EXHIBIT 4.4
RADISYS CORPORATION,
as Issuer
$100,000,000
5 1/2% CONVERTIBLE SUBORDINATED NOTES DUE 2007
_________________________
INDENTURE
Dated as of August 9, 2000
_________________________
U.S. TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
CROSS-REFERENCE TABLE
Trust Indenture Indenture
Act Section Section
310 (a)(1)............................................................................... 5.11
(a)(2).................................................................................... 5.11
(a)(2).................................................................................... n/a
(a)(4).................................................................................... n/a
(a)(5).................................................................................... 5.11
(b)....................................................................................... 5,3, 5.11
(c)....................................................................................... n/a
311 (a).................................................................................. 5.12
(b)....................................................................................... 5.12
(c)....................................................................................... n/a
312 (a).................................................................................. 2.10
(b)....................................................................................... 14.3
(c)....................................................................................... 14.3
313(a).................................................................................... 5.7
(b)(1).................................................................................... n/a
(b)(2).................................................................................... 5.7
(c)....................................................................................... 5.7; 14.2
(d)....................................................................................... 5.7
314 (a)(1), (2), (3)..................................................................... 9.6; 14.6
(a)(4).................................................................................... 9.6; 9.7; 14.6
(b)....................................................................................... n/a
(c)(1).................................................................................... 14.5
(c)(2).................................................................................... 14.5
(c)(3).................................................................................... n/a
(d)....................................................................................... n/a
(e)....................................................................................... 14.6
(f)....................................................................................... n/a
315 (a)................................................................................... 5.1(a)
(b)....................................................................................... 5.6; 14.2
(c)....................................................................................... 5.1(b)
(d)....................................................................................... 5.1(c)
(e)....................................................................................... 4.14
3.16(a)(last sentence).................................................................... 2.13
(a)(1)(A)................................................................................. 4.5
(a)(1)(B)................................................................................. 4.4
(a)(2).................................................................................... n/a
(b)....................................................................................... 4.7
(c)....................................................................................... 7.4
317 (a)(1)............................................................................... 4.8
(a)(2).................................................................................... 4.9
(b)....................................................................................... 2.5
318(a).................................................................................... 14.1
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(b)....................................................................................... n/a
(c)....................................................................................... 14.1
__________________
"n/a" means not applicable.
*This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE........................................................... 1
Section 1.1 Definitions............................................................................1
Section 1.2 Incorporation by Reference of Trust Indenture Act.....................................13
Section 1.3 Rules of Construction.................................................................13
ARTICLE II THE NOTES............................................................................................14
Section 2.1 Title and Terms.......................................................................14
Section 2.2 Form of Notes.........................................................................15
Section 2.3 Legends...............................................................................17
Section 2.4 Execution, Authentication, Delivery and Dating........................................21
Section 2.5 Registrar and Paying Agent............................................................21
Section 2.6 Paying Agent to Hold Assets in Trust..................................................22
Section 2.7 General Provisions Relating to Transfer and Exchange..................................23
Section 2.8 Book-Entry Provisions for the Global Notes............................................24
Section 2.9 Special Transfer Provisions...........................................................25
Section 2.10 Holder Lists..........................................................................31
Section 2.11 Persons Deemed Owners.................................................................32
Section 2.12 Mutilated, Destroyed, Lost or Stolen Notes............................................32
Section 2.13 Treasury Notes........................................................................33
Section 2.14 Temporary Notes.......................................................................33
Section 2.15 Cancellation..........................................................................33
Section 2.16 CUSIP Numbers.........................................................................34
Section 2.17 Defaulted Interest....................................................................34
ARTICLE III SATISFACTION AND DISCHARGE..........................................................................34
Section 3.1 Satisfaction and Discharge of Indenture...............................................34
