry-regionUnited States.
"NOTES" has the meaning specified in the first paragraph under the
caption "Recitals of the Company."
"OBSERVATION PERIOD" means, with respect to any Note, the 40
consecutive Trading Day period beginning on and including the second Trading Day
after the related Conversion Date, except that with respect to any related
Conversion Date occurring after the date of issuance of a notice of redemption
or after August 15, 2026, the "OBSERVATION PERIOD" means the first 40
consecutive Trading Days beginning on and including the forty-second Trading Day
prior to the applicable Redemption Date or Maturity Date, respectively.
"OFFICER" means the Chairman or Vice Chairman of the Board of
Directors, the Chief Executive Officer, the President, the Chief Financial
Officer, the Treasurer, any Vice President, the Secretary or Assistant Secretary
of the Company.
"OFFICERS' CERTIFICATE" means a certificate from the Company delivered
to the Trustee and signed by its (a) Chairman, Vice Chairman, President, Chief
Executive Officer, Chief Financial Officer or Vice President and (b) Chief
Financial Officer, Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel to, or a director or employee of, the Company, reasonably acceptable to
the Trustee.
"ORDER" means a written request or order signed in the name of the
Company by its Chairman of the Board of Directors, its President, its Chief
Executive Officer, its Chief Financial Officer or any Vice President, and
delivered to the Trustee.
"PARTICIPANTS" has the meaning specified in Section 2.15(a).
7
"PAYING AGENT" has the meaning specified in Section 2.03.
"PERSON" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust, estate or joint venture,
or any entity similar to any of the foregoing organized under the laws of other
countries, or a governmental agency or political subdivision thereof.
"PHYSICAL NOTES" has the meaning specified in Section 2.01(f).
"PLACE OF CONVERSION" means any city in which any Conversion Agent is
located.
"PLACE OF PAYMENT" means any city in which any Paying Agent is located.
"PREDECESSOR NOTE" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.07 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"PUBLIC ACQUIRER CHANGE IN CONTROL" means a Designated Event as defined
in clause (3) in the definition of Change of Control in which the acquirer has a
class of common stock (or ordinary shares or other common equity interests of
American Depository Shares or similar instruments representing interests
therein) listed on a U.S. national securities exchange or that will be so listed
when issued or exchanged in connection with such Designated Event (the "PUBLIC
ACQUIRER COMMON STOCK"). If an acquirer does not itself have a class of common
stock satisfying the foregoing requirement, it will be deemed to have Public
Acquirer Common Stock if a corporation that directly or indirectly is the
Majority Owner of the acquirer has a class of common stock satisfying the
foregoing requirement, in such case, all references to Public Acquirer Common
Stock shall refer to such class of common stock.
"PUBLIC ACQUIRER COMMON STOCK" has the meaning assigned to it in the
definition of Public Acquirer Change in Control.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"RECORD DATE" means either a Regular Record Date or a Special Record
Date, as the case may be, provided that, for purposes of Section 13.04, Record
Date has the meaning specified in Section 13.04(f)(iii).
"REDEMPTION DATE" when used with respect to any Note to be redeemed
pursuant to Section 10.01, means the date fixed for an Optional Redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE" has the meaning specified in Section 10.01.
"REFERENCE PROPERTY" has the meaning specified in Section 13.01.
"REGISTER" has the meaning specified in Section 2.05.
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"REGISTRAR" has the meaning specified in Section 2.03.
"REGISTRATION DEFAULT" has the meaning specified in the Registration
Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
dated as of October 12, 2006 between the Company and the Initial Purchaser.
"REGULAR RECORD DATE" for the interest payable on the Notes (including
Additional Interest, if any) means the close of business on the April 1 or
October 1 (whether or not a Business Day), as the case may be, immediately
preceding each respective Interest Payment Date.
"REMAINING SHARES" has the meaning specified in Section 13.03.
"REPURCHASE DATE" has the meaning specified in Section 11.01.
"REPURCHASE NOTICE" has the meaning specified in Section 11.01.
"REPURCHASE PRICE" has the meaning specified in Section 11.01.
"REPURCHASE RIGHT" has the meaning specified in Section 11.01.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, any
officer of the Trustee, including any vice president, assistant vice president,
secretary, assistant secretary, the treasurer, any assistant treasurer, or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"RESTRICTED SECURITY" means a Note (or Common Stock into which such
Note has been converted) required to bear the Restrictive Securities Legend set
forth in Exhibit A (or, in the case of Common Stock into which such Note has
been converted, Exhibit D)of this Indenture.
"RESTRICTIVE SECURITIES LEGEND" has the meaning, in the case of a Note,
specified in Section 2.17(a) and, in the case of Common Stock, specified in
Section 2.17(b).
"RULE 144" means Rule 144 as promulgated under the Securities Act
(including any successor rule thereof), as the same may be amended from time to
time.
"RULE 144A" means Rule 144A as promulgated under the Securities Act
(including any successor rule thereof), as the same may be amended from time to
time.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SETTLEMENT AMOUNT" has the meaning specified in Section 13.03.
"STOCK PRICE" has the meaning specified in Section 13.05.
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"STOCK PRICE CAP" has the meaning specified in Section 13.05.
"STOCK PRICE THRESHOLD" has the meaning specified in Section 13.05.
"SHELF REGISTRATION STATEMENT" has the meaning specified in the
Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" has the meaning specified in Rule 1-02(w)
under Regulation S-X under the Securities Act.
"SPECIAL RECORD DATE" has the meaning specified in Section 7.04.
"SPIN-OFF" has the meaning specified in Section 13.04.
"SUBSIDIARY" means a corporation more than 50% of the outstanding
Voting Shares of which are owned, directly or indirectly, by the Company or by
one or more other Subsidiaries or by the Company and one or more other
Subsidiaries.
"SURRENDER CERTIFICATE" means a certificate substantially in the form
set forth in Exhibit C.
"SURRENDER SECURITIES" has the meaning given to such term in Exhibit C.
"SUCCESSOR PERSON" has the meaning specified in Section 6.01.
"TERMINATION OF TRADING" means the Common Stock (or, if applicable, the
Public Acquirer Common Stock) is not listed for trading on a
placecountry-regionU.S. national securities exchange.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
67aaa- 77bbbb), as in effect on the date of execution of this Indenture;
provided, however, that in the event the TIA is amended after such date, "TIA"
means, to the extent required by such amendment, the Trust Indenture Act of
1939, as so amended, or any successor statute.
"TRADING DAY" means a day during which:
(1) trading in the Common Stock generally occurs;
(2) there is no Market Disruption Event; and
(3) a Last Reported Sales Price may be obtained for that day.
"TRADING PRICE" of the Notes on any date of determination means the
average of the secondary market bid quotations obtained by the Bid Solicitation
Agent for $5,000,000 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 selected by the Company; provided that, if three
such bids cannot reasonably be obtained by the Bid Solicitation 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 Bid Solicitation Agent, that
one bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at
least one bid for $5,000,000 principal amount of the notes from a nationally
recognized securities dealer, then the trading price per $1,000 principal amount
of notes shall be deemed to be less than 98% of the product of the Last Reported
Sales Price of the Common Stock and the applicable Conversion Rate.
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"TRANSFER AGENT" means any Person, which may be the Company, authorized
by the Company to exchange or register the transfer of Notes.
"TRIGGER EVENT" has the meaning specified in Section 13.04(b).
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"VICE PRESIDENT" means any vice president of a corporation, whether or
not designated by a number or a word or words added before or after the title
"vice president."
"VOTING SHARES" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
SECTION 1.02 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;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and any other obligor on the
indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rules have the meanings
assigned to them by such definitions.
SECTION 1.03 RULES OF CONSTRUCTION. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
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(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with accounting principles generally accepted in
the United States prevailing at the time of any relevant computation hereunder;
(c) the word "or" shall not be exclusive;
(d) any item or list of items set forth following the word "including,"
"include" or "includes" herein is set forth only for the purpose of indicating
that, regardless of whatever other items are in the category in which such item
or items are "included," such item or items are in such category and shall not
be construed as indicating the items in the category in which such item or items
are "included" are limited to such item or items similar to such items; and
(e) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
ARTICLE II
THE NOTES
SECTION 2.01 FORM AND DATING.
(a) The Notes shall be known and designated as the "4.00%
Convertible Senior Notes due 2026" of the Company. The aggregate principal
amount of the Notes that may be authenticated and delivered under this Indenture
is limited to $72,000,000, except as provided in (i) Section 2.07(c) or (ii)
Section 2.02(d).
(b) The Notes shall mature on October 15, 2026 (the "MATURITY
DATE").
(c) Interest shall accrue at a rate of 4.00% per annum on the
principal amount of the Notes from October 12, 2006 or from the most recent date
to which interest has been paid until the principal of the Notes is paid or made
available for payment pursuant to the terms of this Indenture. Interest shall be
payable semiannually in arrears on April 15 and October 15 in each year,
commencing April 15, 2007. Each payment of interest on the Notes shall include
interest accrued through the day prior to the applicable Interest Payment Date
or the Maturity Date. Any payment of principal and interest scheduled to be made
on any day that is not a Business Day shall be made on the next succeeding
Business Day. Interest on the Notes shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
Except as provided in the next succeeding paragraph, a Holder of any
Note shall not be entitled to receive any interest (including Additional
Interest, if any) that has accrued on such Note if such Note is converted into
shares of Common Stock on any day other than an Interest Payment Date.
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By delivering to the Holder of any Note that is converted, cash or a combination
of cash and the full number of shares of Common Stock, together with a cash
payment, if any, in lieu of a fractional share, the Company shall be deemed to
have satisfied in full its obligation with respect to such Note to pay the
principal amount of the Note and accrued and unpaid interest (including
Additional Interest, if any) to, but not including, the Conversion Date.
Accordingly, accrued but unpaid interest (including Additional Interest, if any)
shall be deemed to be paid in full rather than cancelled, extinguished or
forfeited.
If a Holder of any Note converts such Note after 5:00 P.M., New York
City time on a Regular Record Date but prior to 9:00 A.M., New York City time on
the corresponding Interest Payment Date, the Holder of record on such Regular
Record Date shall be entitled to receive on such Interest Payment Date interest
(including Additional Interest, if any) accrued and unpaid on such Note, to, but
excluding, such Interest Payment Date notwithstanding the conversion of such
Note prior to such Interest Payment Date. However, at the time such Holder
surrenders such Note for conversion, such Holder shall pay the Company an amount
equal to the interest (including Additional Interest, if any) that will be paid
on the Notes being converted on such Interest Payment Date. However, in the
event that (i) overdue interest, if any, exists at the time of conversion with
respect to such Note, (ii) the Holder converts such Note in connection with a
redemption or a Designated Event and the Company has specified a Redemption Date
or a Repurchase Date for a Note that is after a Record Date for an interest
payment but on or prior to the third Trading Day after the corresponding
Interest Payment Date, or (iii) the Holder converts such Note after the Regular
Record Date for the interest payment due on October 15, 2026, then such Holder
shall not be required to pay the Company at the time such Holder surrenders such
Note for conversion the amount of interest on such Note such Holder shall be
entitled to receive on such Interest Payment Date (in the case of (i) above,
only to the extent of such overdue interest).
Principal of, premium, if any, and interest (including Additional
Interest, if any) on, Global Notes shall be payable to the Depositary in
immediately available funds.
Principal and premium, if any, of and interest on maturity, on Physical
Notes shall be payable at the office or agency of the Company maintained for
such purpose, initially the Corporate Trust Office of the Trustee. Interest
(including Additional Interest, if any) on Physical Notes (other than at
maturity) will be payable (i) by U.S. Dollar check drawn on a bank in The City
of New York mailed to the address of the Holder, or (ii) upon application to the
Registrar not later than the relevant Record Date by a Holder of an aggregate
principal amount in excess of $5,000,000, by wire transfer in immediately
available funds.
(d) The Notes and the Trustee's certificate of authentication
shall be substantially in the form set forth in Exhibit A, which is incorporated
in and forms a part of this Indenture. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note shall be
dated the date of its authentication.
(e) The Notes are being offered and sold in reliance on Rule 144A
under the Securities Act and shall be issued initially in the form of one or
more Global Notes, substantially in the form set forth in Exhibit A, including
the "Schedule of Exchanges of Interests in the Global Note" attached thereto
(the "GLOBAL NOTE"), deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided and bearing the Restrictive Securities Legend and the
Global Note Legend. 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, as custodian for the Depositary, as hereinafter provided; provided,
however, that in no event shall the aggregate principal amount of the Global
Note or Notes exceed $72,000,000, except as provided in (i) Section 2.07(c) or
(ii) Section 2.02(d).
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(f) Notes issued in exchange for interests in a Global Note
pursuant to Section 2.15 may be issued in the form of permanent certificated
Notes in registered form in substantially the form set forth in Exhibit A (but
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto) (the "PHYSICAL NOTES") and, if applicable, bearing any legends required
by Section 2.17.
SECTION 2.02 EXECUTION AND AUTHENTICATION.
(a) One Officer shall sign the Notes for the Company by manual or
facsimile signature.
(b) 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.
(c) A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
(d) Upon an Order of the Company specifying the number of separate
Notes, the principal amount of each Note to be authenticated, the date on which
the original issue of Notes is to be authenticated, the registered holder of
each of the said Notes, delivery instructions for each such Note and signed by
one Officer, the Trustee shall authenticate Notes for original issue in the
aggregate principal amount of up to $72,000,000 and such additional principal
amount, if any, as shall be determined pursuant to the next sentence of this
Section 2.02(d). Upon receipt by the Trustee of an Officers' Certificate of the
Company stating that additional Notes, which may be an unlimited aggregate
principal amount, will be issued after the initial issue date of the Notes that
have the same terms and "CUSIP" numbers as the Notes and, based on an Opinion of
Counsel, are of the same class with the other Notes for U.S. federal income tax
purposes, the Trustee shall authenticate and deliver such specified principal
amount of such additional Notes to or upon the Order of the Company signed as
provided in the immediately preceding sentence. Such Officers' Certificate must
be received by the Trustee not later than the proposed date for delivery of such
additional Notes. The aggregate principal amount of Notes outstanding at any
time may not exceed $72,000,000, except as provided above or in Section 2.07(c).
(e) Upon an Order of the Company signed by two Officers of the
Company, the Trustee shall authenticate Notes not bearing the Restrictive
Securities Legend to be issued to the transferee when sold pursuant to an
effective registration statement under the Securities Act as set forth in
Section 2.16(c).
(f) The Trustee shall act as the initial authenticating agent.
Thereafter, 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 the Company
and its Affiliates.
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(g) The Notes shall be issuable only in registered form without
interest coupons and only in denominations of $1,000 principal amount and any
positive integral multiple thereof.
SECTION 2.03 REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
(a) The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("REGISTRAR"), an
office or agency where Notes may be presented for payment ("PAYING AGENT") and
an office or agency where Notes may be presented for conversion ("CONVERSION
Agent"). The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may appoint or change one or more co-registrars, one
or more additional paying agents and one or more additional conversion agents
without notice and may act in any such capacity on its own behalf. 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.
(b) The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent,
the Trustee shall act as such. The Company or a Subsidiary or an Affiliate of
any of them may act as Paying Agent.
(c) The Company initially appoints the Trustee as Paying Agent,
Registrar, Conversion Agent and Bid Solicitation Agent.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST. Each Paying Agent
shall hold in trust for the benefit of the Holders or the Trustee all moneys
held by the Paying Agent for the payment of the Notes, and shall 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. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and to account for any funds and Common
Stock disbursed by it. Upon payment over to the Trustee, the Paying Agent shall
have no further liability for the money. If the Company or a Subsidiary or an
Affiliate of any of them acts as Paying Agent, it shall segregate and hold as a
separate trust fund 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 (the "REGISTER"). 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 reasonably request in
writing the Register.
SECTION 2.06 TRANSFER AND EXCHANGE.
(a) Subject to Sections 2.15 and 2.16, when Notes are presented to
the Registrar with a request to register their transfer or to exchange them for
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an equal principal amount of Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange if its requirements
for such transaction are met. To permit registrations of transfer and exchanges,
the Trustee shall authenticate Notes at the Registrar's request. The Company or
the Trustee, as the case may be, shall not be required (i) to issue,
authenticate, register the transfer of or exchange any Note during a period
beginning at the opening of business 15 days before the mailing of a notice of
redemption of the Notes selected for redemption under Article X and ending at
the close of business on the day of such mailing or (ii) to register the
transfer of or exchange any Note so selected for redemption in whole or in part,
except the unredeemed portion of Notes being redeemed in part.
(b) No service charge shall be made for any transfer, exchange or
conversion of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer, exchange or conversion of Notes, other than exchanges
pursuant to Sections 2.10, 10.01, 11.01 or 12.01 not involving any transfer.
SECTION 2.07 REPLACEMENT NOTES.
(a) If the Holder claims that the Note has been mutilated, lost,
destroyed or stolen, the Company shall issue and the Trustee shall authenticate
a replacement Note if the Trustee's requirements are met and, in the case of a
mutilated Note, such mutilated Note is surrendered to the Trustee. In the case
of lost, destroyed or stolen Notes, if required by the Trustee or the Company,
an indemnity bond must be provided by the Holder that is sufficient in the
judgment of the Trustee to protect the Company, the Trustee or any Agent from
any cost, expense loss that any of them may suffer if a Note is replaced and
subsequently presented or claimed for payment. The Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation to replacing a Note and any other reasonable expenses
(including the reasonable fees and expenses of the Trustee) in connection
therewith.
(b) In case any such mutilated, lost, destroyed or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note when due.
(c) Every replacement Note is an additional obligation of the
Company only as provided in Section 2.08.
(d) The provisions of this Section 2.07 are exclusive and shall
preclude (to the lawful extent) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
SECTION 2.08 OUTSTANDING NOTES.
(a) Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those converted, those cancelled by it, those
delivered to it for cancellation and those described in this Section 2.08 as not
outstanding. Except to the extent provided in Section 2.09, a Note does not
cease to be outstanding because the Company or one of its Subsidiaries or
Affiliates holds the Note.
16
(b) If a Note is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it, or a court
holds, that the replaced Note is held by a protected purchaser, as that term is
defined in the New York Uniform Commercial Code.
(c) If the Paying Agent (other than the Company or any Affiliate
of the Company) holds on a Redemption Date, Repurchase Date, Designated Event
Repurchase Date or Maturity Date money sufficient to pay Notes payable on that
date (or, if the Company acts as Paying Agent, if the Company has segregated and
holds such money in trust in accordance with Section 2.04), then on and after
that date, such Notes shall be deemed to be no longer outstanding and interest
on them shall cease to accrue, and such Note shall be deemed paid whether or not
the Note is delivered to the Paying Agent. Thereafter, all other rights of the
Holders of such Notes shall terminate with respect to such Notes, other than the
right to receive the Redemption Price, Repurchase Price, Designated Event
Repurchase Price or principal amount, as applicable.
(d) If a Note is converted in accordance with Article XIII, then
from and after the time of conversion on the Conversion Date, such Note will
cease to be outstanding, and interest (including Additional Interest, if any)
will cease to accrue on such Note.
SECTION 2.09 NOTES HELD BY THE COMPANY OR AN AFFILIATE
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company or any of its Subsidiaries or an Affiliate shall be
considered as though not outstanding, except that for the purposes of
determining whether a Responsible Officer of 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
Until certificates representing 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 Physical 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.
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 transfer, exchange, payment or
conversion. The Trustee shall promptly cancel or dispose of all Notes
surrendered for transfer, exchange, payment, conversion or cancellation in
accordance with its customary procedures. The Company may not issue new Notes to
replace Notes that it has paid or delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article XIII.
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SECTION 2.12 DEFAULTED INTEREST
If and to the extent the Company defaults in a payment of
interest on the Notes, the Company shall pay the defaulted interest in any
lawful manner plus, to the extent not prohibited by applicable statute or case
law, interest payable on the defaulted interest at the rate provided in the
Notes (the "DEFAULTED INTEREST"). The Company may pay the Defaulted Interest to
the persons who are Holders on a subsequent special record date fixed by the
Company (a "DEFAULTED INTEREST SPECIAL RECORD DATE"). The Company shall fix such
Defaulted Interest Special Record Date and payment date. At least 15 days before
the Defaulted Interest Special Record Date, the Company shall mail to Holders a
notice that states the Defaulted Interest Special Record Date, payment date and
amount of interest to be paid.
SECTION 2.13 CUSIP NUMBERS
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP numbers in notices of
redemption or repurchase as a convenience to Holders; provided, however, any
such statement may state that no representation is made by the Trustee as to the
correctness or accuracy of the CUSIP numbers printed in the notice or on the
Notes, and that reliance may be placed only on the other identification numbers
printed on the Notes and any such redemption or repurchase shall not be affected
by any defect or omission of such numbers. The Company shall promptly notify the
Trustee of any change in the CUSIP numbers.