Section 3.2 Deposited Monies to be Held in Trust..................................................36
Section 3.3 Return of Unclaimed Monies............................................................36
ARTICLE IV DEFAULTS AND REMEDIES................................................................................36
Section 4.1 Events of Default.....................................................................36
Section 4.2 Acceleration of Maturity; Rescission and Annulment....................................38
Section 4.3 Other Remedies........................................................................38
Section 4.4 Waiver of Past Defaults...............................................................39
Section 4.5 Control by Majority...................................................................39
Section 4.6 Limitation on Suit....................................................................40
Section 4.7 Unconditional Rights of Holders to Receive Payment and to Convert.....................40
Section 4.8 Collection of Indebtedness and Suits for Enforcement by the Trustee...................40
Section 4.9 Trustee May File Proofs of Claim......................................................41
Section 4.10 Restoration of Rights and Remedies....................................................42
Section 4.11 Rights and Remedies Cumulative........................................................42
Section 4.12 Delay or Omission Not Waiver..........................................................42
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Section 4.13 Application of Money Collected........................................................42
Section 4.14 Undertaking for Costs.................................................................43
Section 4.15 Waiver of Stay or Extension Laws......................................................43
ARTICLE V THE TRUSTEE...........................................................................................44
Section 5.1 Certain Duties and Responsibilities...................................................44
Section 5.2 Certain Rights of Trustee.............................................................45
Section 5.3 Individual Rights of Trustee..........................................................46
Section 5.4 Money Held in Trust...................................................................46
Section 5.5 Trustee's Disclaimer..................................................................46
Section 5.6 Notice of Defaults....................................................................47
Section 5.7 Reports by Trustee to Holders.........................................................47
Section 5.8 Compensation and Indemnification......................................................47
Section 5.9 Replacement of Trustee................................................................48
Section 5.10 Successor Trustee by Merger, Etc......................................................49
Section 5.11 Corporate Trustee Required; Eligibility...............................................49
Section 5.12 Collection of Claims Against the Company..............................................49
ARTICLE VI CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.................................................49
Section 6.1 Company May Consolidate, Etc., Only on Certain Terms..................................49
Section 6.2 Successor Corporation Substituted.....................................................50
ARTICLE VII AMENDMENTS, SUPPLEMENTS AND WAIVERS.................................................................50
Section 7.1 Without Consent of Holders of Notes...................................................50
Section 7.2 With Consent of Holders of Notes......................................................51
Section 7.3 Compliance with Trust Indenture Act...................................................52
Section 7.4 Revocation of Consents and Effect of Consents or Votes................................52
Section 7.5 Notation on or Exchange of Notes......................................................53
Section 7.6 Trustee to Sign Amendment, Etc........................................................53
ARTICLE VIII MEETING OF HOLDERS OF NOTES........................................................................54
Section 8.1 Purposes for Which Meetings May Be Called.............................................54
Section 8.2 Call Notice and Place of Meetings.....................................................54
Section 8.3 Persons Entitled to Vote at Meetings..................................................54
Section 8.4 Quorum; Action........................................................................54
Section 8.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings...............................................................55
Section 8.6 Counting Votes and Recording Action of Meetings.......................................56
ARTICLE IX COVENANTS............................................................................................56
Section 9.1 Payment of Principal, Premium and Interest............................................56
Section 9.2 Maintenance of Offices or Agencies....................................................56
Section 9.3 Corporate Existence...................................................................57
Section 9.4 Maintenance of Properties.............................................................57
Section 9.5 Payment of Taxes and Other Claims.....................................................58
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Section 9.6 Reports...............................................................................58
Section 9.7 Compliance Certificate; Notice of Registration Default................................58
Section 9.8 Resale of Certain Notes...............................................................59
Section 9.9 Insurance.............................................................................59
ARTICLE X REDEMPTION OF NOTES...................................................................................59
Section 10.1 Optional Redemption...................................................................59
Section 10.2 Notice to Trustee.....................................................................60
Section 10.3 Selection of Notes to Be Redeemed.....................................................60
Section 10.4 Notice of Redemption..................................................................60
Section 10.5 Effect of Notice of Redemption........................................................61
Section 10.6 Deposit of Redemption Price...........................................................62
Section 10.7 Notes Redeemed in Part................................................................62
ARTICLE XI REPURCHASE AT THE OPTION OF A HOLDER UPON A CHANGE OF CONTROL........................................63
Section 11.1 Repurchase Right......................................................................63
Section 11.2 Notices; Method of Exercising Repurchase Right, Etc...................................63
ARTICLE XII CONVERSION OF NOTES.................................................................................65
Section 12.1 Conversion Right and Conversion Price.................................................65
Section 12.2 Exercise of Conversion Right..........................................................66
Section 12.3 Fractions of Shares...................................................................67
Section 12.4 Adjustment of Conversion Price........................................................67
Section 12.5 Notice of Adjustments of Conversion Price.............................................77
Section 12.6 Notice Prior to Certain Actions.......................................................77
Section 12.7 Company to Reserve Common Stock.......................................................78
Section 12.8 Taxes on Conversions..................................................................78
Section 12.9 Covenant as to Common Stock...........................................................78
Section 12.10 Cancellation of Converted Notes.......................................................78
Section 12.11 Section 12.11 Effect of Reclassification, Consolidation, Merger or Sale..............79
Section 12.12 Responsibility of Trustee for Conversion Provisions...................................80
ARTICLE XIII SUBORDINATION......................................................................................80
Section 13.1 Notes Subordinated to Senior Debt.....................................................80
Section 13.2 Subrogation...........................................................................82
Section 13.3 Obligation of the Company is Absolute and Unconditional...............................83
Section 13.4 Maturity of or Default on Senior Debt.................................................83
Section 13.5 Payments on Notes Permitted...........................................................83
Section 13.6 Effectuation of Subordination by Trustee..............................................83
Section 13.7 Knowledge of Trustee..................................................................84
Section 13.8 Trustee's Relation to Senior Debt.....................................................84
Section 13.9 Rights of Holders of Senior Debt Not Impaired.........................................85
Section 13.10 Modification of Terms of Senior Debt..................................................85
Section 13.11 Certain Conversions Not Deemed Payment................................................85
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ARTICLE XIV OTHER PROVISIONS OF GENERAL APPLICATION.............................................................86
Section 14.1 Trust Indenture Act Controls..........................................................86
Section 14.2 Notices...............................................................................86
Section 14.3 Communication by Holders with Other Holders...........................................87
Section 14.4 Acts of Holders of Notes..............................................................87
Section 14.5 Certificate and Opinion as to Conditions Precedent....................................88
Section 14.6 Statements Required in Certificate or Opinion.........................................88
Section 14.7 Effect of Headings and Table of Contents..............................................89
Section 14.8 Successors and Assigns................................................................89
Section 14.9 Separability Clause...................................................................89
Section 14.10 Benefits of Indenture.................................................................89
Section 14.11 Governing Law.........................................................................89
Section 14.12 Counterparts..........................................................................89
Section 14.13 Legal Holidays........................................................................89
Section 14.14 Recourse Against Others...............................................................90
vi
EXHIBITS
EXHIBIT A: Form of Note A-1
EXHIBIT B: Regulation S Certificate B-1
EXHIBIT C: Rule 144A Certificate C-1
EXHIBIT D: Accredited Investor Certificate D-1
vii
EXECUTION COPY
INDENTURE, dated as of August 9, 2000 between RADISYS
CORPORATION, a corporation duly organized and existing under the laws of the
State of Oregon, having its principal office at 0000 XX Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxx, Xxxxxx 00000 (the "Company"), and U.S. Trust Company, National
Association, a national banking association, as Trustee (the "Trustee"), having
its principal corporate trust office at Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxxxx, Xxxxxxxxxx.
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 5 1/2% Convertible Subordinated Notes due 2007 (the "Notes") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Notes, when the Notes are
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done.
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 1.1 DEFINITIONS.
For all purposes of this Indenture and the Notes, the
following terms are defined as follows:
"Act," when used with respect to any Holder of a Note, has the
meaning specified in Section 14.4(a) hereof.
"Adjusted Interest Rate" means, with respect to any Reset
Transaction, the rate per annum that is the arithmetic average of the
rates quoted by two Reference Dealers selected by the Company or its
successor as the rate at which interest on the Notes should accrue so
that the fair market value, expressed in dollars, of a Note immediately
after the later of:
(1) the public announcement of such Reset Transaction; or
(2) the public announcement of a change in dividend
policy in connection with such Reset Transaction,
will equal the average Trading Price of a Note for the 20 Trading Days
preceding the date of public announcement of such Reset Transaction;
provided that the Adjusted Interest Rate shall not be less than 5 1/2%
per annum.
"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 Member" has the meaning specified in Section 2.9.
"Bankruptcy Law" means Title 11 of the U.S. Code or any
similar federal or state law for the relief of debtors.
"Board of Directors" means either the board of directors of
the Company or any committee of that 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
the 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 which 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.
"Capitalized Lease" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) of which the
discounted present value of the rental obligations of such Person as
lessee, in conformity with GAAP, is required to be capitalized on the
balance sheet of such Person.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) in equity of such Person,
whether now outstanding or issued after the date of this Indenture,
including, without limitation, all common stock and preferred stock.
"Cedel" means Cedel Bank Societe Anonyme.