SECTION 2.14 DEPOSIT OF MONEYS
Prior to 11:00 A.M., New York City time, on each Interest
Payment Date, Maturity Date, Redemption Date, Repurchase Date and Designated
Event Repurchase Date, the Company shall have deposited with a Paying Agent (or
if the Company or a Subsidiary or an Affiliate of any of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04) in
immediately available funds, money sufficient to make cash payments, if any, due
on such Interest Payment Date, Maturity Date, Redemption Date, Repurchase Date
and Designated Event Repurchase Date, as the case may be, in a timely manner
that permits the Paying Agent to remit payment to the Holders on such Interest
Payment Date, Maturity Date, Redemption Date, Repurchase Date and Designated
Event Repurchase Date, as the case may be.
SECTION 2.15 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES
(a) The Global Notes initially shall (i) be registered in the name
of the Depositary or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for such Depositary and (iii) bear legends as set forth in
Section 2.17. Members of, or participants in, the Depositary ("PARTICIPANTS")
shall have no rights under this Indenture with respect to any Global Notes held
on their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Notes, 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 the Global
Notes 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 Participants, the operation of customary practices governing the exercise of
the rights of a Holder.
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(b) Transfers of Global Notes shall be limited to transfers in
whole, or in part, to the Depositary, its successors or their respective
nominees. In addition, Physical Notes shall be transferred to all beneficial
owners in exchange for their beneficial interests in Global Notes if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for any Global Note and a successor Depositary is not appointed by
the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a written request from
the Depositary to issue Physical Notes.
(c) In connection with the transfer of a Global Note in its
entirety to beneficial owners pursuant to Section 2.15(b), such Global Note
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall upon written instructions from the
Company authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in such Global Note, an equal
aggregate principal amount of Physical Notes of authorized denominations.
(d) Any Physical Note constituting a Restricted Security delivered
in exchange for an interest in a Global Note pursuant to Section 2.15(b) shall,
except as otherwise provided by Section 2.16, bear the Restrictive Securities
Legend.
(e) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action that a Holder is entitled to take under
this Indenture or the Notes.
SECTION 2.16 SPECIAL TRANSFER PROVISIONS
(a) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Restricted Security to
a QIB:
(i) the Registrar shall register the transfer of any Restricted
Security, whether or not such Note bears the Restrictive Securities
Legend, if (A) the requested transfer is after the second anniversary
of the issue date for the Notes; provided, however, that neither the
Company nor any of its Affiliates has held any beneficial interest in
such Note, or portion thereof, at any time on or prior to the second
anniversary of the issue date for the Notes or (B) such transfer is
being made by a proposed transferor who has checked the box provided
for on the form of Note stating, or has otherwise advised the Company
and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the 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 QIB within the meaning of Rule 144A, 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 it 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
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
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(ii) if the proposed transferor is a Participant seeking to
transfer an interest in one Global Note to a transferee who will hold
such interest in another Global Note, upon receipt by the Registrar of
(A) written instructions given in accordance with the Depositary's and
the Registrar's procedures and (B) the appropriate certificates and
other documents, if any, required by clause (B) of paragraph (i) above,
the Registrar shall register the transfer and reflect on its books and
records the date and (x) a decrease in the aggregate principal amount
of the Global Note through which the transferor held such interest in
an amount equal to the aggregate principal amount of the Notes to be
transferred and (y) an increase in the aggregate principal amount of
the Global Note through which the transferee proposes to hold such
interest, in an amount equal to the aggregate principal amount of the
Notes to be transferred.
(b) Restrictions On Transfer And Exchange Of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred except as a whole or in part by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(c) Restrictive Securities Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Restrictive Securities Legend, the
Registrar or co-Registrar shall deliver Notes that do not bear the Restrictive
Securities Legend. Upon the transfer, exchange or replacement of Notes bearing
the Restrictive Securities Legend, the Registrar or co-Registrar shall deliver
only Notes that bear the Restrictive Securities Legend unless (i) the requested
transfer is after the second anniversary of the issue date for the Notes
(provided, however, that neither the Company nor any of its Affiliates has held
any beneficial interest in such Note, or portion thereof, at any time prior to
or on the second anniversary of the issue date), (ii) there is delivered to the
Trustee an Opinion of Counsel reasonably satisfactory to the Company to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act, or (iii) such Note has been sold pursuant to an effective registration
statement under the Securities Act and the Holder selling such Notes has
delivered to the Registrar or co-Registrar a notice in the form of Exhibit B
hereto.
(d) General. By its acceptance of any Note bearing the Restrictive
Securities Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Restrictive
Securities Legend and agrees that it will transfer such Note only as provided in
this Indenture. The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this Section
2.16. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
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(e) Transfers Of Notes Held By Affiliates. Any certificate (i)
evidencing a Note that has been transferred to an Affiliate of the Company
within two years after the issue date for the Notes, as evidenced by a notation
on the Assignment Form for such transfer or in the representation letter
delivered in respect thereof, or (ii) evidencing a Note that has been acquired
from an Affiliate (other than by an Affiliate) in a transaction or a chain of
transactions not involving any public offering, shall, until two years after the
last date on which the Company or any Affiliate of the Company was an owner of
such Note, in each case, bear the Restrictive Securities Legend, unless
otherwise agreed by the Company (with written notice thereof to the Trustee).
SECTION 2.17 RESTRICTIVE SECURITIES LEGENDS.
(a) Each Global Note and Physical Note that constitutes a
Restricted Security shall bear the following legend (the "RESTRICTIVE SECURITIES
LEGEND") on the face thereof until after the second anniversary of the later of
(i) the issue date for the Notes, and (ii) the last date on which the Company or
any Affiliate of the Company was the owner of such Note (or any predecessor
security) (or such shorter period of time as permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) (or such longer period of
time as may be required under the Securities Act or applicable state securities
laws in the opinion of counsel for the Company, unless otherwise agreed between
the Company and the Holder thereof):
THIS NOTE (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 NOTE AND THE SHARES OF OUR COMMON STOCK
ISSUABLE UPON CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE 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 NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE
AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (IV) TO AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(1), (2) OR (7) UNDER THE SECURITIES ACT WHO
PURCHASES AT LEAST $100,000 PRINCIPAL AMOUNT OF NOTES, OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH
(V) 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,
21
NOTIFY ANY PURCHASER OF THIS NOTE 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 TRANSACTION WITH REGARD TO THE SECURITIES EXCEPT AS
PERMITTED BY THE SECURITIES ACT.
THIS NOTE, ANY SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF AND ANY
RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY
THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS NOTE AND ANY SUCH SHARES
TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION
THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED
SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND SUCH SHARES SHALL BE DEEMED BY
THE ACCEPTANCE OF THIS NOTE AND ANY SUCH SHARES TO HAVE AGREED TO SUCH AMENDMENT
OR SUPPLEMENT.
(b) Each share of Common Stock that constitutes a Restricted
Security shall bear the legend as set forth in Exhibit D (the "RESTRICTIVE
SECURITIES LEGEND") on the reverse thereof until after the second anniversary of
the later of (i) the issue date for such share of Common Stock, and (ii) the
last date on which the Company or any Affiliate of the Company was the owner of
such share of Common Stock (or any predecessor security) (or such shorter period
of time as permitted by Rule 144(k) under the Securities Act or any successor
provision thereunder) (or such longer period of time as may be required under
the Securities Act or applicable state securities laws in the opinion of counsel
for the Company, unless otherwise agreed between the Company and the Holder
thereof).
(c) Each Global Note shall also bear the following legend (the
"Global Note Legend"):
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, 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 IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
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ARTICLE III
SATISFACTION AND DISCHARGE
SECTION 3.01 SATISFACTION AND DISCHARGE OF INDENTURE
When:
(a) the Company shall deliver to the Trustee for cancellation all
Notes previously authenticated (other than any Notes that have been destroyed,
lost or stolen and in lieu of, or in substitution for which, other Notes shall
have been authenticated and delivered) and not previously cancelled; or
(b) the Company shall deposit with the Trustee, after the Notes
have become due and payable, whether at the Maturity Date or any other
Redemption Date, or upon the Notes being scheduled for conversion or otherwise,
cash or shares of Common Stock, pursuant to Article XIII, sufficient to pay all
of the outstanding Notes and all other sums payable by the Company under this
Indenture;
and, in the case of either clause (a) or (b), the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect, except as to:
(i) remaining rights of registration of transfer, substitution and
exchange and conversion of Notes,
(ii) rights hereunder of Holders to receive payments of principal
of, premium, if any, and interest (including Additional Interest, if
any) on, the Notes and the other rights, duties and obligations of
Holders, as beneficiaries hereof with respect to the amounts, if any,
so deposited with the Trustee, and
(iii) the rights, obligations and immunities of the Trustee
hereunder;
and the Trustee, on written demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel (each stating that all conditions
precedent herein relating to the satisfaction and discharge of this Indenture
have been complied with) and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture; provided, however, the Company shall reimburse the Trustee for all
amounts due the Trustee under Section 4.08 and Section 5.07 and for any costs or
expenses thereafter reasonably and properly incurred by the Trustee and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Notes.
SECTION 3.02 DEPOSITED MONIES TO BE HELD IN TRUST
23
Subject to Section 3.03, all monies deposited with the Trustee
pursuant to Section 3.01 shall be held in trust and applied by it to the
payment, notwithstanding the provisions of Article XIII, either directly or
through any Paying Agent (including the Company if acting as its own Paying
Agent), to the Holders of the particular Notes for the payment or redemption of
which such monies have been deposited with the Trustee, of all sums due and to
become due thereon for principal, premium, if any, and interest (including
Additional Interest, if any). All monies deposited with the Trustee pursuant to
Section 3.01 (and held by it or any Paying Agent) for the payment of Notes
subsequently converted shall be returned to the Company upon request of the
Company.
SECTION 3.03 RETURN OF UNCLAIMED MONIES
The Trustee and the Paying Agent shall promptly notify the Company
of, and pay to the Company upon the request of the Company, any excess money
held by them at any time. The Trustee or the Paying Agent, as the case may be,
shall provide written notice to the Company of any money that has been held by
it and has, for a period of two (2) years, remained unclaimed for the payment of
the principal of, premium, if any, or any accrued and unpaid interest (including
Additional Interest, if any) on, the Notes. The Trustee and the Paying Agent
shall pay to the Company upon the written request of the Company any money held
by them for the payment of the principal of, premium, if any, or any accrued and
unpaid interest (including Additional Interest, if any), the Notes that remains
unclaimed for two (2) years; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may (in no event later
than five (5) days after the Company requests repayment pursuant to this Section
3.03), at the expense of the Company, cause to be published once in a newspaper
of general circulation in the City of New York or cause to be mailed to each
Holder, notice stating that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty (30) days from the date
of such publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company, Holders
entitled to the money must look to the Company for payment as general creditors,
subject to applicable law, and all liability of the Trustee and the Paying Agent
with respect to such money and payment shall, subject to applicable law, cease.
SECTION 3.04 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any money in
accordance with Sections 3.01 and 3.02 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Sections 3.01 and
3.02 until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Sections 3.01 and 3.02; provided, however, that if
the Company has made any payment of amounts due with respect to any Notes
because of the reinstatement of its obligations, then the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
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ARTICLE IV
DEFAULTS AND REMEDIES
SECTION 4.01 EVENTS OF DEFAULT
An "EVENT OF DEFAULT," wherever used herein, means any one of the
following events so long as any Notes are outstanding (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment when due of principal of (or premium,
if any, on) any Note at its Maturity Date, upon redemption or exercise of a
Repurchase Right, Designated Event Repurchase Right or otherwise;
(b) default in the payment of interest or Additional Interest, if
any, on any Note when due and payable and continuance of such default for a
period of 30 days;
(c) default in the performance or breach of any term, covenant or
agreement of the Company in this Indenture (other than a term, covenant or
agreement, a default in the performance or breach of which is specifically dealt
with elsewhere in this Section 4.01) or under the Notes and continuance of such
default or breach for a period of 60 consecutive days after there has been
given, by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the outstanding Notes a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder;
(d) a failure by the Company or any of its Significant
Subsidiaries to pay when due, either at maturity or upon acceleration, any
Indebtedness in excess of $10,000,000 principal amount under any bond,
debenture, note or other evidence of Indebtedness for money borrowed of the
Company or any such Significant Subsidiary, if such Indebtedness (other than
Indebtedness due upon acceleration) is not discharged, and the acceleration of
such other Indebtedness is not waived, cured, rescinded or annulled, within 30
days after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the outstanding Notes a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder;
(e) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company or any of its Significant
Subsidiaries in an involuntary case under any applicable bankruptcy or other
similar law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Company or any of its Significant Subsidiaries or (C) the winding up or
liquidation of the affairs of the Company or any of its Significant Subsidiaries
and, in each case, such decree or order shall remain unstayed and in effect for
a period of 30 consecutive days;
25
(f) the Company or any of its Significant Subsidiaries (A)
commences a voluntary case under any applicable bankruptcy or other similar law
now or hereafter in effect, or consents to the entry of an order for relief in
an involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any of its Significant
Subsidiaries or for all or substantially all of the property and assets of the
Company or any of its Significant Subsidiaries or (C) effects any general
assignment for the benefit of creditors;
(g) the rendering of a final judgment or judgments (not subject to
appeal and not covered by insurance) against the Company or any of its
Subsidiaries in excess of $10,000,000 which remains unstayed, unpaid,
undischarged or unbonded for 60 days;
(h) failure by the Company to provide the notice required under
this Indenture upon a Designated Event; or
(i) failure by the Company to convert Notes into cash or cash and
shares of Common Stock, if any, upon exercise of a Holder's conversion right and
continuance of such failure for a period of 10 Business Days or more.
SECTION 4.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
(a) If an Event of Default with respect to outstanding Notes
(other than an Event of Default with respect to the Company specified in Section
4.01(e) or 4.01(f)) occurs and is continuing and has not been cured or waived in
accordance with this Indenture, the Trustee or the Holders of at least 25% in
aggregate principal amount of the outstanding Notes, by written notice to the
Company specifying such Event of Default and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder, may declare due and
payable 100% of the principal amount of all outstanding Notes plus any accrued
and unpaid interest (including Additional Interest, if any) to the date of
payment. Upon a declaration of acceleration, such principal and accrued and
unpaid interest to the date of payment shall be immediately due and payable.
Accrued but unpaid interest, which is not deemed paid in full with the shares of
Common Stock, if any, shall be payable upon any conversion of the Notes made
concurrently with or after the acceleration of the Notes following an Event of
Default.
(b) If an Event of Default with respect to the Company specified
in Section 4.01(e) or 4.01(f) occurs, all unpaid principal and accrued and
unpaid interest (including Additional Interest, if any) on the outstanding Notes
shall become and be immediately due and payable, without any declaration or
other act on the part of the Trustee or any Holder.
(c) The Holders, either (a) through the written consent of not
less than a majority in aggregate principal amount of the outstanding Notes, or
(b) by the adoption of a resolution by Holders of a majority in aggregate
principal amount of the outstanding Notes represented at a meeting of Holders at
which a quorum (as prescribed in Section 8.04) is present, may rescind and annul
an acceleration and its consequences if:
(i) all existing Events of Default, other than the nonpayment of
principal of, or premium, if any, or interest (including Additional
Interest, if any) on the Notes that have become due solely because of
the acceleration, have been remedied, cured or waived, and
26
(ii) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction;
provided, however, that in the event of a declaration of acceleration in respect
of the Notes because of an Event of Default specified in Section 4.01(d) shall
have occurred and be continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the Indebtedness that is the subject of
such Event of Default has been discharged or the holders thereof have waived,
cured, rescinded or annulled their declaration of acceleration in respect of
such indebtedness, and written notice of such discharge or waiver, cure,
rescission or annulment as the case may be, shall have been given to the Trustee
by the Company and countersigned by the holders of such indebtedness or a
trustee, fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the Notes and no other Event of
Default has occurred during such 30-day period that has not been cured or waived
during such period.
SECTION 4.03 OTHER REMEDIES
If an Event of Default with respect to outstanding Notes occurs
and is continuing, the Trustee may, in its discretion, pursue any available
remedy by proceeding at law or in equity to collect the payment of principal of
or interest on the Notes or to enforce the performance of any provision of the
Notes. The Trustee may maintain a proceeding in which it may prosecute and
enforce all rights of action and claims under this Indenture or the Notes, even
if it does not possess any of the Notes or does not produce any of them in the
proceeding.
SECTION 4.04 WAIVER OF PAST DEFAULTS
The Holders, either (a) through the written consent of not less
than a majority in aggregate principal amount of the outstanding Notes or (b) by
the adoption of a resolution, at a meeting of Holders of the outstanding Notes
at which a quorum (as prescribed in Section 8.04) is present, by the Holders of
at least a majority in aggregate principal amount of the outstanding Notes
represented at such meeting, may, on behalf of the Holders of all of the Notes,
waive an existing Default or Event of Default, except a Default or Event of
Default:
(i) in the payment of the principal of or premium, if any, or
interest (including Additional Interest, if any) on any Note (provided,
however, that subject to Section 4.07, the Holders of a majority in
aggregate principal amount of the outstanding Notes may rescind an
acceleration and its consequences, including any related payment
default that resulted from such acceleration; or
(ii) in respect of a covenant or provision hereof that, under
Section 7.02, including Section 7.02(g), cannot be modified or amended
without the consent of the Holders of each outstanding Note affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; provided, however, that no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
27
SECTION 4.05 CONTROL BY MAJORITY
The Holders of a majority in aggregate principal amount of the
outstanding Notes, through their written consent at a meeting of Holders of the
outstanding Notes at which a quorum (as prescribed in Section 8.04) is present
by a written resolution shall have the right to 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 the Trustee. However, the Trustee may
refuse to follow any direction that:
(a) conflicts with any law or with this Indenture;
(b) the Trustee determines may be unduly prejudicial to the rights
of the Holders not joining therein; or
(c) may expose the Trustee to any cost, expense or personal
liability.
The Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION 4.06 LIMITATION ON SUIT
No Holder of any Note shall have any right to pursue any remedy
with respect to this Indenture or the Notes (including, instituting any
proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver or trustee) unless:
(a) such Holder has previously given written notice to the Trustee
of an Event of Default that is continuing;
(b) the Holders of at least 25% in aggregate principal amount of
the outstanding Notes shall have made written request to the Trustee to pursue
the remedy;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against any costs, expenses and liabilities incurred in
complying with such request;
(d) the Trustee has failed to comply with the request for 60 days
after its receipt of such notice, request and offer of indemnity; and
(e) during such 60-day period, no direction inconsistent with such
written request has been given to the Trustee by the Holders of a majority in
aggregate principal amount of the outstanding Notes (or such amount as shall
have acted at a meeting pursuant to the provisions of this Indenture); provided,
however, that no one or more of such Holders may use this Indenture to prejudice
the rights of another Holder (including conversion rights) or to obtain
preference or priority over another Holder.
SECTION 4.07 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PAYMENT
28
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
(i) to receive payment of the principal of, premium, if any, and interest
(including Additional Interest, if any) on such Note on the Maturity Date
expressed in such Note, in the case of redemption, on the Redemption Date, and
in the case of the exercise of a Repurchase Right, on a Repurchase Date, and in
the case of the exercise of a Designated Event Repurchase Right, on a Designated
Event Repurchase Date, (ii) to bring suit for the enforcement of any such
payment on or after such respective dates, and (iii) to convert in accordance
with Article XIII hereof, and such right shall not be impaired or adversely
affected without the consent of such Holder.
SECTION 4.08 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
THE TRUSTEE
The Company covenants that if:
(a) a default is made in the payment of any interest (including
Additional Interest, if any) on any Note when such interest (including
Additional Interest, if any) becomes due and payable and such default continues
for a period of 30 days; or
(b) a default is made in the payment of the principal of or
premium, if any, on any Note at the maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable (as expressed
therein or as a result of any acceleration effected pursuant to Section 4.02) on
such Notes for principal and premium, if any, and interest (including Additional
Interest, if any) and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium, if any, and
on any overdue interest (including Additional Interest, if any), calculated
using the applicable interest rate specified in Section 2.01(c), and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders of Notes by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 4.09 TRUSTEE MAY FILE PROOFS OF CLAIM
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In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or its property or creditors,
the Trustee (irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest (including
Additional Interest, if any)) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal
and premium, if any, and interest (including Additional Interest, if any) owing
and unpaid in respect of the Notes and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the Holders of Notes
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claim and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceedings is hereby authorized by each Holder of Notes to
make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders of Notes, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 5.07.