"Change of Control" means the occurrence of any of the
following after the original issuance of the Notes:
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(a) the acquisition by any person, including any
syndicate or group deemed to be a "person" or "group"
within the meaning of Section 13(d)(3) of the Exchange
Act, of beneficial ownership, directly or indirectly,
through a purchase, merger or other acquisition transaction
or series of transaction, of shares of Capital Stock of the
Company entitling such person to exercise 50% or more of the
total voting power of all shares of Capital Stock of the
Company entitled to vote generally in elections of directors,
other than any such acquisition by the Company, any subsidiary
of the Company or any employee benefit plan of the Company; or
(b) any consolidation or merger of the Company with or
into any other person, any merger of another person into the
Company, or any conveyance, transfer, sale, lease or other
disposition of all or substantially all of the properties and
assets of the Company to another person, other than (i) any
such transaction (x) that does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of capital stock of the Company and (y)
pursuant to which holders of Capital Stock of the Company
immediately prior to such transaction have the entitlement
to exercise, directly or indirectly, 50% or more of the total
voting power of all shares of capital stock of the Company
entitled to vote generally in the election of directors of
the continuing or surviving person immediately after such
transaction and (ii) any merger which is effected solely to
change the jurisdiction of incorporation of the Company and
results in a reclassification, conversion or exchange of
outstanding shares of Common Stock solely into shares of
common stock of the surviving entity;
Beneficial ownership shall be determined in accordance with Rules 13d-3 and
13d-5 promulgated by the SEC under the Exchange Act. The term "person" shall
include any syndicate or group which would be deemed to be a "person" under
Section 13(d)(3) of the Exchange Act.
"Closing Date" means August 9, 2000, or such later date on
which the Notes may be delivered pursuant to the Purchase Agreement.
"Closing Price" of any security on any date of determination
means:
(1) the closing sale price (or, if no closing sale price
is reported, the last reported sale price) of such security on
the New York Stock Exchange on such date;
(2) if such security is not listed for trading on the
New York Stock Exchange on any such date, the closing sale
price as reported in the composite transactions for the
principal U.S. securities exchange on which such security is
so listed;
(3) if such security is not so listed on a U.S. national
or regional securities exchange, the closing sale price as
reported by the Nasdaq National Market;
-3-
(4) if such security is not so reported, the last quoted
bid price for such security in the over-the-counter market as
reported by the National Quotation Bureau or similar
organization; or
(5) if such bid price is not available, the average of
the mid-point of the last bid and ask prices of such security
on such date from at least three nationally recognized
independent investment banking firms retained for this purpose
by the Company.
"Common Stock" means any stock of any class of the Company
which has no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Company and which is not subject to redemption by
the Company. However, subject to the provisions of Section 12.11
hereof, shares issuable on conversion of Notes shall include only
shares of the class designated as Common Stock, without par value 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 and which have no preference in respect of
dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and
which are not subject to redemption by the Company, provided 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 which the total number of shares of such class resulting
from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Company" means the corporation named as the "Company" in the
first paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Notice" has the meaning specified in Section 11.2
hereof.
"Company Order" means a written request or order signed in the
name of the Company by its Chairman of the Board and President, its
Chief Financial Officer or any Vice President, and delivered to the
Trustee.
"Conversion Agent" means any Person authorized by the Company
to convert Notes in accordance with Article 12 hereof.
"Conversion Price" has the meaning specified in Section 12.1
hereof.
"Corporate Trust Office" means for purposes of presentation or
surrender of Notes for payment, registration, transfer, exchange or
conversion or for service of notices or demands upon the Company, the
office of the Trustee located in The City of New York at which at any
particular time its corporate trust business shall be administered
(which at the date of execution of this Indenture is located c/o U.S.
Trust Company of New York, 00 Xxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, XX
10004-2304), and for all other purposes, the office of the Trustee
located in San Francisco, California (which at the date
-4-
of this Indenture is located at Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx: Corporate Trust Office).
"Corporation" means corporations, associations, limited
liability companies, companies and business trusts.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement and any other arrangement and agreement
designed to provide protection against fluctuations in currency values.
"Current Market Price" has the meaning specified in
Section 12.4(g).
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event which is, or after notice or lapse of
time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in
Section 2.17 hereof.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Dividend Yield" on any security for any period means the
dividends paid or proposed to be paid pursuant to an announced dividend
policy on such security for such period divided by, if with respect to
dividends paid on such security, the average Closing Price of such
security during such period and, if with respect to dividends proposed
to be paid on such security, the Closing Price of such security on the
effective date of the related Reset Transaction.
"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.
"DTC Participants" has the meaning specified in Section 2.8
hereof.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 4.1
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expiration Time" has the meaning specified in Section 12.4(f)
hereof.
"Fair market value" has the meaning set forth in Section
12.4(g) hereof.
"Global Note" has the meaning specified in Section 2.2 hereof.
-5-
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or
other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising
by virtue of partnership arrangements, or by agreements to keep-well,
to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii)
entered into for purposes of assuring in any other manner the obligee
of such Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in
part); provided that the term "guarantee" shall not include
endorsements for collection or deposit in the ordinary course of
business. The term "guarantee" used as a verb has a corresponding
meaning.