Nothing contained herein shall be deemed to authorize the Trustee to authorize
or consent to or accept, or adopt on behalf of any Holder of a Note, any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder of a Note in any such proceeding.
SECTION 4.10 RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder of a Note has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Notes shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 4.11 RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement
or repayment of mutilated, destroyed, lost or stolen Notes in Section 2.07(d),
no right or remedy conferred in this Indenture upon or reserved to the Trustee
or to the Holders of Notes is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 4.12 DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or any acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Notes may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
the Holders of Notes, as the case may be.
SECTION 4.13 APPLICATION OF MONEY COLLECTED
Subject to Articles XI and XII, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or premium, if any, or interest (including Additional
Interest, if any), upon presentation of the Notes and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 5.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of and premium, if any, and interest (including
Additional Interest, if any) on the Notes in respect of which
or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according
to the amounts due and payable on such Notes for principal and
premium, if any, and interest (including Additional Interest,
if any), respectively; and
THIRD: Any remaining amounts shall be repaid to the Company.
SECTION 4.14 UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of any Note
by such Holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the outstanding
Notes, or to any suit instituted by any Holder of any Note for the enforcement
of the payment of the principal of or premium, if any, or interest (including
Additional Interest, if any) on any Note on or after the Maturity Date expressed
in such Note (or, in the case of redemption or exercise of a Repurchase Right or
a Designated Event Repurchase Right, on or after the Redemption Date, Repurchase
Date, or Designated Event Repurchase Date, as the case may be) or for the
enforcement of the right to convert any Note in accordance with Article XIII.
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ARTICLE V
THE TRUSTEE
SECTION 5.01 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 person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no implied covenants
or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith or willful misconduct on its
part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture
(but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(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 (c) does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(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 4.05.
(d) Every provision of this Indenture that in any way relates to
the Trustee in any of its roles hereunder is subject to the provisions of this
Section 5.01.
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(e) 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 5.02 RIGHTS OF TRUSTEE
(a) The Trustee may conclusively 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 any document; if,
however, the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled during normal business hours to examine the
relevant books, records and premises of the Company, personally or by agent or
attorney upon reasonable prior notice.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. 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) Any request or direction of the Company mentioned herein shall
be sufficiently evidenced by an Order from the Company and any resolution of the
Board of Directors of the Company shall be sufficiently evidenced by a Board
Resolution.
(d) The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel of the Company shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(e) The Trustee may act through agents or attorneys and shall not
be responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
(f) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
discretion, rights or powers conferred upon it by this Indenture.
(g) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company will be sufficient if
signed by an Officer.
(h) The Trustee shall have no duty to inquire as to the
performance of the Company with respect to the covenants contained in Article
IX. In addition, the Trustee shall not be deemed to have notice, or charged with
having knowledge of an Event of Default except (i) any Default or Event of
Default occurring pursuant to Sections 4.01(a) and 4.01(b) or (ii) any Default
or Event of Default of which a Responsible Officer of the Trustee shall have
received written notification at the Corporate Trust Office referencing the
Notes and this Indenture or obtained actual knowledge. Delivery of reports,
information and documents to the Trustee under Article IX (other than Sections
9.04 and 9.07) is for informational purposes only and the Trustee's receipt of
the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates of the
Company).
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(i) The Trustee shall be under no obligation to exercise any of
the rights or powers vested by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture unless such Holders shall have offered
to the Trustee security or indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction.
(j) The rights, privileges, protections, immunities and benefits
given to the Trustee, including without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and its directors, officers, employees and each agent,
custodian and other Person employed to act hereunder.
(k) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
(l) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of its duties hereunder or in the exercise of any of its rights or
powers.
(m) No permissive power, right or remedy conferred upon the
Trustee hereunder shall be construed to impose a duty to exercise such power,
right or remedy.
(n) The Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties hereunder.
(o) The Trustee shall have no duty to monitor or inquire as to the
performance of the Company or Holders with respect to the Registration Rights
Agreement. The Trustee shall not be deemed to have knowledge of a Registration
Default unless a Responsible Officer shall have received written notification of
such event.
(p) In no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(q) The Trustee shall not be responsible or liable for any failure
or delay in the performance of its obligations under this Indenture arising out
of or caused, directly or indirectly, by circumstances beyond its reasonable
control, including without limitation, acts of God; earthquakes; fire; flood;
terrorism; wars and other military disturbances; sabotage; epidemics; riots;
interruptions; loss or malfunction of utilities, computer (hardware or software)
or communication services; accidents; labor disputes; acts of civil or military
authorities and governmental action; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.
SECTION 5.03 INDIVIDUAL RIGHTS OF TRUSTEE
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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 any of its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, must comply with
Sections 5.10 and 5.11.
SECTION 5.04 TRUSTEE'S DISCLAIMER
The Trustee makes no representation as to the validity, priority
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 in the Notes other than its certificate of authentication.
SECTION 5.05 NOTICE OF DEFAULTS
If a Default or Event of Default occurs and is continuing as to
which the Trustee has received notice pursuant to the provisions of this
Indenture, the Trustee shall mail to each Holder a notice of the Default or
Event of Default within 90 days after it occurs unless such Default or Event of
Default has been cured or waived. Except in the case of a Default or Event of
Default in payment of any amounts due with respect to any Note, the Trustee may
withhold the notice if and so long as it in good faith determines that
withholding the notice is in the best interests of Holders.
SECTION 5.06 REPORTS BY TRUSTEE TO HOLDERS
(a) Within 60 days after each May beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to each Holder if required by TIA Section
313(a) a brief report dated as of such May 15 that complies with TIA Section
313(c). In such event, the Trustee also shall comply with TIA Section 313(b) and
Section 313(d).
(b) A copy of each report at the time of its mailing to Holders
shall be mailed to the Company and filed by the Trustee with the SEC and each
stock exchange, if any, on which the Notes are listed. The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange.
SECTION 5.07 COMPENSATION AND INDEMNITY
(a) The Company shall pay to the Trustee from time to time such
compensation for its services as shall be agreed upon 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 out-of-pocket expenses incurred by it. Such expenses shall include
the reasonable compensation and out-of-pocket expenses of the Trustee's agents
and counsel.
(b) The Company shall indemnify the Trustee against any and all
loss, liability, damage, claim or expense (including the reasonable fees and
expenses of counsel and taxes other than those based upon the income of the
Trustee) incurred by it in connection with the acceptance or administration of
this trust and the performance of its duties hereunder, including the reasonable
costs and expenses of defending itself against any claim (whether asserted by
the Company, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers and duties hereunder. The Company
need not pay for any settlement made without its consent. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnification.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through the Trustee's negligence or willful
misconduct.
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(c) To secure the Company's payment obligations in this Section
5.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay amounts due
on particular Notes.
(d) The indemnity obligations of the Company with respect to the
Trustee provided for in this Section 5.07 shall survive any resignation or
removal of the Trustee.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 4.01(e) or (f) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 5.08 REPLACEMENT OF TRUSTEE
(a) 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 5.08.
(b) The Trustee may resign by so notifying the Company in writing
30 Business Days prior to such resignation. The Holders of a majority in
aggregate principal amount of the Notes then outstanding may remove the Trustee
by so notifying the Trustee and the Company in writing and may appoint a
successor Trustee with the Company's consent. The Company may remove the Trustee
if:
(i) the Trustee fails to comply with Section 5.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) 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.
(d) If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee (at the
Company's expense), the Company or the Holders of at least 10% in aggregate
principal amount of the outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
36
(e) If the Trustee fails to comply with Section 5.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(f) 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 5.07.
SECTION 5.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers by sale or otherwise all or substantially all of its corporate trust
business (including the administration of the trust created by this Indenture)
to, another corporation, the successor corporation without any further act shall
be the successor Trustee, if such successor corporation is otherwise eligible
hereunder.
SECTION 5.10 ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus (on a
consolidated basis with its Affiliates) of at least $100,000,000 as set forth in
its most recent published annual report of condition. The Trustee shall comply
with TIA Section 310(b).
SECTION 5.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VI
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 6.01 COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS
The Company shall not consolidate with, merge with or into, or
convey, transfer or lease all or substantially all of its assets (in one
transaction or a series of related transactions), to any Person, unless:
(a) either (A) the Company shall be the resulting, surviving or
transferee Person (the "SUCCESSOR PERSON") or (B) the Successor Person (if other
than the Company) (i) shall be a corporation, limited liability company,
partnership, trust or other business entity organized and existing under the
laws of the United States of America or any state thereof or the District of
37
Columbia (provided that if, as a result of such consolidation, merger,
conveyance, transfer or lease, the Notes would be convertible into Capital Stock
of a Person other than the Company, then such other Person shall be for United
States federal income tax purposes an association taxable as a corporation) and
(ii) shall expressly assume, by a supplemental indenture, executed and delivered
to the Trustee, in form satisfactory to the Trustee, all of the Company's
obligations for the due and punctual payment of the principal of, premium, if
any, and interest (including Additional Interest, if any) on all Notes and the
performance and observance of every covenant of this Indenture on the part of
the Company to be performed or observed and shall have provided for conversion
rights in accordance with Section 13.08;
(b) immediately after giving effect to such transaction, there is
no Event of Default, and no event which after notice or passage of time or both,
would become an Event of Default; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply
with this Article and the Notes.
SECTION 6.02 SUCCESSOR PERSON SUBSTITUTED
Upon any consolidation of the Company with, or merger of the
Company with or into, any other Person or any conveyance, transfer or lease of
all or substantially all of the assets of the Company to any Person in
accordance with Section 6.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and in the event of
any such conveyance or transfer, the Company (which term shall for this purpose
mean the Person named as the "Company" in the first paragraph of this Indenture
or any successor Person that shall theretofore become such in the manner
described in Section 6.01), except in the case of a lease to another Person,
shall be discharged from all obligations and covenants under this Indenture and
the Notes.
ARTICLE VII
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 7.01 WITHOUT CONSENT OF HOLDERS OF NOTES
Without the consent of any Holders of Notes, the Company, when
authorized by a Board Resolution or Board Resolutions, and the Trustee, at any
time and from time to time, may amend this Indenture and the Notes to:
(a) add to the covenants of the Company for the benefit of the
Holders;
(b) surrender any right or power herein conferred upon the
Company;
38
(c) make provision with respect to the conversion rights of
Holders pursuant to Section 13.08;
(d) provide for the assumption of the Company's obligations to the
Holders in the case of a merger, consolidation, conveyance, transfer or lease
pursuant to Article VI;
(e) increase the Conversion Rate, provided, that such increase in
the Conversion Rate shall not adversely affect the interest of the Holders;
(f) comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(g) make any changes or modifications to this Indenture necessary
in connection with the registration of any Notes and the shares of Common Stock
to be delivered upon conversion of any Notes under the Securities Act as
contemplated in the Registration Rights Agreement, provided, that such action
pursuant to this clause (g) does not, in the good faith opinion of the Board of
Directors of the Company and the Trustee, adversely affect the interests of the
Holders;
(h) cure any ambiguity, or correct or supplement any provision
herein that may be inconsistent with any other provision herein or that is
otherwise defective, provided, that such action pursuant to this clause (h) does
not, in the good faith opinion of the Board of Directors of the Company and the
Trustee, adversely affect the interests of the Holders;
(i) add or modify any other provisions with respect to matters or
questions arising under this Indenture that the Company and the Trustee may deem
necessary or desirable and that shall not be inconsistent with the provisions of
this Indenture, provided, that such action pursuant to this clause (i) does not
adversely affect the interests of the Holders; or
(j) comply with the procedures of the Depositary.
SECTION 7.02 WITH CONSENT OF HOLDERS OF NOTES
Except as provided below in this Section 7.02, this Indenture or
the Notes may be amended, modified or supplemented, and, subject to Sections
4.04 and 4.07, noncompliance in any particular instance with any provision of
this Indenture or the Notes may be waived, in each case (i) with the written
consent of the Holders of at least a majority in aggregate principal amount of
the outstanding Notes or (ii) by the adoption of a resolution at a meeting of
Holders of the outstanding Notes at which a quorum (as prescribed in Section
8.04) is present, by the Holders of a majority in aggregate principal amount of
the outstanding Notes represented at such meeting. Without the written consent
or the affirmative vote of each Holder so affected, an amendment, modification
or waiver under this Section 7.02 may not:
(a) change the maturity of the principal of, or any installment of
interest (including Additional Interest, if any) on, any Note;
(b) reduce the principal amount of, or premium, if any, or
interest (including Additional Interest, if any) on, any Note;
39
(c) change the currency of payment of principal of, premium, if
any, or interest (including Additional Interest, if any) on, any Note;
(d) impair the right of any Holder to institute suit for the
enforcement of any payment in or with respect to any Note;
(e) modify the obligations of the Company to maintain an office or
agency in the Borough of Manhattan in the City of New York pursuant to Section
9.02;
(f) amend the Designated Event Repurchase Right after the
occurrence of a Designated Event or the right to convert any Note in a manner
adverse to the Holders; provided, however, that the execution of a supplemental
indenture solely to permit a successor Person to assume the Company's
obligations under the Notes shall not be deemed to be adverse to the Holders;
(g) modify the redemption provisions of this Indenture in a manner
adverse to the Holders;
(h) reduce the percentage of aggregate principal amount of Notes
outstanding necessary to waive a default or amend or modify this Indenture,
except to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each outstanding Note
affected thereby; or
(i) reduce the requirements of Section 8.04 for quorum or voting,
or reduce the percentage of aggregate principal amount of the outstanding Notes
the consent of whose Holders is required for any such supplemental indenture or
the consent of whose Holders is required for any waiver provided for in this
Indenture.
It shall not be necessary for any Act of Holders of Notes under this Section
7.02 to approve the particular form of any proposal supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 7.03 COMPLIANCE WITH TRUST INDENTURE ACT
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 7.04 REVOCATION OF CONSENTS AND EFFECT OF CONSENTS OR VOTES
Until an amendment, supplement or waiver becomes effective, a
written consent to it by a Holder 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; provided, however, that unless a record date shall have been
established, any such Holder or subsequent Holder may revoke the consent as to
its Note or portion of a Note if the Trustee receives written notice of
revocation before the date the amendment, supplement or waiver becomes
effective.
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An amendment, supplement or waiver becomes effective on receipt by
the Trustee of written consents from or affirmative votes by, as the case may
be, the Holders of the requisite percentage of aggregate principal amount of the
outstanding Notes, and thereafter shall bind every Holder of Notes; provided,
however, if the amendment, supplement or waiver makes a change described in any
of the clauses (a) through (i) of Section 7.02, the amendment, supplement or
waiver shall bind only each Holder of a Note that has consented to it or voted
for it, as the case may be, and every subsequent Holder of a Note or portion of
a Note that evidences the same indebtedness as the Note of the consenting or
affirmatively voting, as the case may be, Holder.
The Company may, but shall not be obligated to, fix a special
record date (a "SPECIAL RECORD DATE") for the purpose of determining the Holders
entitled to consent to any amendment, supplement or waiver, which Special Record
Date shall be not more than 30 days prior to the first solicitation of such
consent. If a Special Record Date is fixed, then notwithstanding the proviso in
the first paragraph of this Section 7.04, those Persons who were Holders at such
Special Record Date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such Special Record Date. No such consent
shall be valid or effective for more than 90 days after such Special Record Date
unless consents from Holders of the requisite percentage in principal amount of
outstanding Notes required hereunder for the effectiveness of such consents
shall have also been given and not revoked within such 90 day period.
SECTION 7.05 NOTATION ON OR EXCHANGE OF NOTES
If an amendment, supplement or waiver changes the terms of a Note:
(a) the Trustee may require the Holder of a Note to deliver such
Notes to the Trustee, the Trustee may place an appropriate notation on the Note
about the changed terms and return it to the Holder and the Trustee may place an
appropriate notation on any Note thereafter authenticated; or
(b) if the Company or the Trustee so determines, the Company in
exchange for the Note shall issue and the Trustee shall authenticate a new Note
that reflects the changed terms.
Failure to make the appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment, supplement or waiver.
SECTION 7.06 TRUSTEE TO SIGN AMENDMENT, ETC.
The Trustee shall sign any amendment authorized pursuant to this
Article VII if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If the amendment does adversely affect
the rights, duties, liabilities or immunities of the Trustee, the Trustee may
but need not sign it. In signing or refusing to sign such amendment, the Trustee
shall be entitled to receive and shall be fully protected in relying upon an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that such
amendment is authorized or permitted by this Indenture.
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ARTICLE VIII
MEETING OF HOLDERS OF NOTES
SECTION 8.01 PURPOSES FOR WHICH MEETINGS MAY BE CALLED
A meeting of Holders of Notes may be called at any time and from
time to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Notes.
SECTION 8.02 CALL NOTICE AND PLACE OF MEETINGS
(a) The Trustee may at any time call a meeting of Holders of Notes
for any purpose specified in Section 8.01, to be held at such time and at such
place in the City of New York as the Trustee may determine. Notice of every
meeting of Holders of Notes, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 14.02, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
outstanding Notes shall have requested the Trustee to call a meeting of the
Holders of Notes for any purpose specified in Section 8.01, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication of the notice
of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Notes in the amount specified, as the case may be, may
determine the time and the place in the City of New York for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
paragraph (a) of this Section.
SECTION 8.03 PERSONS ENTITLED TO VOTE AT MEETINGS
To be entitled to vote at any meeting of Holders of Notes, a
Person shall be (a) a Holder of one or more outstanding Notes or (b) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more outstanding Notes by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 8.04 QUORUM; ACTION
The Persons entitled to vote a majority in principal amount of
the outstanding Notes shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Notes, be dissolved. In any other case,
the meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 8.02(a), except that such notice need be given only once and not less
than five days prior to the date on which the meeting is scheduled to be
reconvened.
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At a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to Section 7.02) shall be effectively passed and decided
if passed or decided by the Persons entitled to vote not less than a majority in
principal amount of outstanding Notes represented and voting at such meeting.
Any resolution passed or decisions taken at any meeting of Holders
of Notes duly held in accordance with this Section 8.04 shall be binding on all
the Holders of Notes, whether or not present or represented at the meeting.
SECTION 8.05 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Notes in regard to proof of the holding of Notes and of
the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Notes shall be
proved in the manner specified in Section 14.04 and the appointment of any proxy
shall be proved in the manner specified in Section 14.04. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 14.04 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be the Trustee) of the meeting, unless the meeting
shall have been called by the Company or by Holders of Notes as provided in
Section 8.02(b), in which case the Company or the Holders of Notes calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
outstanding Notes represented at the meeting.
(c) At any meeting each Holder of a Note or proxy shall be
entitled to one vote for each $1,000 principal amount of Notes held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Note challenged as not outstanding and ruled by
the chairman of the meeting to be not outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Note or proxy.
(d) Any meeting of Holders of Notes duly called pursuant to
Section 8.02 at which a quorum (as prescribed in Section 8.04) is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the outstanding Notes represented at the meeting, and the meeting may
be held as so adjourned without further notice.
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SECTION 8.06 COUNTING VOTES AND RECORDING ACTION OF MEETINGS
The vote upon any resolution submitted to any meeting of Holders
of Notes shall be by written ballots on which shall be subscribed the signatures
of the Holders of Notes or of their representatives by proxy and the principal
amounts and serial numbers of the outstanding Notes held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Notes shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 8.02 and, if applicable, Section 8.04.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE IX
COVENANTS
SECTION 9.01 PAYMENT OF NOTES
(a) The Company shall pay all amounts due with respect to the
Notes on the dates and in the manner provided in this Indenture and the Notes.
All such amounts shall be considered paid on the date due if the Paying Agent
holds (or, if the Company or a Subsidiary or an Affiliate of any of them acts as
Paying Agent, if it has segregated and holds in trust in accordance with Section
2.04) on that date money sufficient to pay the amount then due with respect to
the Notes.
(b) The Company shall pay interest on any overdue amount
(including, to the extent permitted by applicable law, overdue interest) at the
rate borne by the Notes as specified in Sections 2.01(c) and 2.12.
(c) If Additional Interest is payable by the Company, the Company
shall deliver to the Trustee a certificate to that effect stating (i) the amount
of such Additional Interest per $1,000 principal amount of the Notes that is
payable, (ii) the facts and calculations supporting the determination of such
amount and (iii) the date on which such interest is payable. Unless and until a
Responsible Officer of the Trustee receives such a certificate, the Trustee may
assume without inquiry that no Additional Interest is payable.
SECTION 9.02 MAINTENANCE OF OFFICE OR AGENCY
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(a) The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-Registrar) where Notes may be
surrendered for registration of transfer or exchange or conversion and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency (other than a change in the location of the office of the Trustee). If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
(b) The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the office of U.S. Bank Trust
National Association, an Affiliate of the Trustee at addressStreet100 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 10005, Attention: Corporate Trust
Services, as an agency of the Company in accordance with Section 2.03.