"Holder," when used with respect to any Note, means the Person
in whose name the Note is registered in the Register.
"Indebtedness" means, with respect to any Person at any date
of determination (without duplication):
(1) all indebtedness, obligations and other liabilities
(contingent or otherwise) of that 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, 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 that person with respect to
letters of credit, bank guarantees, bankers' acceptances,
surety bonds, performance bonds or other guarantees 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;
-6-
(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
that person in respect of, and obligations or liabilities
(contingent or otherwise) of that 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 (4) 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
(7) any and all deferrals, renewals, extensions and refundings of,
or amendments, modifications or supplements to, any
indebtedness, obligation or liability of the kind described in
clauses (1) through (6).
The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations
as described above and, with respect to contingent obligations, the
maximum liability upon the occurrence of the contingency giving rise to
the obligation, provided (i) that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the face amount
of such Indebtedness less the remaining unamortized portion of the
original issue discount of such Indebtedness at such time as determined
in conformity with GAAP and (ii) that Indebtedness shall not include
any liability for federal, state, local or other taxes.
"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.
"Initial Purchasers" mean XX Xxxxx Securities Corporation,
Banc of America Securities LLC, X.X. Xxxxxx & Co. and First
Security Xxx Xxxxxx.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a) (1),
(2), (3) or (7) under the Securities Act.
"Interest Payment Date" means each of August 15 and
February 15, beginning February 15, 2001.
"Interest Rate" means, (a) if a Reset Transaction has not
occurred, 5 1/2% per annum, or (b) if a Reset Transaction occurs, the
Adjusted Interest Rate related to such Reset Transaction from the
effective date of such Reset Transaction to, but not including, the
effective date of any succeeding Reset Transaction.
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"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended.
"Liquidated Damages" means all liquidated damages, if any,
payable pursuant to Section 3 of the Resale Registration Rights
Agreement.
"Nasdaq National Market" means the National Association of
Securities Dealers Automated Quotation National Market or any successor
national securities exchange or automated over-the-counter trading
market in the United States.
"Non-Electing Share" has the meaning specified in
Section 12.11 hereof.
"Non-institutional Accredited Investor" means a Person that is
an "accredited investor" as that term is defined in Rule 501(a) (4),
(5) or (6) under the Securities Act.
"Notes" has the meaning ascribed to it in the first paragraph
under the caption "Recitals of the Company."
"Officer" of the Company means the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Financial Officer,
the Treasurer, any Vice President or the Secretary of the Company.
"Officer's Certificate" means a certificate signed by the
Chairman, the President, a Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Offshore Global Note" has the meaning set forth in
Section 2.2.
"Offshore Physical Note" has the meaning set forth in
Section 2.2.
"Offshore Restriction Date" has the meaning specified in
Section 2.3(a)(iii).
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to the Company (and may include directors or employees
of the Company) and which opinion is acceptable to the Trustee.
"Outstanding," when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and
delivered under this Indenture, except Notes:
(1) previously canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) for the payment or redemption of which money in the
necessary amount has been previously deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Notes, provided that if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture; and
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(3) which have been paid, in exchange for or in lieu of
which other Notes have been authenticated and delivered
pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a
bona fide purchaser in whose hands such Notes are valid
obligations of the Company.
"Paying Agent" has the meaning specified in Section 2.5
hereof.
"Payment Blockage Notice" has the meaning specified in
Section 13.1(d) hereof.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, estate, unincorporated organization or government or any agency
or political subdivision thereof.
"Physical Notes" has the meaning specified in Section 2.2
hereof.
"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 2.12 hereof 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.
"Purchase Agreement" means the Purchase Agreement, dated
August 3, 2000, among the Company and the Initial Purchasers.
"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
12.4 hereof, Record Date has the meaning specified in 12.4(g) hereof.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price" has the meaning specified in
Section 10.1(b) hereof.
"Reference Dealer" means a dealer engaged in the trading of
convertible securities.
"Reference Period" has the meaning set forth in
Section 12.4(d) hereof.
"Register" has the meaning specified in Section 2.5 hereof.
"Registrar" has the meaning specified in Section 2.5 hereof.
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"Regular Record Date" for the interest on the Notes (including
Liquidated Damages, if any) payable means the close of business on the
February 1 or August 1 (whether or not a Business Day), as the case may
be, preceding an Interest Payment Date.
"Repurchase Date" has the meaning specified in Section 11.1
hereof.
"Repurchase Price" has the meaning specified in Section 11.1
hereof.
"Repurchase Right" has the meaning specified in Section 11.1
hereof.
"Resale Registration Rights Agreement" means the Resale
Registration Rights Agreement dated as of August 9, 2000 between the
Company and the Initial Purchasers.
"Reset Transaction" means a merger, consolidation or statutory
share exchange to which the entity that is the issuer of the shares of
common stock into which the Notes are then convertible into is a party,
a sale of all or substantially all the assets of that entity, a
recapitalization of those shares of common stock or a distribution
described in Section 12.4(d) hereof, after the effective date of which
transaction or distribution the Notes would be convertible into:
(1) shares of an entity the common stock of which had a
Dividend Yield for the four fiscal quarters of such entity
immediately preceding the public announcement of such
transaction or distribution that was more than 2.5% higher
then the Dividend Yield on the Common Stock (or other common
stock then issuable upon conversion of the Notes) for the four
fiscal quarters preceding the public announcement of such
transaction or distribution, or
(2) shares of an entity that announces a dividend policy
prior to the effective date of such transaction or
distribution which policy, if implemented, would result in a
Dividend Yield on such entity's common stock for the next four
fiscal quarters that would result in such a 2.5% basis point
increase.
"Responsible Officer," when used with respect to the Trustee,
means any officer of the Trustee, including any vice president,
assistant vice president, secretary, assistant secretary, the
treasurer, any assistant treasurer, the managing director 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 Securities" means the Notes defined as such in
Section 2.3 hereof.
"Restricted Securities Legend" has the meaning set forth in
Section 2.3(a) hereof.
"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.
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"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.
"Senior Debt" means the principal of, premium, if any,
interest (including all interest accruing subsequent to the
commencement of any bankruptcy or similar proceeding, whether or not a
claim for post-petition interest is allowable as a claim in any such
proceeding) and rent payable on or termination payment with respect to
or in connection with, and all fees, costs, expenses and other amounts
accrued or due on or in connection with, our Indebtedness, whether
outstanding on the date of the indenture or subsequently created,
incurred, assumed, guaranteed or in effect guaranteed by us (including
all deferrals, renewals, extensions or refundings of, or amendments,
modifications or supplements to, the foregoing), unless in the case of
any particular Indebtedness, the instrument creating or evidencing such
Indebtedness or the assumption or guarantee thereof expressly provides
that that Indebtedness shall not be senior in right of payment to the
Notes or expressly provides that such Indebtedness is equal with or
junior to the Notes. However, the term "Senior Debt" does not include
our Indebtedness to any of our subsidiaries of which we own, directly
or indirectly, a majority of the voting stock.
"Shelf Registration Statement" has the meaning set forth in
the Resale Registration Rights Agreement.
"Significant Subsidiary" has the meaning set forth in Rule
1-02(w) promulgated by the SEC.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 2.17
hereof.
"Subsidiary" means a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the Company and
one or more other Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section 77aaa- 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:
(1) if the applicable security is listed or admitted
for trading on the New York Stock Exchange or another national
security exchange, a day on which the New York Stock Exchange
or such other national security is open for business;
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(2) if the applicable security is quoted on the
Nasdaq National Market, a day on which trades may be made
thereon; or
(3) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a Saturday
or Sunday or a day on which banking institutions in the State
of New York are authorized or obligated by law or executive
order to close.
"Trading Price" of a security on any date of determination
means:
(1) the closing sale price (or, if no closing sale
price is reported, the last reported sale price) of such
security (regular way) on the New York Stock Exchange on such
date;
(2) if such security is not listed for trading on the
New York Stock Exchange on any such date, the closing sale
price as reported in the composite transactions for the
principal U.S. securities exchange on which such security is
so listed;
(3) if such security is not so listed on a U.S.
national or regional securities exchange, the closing sale
price as reported by the Nasdaq National Market;
(4) if such security is not so reported, the last
price quoted by Interactive Data Corporation for such security
or, if Interactive Data Corporation is not quoting such price,
a similar quotation service selected by the Company;
(5) if such security is not so quoted, the average of
the mid-point of the last bid and ask prices for such security
from at least two dealers recognized as market-makers for such
security; or
(6) if such security is not so quoted, the average of
the last bid and ask prices for such security from a Reference
Dealer.
"Transfer Agent" means any Person, which may be the Company,
authorized by the Company to exchange or register the transfer of
Notes, initially U.S. Trust Company, National Association.
"Trigger Event" has the meaning specified in Section 12.4(d)
hereof.
"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.
"U.S. Global Note" has the meaning specified in Section 2.2.
"U.S. Government Obligations" means: (1) direct obligations of
the United States of America for the payment of which the full faith
and credit of the United States of
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America is pledged or (2) obligations of a person controlled
or supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit
obligation by the United States of America and which in either
case, are non-callable at the option of the issuer thereof.