SECTION 9.03 LIMITATION ON CERTAIN TRANSACTIONS
The Company shall not become party to any transaction described in
Section 13.01(c)(iii) unless the terms of such transaction are consistent with
Sections 13.01(c)(iii) and 13.08.
SECTION 9.04 REPORTS
(a) At any time when the Notes or the shares of Common Stock
issuable upon conversion of the Notes are "restricted securities" within the
meaning of the Securities Act, the Company shall, upon request, provide to any
Holder or beneficial owner of Notes or prospective purchaser of Notes that so
requests the information required to be delivered pursuant to Rule 144A(d)(4).
Whether a Person is a beneficial owner shall be determined by the Company to the
Company's reasonable satisfaction.
(b) The Company will comply with the provisions of TIA Section
314(a).
(c) The Company (at its own expense) will deliver to the Trustee
within 15 days after the filing of the same with the SEC, copies of the
quarterly and annual reports and of the information, documents and other
financial reports, if any, that the Company may be required to file with the SEC
pursuant to Section 12 or 15(d) of the Exchange Act. In the event the Company is
at any time no longer subject to the reporting requirements of Section 12 or
15(d) of the Exchange Act, the Company shall continue to provide the Trustee
with such quarterly and annual reports and other financial reports, if any, that
the Company furnishes to its shareholders or stockholders. Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on an Officers'
Certificate).
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SECTION 9.05 COMPLIANCE CERTIFICATE
The Company shall deliver to the Trustee within 120 days after the
end of each fiscal year (beginning with the fiscal year ending on June 30, 2007)
of the Company an Officers' Certificate stating whether or not the signers know
of any continuing Default or Event of Default by the Company in performing any
of its obligations under this Indenture or the Notes. If such signers do know of
any such Default or Event of Default, the Officers' Certificate shall describe
the Default or Event of Default and its status.
SECTION 9.06 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 (in each case,
to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, 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 has been enacted.
SECTION 9.07 CORPORATE EXISTENCE
Subject to Article VI, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect their respective
corporate existence and the corporate existence of each of their respective
subsidiaries in accordance with the respective organizational documents of each
subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its subsidiaries; provided, however, that the Company shall not
be required to preserve any such right, license or franchise, or the corporate
existence of any subsidiary, if in the judgment of their respective Board of
Directors (i) such preservation or existence is not material to the conduct of
business of the Company and (ii) the loss of such right, license or franchise or
the dissolution of such subsidiary does not have a material adverse impact on
the Holders.
SECTION 9.08 NOTICE OF DEFAULT
In the event that any Default or Event of Default shall occur, the
Company will give prompt written notice of such Default or Event of Default to
the Trustee.
SECTION 9.09 MAINTENANCE OF PROPERTIES
The Company shall cause all properties used or useful in the
conduct of its business and the business of its Subsidiaries to be maintained
and kept in good condition, repair and working order and supplied with all
46
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times, except
where the failure to do so would not, individually or in the aggregate, have a
material adverse effect on the Company and its Subsidiaries, taken as a whole;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business and not disadvantageous in any material respect to the Holders.
SECTION 9.10 PAYMENT OF TAXES AND OTHER CLAIMS
The Company shall pay or discharge, or cause to be paid or
discharged, before the same may become delinquent, (i) all taxes, assessments
and governmental charges levied or imposed upon the Company or any subsidiary or
upon the income, profits or property of the Company, or any subsidiary (ii) all
claims for labor, materials and supplies which, if unpaid, might by law become a
lien or charge upon the property of the Company, and (iii) subject to Section
13.09, all stamps and other duties, if any, which may be imposed by the United
States or any political subdivision thereof or therein in connection with the
issuance, transfer, exchange or conversion of any Notes or with respect to this
Indenture; provided, however, that, in the case of clauses (i) and (ii), the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim (A) if the failure to do so
will not, in the aggregate, have a material adverse effect on the Company and
its Subsidiaries, taken as a whole, or (B) if the amount, applicability or
validity is being contested in good faith by appropriate proceedings.
SECTION 9.11 WAIVER OF CERTAIN COVENANTS
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 9.04, 9.09 and 9.10 (other than a
covenant or condition which under Section 7.02 cannot be modified or amended
without the consent of the Holder of each Note affected), if before the time for
such compliance the Holders shall, through the consent of not less than a
majority in principal amount of the Notes represented at such meeting, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee or any Paying Agent or Conversion Agent in respect of any such
covenant or condition shall remain in full force and effect. Nothing in this
Section is intended to limit the application of Sections 4.08, 7.01 and 7.02.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01 THE COMPANY'S RIGHT TO REDEEM; NOTICE TO TRUSTEE. Prior
to October 20, 2011, the Company may not redeem the Notes. On or after October
20, 2011, the Company, at its option, may redeem the Notes in accordance with
this Article X for cash at any time as a whole, or from time to time in part, at
a redemption price equal to 100% of the principal amount of Notes to be redeemed
plus accrued and unpaid interest (including Additional Interest, if any) to, but
not including, the Redemption Date (the "REDEMPTION PRICE").
47
If the Company elects to redeem Notes, it shall notify the Trustee in
writing of the Redemption Date, the principal amount of Notes to be redeemed and
the Redemption Price. The Company shall give this notice to the Trustee by an
Order at least 45 days before the Redemption Date (unless a shorter notice shall
be satisfactory to the Trustee).
SECTION 10.02 SELECTION OF NOTES TO BE REDEEMED. If fewer than all of
the outstanding Notes are to be redeemed, unless the procedures of the
Depositary provide otherwise, the Trustee shall select the Notes to be redeemed
by lot, pro rata or by some other method. The Trustee shall make the selection
within five Business Days after it receives the notice provided for in Section
10.01 from outstanding Notes not previously called for redemption.
Notes and portions of Notes that the Trustee selects shall be in
principal amounts of $1,000 or an integral multiple of $1,000. Provisions of
this Indenture that apply to 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 the Notes to be redeemed.
Notes and portions of Notes that are to be redeemed are convertible by
the Holder until 5:00 P.M., New York City time, on the Business Day immediately
preceding the Redemption Date. If any Note selected for partial redemption is
converted in part before termination of the conversion right with respect to the
portion of the Note so selected, the converted portion of such Note shall be
deemed (so far as may be) to be the portion selected for redemption. Notes which
have been converted during a selection of Notes to be redeemed may be treated by
the Trustee as outstanding for the purpose of such selection.
SECTION 10.03 NOTICE OF REDEMPTION. At least 30 days but not more than
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first class mail, postage prepaid, to each Holder of Notes to be redeemed.
The notice of redemption shall identify the Notes to be redeemed
and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the then current Conversion Rate and the related Observation
Period for conversion of Notes;
(d) the name and address of the Paying Agent and Conversion Agent;
(e) that Notes called for redemption may be converted at any time
prior to 5:00 P.M., New York City time, on the Business Day preceding the
Redemption Date;
(f) that Holders who want to convert their Notes must satisfy the
requirements set forth in Article XIII;
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(g) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(h) in the case of any Note redeemed in part, that the Holder of
such Note will receive a new Note or Notes, of authorized denominations for the
principal amount thereof remaining unredeemed;
(i) if fewer than all of the outstanding Notes are to be redeemed,
the certificate numbers, if any, and principal amounts of the particular Notes
to be redeemed;
(j) that, unless the Company defaults in making payment of such
Redemption Price, any interest (including Additional Interest, if any) on Notes
called for redemption will cease to accrue on and after the Redemption Date;
(k) the CUSIP number(s) of the Notes; and
(l) any other information the Company wants to present.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; provided,
however, that the Company makes such request at least five Business Days (unless
a shorter period shall be satisfactory to the Trustee) prior to the date by
which such notice of redemption must be given to Holders in accordance with this
Section 10.03; provided, further, that the text of the notice of redemption
shall be prepared by the Company.
SECTION 10.04 EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is given, Notes called for redemption become due and payable on the
Redemption Date and at the Redemption Price, except for Notes which are
converted in accordance with the terms of this Indenture. Upon surrender to the
Paying Agent, such redeemed Notes shall be paid at the Redemption Price.
SECTION 10.05 DEPOSIT OF REDEMPTION PRICE. Prior to 11:00 A.M., New
York City time, on the applicable Redemption Date, the Company shall deposit
with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of any
of them is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.04) in immediately available funds money sufficient to
make cash payments due on all Notes or portions thereof which are to be redeemed
as of such Redemption Date other than Notes or portions of Notes called for
redemption which on or prior thereto have been delivered by the Company to the
Trustee for cancellation or have been converted.
If the Paying Agent holds, in accordance with the terms hereof, at
11:00 A.M., New York City time, on the applicable Redemption Date, cash
sufficient to pay the Redemption Price of any Notes for which notice of
redemption has been given, then, on such Redemption Date, such Notes shall cease
to be outstanding and interest (including Additional Interest, if any) shall
cease to accrue on such Notes or portions thereof, whether or not such Notes are
delivered to the Paying Agent, and the rights of the Holders in respect thereof
shall terminate (other than the right to receive the Redemption Price upon
delivery of such Notes).
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SECTION 10.06 NOTES REDEEMED IN PART. Any Physical Note which is to be
redeemed only in part shall be surrendered at the office of the Paying Agent and
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Note, without charge, a new Note or Notes, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
the unredeemed portion of the Note surrendered.
SECTION 10.07 REPAYMENT TO THE COMPANY. To the extent that the aggregate
amount of cash deposited by the Company pursuant to Section 10.05 exceeds the
aggregate Redemption Price of the Notes or portions thereof which the Company is
redeeming as of the Redemption Date, then, promptly after the Redemption Date,
the Paying Agent shall return any such excess to the Company.
SECTION 10.08 OTHER REPURCHASES. The Company may, from time to time, at its
option (and nothing contained in this Indenture shall limit the Company's right
to), repurchase the Notes in open market purchases or negotiated transactions,
without any prior notice to any Holders, provided that in exercising its right
under this Section 10.08, the Company complies with all applicable federal and
state securities laws.
ARTICLE XI
REPURCHASE OF NOTES AT THE OPTION OF HOLDERS ON SPECIFIC DATES
SECTION 11.01 REPURCHASE OF NOTES AT THE OPTION OF HOLDERS ON SPECIFIC
DATES.
(a) Notes shall be repurchased by the Company for cash, at the option
of the Holder thereof (the "REPURCHASE RIGHT"), on October 15, 2011, October 15,
2016 and October 15, 2021 (each, a "REPURCHASE Date") at a price equal to 100%
of the principal amount of those Notes plus accrued and unpaid interest
(including Additional Interest, if any) to, but excluding, the Repurchase Date
(the "REPURCHASE PRICE"), subject to satisfaction by or on behalf of the Holder
of the requirements set forth in Section 11.01(c).
(b) No later than 20 Business Days prior to a Repurchase Date, the
Company shall mail a written notice of the Repurchase Right by first class mail
to the Trustee and to each Holder, at their addresses shown in the register of
the Registrar (and to beneficial owners as required by applicable law). The
notice shall include a form of Repurchase Notice to be completed by the Holder
and shall briefly state, as applicable:
(i) the date by which the Repurchase Notice must be delivered to
the Paying Agent in order for a Holder to exercise the repurchase
right;
(ii) the Repurchase Date;
(iii) the Repurchase Price;
(iv) the name and address of the Paying Agent and the Conversion
Agent;
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(v) the conversion rights, if any, of the Notes;
(vi) the Conversion Rate and any adjustments thereto;
(vii) that the Notes as to which a Repurchase Notice has been
given may be converted if they are otherwise convertible pursuant to
Article XIII hereof only if the Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(viii) the procedures for withdrawing a Repurchase Notice;
(ix) that the Notes must be surrendered to the Paying Agent to
collect payment;
(x) that the Repurchase Price for any Note as to which a
Repurchase Notice has been duly given and not withdrawn will be paid
promptly following the later of the Repurchase Date and the time of
surrender of such Note;
(xi) the procedures the Holder must follow to exercise its
Repurchase Right under this Section 11.01;
(xii) that, unless the Company defaults in making payment of such
Repurchase Price, any interest (including Additional Interest, if any)
on Notes surrendered for repurchase by the Company will cease to accrue
on and after the Repurchase Date; and
(xiii) the CUSIP number(s) of the Notes.
At the Company's request, the Trustee shall give the notice of
Repurchase Right in the Company's name and at the Company's expense; provided,
however, that the Company makes such request at least three Business Days
(unless a shorter period shall be satisfactory to the Trustee) prior to the date
by which such notice of Repurchase Right must be given to the Holder in
accordance with this Section 11.01(b); provided, further, that the text of the
notice of Repurchase Right shall be prepared by the Company.
(c) A Holder may exercise its right specified in Section 11.01(a) upon
delivery of a written notice of repurchase (a "REPURCHASE NOTICE") to the Paying
Agent at any time during the period beginning at 9:00 A.M., New York City time,
on the date that is 20 Business Days immediately preceding the Repurchase Date
until 5:00 P.M., New York City time, on the Repurchase Date, stating:
(i) the certificate number of the Note which the Holder will
deliver to be repurchased, if such Notes are in certificated form;
(ii) the portion of the principal amount of the Note which the
Holder will deliver to be repurchased, which portion must be in
principal amounts of $1,000 or an integral multiple of $1,000; and
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(iii) that such Note shall be repurchased by the Company as of
the Repurchase Date pursuant to the applicable terms and conditions
specified in the Notes and in this Indenture.
If such Notes are held in book-entry form through the Depository, the
Repurchase Notice must comply with appropriate Depository procedures.
Upon such delivery of the Notes to the Paying Agent, such Holder shall
be entitled to receive, upon request, from the Paying Agent a nontransferable
receipt of deposit evidencing such delivery.
Payment of the Repurchase Price for a Note for which a Repurchase
Notice has been delivered and not withdrawn is conditioned upon book-entry
transfer or delivery of such Note, together with necessary endorsements, to the
Paying Agent at its corporate trust office in the Borough of Manhattan, the City
of New York, or any other office of the Paying Agent, at any time after delivery
of such Repurchase Notice, provided, however, that such Repurchase Price shall
be so paid pursuant to this Section 11.01 only if the Note so delivered to the
Paying Agent shall conform in all respects to the description thereof in the
related Repurchase Notice.
The Company shall repurchase from the Holder thereof, pursuant to this
Section 11.01, a portion of a Note, so long as the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the repurchase of all of a Note also apply to the
repurchase of such portion of such Note.
Any repurchase by the Company contemplated pursuant to the provisions
of this Section 11.01 shall be consummated by the delivery of the consideration
to be received by the Holder promptly following the later of the Repurchase Date
and the time of delivery of the Note.
Notwithstanding anything contained herein to the contrary, any Holder
delivering to the Paying Agent the Repurchase Notice contemplated by this
Section 11.01(c) shall have the right to withdraw such Repurchase Notice at any
applicable time prior to 5:00 P.M., New York City time, on the Repurchase Date
by delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 11.02.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Repurchase Notice or written notice of withdrawal thereof.
SECTION 11.02 EFFECT OF REPURCHASE NOTICE. Upon receipt by the Paying
Agent of the Repurchase Notice specified in Section 11.01(c), the Holder of the
Note in respect of which such Repurchase Notice was given shall (unless such
Repurchase Notice is withdrawn as specified in the following paragraph)
thereafter be entitled to receive solely the Repurchase Price with respect to
such Note. Such Repurchase Price shall be paid to such Holder, subject to
receipt of cash by the Paying Agent, promptly following the later of (a) the
Repurchase Date with respect to such Note (provided the conditions in Section
11.01(c) have been satisfied) and (b) the time of book-entry transfer or
delivery of such Note to the Paying Agent by the Holder thereof in the manner
required by Section 11.01(c). Notes in respect of which a Repurchase Notice has
been given by the Holder thereof may not be converted pursuant to Article XIII
hereof on or after the date of the delivery of such Repurchase Notice unless
such Repurchase Notice has first been validly withdrawn as specified in the
following paragraph.
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A Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the
Repurchase Notice at any time prior to 5:00 P.M., New York City time, on the
Repurchase Date, specifying:
(a) the certificate number (or such withdrawal notice must comply
with the appropriate Depositary procedures) of the Note in respect of which such
notice of withdrawal is being submitted;
(b) the principal amount of the Note with respect to which such
notice of withdrawal is being submitted; and
(c) the principal amount, if any, of such Note which remains
subject to the original Repurchase Notice and which has been or will be
delivered for repurchase by the Company.
There shall be no purchase of any Notes pursuant to Section 11.01 if
there has occurred (prior to, on or after, as the case may be, the giving, by
the Holders of such Notes, of the required Repurchase Notice) and is continuing
an Event of Default (other than a default in the payment of the Repurchase Price
with respect to such Notes). The Paying Agent will promptly return to the
respective Holders any Notes (x) with respect to which a Repurchase Notice has
been withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Repurchase Price with respect to such Notes) in which case, upon such return,
the Repurchase Notice with respect thereto shall be deemed to have been
withdrawn.
SECTION 11.03 DEPOSIT OF REPURCHASE PRICE. Prior to 11:00 A.M., New
York City time, on the first Business Day after the Repurchase Date, the Company
shall deposit with the Paying Agent (or if the Company or a Subsidiary or an
Affiliate of any of them is acting as the Paying Agent, shall segregate and hold
in trust as provided in Section 2.04) in immediately available funds, money
sufficient to make cash payments due on all the Notes or portions thereof which
are to be repurchased on such Repurchase Date.
If the Paying Agent holds, in accordance with the terms hereof, at
11:00 A.M., New York City time, on the first Business Day after the Repurchase
Date, cash sufficient to pay the Repurchase Price of any Notes for which a
Repurchase Notice has been tendered and not withdrawn pursuant to Section 11.02,
then, on and after such date, such Notes shall cease to be outstanding and any
interest (including Additional Interest, if any) shall cease to accrue on such
Notes or portions thereof, whether or not book-entry transfer of such Notes have
been made or such Notes are delivered to the Paying Agent, and the rights of the
Holders in respect thereof shall terminate (other than the right to receive the
Repurchase Price upon delivery of such Notes).
SECTION 11.04 NOTES REPURCHASED IN PART. Any Physical Note which is to
be repurchased 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 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 repurchased.
53
SECTION 11.05 COVENANT TO COMPLY WITH SECURITIES LAWS UPON REPURCHASE
OF NOTES.
In connection with any offer to repurchase Notes under Section 11.01
hereof (provided that such offer or repurchase constitutes an "issuer tender
offer" for purposes of Rule 13e-4 (which term, as used herein, includes any
successor provision thereto) under the Exchange Act at the time of such offer or
purchase), and subject to any exemptions under applicable law, the Company shall
(i) comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the
Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form
or report) under the Exchange Act, and (iii) otherwise comply with all Federal
and state securities laws so as to permit the rights and obligations under
Section 11.02 to be exercised in the time and in the manner specified in Section
11.02.
To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Article XI, the Company's
compliance with such laws and regulations including the extension of the payment
or notice periods contemplated by this Article, shall not in and of itself cause
a breach of their obligations under this Article XI.
SECTION 11.06 REPAYMENT TO THE COMPANY.
To the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 11.03 exceeds the aggregate Repurchase Price of the
Notes or portions thereof which the Company is obligated to repurchase on the
Repurchase Date, then, promptly after the Repurchase Date, the Paying Agent
shall return any such excess to the Company.
ARTICLE XII
REPURCHASE OF NOTES AT OPTION OF THE HOLDERS
UPON A DESIGNATED EVENT
SECTION 12.01 REPURCHASE AT THE OPTION OF THE HOLDER UPON A DESIGNATED
EVENT.
(a) In the event that a Designated Event shall occur at any time prior
to the Maturity Date, then each Holder shall have the right (a "DESIGNATE EVENT
REPURCHASE RIGHT"), at such Holder's option, to require the Company to
repurchase, and upon the exercise of such Designated Event Repurchase Right the
Company shall repurchase, such Holder's Notes, in whole or in part, of $1,000 or
any integral multiple of $1,000 in excess thereof or the entire principal amount
of the Notes held by any Holder (provided that no single Note may be repurchased
in part unless the portion of the principal amount of such Note to be
outstanding after such repurchase is equal to $1,000 or integral multiples of
$1,000 in excess thereof for cash), on the date specified by the Company (a
"DESIGNATED EVENT REPURCHASE DATE") that is 30 Business Days after the date of a
Designated Event Company Notice (as defined in Section 12.02) at a purchase
price equal to 100% of the principal amount of the Notes to be repurchased plus
accrued and unpaid interest (including Additional Interest, if any) to, but
excluding, such Designated Event Repurchase Date (the "DESIGNATED EVENT
REPURCHASE PRICE").