"U.S. Physical Note" has the meaning specified in Section 2.2.
"Vice President," when used with respect to the Company, means
any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" 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 1.2 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 rule have
the meanings assigned to them by such definitions.
SECTION 1.3 RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with accounting principles
generally accepted in the United States prevailing at the time of any
relevant computation hereunder; and
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(3) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
ARTICLE II
THE NOTES
SECTION 2.1 TITLE AND TERMS.
The Notes shall be known and designated as the "5 1/2%
Convertible Subordinated Notes due 2007" of the Company. The aggregate principal
amount of Notes which may be authenticated and delivered under this Indenture is
limited to $100 million ($120 million if the over-allotment option set forth in
Section 2(c) of the Purchase Agreement is exercised in full), except for Notes
authenticated and delivered upon registration of, transfer of, or in exchange
for, or in lieu of other Notes pursuant to Section 2.7, 2.8, 2.9, 2.12, 7.5,
10.7, 11.1 or 12.2 hereof. The Notes shall be issuable in denominations of
$1,000 or integral multiples thereof.
The Notes shall mature on August 15, 2007.
Interest shall accrue from August 9, 2000 at the Interest Rate
until the principal thereof is paid or made available for payment. Interest
shall be payable semiannually in arrears on February 15 and August 15 in each
year, commencing February 15, 2001.
Interest on the Notes shall be computed (i) for any full
semiannual period for which a particular Interest Rate is applicable on the
basis of a 360-day year of twelve 30-day months and (ii) for any period for
which a particular Interest Rate is applicable shorter than a full semiannual
period for which interest is calculated, on the basis of a 30-day month and, for
such periods of less than a month, the actual number of days elapsed over a
30-day month. For purposes of determining the Interest Rate, the Trustee may
assume that a Reset Transaction has not occurred unless the Trustee has received
an Officers' Certificate stating that a Reset Transaction has occurred and
specifying the Adjusted Interest Rate then in effect.
A Holder of any Note at the close of business on a Regular
Record Date shall be entitled to receive interest (including Liquidated Damages,
if any) on such Note on the corresponding Interest Payment Date. A Holder of any
Note which is converted after the close of business on a Regular Record Date and
prior to the corresponding Interest Payment Date shall be entitled to receive
interest (including Liquidated Damages, if any) on the principal amount of such
Note, notwithstanding the conversion of such Note prior to such Interest Payment
Date. However, any such Holder which surrenders any such Note for conversion
during the period between the close of business on such Regular Record Date and
ending with the opening of business on the corresponding Interest Payment Date
shall be required to pay the Company an amount equal to the interest (including
Liquidated Damages, if any) on the principal amount of such Note so converted,
which is payable by the Company to such Holder on such Interest Payment Date, at
the time such Holder surrenders such Note for conversion. Notwithstanding the
foregoing, any such Holder which surrenders for conversion any Note which has
been called for redemption by the Company in a notice of redemption given by the
Company pursuant to
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Section 10.4 hereof shall be entitled to receive (and retain) such interest
(including Liquidated Damages, if any) and need not pay the Company an amount
equal to the interest (including Liquidated Damages, if any) on the principal
amount of such Note so converted at the time such Holder surrenders such Note
for conversion. The Company will pay interest to a Person other than the Holder
of any Note if a Holder surrenders for conversion any Note which has been called
for redemption by the Company in a notice of redemption given by the Company
pursuant to Section 10.4 hereof on a date that is after the Regular Record Date
and prior to the corresponding Interest Payment Date. Interest will be paid to
but not including the Redemption Date to the Person entitled to receive payment
of principal on such Note or Notes.
Principal of, and premium, if any, and interest on, Global
Notes shall be payable to the Depositary in immediately available funds.
Principal and premium, if any, 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 on Physical Notes (other than at maturity) will be payable by
(i) U.S. Dollar check drawn on a bank in The City of New York mailed to the
address of the Person entitled thereto as such address shall appear in the
Register, 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, wire transfer in immediately available funds.
The Notes shall be redeemable at the option of the Company as
provided in Article 10 hereof.
The Notes shall have a Repurchase Right exercisable at the
option of Holders as provided in Article 11 hereof.
The Notes shall be convertible as provided in Article 12
hereof.
The Notes shall be subordinated in right of payment to Senior
Debt of the Company as provided in Article 13 hereof.
SECTION 2.2 FORM OF NOTES.