54
(b) To exercise a Designated Event Repurchase Right, a Holder shall
deliver to the Company or its designated agent (i) prior to 5:00 P.M., New York
City time, on a Designated Event Repurchase Date specified in the Designated
Event Company Notice, written notice of the Holder's exercise of such right,
which notice shall set forth the name of the Holder, the principal amount of the
Notes to be repurchased (and, if any Note is to repurchased in part, the serial
number thereof, the portion of the principal amount thereof to be repurchased
and the name of the Person in which the portion thereof to remain outstanding
after such repurchase is to be registered, subject to Section 2.16) and a
statement that an election to exercise such Designated Event Repurchase Right is
being made thereby (a "DESIGNATED EVENT REPURCHASE NOTICE") and (ii) the Notes
with respect to which such Designated Event Repurchase Right is being exercised
duly endorsed for transfer. If such Notes are held in book-entry form through
the Depository, such Designated Event Repurchase Notice must comply with
Depositary procedures.
(c) The Paying Agent shall promptly notify the Company of the receipt
by it of a Designated Event Repurchase Notice.
(d) Any repurchase by the Company contemplated pursuant to the
provisions of this Section 12.01 shall be consummated by the delivery from the
Company to the Paying Agent of the consideration to be received by the Holder on
the Trading Day immediately following a Designated Event Repurchase Date.
SECTION 12.02 NOTICE OF OPTIONAL REPURCHASE TO BE PROVIDED BY THE
COMPANY
(a) Unless the Company shall have theretofore called for redemption all
of the outstanding Notes, within ten Trading Days prior to, but not including,
the expected effective date of a Designated Event, the Company shall give to all
Holders of Notes and to the Trustee, in the manner provided in Section 14.02,
notice (the "DESIGNATED EVENT COMPANY NOTICE") of the occurrence of the
Designated Event and of the Designated Event Repurchase Right set forth herein
arising as a result thereof.
(b) Each Designated Event Company Notice shall state:
(i) the Designated Event Repurchase Date;
(ii) the date by which the Designated Event Repurchase Right must
be exercised;
(iii) whether the Designated Event is a Termination of Trading or
a Change in Control;
(iv) the Designated Event Repurchase Price;
55
(v) a description of the procedure that a Holder must follow to
exercise a Designated Event Repurchase Right, and the place or places
where such Notes are to be surrendered for payment of the Designated
Event Repurchase Price;
(vi) that on the Designated Event Repurchase Date the Designated
Event Repurchase Price will become due and payable upon each such Note
designated by the Holder to be repurchased, and that interest thereon
will cease to accrue on and after such date;
(vii) the Conversion Rate then in effect and the place or places
where such Notes may be surrendered for conversion;
(viii) if the Designated Event is a Make Whole Premium Designated
Event and the Company must, or in the case of a Public Acquirer Change
in Control elects, to pay the Make Whole Premium upon conversion, the
proportion of the Make Whole Premium to be paid in cash and shares of
Common Stock and the method of calculating the Share Price of such
Common Stock; and
(ix) the place or places that the Note certificate with the
election of Holder to require repurchase as specified in form of Global
Note shall be delivered.
(c) No failure of the Company to give the foregoing notices or
defect therein shall limit any Holder's right to exercise a Designated Event
Repurchase Right or affect the validity of the proceedings for the repurchase of
Notes.
(d) If any of the foregoing provisions or other provisions of this
Article XII are inconsistent with applicable law, such law shall govern.
SECTION 12.03 EFFECT OF DESIGNATED EVENT REPURCHASE NOTICE
Upon receipt by the Paying Agent of the Designated Event Repurchase
Notice specified in Section 12.01(b), the Holder of the Note in respect of which
such Designated Event Repurchase Notice was given shall (unless such Designated
Event Repurchase Notice is withdrawn as specified in the following two
paragraphs) thereafter be entitled to receive solely the Designated Event
Repurchase Price with respect to such Note. Such Designated Event Repurchase
Price shall be paid to such Holder, subject to receipt of funds and/or
securities by the Paying Agent, promptly following the later of (x) the
Designated Event Repurchase Date with respect to such Note (provided the
conditions in Section 12.01(b) have been satisfied) and (y) the time of
book-entry transfer or delivery of such Note to the Paying Agent by the Holder
thereof in the manner required by Section 12.01(b). Notes in respect of which a
Designated Event Repurchase Notice has been given by the Holder thereof may not
be converted pursuant to Article XIII hereof on or after the date of the
delivery of such Designated Event Repurchase Notice unless such Designated Event
Repurchase Notice has first been validly withdrawn as specified in the following
two paragraphs.
A Designated Event Repurchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent in
accordance with the procedures set forth in the Designated Event Company Notice
at any time prior to the 5:00 P.M., New York City time on the Business Day
preceding the Designated Event Repurchase Date specifying:
56
(i) the certificate number, if any, or the appropriate Depositary
procedures, if applicable, 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; and
(iii) the principal amount, if any, of such Note which remains
subject to the original Designated Event Repurchase Notice and which
has been or will be delivered for repurchase by the Company.
There shall be no purchase of any Notes pursuant to Section 12.01 if
there has occurred (prior to, on or after, as the case may be, the giving, by
the Holders of such Notes, of the required Designated Event Repurchase Notice)
and is continuing an Event of Default (other than a default in the payment of
the Designated Event Repurchase Price with respect to such Notes). The Paying
Agent will promptly return to the respective Holders any Notes (x) with respect
to which a Designated Event Repurchase Notice has been withdrawn in compliance
with this Indenture, or (y) held by it during the continuance of an Event of
Default (other than a default in the payment of the Designated Event Repurchase
Price with respect to such Notes) in which case, upon such return, the
Designated Event Repurchase Notice with respect thereto shall be deemed to have
been withdrawn.
SECTION 12.04 DEPOSIT OF DESIGNATED EVENT REPURCHASE PRICE
(a) Payment of the Designated Event Repurchase Price for a Note for
which a Designated Event Repurchase Notice has been delivered and not withdrawn
is conditioned upon book-entry transfer or delivery of such Note, together with
necessary endorsements, to the Paying Agent at its corporate trust office in the
Borough of Manhattan, the City of New York, or any other office of the Paying
Agent, at any time after delivery of such Designated Event Repurchase Notice.
Upon such delivery of the Notes to the Paying Agent, such Holder shall be
entitled to receive, upon request, from the Paying Agent a nontransferable
receipt of deposit evidencing such delivery.
(b) Prior to 11:00 A.M., New York City time, on the first Business Day
after the Designated Event Repurchase Date, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary or an Affiliate of any of them
is acting as the Paying Agent, shall segregate and hold in trust as provided in
Section 2.04) in immediately available funds, money or United States Government
Treasury Notes sufficient to make payments due on all the Notes or portions
thereof which are to be repurchased on such Repurchase Date.
If the Paying Agent holds, in accordance with the terms hereof, at
11:00 A.M., New York City time, on the first Business Day after the Designated
Event Repurchase Date, money or United States Government Treasury Notes
sufficient to pay the Designated Event Repurchase Price of the Notes on the
Designated Event Repurchase Date for which a Designated Event Repurchase Notice
57
has been tendered and not withdrawn pursuant to Section 12.03, then, on and
after such date, such Notes shall cease to be outstanding and any interest
(including Additional Interest, if any) shall cease to accrue on such Notes or
portions thereof, whether or not book-entry transfer of such Notes have been
made or such Notes are delivered to the Paying Agent, and the rights of the
Holders in respect thereof shall terminate (other than the right to receive the
Designated Event Repurchase Price upon delivery of such Notes). If such
Designated Event Repurchase Date is after a Regular Record Date and on or prior
to the corresponding Interest Payment Date, the full amount of accrued and
unpaid interest (including Additional Interest, if any) payable in such Interest
Payment Date shall be payable in cash to the Holders of such Notes registered as
such at the close of business on the relevant Regular Record Date.
SECTION 12.05 NOTES REPURCHASED IN PART.
Any Note which is to be repurchased 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 12.06 COVENANT TO COMPLY WITH SECURITIES LAWS UPON DESIGNATED
EVENT REPURCHASE OF NOTES.
In connection with any offer to repurchase Notes under Section 12.01
hereof (provided that such offer or repurchase constitutes an "issuer tender
offer" for purposes of Rule 13e-4 (which term, as used herein, includes any
successor provision thereto) under the Exchange Act at the time of such offer or
purchase), and subject to any exemptions under applicable law, the Company shall
(i) comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the
Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form
or report) under the Exchange Act, and (iii) otherwise comply with all Federal
and state securities laws so as to permit the rights and obligations under
Section 12.02 to be exercised in the time and in the manner specified in Section
12.02.
To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Article XII, the Company's compliance with
such laws and regulations including the extension of the payment or notice
periods contemplated by this Article, shall not in and of itself cause a breach
of their obligations under this Article XII.
SECTION 12.07 REPAYMENT TO THE COMPANY.
To the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 12.03 exceeds the aggregate Designated Event
Repurchase Price of the Securities or portions thereof which the Company is
obligated to purchase as of the Designated Event Repurchase Date then the
Trustee or the Paying Agent, as the case may be, shall return any such excess to
the Company.
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ARTICLE XIII
CONVERSION
SECTION 13.01 RIGHT TO CONVERT.
(a) Subject to and in compliance with the provisions of this Indenture,
each Holder shall have the right, at such Holder's option, at any time on or
after September 15, 2026, through the close of business on the scheduled Trading
Day immediately preceding the Maturity Date, to convert the principal amount of
any such Notes, or any portion of such principal amount which is $1,000 or an
integral multiple thereof at the Conversion Rate then in effect.
(b) Subject to and upon compliance with the provisions of this
Indenture, each Holder shall have the right, at such Holder's option, at any
time following the initial issuance of the Notes hereunder through 5:00 P.M.,
New York City time on September 14, 2026, to convert the principal amount of any
such Notes, or any portion of such principal amount which is $1,000 or an
integral multiple thereof at the Conversion Rate then in effect:
(i) during any fiscal quarter (and only during such fiscal
quarter) commencing after December 31, 2006, if the Last Reported Sales
Prices of the Common Stock for at least 20 Trading Days during the
period of the 30 consecutive Trading Days ending on the last Trading
Day of the preceding fiscal quarter is greater than or equal to 120% of
the applicable Conversion Price on such last Trading Day;
(ii) during the five Business Day period immediately following a
ten consecutive Trading Day period (the "MEASUREMENT PERIOD") in which
the Trading Price per $1,000 principal amount of notes, as determined
following a request by a Holder in accordance with Section 13.01(f),
for each day of such Measurement Period was less than 98% of the
product of the Last Reported Sales Price of the Common Stock on such
Trading Day and the applicable Conversion Rate in effect on such
Trading Day;
(iii) if such Note has been called for redemption pursuant to
Article X hereof at any time prior to 5:00 P.M., New York City time, on
the Business Day immediately preceding the applicable Redemption Date,
after which time such Holder's right to convert shall expire unless the
Company defaults in the payment of the Redemption Price;
(iv) as provided in Section 13.01(c).
(c) In the event that:
(i) (A) the Company elects to issue to all or substantially all
the holders of Common Stock certain rights entitling them to purchase,
for a period expiring within 60 days after the date of the
distribution, shares of Common Stock at less than the average of the
Last Reported Sales Prices of a share of Common Stock for the ten
consecutive Trading Day period ending on the Trading Day preceding the
announcement of such issuance; or
59
(B) the Company elects to distribute to all or substantially all
the holders of Common Stock assets, debt securities or certain rights
to purchase the Company's securities, which distribution has a per
share value, as reasonably determined by the Board of Directors of the
Company, exceeding 10% of the Last Reported Sales Price of the Common
Stock on the day preceding the declaration date for such distribution;
then, in each case, the Company must notify, in writing, Holders of
Notes of the occurrence of such an event at least 35 scheduled Trading
Days prior to the Ex Date for any such distribution. Once the Company
has given such notice, Holders may surrender their Notes for conversion
at any time until the earlier of the 5:00 P.M., New York City time, on
the Business Day immediately preceding the Ex Date or the date of
announcement by the Company that the distribution will not take place,
even if the notes are not otherwise convertible at such time;
(ii) the Company is party to a transaction described in clause (3)
of the definition of Change in Control (without, for the avoidance of
doubt, giving effect to the clause (b) thereof), the Company shall
notify the Holders, in the manner described in Section 13.02, at least
35 scheduled Trading Days prior to the anticipated effective date of
such transaction. Once the Company has given such notice, Holders may
surrender Notes for conversion at any time until 35 calendar days after
the actual effective date of such transaction (or, if such transaction
also constitutes a Designated Event, the related Designated Event
Repurchase Date). In addition, Holders may surrender all or a portion
of their Notes for conversion if any other type of transaction
involving a Designated Event occurs. In such event, Holders may
surrender Notes for conversion at anytime beginning on the actual
effective date of such Designated Event until and including the date
that is 30 calendar days after the actual effective date of such
transaction or, if later, until the Designated Event Repurchase Date;
(iii) the Company reclassifies or changes its outstanding Common
Stock or merges, consolidates or combines with, or sells or conveys all
or substantially all of the Company's properties and assets to, any
other Person, as a result of which transaction holders of the Common
Stock are entitled to receive stock, securities or other property or
assets (including cash or any combination thereof) with respect to or
in exchange for such Common Stock, then the Notes shall be convertible
only into the kind and amount of shares of stock and other securities
or property or assets (including cash or any combination thereof) that
the Holder thereof would have been entitled to receive upon the
transaction had such Notes been converted into shares of Common Stock
immediately preceding any of these events or, if the Company so elects
pursuant to Section 13.06, into shares of the Public Acquirer Common
Stock (the "REFERENCE PROPERTY"). If the transaction causes the Common
Stock to be converted into the right to receive more than a single type
of consideration (determined based in part upon any form of stockholder
election), the Reference Property into which the Notes shall be
convertible shall be deemed to be the weighted average of the types and
amounts of consideration received by the holders of Common Stock that
affirmatively make such an election. In addition, if such transaction
also constitutes a Make Whole Premium Designated Event, subject to
Section 13.06, Holders may also receive a Make Whole Premium, which
will be the kind and amount of cash, securities and other assets or
property such Holder would have received of such Holder held such
number of additional shares at set forth in Section 13.05.
60
(d) If a Holder has submitted any or all of such Holder's Notes for
repurchase in connection with a Designated Event, the conversion rights on the
Notes so subject to repurchase shall expire at 5:00 P.M. New York City time, on
the Business Day preceding the Designated Event Repurchase Date, unless the
company defaults in the payment of the Designated Event Repurchase Price. A
conversion of Notes by a Holder shall be deemed for the purposes of this clause
(d) to be "in connection," with a Designated Event if the Conversion Notice is
received by the Conversion Agent subsequent to the effective date of a
Designated Event, but before 5:00 P.M., New York City time, on the second
Business Day immediately preceding the Designated Event Repurchase Date as
specified in the Designated Event Company Notice relating to such Designated
Event.
(e) Notwithstanding the foregoing, a Note in respect of which a Holder
has delivered a Repurchase Notice or a Designated Event Repurchase Notice
exercising such Holder's option to require the Company to repurchase such Note
may be converted only if such notice of exercise is withdrawn in accordance with
Article XI or Article XII hereof prior to 5:00 P.M., New York City time on the
Business Day immediately preceding the Repurchase Date or the Designated Event
Repurchase Date, as the case may be.
(f) In connection with any potential conversion pursuant to Section
13.01(b)(ii), the Bid Solicitation Agent shall have no obligation to determine
the Trading Price unless the Company has requested such determination, and the
Company shall have no obligation to request such determination unless a Holder
has provided the Company with reasonable evidence that the Trading Price per
$1,000 Principal Amount of Notes would be less than 98% of the product of the
Last Reported Sales Price of the Common Stock and the Conversion Rate. At such
time as the Company has determined that a Holder has provided such evidence to
the Company, the Company shall instruct the Bid Solicitation Agent, in writing,
to determine the Trading Price beginning on the next Trading Day and on each
successive Trading Day until the Trading Price is greater than or equal to 98%
of the product of the Last Reported Sales Price of the Common Stock and the
Conversion Rate.
SECTION 13.02 CONVERSION PROCEDURES.
(a) Each Note shall be convertible at the office of the Conversion
Agent.
(b) In order to exercise the conversion privilege with respect to any
interest in Notes in global form, the Holder must complete the appropriate
instruction form for conversion pursuant to the Depositary's book-entry
conversion program, furnish appropriate endorsements and transfer documents if
required by the Company or the Trustee or Conversion Agent, and pay the funds,
if any, required by this Section 13.02 and any transfer taxes if required
pursuant to Section 13.09. In order to exercise the conversion privilege with
respect to any Notes in certificated form, the Holder of any such Notes to be
converted, in whole or in part, shall:
61
(i) complete and manually sign the conversion notice provided on
the back of the Note (the "CONVERSION NOTICE") or facsimile of the
conversion notice and deliver such notice to a Conversion Agent;
(ii) surrender the Note to a Conversion Agent;
(iii) furnish appropriate endorsements and transfer documents, if
required;
(iv) make any payments required under Section 2.01(c); and
(v) if required, pay any transfer or similar tax, if any.
The date on which the Holder satisfies all of the requirements set
forth in (i) through (v) above is the "CONVERSION DATE." The Notes shall be
deemed to have been converted immediately prior to 5:00 P.M., New York City
time, on the Conversion Date.
(c) Each Conversion Notice shall also state the name or names (with
address or addresses) in which any certificate or certificates for shares of
Common Stock which shall be issuable on such conversion shall be issued. All
such Notes surrendered for conversion shall, unless the shares issuable on
conversion are to be issued in the same name as the registration of such Notes,
be duly endorsed by, or be accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or his duly authorized
attorney.
(d) As promptly as practicable after the later of (i) the Conversion
Date (but in no event later than 5 Business Days after the Conversion Date) or
(ii) the date all the calculations necessary to make such payment and delivery
have been made (but in no event later than as specified in Section 13.03(c)),
subject to compliance with Section 13.09 and any restrictions on transfer if
shares issuable on conversion are to be issued in a name other than that of the
Holder (as if such transfer were a transfer of the Notes (or portion thereof) so
converted), the Company shall issue and shall deliver to such Holder at the
office of the Conversion Agent, a check or cash and a certificate or
certificates for the number of full shares of Common Stock issuable in
accordance with the provisions of this Article XIII, if applicable. In case any
Notes of a denomination greater than $1,000 shall be surrendered for partial
conversion, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of the Notes so surrendered, without charge to him, new
Notes in authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Notes.
Each conversion shall be deemed to have been effected as to any such
Notes (or portion thereof) on the date on which the requirements set forth above
in this Section 13.02 have been satisfied as to such Notes (or portion thereof),
and the person in whose name any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be deemed to have
become on said date the Holder of record of the shares represented thereby;
provided, however, that in case of any such surrender on any date when the stock
transfer books of the Company shall be closed, the person or persons in whose
name the certificate or certificates for such shares are to be issued shall be
deemed to have become the record Holder thereof for all purposes on the next day
on which such stock transfer books are open, but such conversion shall be at the
Conversion Rate in effect on the date upon which such Notes shall be
surrendered.
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(e) Upon the conversion of an interest in Global Notes, the Trustee (or
other Conversion Agent appointed by the Company) shall make a notation on such
Global Notes as to the reduction in the principal amount represented thereby.
The Company shall notify the Trustee in writing of any conversions of Notes
effected through any Conversion Agent other than the Trustee.
(f) Each stock certificate representing Common Stock issued upon
conversion of the Notes that are Restricted Securities shall bear the legend in
substantially the form of Exhibit D hereto and shall bear such legend until such
time as set forth in Section 2.17(b) herein.
SECTION 13.03 PAYMENTS UPON CONVERSION.
(a) Upon any conversion of any Note, the Company shall deliver to
converting Holders, in respect of each $1,000 principal amount of Notes being
converted, a "SETTLEMENT AMOUNT" equal to the sum of the Daily Settlement Amount
for each of the 40 Trading Days during the Observation Period for such Note.
(b) The "DAILY SETTLEMENT AMOUNT" for each of the 40 Trading Days
during the Observation Period shall consist of:
(i) cash equal to the lesser of (x) $25 and (y) the Daily
Conversion Value, and
(ii) to the extent the Daily Conversion Value exceeds $25, a
number of shares of Common Stock (the "REMAINING SHARES") equal to (i)
the difference between the Daily Conversion Value and $25, divided by
(ii) the Daily VWAP for such day, subject to the Company's right to
deliver cash in lieu of all or a portion of such Remaining Shares set
forth in Section 13.11;
provided, that in no event shall the aggregate number of shares per $1,000
principal amount of Notes exceed the Aggregate Share Cap.
(c) The Company shall deliver the Settlement Amount to converting
Holders on or prior to the third Business Day immediately following the last day
of the Observation Period, except in the case of a conversion after the date of
issuance of a notice of redemption or after August 15, 2026.
(d) Upon conversion, Holders shall not receive any separate cash
payment for accrued and unpaid interest and Additional Interest, if any, unless
such conversion occurs between a Regular Record Date and the Interest Payment
Date to which it relates.
(e) The Company shall not issue fractional shares of Common Stock upon
conversion of Notes. If multiple Notes shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion shall be computed on the basis of the aggregate principal amount
of the Notes (or specified portions thereof to the extent permitted hereby) so
surrendered. If any fractional share of stock would be issuable upon the
conversion of any Notes, the Company shall make payment therefor in cash equal
to the fraction of a share of Common Stock otherwise issuable multiplied by the
Daily VWAP on the last day of the applicable Observation Period.
63
SECTION 13.04 ADJUSTMENT OF CONVERSION RATE. The Conversion Rate, as
well as the share prices and the number of shares in the Make Whole Table, shall
be adjusted from time to time by the Company as follows:
(a) If the Company, at any time or from time to time while any of the
Notes are outstanding, issues additional shares of Common Stock as a dividend or
makes a distribution in shares of Common Stock to all holders of its outstanding
shares of Common Stock, or if the Company subdivides or combines its Common
Stock then the Conversion Rate will be adjusted based on the following formula:
OS'
CR'=CRox----
OSo
where,
CRo = the Conversion Rate in effect immediately prior to such event
CR' = the Conversion Rate in effect immediately after such event
OSo = the number of shares of Common Stock outstanding immediately prior
to such event
OS' = the number of shares of Common Stock outstanding immediately after
such event
Such adjustment shall become effective immediately after the opening of business
on the day following the Record Date for such dividend or distribution, or the
date fixed for determination for such share split or share combination. If any
dividend or distribution of the type described in this Section 13.04(a) is
declared but not so paid or made, the Conversion Rate shall again be adjusted to
the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the
Notes are outstanding, issues to all holders of its outstanding shares of Common
Stock any rights or warrants to purchase, for a period of not more than 60 days,
shares of Common Stock (or securities convertible into Common Stock) at a price
per share less than (or having a conversion price less than) the then Current
market Price per share of Common Stock, the Conversion Rate shall be adjusted
based on the following formula:
OSo+X
CR'=CRox-----
OSo+Y
64
where,
CRo = the Conversion Rate in effect immediately prior to such event
CR' = the Conversion Rate in effect immediately after such event
OSo = the number of shares of Common Stock outstanding on the close
of business on the Record Date
X = the total number of shares of Common Stock issuable pursuant to such
rights or warrants (or into which the convertible securities so offered
are convertible)
Y = the number of shares of Common Stock equal to the aggregate offering
price that the total number of shares so offered would purchase (or the
aggregate conversion price of the convertible security) at such Last
Reported Sales Price of Common Stock on the Record Date of such
issuance determined by multiplying such total number of shares so
offered by the exercise price of such rights or warrants (or the
conversion price of such convertible security) and dividing the product
so obtained by such Last Reported Sales Price.
Such adjustment shall become effective immediately after the opening of
business on the day following the date of announcement of such issuance.
To the extent that shares of Common Stock (or securities convertible
into shares of Common Stock) are not delivered pursuant to such rights or
warrants, upon the expiration or termination of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate which would then be
in effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of the delivery of only the number of shares of Common
Stock actually delivered. In the event that such rights or warrants are not so
issued, the Conversion Rate shall again be adjusted to be the Conversion Rate
which would then be in effect if the date fixed for the determination of
stockholders entitled to receive such rights or warrants had not been fixed. In
determining whether any rights or warrants entitle the holders to subscribe for
or purchase shares of Common Stock at less than such Last Reported Sales Price,
and in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received for such rights or
warrants and the value of such consideration, if other than cash, to be
determined in good faith by the Board of Directors of the Company.
For the purposes of this Section 13.04(b), rights or warrants
distributed by the Company to all holders of its Common Stock entitling them to
subscribe for or purchase shares of the Company's capital stock (either
initially or under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events ("TRIGGER EVENT"): (1) are deemed to
be transferred with such shares of Common Stock; (2) are not exercisable; and
(3) are also issued in respect of future issuances of Common Stock, shall be
deemed not to have been distributed for purposes of this Section 13.04(b) (and
no adjustment to the Conversion Price under this Section 13.04(b) will be
required) until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
Section 13.04(b). If any such right or warrant, including any such existing
rights or warrants distributed prior to the date of this Indenture, are subject
to events, upon the occurrence of which such rights or warrants become
exercisable to purchase different securities, evidences of indebtedness or other
assets, then the date of the occurrence of any and each such event shall be
deemed to be the date of distribution and record date with respect to new rights
or warrants with such rights (and a termination or expiration of the existing
rights or warrants without exercise by any of the holders thereof). In addition,
in the event of any distribution (or deemed distribution) of rights or warrants,
or any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Rate under this
Section 13.04(b) was made, (1) in the case of any such rights or warrants which
shall all have been redeemed or repurchased without exercise by any Holders
thereof, the Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case may
be, as though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder of Common Stock with respect to such
rights or warrants (assuming such holder had retained such rights or warrants),
made to all applicable holders of Common Stock as of the date of such redemption
or repurchase, and (2) in the case of such rights or warrants which shall have
expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights and warrants had not been
issued.
65
(c) If the Company, at any time or from time to time while the Notes
are outstanding, distributes to all holders of its Common Stock, additional
shares of Common Stock, evidences of its indebtedness or assets, including
securities, but excluding:
(i) dividends or distributions referred to in Section 13.04(a);
(ii) rights, warrants or convertible securities referred to in
Section 13.04(b);
(iii) dividends or distributions referred to in Section 13.04(d);
and
(iv) dividends and distributions in connection with a
reclassification, consolidation, merger, combination, conveyance,
binding share exchange or sale resulting in the conversion
consideration pursuant to final paragraph of the Section 13.04(c);
then the Conversion Rate shall be adjusted based on the following formula:
SPo
CR'=CRox--------
SPo-FMV
66
where,
CRo = the Conversion Rate in effect immediately prior to such distribution
CR' = the Conversion Rate in effect immediately after such distribution
SP0 = the Current Market Price of Common Stock on the Record Date for such
distribution
FMV = the fair market value (as determined by the Board of Directors of the
Company) of the additional shares of Common Stock, evidences of indebtedness,
assets or property distributed with respect to each outstanding share of Common
Stock on the Record Date for such distribution
Such adjustment shall become effective immediately prior to the opening
of business on the day following the Record Date for such distribution. If the
Board of Directors of the Company determines the fair market value of any
distribution for purposes of this Section 13.03(c) by reference to the actual or
when issued trading market for any securities, it must in doing so consider the
prices in such market over the same period used in computing the Current Market
Price of the Common Stock.
Upon conversion, the Holders shall receive, to the extent a Holder
receives any shares of Common Stock, receive the rights under the Company's
existing rights plan and any future stockholder rights plan the Company may
establish, whether or not the rights have separated from the Common Stock prior
to conversion. A distribution of rights pursuant to such stockholder rights plan
will not trigger a Conversion Rate adjustment pursuant to the Section 13.04(b)
and this Section 13.03(c) or so long as the Company has made proper provisions
to provide that Holders shall, to the extent such Holder receives shares of
Common Stock upon conversion, also receives such rights in accordance with the
terms of this Indenture.
With respect to an adjustment pursuant to this Section 13.03(c) where
there has been a payment of a dividend or other distribution on the Common Stock
or shares of Capital Stock of any class or series, or similar equity interest,
of or relating to a Subsidiary or other business unit (a "Spin-Off"), the
Conversion Rate in effect immediately before 5:00 P.M., New York City time, on
the effective date fixed for determination of stockholders entitled to receive
the dividend or distribution for such for such Spin-Off shall be increased based
on the following formula:
FMVo+MPo
CR'=CRox---------
MPo
where,
CRo = the Conversion Rate in effect immediately prior to such distribution
CR' = the Conversion Rate in effect immediately after such distribution
FMVo = the average of the Last Reported Sales Prices of the Capital
Stock or similar equity interest distributed to holders of Common
Stock applicable to one share of Common Stock over the ten
consecutive Trading-Day period commencing on and including the
fifth Trading Day after the date on which Ex-Dividend Trading
commences for such distribution on The Nasdaq Global Market or such
other national or regional exchange or market on which the Notes
are then listed or quoted
MPo = the average of the Last Reported Sales Prices of Common Stock
over the ten consecutive Trading-Day period commencing on and
including the fifth Trading Day after the date on which Ex-Dividend
Trading commences for such distribution on The Nasdaq Global Market
or such other national or regional exchange or market on which the
Notes are then listed or quoted
67
(d) If any cash distribution is made to all holders of Common Stock, the
Conversion Rate shall be adjusted based on the following formula:
SPo
CR'=CRox--------
SPo-C
where,
CR0 = the Conversion Rate in effect on the Record Date for such distribution
CR' = the Conversion Rate in effect immediately after the Record Date for such
distribution
SP0 = the Current Market Price of a share of Common Stock on the Record Date
for such distribution
C = the amount in cash per share the Company distributes to holders of Common
Stock.
Such adjustment shall become effective immediately after 5:00 P.M., New
York City time, on the Record Date for such dividend or distribution; provided
that if such dividend or distribution is not paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate that would then be in effect
if such dividend or distribution had not been declared.
(e) If the Company or any of its Subsidiaries makes a payment in
respect of a tender offer or exchange offer for Common Stock to the extent that
the cash and value of any other consideration included in the payment per share
of Common Stock exceeds the Last Reported Sales Price per share of Common Stock
on the Trading Day next succeeding the last date on which tenders or exchanges
may be made pursuant to such tender offer or exchange offer, the Conversion Rate
shall be increased based on the following formula:
AC+(SP'xOS')
CR'=CRox--------------
OSoxSP'
where,
CRo = the Conversion Rate in effect on the date such tender or exchange offer
expires
CR' = the Conversion Rate in effect on the day next succeeding the date such
tender or exchange offer expires
AC = the fair market value (as determined by the Board of Directors) of
the aggregate consideration paid or payable for all shares of Common
Stock purchased in such tender or exchange offer
68
OSo = the number of shares of Common Stock outstanding on the Trading Day
immediately preceding the date such tender or exchange offer is
announced
OS' = the number of shares of Common Stock outstanding less any shares
purchased in the tender or exchange offer at the time such tender or
exchange offer expires
SP' = the average of the Last Reported Sales Price per share of Common
Stock for each of the ten consecutive Trading Days next succeeding
the expiration of such tender or exchange offer.
The adjustment to the Conversion Rate under this Section 13.04(e) shall
occur on the tenth Trading Day next succeeding the date such tender or exchange
offer expires.
If the Company is obligated to repurchase shares pursuant to any such
tender or exchange offer, but the Company is permanently prevented by applicable
law from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such tender or exchange had not been made.
(f) For purposes of this Section 13.04, the following terms shall have
the meaning indicated:
(i) "CURRENT MARKET PRICE" means on any date means the average of
the Last Reported Sales Prices per share of Common Stock for the ten
consecutive Trading Day period ending on the earlier of the date of
determination and the day before the Ex Date with respect to any
distribution requiring such computation. For the purposes of this
definition, the term "Ex Date," when used with respect to any
distribution, means the first date on which the shares of Common Stock
trade, regular way, on the relevant exchange or in the relevant market
from which the Last Closing Sales Price was obtained without the right
to receive such distribution.
(ii) "FAIR MARKET VALUE" shall mean the amount which a willing
buyer would pay a willing seller in an arm's length transaction.
(iii) "RECORD DATE" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of
Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is
exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property (whether
such date is fixed by the Board of Directors or by statute, contract or
otherwise).
(g) Subject to subsection (j) below, the Company may make such
increases in the Conversion Rate, in addition to any adjustments required by
Section 13.04(a), Section 13.04(b), Section 13.04(c), Section 13.04(d) or
Section 13.04(e), as the Board of Directors considers to be advisable to avoid
or diminish any income tax to holders of Common Stock or rights to purchase
Common Stock resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income tax purposes.
69
(h) To the extent permitted by applicable law and subject to subsection
(j) below, the Company from time to time may increase the Conversion Rate by any
amount for any period of time if the period is at least 20 days, the increase is
irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the Company,
which determination shall be conclusive. Whenever the Conversion Rate is
increased pursuant to the preceding sentence, the Company shall mail to Holders
of record of the Notes a notice of the increase at least 15 days prior to the
date the increased Conversion Rate takes effect, and such notice shall state the
increased Conversion Rate and the period during which it will be in effect. The
Company shall comply with the rules and regulations promulgated under the
Exchange Act, to the extent applicable in connection with such notice.
(i) No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least 1% in such rate;
provided, however, that any adjustments which by reason of this Section 13.04(i)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article XIII shall be
made by the Company and shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be. No adjustment need be made for
rights to purchase Common Stock pursuant to a Company plan for reinvestment of
dividends or interest. To the extent the Notes become convertible into cash,
assets, property or securities (other than Capital Stock of the Company), no
adjustment need be made thereafter as to the cash, assets, property or such
securities. Interest will not accrue on the cash.
(j) In no event shall the total number of shares of Common Stock
issuable upon conversion of a Note exceed 35.7534 shares per $1,000 principal
amount of Notes (the "AGGREGATE SHARE CAP"), subject to the proportional
adjustment in the same manner as the Conversion Rate as set forth in Sections
13.04(a) through 13.04(e). If this is the case, the Company shall deliver cash
in lieu of any shares of Common Stock otherwise deliverable upon conversion in
excess of such limitations, which will be based on the Last Reported Sales Price
of the Common Stock on the Trading Day immediately prior to the date when shares
would otherwise be required to be distributed.
(k) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent an
Officers' Certificate setting forth the Conversion Rate after such adjustment
and setting forth a brief statement of the facts requiring such adjustment.
Unless and until a Responsible Officer of the Trustee shall have received such
Officers' Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume without inquiry that the last
Conversion Rate of which it has knowledge is still in effect. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and
the date on which each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Rate to each Holder of Notes at such
Holder's last address appearing on the list of Note holders provided for in
Section 2.05, within 20 days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of any such adjustment.
70
(l) In any case in which this Section 13.04 provides that an adjustment
shall become effective immediately after a Record Date for an event, the Company
may defer until the occurrence of such event (i) issuing to the Holder of any
Notes converted after such Record Date and before the occurrence of such event
the additional shares of Common Stock issuable upon such conversion by reason of
the adjustment required by such event over and above the Common Stock issuable
upon such conversion before giving effect to such adjustment and (ii) paying to
such Holder any amount in cash in lieu of any fraction pursuant to Section
13.03.
(m) For purposes of this Section 13.04, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company so long as the Company does not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company, but
shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock.
(n) No adjustment to the Conversion Rate shall be made pursuant to this
Section 13.04 if the Holders of the Notes may participate in the transaction
that would otherwise give rise to an adjustment pursuant to this Section 13.04
on a basis and with notice that the Company's Board of Directors determines to
be fair and appropriate.
SECTION 13.05 DETERMINATION OF THE MAKE WHOLE PREMIUM
(a) Subject to Section 13.06, if a Holder elects to convert Notes in
connection with a Make Whole Premium Designated Event that has an effective date
occurring on or prior to October 15, 2011, the Conversion Rate for such Notes
shall be increased by an additional number of shares of Common Stock equal to
the Make Whole Premium.
(b) The number of Additional Shares will be determined by reference to
the Make Whole Table, based on the date on which the Designated Event occurs or
becomes effective (the "EFFECTIVE DATE") and the price (the "STOCK PRICE") paid
per share of Common Stock in the Designated Event. If the Designated Event is a
transaction described in clause (iii) of the definition of Change in Control,
and holders of Common Stock receive only cash in the Designated Event, the Stock
Price shall be the cash amount per share. Otherwise, the Stock Price shall be
the average of the Last Reported Sales Price of Common Stock over the five
Trading-Day period ending on the Trading Day preceding the Effective Date of the
Fundamental Change.
(c) The Stock Prices set forth in the first row of the Make Whole Table
shall be adjusted as of any date on which the Conversion Rate of the Notes is
otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices
applicable immediately prior to such adjustment, multiplied by a fraction, the
numerator of which is the Conversion Rate immediately prior to such adjustment
and the denominator of which is the Conversion Rate as so adjusted. The number
of additional shares set forth in such table will be adjusted in the same manner
as the Conversion Rate as set forth in Section 13.04.
(d) The table below (the "MAKE WHOLE TABLE") sets forth the
hypothetical Stock Price and the number of additional shares to be received per
$1,000 principal amount of Notes:
71
Make Whole Premium Upon a Designated Event
(Number Of Additional Shares per $1,000 principal amount of Notes)
OCTOBER 15, OCTOBER 15, OCTOBER 15, OCTOBER 15, OCTOBER 15, OCTOBER 15,
APPLICABLE PRICE 2006 2007 2008 2009 2010 2011
---------------- ---------- ----------- ----------- ----------- ----------- ------------
$11.64............... 17.1822 17.1822 17.1822 17.1822 17.1822 17.1822
$13.00............... 12.3874 11.5551 10.5892 9.5703 8.6113 8.1946
$14.00............... 10.7914 9.8899 8.7659 7.5049 5.9771 3.0329
$15.00............... 9.5917 8.6078 7.4538 6.0491 4.2608 1.3047
$16.00............... 8.5895 7.6373 6.4418 5.0086 3.1845 0.4977
$17.00............... 7.7986 6.8393 5.6929 4.2768 2.4904 0.0000
$18.00............... 7.1127 6.2136 5.0900 3.7406 2.0694 0.0000
$19.00............... 6.5590 5.6868 4.6255 3.3478 1.7866 0.0000
$20.00............... 6.0640 5.2415 4.2355 3.0376 1.6052 0.0000
$25.00............... 4.3748 3.7611 3.0220 2.1521 1.1487 0.0000
$30.00............... 3.3321 2.8790 2.3243 1.6686 0.9011 0.0000
$40.00............... 2.0778 1.8162 1.4866 1.0835 0.5936 0.0000
$45.00............... 1.6685 1.4672 1.2096 0.8889 0.4912 0.0000
$50.00............... 1.3468 1.1906 0.9889 0.7333 0.4092 0.0000
-------------------------------------------------------------
The exact Stock Prices and Effective Dates may not be set forth in the
Make Whole Table, in which case:
(i) if the Stock Price is between two Stock Price amounts in the
Make Whole Table or the Effective Date is between two Effective Dates
in the Make Whole Table, the number of additional shares will be
determined by a straight-line interpolation between the number of
additional shares set forth for the higher and lower Stock Price
amounts and the two dates, as applicable, based on a 365-day year;
(ii) if the Stock Price is greater than $50.00 per share (subject
to adjustment, the "STOCK PRICE Cap"), no additional shares will be
issued upon conversion;
(iii) if the Stock Price is less than $11.64 per share (subject to
adjustment, the "STOCK PRICE THRESHOLD"), no additional shares will be
issued upon conversion; and
(iv) notwithstanding the foregoing, in no event will the total
number of shares of Common Stock issuable upon conversion of a Note
exceed 35.7534 shares per $1,000 principal amount of Notes (the "MAKE
WHOLE STOCK CAP"), subject to adjustments in the same manner as the
Conversion Rate as set forth in Section 13.04, provided, however, that
the Company shall deliver cash in lieu of any shares otherwise
deliverable upon conversion in excess of such Make Whole Stock Cap
(based on the Last Reported Sales Price of the Common Stock on the
Trading Day immediately prior to the date when such shares would
otherwise be required to be distributed).
(e) Each time that the Conversion Rate is adjusted by the Company
pursuant to Section 13.04, (A) the Stock Price Threshold, the Stock
Price Cap and each of the Stock Prices set forth in the left hand
column of the Make Whole Table shall be adjusted (rounded to the
nearest cent) by multiplying each such amount by a fraction, the
numerator of which is the Conversion Rate immediately prior to such
adjustment and the denominator of which is the Conversion Rate as so
adjusted and (B) the Make Whole Stock Cap and each of share amounts set
forth in the body of the Make Whole Table shall be adjusted (rounded to
the nearest one-ten thousandth (1/10,000) of a share) in the same
manner as the Conversion Rate is adjusted pursuant to Section 13.04.
72
SECTION 13.06 CONVERSION AFTER A PUBLIC ACQUIRER CHANGE OF CONTROL.
(a) In the event of a Public Acquirer Change of Control, the
Company may, in lieu of increasing the Conversion Rate by Additional
Shares pursuant to Section 13.05, elect to adjust the Conversion Rate
and the related conversion obligation such that from and after the
Effective Date of such Public Acquirer Change of Control, Holders shall
be entitled to convert their Notes, in accordance with Section 13.01,
into a number of shares of Public Acquirer Common Stock, still subject
to the arrangements for payment upon conversion in Section 13.03. The
adjusted Conversion Rate shall be the Conversion Rate in effect
immediately before the Public Acquirer Change of Control multiplied by
a fraction:
(i) the numerator of which will be the Share Price; and
(ii) the denominator of which will be the average of the Last
Reported Sales Prices of the Public Acquirer Common Stock for the
five consecutive Trading Days ending on the Trading Day preceding
such Effective Date.
(b) The Company may elect to provide for the conversion of the
Notes into shares of Public Acquirer Common Stock (and thus to be under
no obligation to pay the Make Whole Premium, however the Company will
still be subject to the arrangement for payment upon conversion in this
Article XIII) so long as: (i) the Public Acquirer Common Stock into
which the Notes will be convertible is, subject to notification of
issuance, listed on the principal United States securities exchange on
which the issued and outstanding Public Acquirer Common Stock is
listed; (ii) the Public Acquirer Common Stock is registered under the
Exchange Act, if required; (iii) any necessary qualification or
registration under the Securities Act applicable state securities laws
have been made (subject to the availability of any exemption from such
qualification and registration requirements), both in connection with
the original issuance of such shares of Public Acquirer Common Stock
and the resale of such shares by holders thereof until such time as the
resale may be effected pursuant to Rule 144(k) of the Securities Act by
holders who are not Affiliates of the Public Acquirer; and (iv) if the
Acquirer in connection with such Public Acquirer Change in Control is
not the issuer of the Public Acquirer Common Stock, then such issuer
shall expressly assume all of the Company's obligations then remaining,
if any, under the Registration Rights Agreement with respect to the
registration of the Public Acquirer Common Stock thereunder.
(c) If the conditions contained in clauses (i) through (iv) of
Section 13.06(b) are not satisfied on or prior to the Effective Date,
the Company shall pay the Make Whole Premium in connection with such
Change in Control to electing Holders as described under Section 13.05.
73
(d) In order to make the election pursuant to this Section 13.06,
the Company and the issuer of the Public Acquirer Common Stock shall
execute with the Trustee a supplemental indenture (which shall comply
with the Trust Indenture Act as in force at the date of execution of
such supplemental indenture) providing that each Note shall be
exchangeable into Public Acquirer Common Stock and execute an amendment
to the Registration Rights Agreement (to the extent any Registrable
Securities (as defined therein) remain outstanding) to make the
provisions thereof to apply to the Public Acquirer Common Stock. Such
supplemental indenture shall provide for provisions and adjustments
which shall be a nearly equivalent as may be practicable to the
provisions and adjustments provided for in this Article XIII.
(e) Within ten Trading Days prior to but not including the
expected effective date of a Designated Event that is also a Public
Acquirer Change of Control, the Company will provide to all Holders and
the Trustee and Paying Agent a notification, in a manner as provided in
Section 14.02, stating whether the Company will:
(i) elect to adjust the Conversion Rate and related conversion
obligation as set forth in this Section 13.06, in which case
the Holders will not have the right to receive additional
shares upon conversion, as described in Section 13.05; or
(ii) not elect to adjust the Conversion Rate and related
conversion obligation, in which case the Holders will have the
right to convert Notes and, if applicable, receive additional
shares upon conversion as described above in Section 13.05.
Such notice shall be the same form as required under Section 12.02 and shall
include the amount and basis of calculation of the Make Whole Premium.
SECTION 13.07 ADJUSTMENTS OF AVERAGE PRICES
Whenever a provision of this Indenture requires the calculation of an
average of the Last Reported Sales Prices or Daily VWAP over a span of multiple
days, the Company will make appropriate adjustments to account for any
adjustments to the Conversion Rate that becomes effective, or any event
requiring an adjustment to the Conversion Rate that became effective, or any
event requiring adjustment to the Conversion Rate where the Ex Date of the event
occurs, at any time during the period from which the average is to be
calculated.
SECTION 13.08 EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. Except as otherwise provided in Section 13.05 and 13.06, if any of the
following events occur, namely:
(i) any reclassification or change of shares of Common Stock
issuable upon conversion of the 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, or any other
change for which an adjustment is provided in Section 13.04(c));
(ii) any consolidation, merger or combination to which the Company
is a party other than a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or
change (other than in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or
combination) in outstanding shares of Common Stock; or
74
(iii) any sale or conveyance of all or substantially all of the
properties and assets of the Company to any other person as a result of
which holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to
or in exchange for such Common Stock,
then the Company or the successor or purchasing person, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply with
the Trust Indenture Act as in force at the date of execution of such
supplemental indenture) providing that such Notes shall be convertible into the
kind and amount of shares of stock, securities or other property or assets
(including cash) receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance by a holder of a number of shares of
Common Stock issuable upon conversion of such Notes (assuming, for such
purposes, a sufficient number of authorized shares of Common Stock available to
convert all such Notes) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance. Assuming such holder of
Common Stock did not exercise his rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
(provided that, if the kind or amount of stock, securities or other property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance is not the same for each
share of Common Stock in respect of which such rights of election shall not have
been exercised ("NON-ELECTING SHARE"), then for the purposes of this Section
13.08, the kind and amount of stock, securities or other property or assets
(including cash) receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance for each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares). Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article XIII. If, in the case of any such reclassification,
change, consolidation, merger, combination, sale or conveyance, the stock,
securities or other property or assets (including cash) receivable thereupon by
a holder of Common Stock includes shares of stock, securities or other property
or assets (including cash) of a corporation other than the successor or
purchasing corporation, as the case may be, in such reclassification, change,
consolidation, merger, combination, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holders of the Notes
as the Board of Directors shall reasonably consider necessary by reason of the
foregoing.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it
appears on the register of the Notes maintained by the Registrar, within 20 days
after execution thereof. Failure to deliver such notice shall not affect the
legality or validity of such supplemental indenture. The above provisions of
this Section shall similarly apply to successive reclassifications, changes,
consolidations, mergers, combinations, sales and conveyances. If this Section
13.08 applies to any event or occurrence, Section 13.04 shall not apply.
SECTION 13.09 TAXES ON SHARES ISSUED. Any issue of stock certificates
on conversions of Notes shall be made without charge to the converting Holder
for any documentary, transfer, stamp or any similar tax in respect of the issue
thereof, and the Company shall pay any and all documentary, stamp or similar
issue or transfer taxes that may be payable in respect of the issue or delivery
of shares of Common Stock on conversion of Notes pursuant hereto. The Company
75
shall not, however, be required to pay any such tax which may be payable in
respect of any transfer involved in the issue and delivery of stock in any name
other than that of the Holder of any Notes converted, and the Company shall not
be required to issue or deliver any such stock certificate unless and until the
person or persons requesting the issue 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.
SECTION 13.10 RESERVATION OF SHARES; SHARES TO BE FULLY PAID;
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS; LISTING OF COMMON STOCK. The Company
shall provide, free from preemptive rights, out of its authorized but unissued
shares or shares held in treasury, sufficient shares of Common Stock to provide
for the conversion of the Notes from time to time as such Notes are presented
for conversion (assuming that, at the time of the computation of such number of
shares or securities, all such Notes would be held by a single Holder).
Before taking any action that would cause an adjustment increasing the
Conversion Rate to an amount that would cause the Conversion Price to be reduced
below the then par value, if any, of the shares of Common Stock issuable upon
conversion of the Notes, the Company will take all corporate action which may,
in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue shares of such Common Stock at such adjusted
Conversion Price.
The Company covenants that all shares of Common Stock that may be
issued upon conversion of Notes shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and non-assessable and
shall be free from preemptive rights and free from any lien or adverse claim.
The Company shall use its reasonable efforts to list or cause to have
quoted any shares of Common Stock to be issued upon conversion of Notes on each
national securities exchange or over-the-counter or other domestic market on
which the Common Stock is then listed or quoted.
SECTION 13.11 PAYMENT OF CASH IN LIEU OF COMMON STOCK.
The Company may elect to pay cash to the Holders surrendered for
conversion in lieu of all or a portion of the Common Stock otherwise issuable
pursuant to Section 13.03. In such event, on any day prior to the first Trading
Day of the applicable Observation Period, the Company shall specify a percentage
of the Remaining Shares that shall be settled in cash (the "CASH PERCENTAGE")
and the amount of cash that the Company shall pay in respect of each Trading Day
in the applicable Observation Period will equal the product of: (1) the Cash
Percentage, (2) the Remaining Shares for such Trading Day and (3) the Daily VWAP
of the Common Stock for such Trading Day (provided that after the consummation
of a Designated Event in which the consideration is comprised entirely of cash,
the amount used in this clause (3) shall be the cash price per share received by
holders of the Common Stock in such Designated Event). The number of shares that
the Company shall deliver in respect of each Trading Day in the applicable
Observation Period will be a percentage of the Remaining Shares equal to 100%
minus the Cash Percentage. Upon making a determination that a percentage of the
Remaining Shares will be settled in cash, the Company shall promptly disclose
such information on its website prior to the first Trading Day of the applicable
Observation Period. If the Company does not specify a Cash Percentage by the
start of the applicable Observation Period, the Company shall settle 100% of the
Remaining Shares for each Trading Day in the applicable Observation Period with
shares of Common Stock; provided, however, that the Company shall pay cash in
lieu of fractional shares otherwise issuable upon conversion of Notes pursuant
to Section 13.03.
76
For the purposes of this Section 13.11, in the event that any of Daily
Conversion Value, Remaining Shares or Daily VWAP is not calculable for all
portions of the Observation Period, the Company's Board of Directors shall in
good faith determine the values necessary to calculate the Daily Conversion
Value, Remaining Shares and Daily VWAP, as applicable.
SECTION 13.12 RESPONSIBILITY OF TRUSTEE. The Trustee and any other
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of Notes to determine the Conversion Rate or whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee and any other
Conversion Agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Notes; and the Trustee and any other Conversion Agent make no
representations with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Notes for the purpose of conversion
or to comply with any of the duties, responsibilities or covenants of the
Company contained in this Article XIII. Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 13.08 relating either to
the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Notes after any event
referred to in such Section 13.08 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 5.01, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers' Certificate (which the Company shall be
obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
SECTION 13.13 NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS. In case,
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock that would require an adjustment in the
Conversion Rate pursuant to Section 13.04; or
(b) the Company shall authorize the granting to the holders of all
or substantially all of its Common Stock of rights or warrants to subscribe for
or purchase any share of any class or any other rights or warrants; or
77
(c) of any reclassification or reorganization of the Common Stock
of the Company (other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to no par value, or
from no par value to par value), or of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially all of the assets
of the Company or any of its significant subsidiaries; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company or any of its significant subsidiaries;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent and to be mailed to each Holder of Notes at such Holder's
address appearing on the list of Note holders provided for in Section 2.05 of
this Indenture, as promptly as practicable but in any event at least 15 days
prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective or occur, and the date
as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
SECTION 13.14 COMPANY DETERMINATION FINAL. Any determination that the
Company or its Board of Directors must make pursuant to this Article XIII shall
be conclusive if made in good faith and in accordance with the provisions of
this Article XIII, absent manifest error, and set forth in a Board Resolution.
ARTICLE XIV
OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 14.01 TRUST INDENTURE ACT CONTROLS
This Indenture is subject to the provisions of the TIA that are
required to be part of this Indenture, and shall, to the extent applicable, be
governed by such provisions.
SECTION 14.02 NOTICES
Any notice or communication to the Company or the Trustee is duly given
if in writing and delivered in person or mailed by first-class mail or by
overnight delivery service to the address set forth below:
(a) if to the Company:
XxXxxx Corporation
000 Xxxxxxxx Xxxxx Xxxx,
Xxxxxxxx Xxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
78
with a copy to:
Fish & Xxxxxxxxxx P.C.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
(b) if to the Trustee:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services (XxXxxx Corporation 4.00%
Convertible Senior Notes due 2026)
The Company 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 or, if the
Holder is the Depositary, sent by facsimile or overnight delivery services.
Failure to mail a notice or communication to a Holder or any defect in such
notice or communication shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed or sent in the manner provided
above within the time prescribed, it is duly given as of the date it is mailed,
whether or not the addressee receives it, except that notice to the Trustee
shall only be effective upon receipt thereof by the Trustee.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee at the same time.
SECTION 14.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS
Holders may communicate pursuant to Section 312(b) of the TIA with
other Holders with respect to their rights under the Notes or this Indenture.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of Section 312(c) of the TIA.
SECTION 14.04 ACTS OF HOLDERS OF NOTES
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Notes may be embodied in and evidenced by:
79
(i) one or more instruments of substantially similar tenor signed
by such Holders in person or by agent or proxy duly appointed in
writing;
(ii) the record of Holders of Notes voting in favor thereof,
either in person or by proxies duly appointed in writing, at any
meeting of Holders of Notes duly called and held in accordance with the
provisions of Article VIII; or
(iii) a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act of the Holders" of Notes signing such instrument or
instruments and so voting at such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent or proxy, or
of the holding by any Person of a Note, shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in
favor of the Trustee and the Company if made in the manner provided in
this Section. The record of any meeting of Holders of Notes shall be
proved in the manner provided in Section 8.06.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be provided in any manner that the Trustee reasonably
deems sufficient.
(c) The principal amount and serial numbers of Notes held by any
Person, and the date of such Person holding the same, shall be proved by the
Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of the Holders of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
SECTION 14.05 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon an Opinion of Counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the Opinion of Counsel
with respect to the matters upon which such certificate or opinion is based is
erroneous. Any such Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
representations with respect to such matters are erroneous.
80
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
Counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
SECTION 14.06 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion on behalf of the Company has read such covenant or condition and the
definitions herein relating thereto;
(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 each such individual, he has
made such examination or investigation as is necessary to enable him 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, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 14.07 EFFECT OF HEADINGS AND TABLE OF CONTENTS
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 14.08 SUCCESSORS AND ASSIGNS
All covenants and agreements in this Indenture by the Company shall
bind their successors and assigns, whether so expressed or not.
81
SECTION 14.09 SEPARABILITY CLAUSE
In case any provision in this Indenture or the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 14.10 BENEFITS OF INDENTURE
Nothing contained in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Notes, any benefit or legal or equitable
right, remedy or claim under this Indenture.
SECTION 14.11 GOVERNING LAW
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).
SECTION 14.12 COUNTERPARTS
This instrument may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original but all such
counterparts shall together constitute but one and the same instrument.
SECTION 14.13 LEGAL HOLIDAYS
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date, Designated Event Repurchase Date or Maturity Date of any Note
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of the Notes) payment of interest
(including Additional Interest, if any) or principal or premium, if any, need
not be made at such Place of Payment on such day, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date, Repurchase Date,
Designated Event Repurchase Date or at the Maturity Date, provided, that in the
case that payment is made on such succeeding Business Day, no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date, Repurchase Date, Designated Event Repurchase Date
or Maturity Date, as the case may be.
SECTION 14.14 RECOURSE AGAINST OTHERS
No recourse for the payment of the principal of or premium, if any, or
interest (including Additional Interest, if any) on any Note, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance thereof and as
part of the consideration for the issue thereof, expressly waived and released.
82
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
XXXXXX CORPORATION
By: /s/ Xxxx X. X'Xxxxxx
---------------------------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President of Finance and Chief
Financial Officer
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
--------------------------------------------------------------------------------
MEXHIBIT A
FORM OF NOTE
[FORM OF FACE OF NOTE]
[INCLUDE IF NOTE IS A RESTRICTED SECURITY -- THIS NOTE (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 NOTE
AND THE SHARES OF OUR COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED
THAT THE SELLER OF THIS NOTE 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 NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE
AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (IV) TO AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(1), (2) OR (7) UNDER THE SECURITIES ACT WHO
PURCHASES AT LEAST $100,000 PRINCIPAL AMOUNT OF NOTES, OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH
(V) 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 NOTE 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 TRANSACTION WITH REGARD TO THE SECURITIES EXCEPT AS
PERMITTED BY THE SECURITIES ACT.
THIS NOTE, ANY SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF AND ANY
RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY
THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS NOTE AND ANY SUCH SHARES
TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION
THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED
SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND SUCH SHARES SHALL BE DEEMED BY
THE ACCEPTANCE OF THIS NOTE AND ANY SUCH SHARES TO HAVE AGREED TO SUCH AMENDMENT
OR SUPPLEMENT.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER
THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK
CORPORATION, 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 IN AS MUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
2
XXXXXX CORPORATION
4.00% Convertible Senior Notes due 2026
No. [ * ] CUSIP NO. 52324W AA 7 U.S. $[ * ]
XXXXXX CORPORATION, a corporation duly organized and validly existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture referred to on the reverse
hereof), for value received hereby promises to pay to [*], or registered
assigns, the principal sum of [*] United States Dollars ($*) [INCLUDE IF NOTE IS
A GLOBAL NOTE -- (which amount may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary, in accordance with the rules and procedures of the Depositary)] on
October 15, 2026 and to pay interest thereon, as provided on the reverse hereof,
until the principal and accrued interest are paid or duly provided for.
Interest Payment Dates: April 15 and October 15, with the first payment to be
made on April 15, 2007.
Record Dates: April 1 and October 1.
The provisions on the back of this certificate are incorporated as if set forth
on the face hereof.
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
XXXXXX CORPORATION
By:
------------------
Authorized Signatory
Attest:
By:
----------------------
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By:
-----------------
Dated: Authorized Signatory
------------------------------
4
[REVERSE OF NOTE]
XXXXXX CORPORATION
4.00% Convertible Senior Notes due 2026
This Note is one of a duly authorized issue of Notes of XxXxxx
Coporation, a Delaware corporation (the "COMPANY"), designated as its 4.00%
Convertible Senior Notes due 2026 (herein called the "NOTES"), all issued or to
be issued under and pursuant to an Indenture dated as of October 12, 2006
(herein called the "INDENTURE"), between the Company and U.S. Bank National
Association (herein called the "TRUSTEE"). The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. ss.ss.77aaa-77bbbb), as amended and in
effect from time to time (the "TIA"). The Notes are general unsecured
unsubordinated obligations of the Company limited to $72,000,000 aggregate
principal amount, except as otherwise provided in the Indenture (except for
Notes issued in substitution for destroyed, mutilated, lost or stolen Notes).
Reference is hereby made to the Indenture and all indentures supplemental
thereto for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Notes. Terms used herein without definition and which are defined in the
Indenture have the meaning assigned to them in the Indenture.
1. INTEREST. The Company, promises to pay interest on the principal
amount of this Note at the rate of 4.00% per annum from October 12, 2006 or from
the most recent date to which interest has been paid until the principal of the
notes is paid or made available for payment pursuant to the terms of the
Indenture. The Company will pay interest semiannually on April 15 and October 15
of each year commencing on April 15, 2007. Each payment of interest on the Notes
shall include interest accrued through the day prior to the applicable Interest
Payment Date or the Maturity Date. Interest on the Notes shall be computed on
the basis of a 360-day year comprised of twelve 30-day months.
Interest will be paid to the person in whose name a Note is registered
at the close of business on April 1 and October 1, as the case may be,
immediately preceding the relevant interest payment date.
Except as provided in the next succeeding paragraph, a Holder of any
Note shall not be entitled to receive any interest (including Additional
Interest, if any) that has accrued on such Note if such Note is converted into
shares of Common Stock or cash on any day other than an Interest Payment Date.
By delivering to the Holder of any Note that is converted, cash or a combination
of cash and the full number of shares of Common Stock, together with a cash
payment, if any, in lieu of a fractional share, the Company shall be deemed to
have satisfied in full its obligation with respect to such Note to pay the
principal amount of the Note and accrued and unpaid interest (including
Additional Interest, if any) to, but not including, the Conversion Date.
Accordingly, accrued but unpaid interest (including Additional Interest, if any)
shall be deemed to be paid in full rather than cancelled, extinguished or
forfeited.
If a Holder of any Note converts such Note after 5:00 P.M., New York
City time on a Regular Record Date but prior to 9:00 A.M., New York City time on
the corresponding Interest Payment Date, the Holder of record on such Regular
Record Date shall be entitled to receive on such Interest Payment Date interest
(including Additional Interest, if any) accrued and unpaid on such Note, to, but
excluding, such Interest Payment Date notwithstanding the conversion of such
Note prior to such Interest Payment Date. However, at the time such Holder
surrenders such Note for conversion, such Holder shall pay the Company an amount
equal to the interest (including Additional Interest, if any) that will be paid
on the Notes being converted on such Interest Payment Date. However, in the
event that (i) overdue interest, if any, exists at the time of conversion with
respect to such Note, (ii) the Holder converts such Note in connection with a
redemption or a Designated Event and the Company has specified a Redemption Date
or a Repurchase Date for a Note that is after a Record Date for an interest
payment but on or prior to the third Trading Day after the corresponding
Interest Payment Date, or (iii) the Holder converts such Note after the Regular
Record Date for the interest payment due on October 15, 2026, then such Holder
shall not be required to pay the Company at the time such Holder surrenders such
Note for conversion the amount of interest on such Note such Holder shall be
entitled to receive on such Interest Payment Date (in the case of (i) above,
only to the extent of such overdue interest).
2. MATURITY. The Notes will mature on October 15, 2026.
3. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the persons who are registered Holders at the
close of business on the record date set forth on the face of this Note next
preceding the applicable interest payment date. Holders must surrender Notes to
the Company or its designated agent to collect the principal, Redemption Price,
Repurchase Price or Designated Event Repurchase Price of the Notes. The Company
will pay all amounts due with respect to the Notes in money of the United States
that at the time of payment is legal tender for payment of public and private
debts. If this Note is in global form, the Company will pay interest on the
Notes by wire transfer of immediately available funds to the Depositary. With
respect to Notes held other than in global form, the Company will make payments:
(i) by U.S. Dollar check drawn on a bank in The City of New York mailed to the
address of the Holder; or (ii) upon application to the Registrar not later than
the relevant Record Date by a Holder of an aggregate principal amount in excess
of $5,000,000, by wire transfer in immediately available funds. Any payment of
principal and interest scheduled to be made on any day that is not a Business
Day shall be made on the next succeeding Business Day, and no interest shall
accrue on that payment for the additional period of time.
4. PAYING AGENT, REGISTRAR, CONVERSION AGENT AND BID SOLICITATION
AGENT. Initially the Trustee shall act as Paying Agent, Registrar, Conversion
Agent and Bid Solicitation Agent. The Company may change any Paying Agent,
Registrar, Conversion Agent or Bid Solicitation Agent without notice.
5. REDEMPTION AT THE OPTION OF THE COMPANY. Prior to October 20, 2011,
the Company may not redeem the Notes. On or after October 20, 2011, the Company
may redeem the Notes in whole or in part for an amount equal to 100% of the
principal amount of the Notes, plus accrued and unpaid interest (including
Additional Interest, if any), to, but excluding, the Redemption Date (the
"REDEMPTION PRICE").
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Notice of redemption pursuant to this Section of this Note will be
mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Notes to be redeemed at the Holder's registered address. If cash
sufficient to pay the Redemption Price of all Notes (or portions thereof) to be
redeemed on the Redemption Date is deposited with the Paying Agent prior to
11:00 A.M., New York City time, on the Redemption Date, then on such Redemption
Date, such Notes shall cease to be outstanding and interest (including
Additional Interest, if any) shall cease to accrue on such Notes or portions
thereof, whether or not such Notes are delivered to the Paying Agent, and the
rights of each Holders in respect thereof shall terminate (other than the right
to receive the Redemption Price upon delivery of such Notes). Notes in
denominations larger than $1,000 of principal amount may be redeemed in part but
only in integral multiples of $1,000 of principal amount.
6. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER ON A REPURCHASE
DATE. 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 October 15, 2011, October 15, 2016 and
October 15, 2021 (each, a "REPURCHASE DATE") in integral multiples of $1,000 at
a repurchase price equal to 100% of the principal amount of those Notes plus
accrued and unpaid interest (including Additional Interest, if any) to, but
excluding, such Repurchase Date (the "REPURCHASE PRICE").
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Holders have the right to withdraw any Repurchase Notice by delivering
to the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.
If the Paying Agent holds, in accordance with the terms of the
Indenture, at 11:00 A.M., New York City time, on the first Business Day
following the Repurchase Date, cash sufficient to pay the Repurchase Price of
any Notes for which a Repurchase Notice has been tendered and not withdrawn,
then on and after such date, the Notes shall cease to be outstanding and any
interest (including Additional Interest, if any) shall cease to accrue on such
Notes or portions thereof, whether or not book-entry transfer of such Notes have
been made or such Notes are delivered to the Paying Agent, and the Holder
thereof shall have no other rights as such (other than the right to receive the
Repurchase Price upon surrender of such Note). Notes in denominations larger
than $1,000 of principal amount may be repurchased in part but only in integral
multiples of $1,000 of principal amount.
7. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER UPON A
DESIGNATED EVENT.. Subject to the terms and conditions of the Indenture, in the
event a Designated Event occurs prior to the Maturity Date, each Holder of the
Notes shall have the right, at the Holder's option, to require the Company to
repurchase such Holder's Note, in whole or in part, on the date specified by the
Company (the "DESIGNATED EVENT REPURCHASE DATE") that is 30 Business Days after
the date of a Designated Event Company Notice at a purchase price equal to 100%
of the principal amount of the Notes to be repurchased plus accrued but unpaid
interest (including Additional Interest, if any) to, but excluding, such
Designated Event Repurchase Date (the "DESIGNATE EVENT REPURCHASE PRICE").
Holders have the right to withdraw any Designated Event Repurchase
Notice by delivering to the Paying Agent a written notice of withdrawal in
accordance with the provisions of the Indenture.
If the Paying Agent holds, in accordance with the terms of the
Indenture, at 11:00 A.M., New York City time, on the first Business Day
following the Designated Event Repurchase Date, money or United States
Government Treasury Notes sufficient to pay the Designated Event Repurchase
Price of any Notes for which a Designated Event Repurchase Notice has been
tendered and not withdrawn, then on and after such date, such Notes shall cease
to be outstanding and any interest (including Additional Interest, if any) shall
cease to accrue on such Notes or portions thereof, whether or not book-entry
transfer of such Notes have been made or such Notes are delivered to the Paying
Agent, and the Holder thereof shall have no other rights as such (other than the
right to receive the Designated Event Repurchase Price upon surrender of such
Note).
8. CONVERSION. Subject to and in compliance with the provisions of the
Indenture (including without limitation the conditions of conversion of this
Note set forth in Section 13.01 thereof), the Holder hereof has the right, at
its option, to convert the principal amount hereof or any portion of such
principal which is $1,000 or an integral multiple thereof, into, subject to
Section 13.02 of the Indenture, cash or cash and shares of Common Stock, if any,
at the Conversion Rate. The initial Conversion Rate is 68.7285 shares of Common
Stock per $1,000 principal amount of Notes (equivalent to a conversion price of
$14.55 (the "CONVERSION PRICE")), subject to adjustment in certain events
described in the Indenture. Upon conversion, the Company will pay cash or cash
and shares of Common Stock, if any, based on a Daily Conversion Value calculated
on a proportionate basis for each day of the Observation Period, as set forth in
the Indenture. No fractional shares will be issued upon any conversion, but an
adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Notes for conversion. Notes in respect of which a Holder is
exercising its right to require repurchase on a Repurchase Date or Designated
Event Repurchase Date may be converted only if such Holder withdraws its
election to exercise such right in accordance with the terms of the Indenture.
Upon conversion, the Company shall deliver, for each $1,000 principal
amount of Notes being converted, cash equal to the lesser of (i) $25 or (ii) the
Daily Conversion Value. To the extent the Daily Conversion Value exceeds $25,
the Company may choose to deliver cash in lieu of shares of Common Stock, shares
of Common Stock or a combination of cash and shares of Common Stock in
accordance with the Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are issuable only in
registered form in denominations of $1,000 and any integral multiple of $1,000
above that amount, as provided in the Indenture and subject to certain
limitations therein set forth. Notes are exchangeable for a like aggregate
principal amount of Notes of a different authorized denomination, as requested
by the Holder surrendering the same. 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. Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
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As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in The City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
[INCLUDE IF NOTE IS A GLOBAL SECURITY -- In the event of a deposit or
withdrawal of an interest in this Note, including an exchange, transfer,
repurchase or conversion of this Note in part only, the Trustee, as custodian of
the Depositary, shall make an adjustment on its records to reflect such deposit
or withdrawal in accordance with the rules and procedures of the Depositary.]
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as the owner of such Note for all purposes.
11. MERGER OR CONSOLIDATION. Except as provided in the Indenture, the
Company shall not consolidate with, merge with or into, or convey, transfer or
lease all or substantially all of its assets (in one transaction or a series of
related transactions) to any Person unless: (a) either (A) the Company shall be
the resulting, surviving or transferee Person (the "SUCCESSOR PERSON") or (B)
the Successor Person (if other than the Company) (i) shall be a corporation,
limited liability company, partnership, trust or other business entity organized
and existing under the laws of the United States of America or any state thereof
or the District of Columbia (provided that if, as a result of such
consolidation, merger, conveyance, transfer or lease, the Notes would be
convertible into Capital Stock of a Person other than the Company, then such
other Person shall be for United States federal income tax purposes an
association taxable as a corporation) and (ii) shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the Company's obligations for the due and
punctual payment of the principal of, premium, if any, and interest (including
Additional Interest, if any) on all Notes and the performance and observance of
every covenant of this Indenture on the part of the Company to be performed or
observed and shall have provided for conversion rights in accordance with
Section 13.08 of the Indenture; and (b) immediately after giving effect to such
transaction, there is no Event of Default, and no event which after notice or
passage of time or both, would become an Event of Default.
12. EVENTS OF DEFAULT. If an Event of Default shall occur and be
continuing, the principal amount plus accrued but unpaid interest (including
Additional Interest, if any) may be declared due and payable in the manner and
with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
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Notes, the Holders of not less than 25% in aggregate principal amount of the
outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity satisfactory to it against any costs, expenses and
liabilities incurred in complying with such request, and the Trustee shall not
have received from the Holders of a majority in principal amount of outstanding
Notes a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of said principal
hereof on or after the respective due dates expressed herein or for the
enforcement of any conversion right.
13. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain exceptions,
the Indenture or the Notes may be amended, modified or supplemented and
noncompliance in any particular instance with any provision of this Indenture or
the Notes may be waived, in each case, (i) with the written consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Notes or (ii) by the adoption of a resolution at a meeting of Holders of the
outstanding Notes at which a quorum (as prescribed in Section 8.04 of the
Indenture) is present, by the Holders of a majority in aggregate principal
amount of the outstanding Notes represented at such meeting. In accordance with
the terms of the Indenture, without the consent of any Holders, the Company,
when authorized by a Board Resolution or Board Resolutions, and the Trustee, may
amend the Indenture and the Notes to: (a) add to the covenants of the Company
for the benefit of the Holders; (b) surrender any right or power conferred in
the Indenture upon the Company; (c) make provision with respect to the
conversion rights of Holders pursuant to Section 13.08 of the Indenture; (d)
provide for the assumption of the Company's obligations to the Holders in the
case of a merger, consolidation, conveyance, transfer or lease pursuant to
Article VI of the Indenture; (e) increase the Conversion Rate, provided, that
such increase in the Conversion Rate shall not adversely affect the interest of
the Holders; (f) comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA; (g) make any changes
or modifications to the Indenture necessary in connection with the registration
of any Notes and the shares of Common Stock to be delivered upon conversion of
any Notes under the Securities Act as contemplated in the Registration Rights
Agreement, provided, that such action pursuant to this clause (g) does not, in
the good faith opinion of the Board of Directors of the Company and the Trustee,
adversely affect the interests of the Holders; (h) cure any ambiguity, or
correct or supplement any provision in the Indenture that may be inconsistent
with any other provision herein or that is otherwise defective, provided, that
such action pursuant to this clause (h) does not, in the good faith opinion of
the Board of Directors of the Company and the Trustee, adversely affect the
interests of the Holders; (i) add or modify any other provisions with respect to
matters or questions arising under the Indenture that the Company and the
Trustee may deem necessary or desirable and that shall not be inconsistent with
the provisions of the Indenture, provided, that such action pursuant to this
clause (i) does not adversely affect the interests of the Holders; or (j) comply
with the procedures of the Depositary.
14. UNCONDITIONAL RIGHT OF HOLDERS. Notwithstanding any provision in
the Indenture or the Notes, the Holders of any Note shall have the right, which
is absolute and unconditional, (i) to receive payment of the principal or,
premium, if any, and interest (including Additional Interest, if any) on such
Note on the Maturity Date expressed in such Note, in the case of redemption, on
the Redemption Date, and in the case of the exercise of a Repurchase Right, on a
Repurchase Date, and in the case of the exercise of the Designated Event
Repurchase Right, on a Designated Event Repurchase Date, (ii) to bring suit for
the enforcement of any such payment on or after such respective dates, and (iii)
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to convert their Notes on the terms and subject to the conditions set forth in
the Indenture, and such rights shall not be impaired or adversely affected
without the consent of such Holder.
15. TRUSTEE DEALINGS WITH COMPANY. 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 any of its Affiliates with the same rights it would have if
it were not Trustee. Any Agent may do the same with like rights. The Trustee,
however, must comply with Sections 5.10 and 5.11 of the Indenture.
16. NO RECOURSE AGAINST OTHERS. No recourse for the payment of the
principal of or premium, if any, or interest (including Additional Interest, if
any) on any Note, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance thereof and as part of the consideration for the issue
thereof, expressly waived and released.
17. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent in accordance
with the Indenture.
18. 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).
19. [INCLUDE IF NOTE IS A RESTRICTED SECURITY-- ADDITIONAL RIGHTS OF
HOLDERS OF RESTRICTED SECURITIES. In addition to the right provided to Holders
under the Indenture, Holders of Restricted Securities shall have all the rights
set forth in the Registration Rights Agreement dated as of the date of the
Indenture, between the Company and the Initial Purchaser (the "REGISTRATION
RIGHTS AGREEMENT")].
20. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company caused
CUSIP numbers to be printed on the Notes and the Trustee shall use CUSIP numbers
in notices of redemption or repurchases as a convenience to Holders. No
representation is made by the Trustee as to the correctness or accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption or repurchase and reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption or
repurchase shall not be affected by any defect or omission of such numbers.
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21. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
INCLUDING WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture [and/or the Registration Rights
Agreement]. Requests may be made to:
XxXxxx Corporation
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
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ASSIGNMENT FORM
If you want to assign this Note, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Note to:
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(Print or type name, address and zip code and social security
or tax ID 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.
Date:___________________________ Signed: ____________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:________________________________________
NOTE: 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.
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In connection with any transfer of this Note 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 Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the second anniversary of the Issue Date set forth on the
face of this Note, the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that
this Note is being transferred:
[Check One]
(1) to the Company or a subsidiary thereof; or
(2) to a "Qualified Institutional Buyer"
pursuant to and in compliance with Rule
144A under the Securities Act; or
(3) outside the United States to a "foreign
person" in compliance with Rule 904 of
Regulation S under the Securities Act; or
(4) pursuant to the exemption from
registration provided by Rule 144 under
the Securities Act.
Unless one of the boxes 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 that if box (3) or (4) is checked,
the Company may require, prior to registering any such transfer of the Notes, in
its sole discretion, such legal opinions, certifications (including an
investment letter in the case of box (3)) and other information as the Company
may reasonably request 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.
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Note 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.
Date: ___________________________ Signed: _____________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: ______________________________________________
NOTE: 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.
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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
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.
Date:___________________________ Signed: ____________________________
NOTICE: To be executed by an executive officer.
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CONVERSION NOTICE
If you want to convert this Note into cash and if applicable Common
Stock of the Company, check the box: | |
To convert only part of this Note, state the principal amount to be
converted (which must be $1,000 or an integral multiple of $1,000):
$---------------------------------
If you want the stock certificate and Notes (if any) to be delivered,
made out in another person's name, fill in the form below:
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(Insert other person's social security or tax ID no.)
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(Print or type other person's name, address and zip code)
Date: ___________________________ Signed: _____________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:_______________________________________________
NOTE: 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.
OPTION OF HOLDER TO ELECT REPURCHASE
TO: XXXXXX CORPORATION
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxx, Xxx Xxxx 00000
The undersigned registered owner of this Note hereby elects to have
this Note purchased by XxXxxx Corporation (the "Company") pursuant to (check the
appropriate box) Section 11.01 or | | Section 12.01 and requests and instructs
the Company to repay the entire principal amount of this Note, or the portion
thereof (which is $1,000 principal amount or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this
Note, together with interest accrued and unpaid to, but excluding, such date, to
the registered holder hereof.
Dated: ____________________ Your Name: _____________________________________
(Print your name exactly as it appears
on the face of this Note)
Your Signature: ________________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:* __________________________
Social Security or other Taxpayer Identification
Number: ________________________________________
Principal amount to be repurchase (if less than all): $_________________
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* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
SCHEDULE A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1).
The following exchanges of a part of this Global Notes for an interest
in another Global Note or for Notes in certificated form, have been made:
Principal amount of
this Global Note Signature or
Amount of decrease Amount of increase in following such authorized signatory
in Principal amount Principal amount of decrease (or of Trustee or Note
Date of Exchange of this Global Note this Global Note increase) Custodian
_______________________ ___________________ _____________________ __________________ _____________________
_______________________ ___________________ _____________________ __________________ _____________________
_______________________ ___________________ _____________________ __________________ _____________________
(1) This is included in Global Notes only.
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EXHIBIT B
FORM OF NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
XXXXXX CORPORATION
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxx, Xxx Xxxx 00000
U.S. BANK NATIONAL ASSOCIATION
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services (XxXxxx Corporation 4.00% Convertible
Senior Notes due 2026)
Re: XXXXXX CORPORATION (the "COMPANY") 4.00% Convertible Senior Notes due 2026
(the "NOTES")
Ladies and Gentlemen:
Please be advised that _____________ has transferred $___________ aggregate
principal amount of the Notes or _________ shares of Common Stock, no par value
per share, of the Company issuable on conversion of the Notes ("COMMON STOCK")
pursuant to an effective Shelf Registration Statement on Form S-3 (File No.
333-________).
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the Notes
or shares of Common Stock is named as a "SELLING SECURITY HOLDER" in the
Prospectus dated _________, or in amendments or supplements thereto, and that
the aggregate principal amount of the Notes, or number of shares of Common Stock
transferred are [a portion of] the Notes or shares of Common Stock listed in
such Prospectus, as amended or supplemented, opposite such owner's name.
Very truly yours,
(Name)
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EXHIBIT C
FORM OF SURRENDER CERTIFICATE
In connection with the certification relating to compliance
with certain restrictions relating to transfers of Restricted Notes, such
certification shall be provided substantially in the form of the following
certificate, with only such changes thereto as shall be approved by the Company
and Xxxxx and Company, LLC:
CERTIFICATE
XXXXXX CORPORATION
4.00% CONVERTIBLE SENIOR NOTES DUE 2026
This is to certify that as of the date hereof with respect to
$______ principal amount of the above-captioned Notes surrendered on the date
hereof (the "Surrendered Notes") for conversion or repurchase where the Notes
issuable upon such conversion or repurchase are to be registered in a name other
than that of the undersigned Holder (each such transaction being a "transfer"),
the undersigned Holder (as defined in the Indenture) certifies that the transfer
of Surrendered Notes associated with such transfer complies with the restrictive
legend set forth on the face of the Surrendered Notes for the reason checked
below:
_________ The transfer of the Surrendered Notes complies with Rule 144 under
the United States Securities Act of 1933, as amended (the
"Securities Act"); or
_________ The transfer of the Surrendered Securities complies with Rule 144A
under the Securities Act; or
_________ The transfer of the Surrendered Notes has been made to an
institution that is an "accredited investor" within the
meaning of Rule 501(a)(1), (2), or (7)
under the Securities Act who purchases at least $100,000
principal amount in a transaction exempt from the
registration requirements of the Securities Act and a
signed letter containing certain representations and
agreements relating to restrictions on transfer of the
Notes (and an opinion of counsel acceptable to the Company
if requested by the Company, that such transfer is exempt
from registration); or
_________ The transfer of the Surrendered Notes has been made pursuant to an
exemption from registration under the Securities Act and an
opinion of counsel has been delivered to the Company with
respect to such transfer.
[Name of Holder]
Dated: ________________________
*To be dated the date of surrender
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EXHIBIT D
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM.
THE HOLDER HEREOF AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THE SHARES OF
COMMON STOCK EVIDENCED HEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (II) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION UNDER THE SECURITIES
ACT, IN EACH OF CASES (I) THROUGH (III) 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
TRANSACTION WITH REGARD TO THE SECURITIES EXCEPT AS PERMITTED BY THE SECURITIES
ACT.
THE COMMON STOCK EVIDENCED HEREBY MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO
TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF ANY SUCH
SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE
INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF
RESTRICTED SECURITIES GENERALLY. THE HOLDER SUCH SHARES SHALL BE DEEMED BY THE
ACCEPTANCE OF SUCH SHARES TO HAVE AGREED TO SUCH AMENDMENT OR SUPPLEMENT.
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