The Notes and the Trustee's certificate of authentication to
be borne by such Notes shall be substantially in the form annexed hereto as
Exhibit A, which is incorporated in and made a part of this Indenture. The terms
and provisions contained in the form of Note shall constitute, and are hereby
expressly made, a part of this Indenture, and to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Any of the Notes may have such letters, numbers or other marks
of identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed or designated for issuance, or to conform to usage.
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Notes offered and sold to QIBs in reliance on Rule 144A shall
be issued initially only in the form of one or more permanent global Notes
(each, a "U.S. Global Note") in registered form without interest coupons, in
substantially the form set forth in Exhibit A and, except as otherwise provided
in Section 2.3(a)(iii), shall contain the Restrictive Securities Legend as set
forth in Section 2.3(a)(i).
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially only in the form of one or more permanent
global Notes (each, an "Offshore Global Note" and, together with the U.S. Global
Note, the "Global Notes") in registered form without interest coupons in
substantially the form set forth in Exhibit A and, except as otherwise provided
in Section 2.3(a)(iii), shall contain the Restrictive Securities Legend as set
forth in Section 2.3(a)(i). Notes issued pursuant to Section 2.8(d) in exchange
for or upon transfer of beneficial interests in the U.S. Global Note shall be in
the form of permanent certificated Notes substantially in the form set forth in
Exhibit A (the "U.S. Physical Notes"), and Notes issued pursuant to Section
2.8(d) in exchange for or upon transfer of beneficial interests in the Offshore
Global Note shall be in the form of permanent certificated Notes substantially
in the form set forth in Exhibit A (the "Offshore Physical Notes").
The Offshore Physical Notes and U.S. Physical Notes are
sometimes collectively herein referred to as the "Physical Notes."
The Global Notes shall be:
(1) duly executed by the Company and authenticated by the
Trustee as hereinafter provided;
(2) registered in the name of the Depositary (or its nominee)
for credit to the respective accounts of the Holders at the Depositary;
and
(3) deposited with the Trustee, as custodian for the
Depositary.
The Global Notes shall be substantially in the form of the
Note set forth in Exhibit A annexed hereto (including the text and schedule
called for by footnote 1 and 2 thereto). The aggregate principal amount of the
Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary (or its nominee),
in accordance with the instructions given by the Holder thereof, as hereinafter
provided.
The Notes shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the Officers executing such Notes, as evidenced
by their execution of such Notes.
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SECTION 2.3 LEGENDS.
(a) RESTRICTED SECURITIES LEGENDS.
Each Note issued hereunder and any Common Stock issued upon
conversion of a Restricted Security shall, upon issuance, bear the legend set
forth in Section 2.3(a)(i) or Section 2.3(a)(ii) (each, a "Restricted Securities
Legend"), as the case may be, and such legend shall not be removed except as
provided in Section 2.3(a)(iii). Each Note that bears or is required to bear the
Restricted Securities Legend set forth in Section 2.3(a)(i) (together with any
Common Stock issued upon conversion of the Notes and required to bear the
Restricted Securities Legend set forth in Section 2.3(a)(ii), collectively, the
"Restricted Securities") shall be subject to the restrictions on transfer set
forth in this Section 2.3(a) (including the Restricted Securities Legend set
forth below), and the Holder of each such Restricted Security, by such Holder's
acceptance thereof, shall be deemed to have agreed to be bound by all such
restrictions on transfer.
As used in Section 2.3(a), the term "transfer" encompasses any
sale, pledge, transfer or other disposition whatsoever of any Restricted
Security.
(i) RESTRICTED SECURITIES LEGEND FOR RESTRICTED SECURITIES
Except as provided in Section 2.3(a)(iii), until two years
after the original issuance date of any Note, any certificate evidencing such
Note (and all securities issued in exchange therefor or substitution thereof,
other than Common Stock, if any, issued upon conversion thereof which shall bear
the legend set forth in Section 2.3(a)(ii), if applicable) shall bear a
Restricted Securities Legend in substantially the following form:
"The security evidenced by this certificate has not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities laws, and may not
be offered or sold within the United States or to, or for the
account or benefit of, U.S. Persons except as set forth in the
following sentence. By acquisition hereof, the holder:
(1) represents that (a) it is a "Qualified Institutional Buyer" as
defined in Rule 144A under the Securities Act, (b) it is an
institutional "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act (an
"institutional accredited investor") that is purchasing at
least $100,000 in aggregate principal amount of notes or an
"accredited investor" as defined in Rule 501(a)(4), (5) or (6)
under the Securities Act (a "non-institutional accredited
investor") that is purchasing at least $250,000 in aggregate
principal amount of notes or (c) it is a non-U.S. Person
outside the United States acquiring the note in compliance
with Regulation S under the Securities Act;
(2) agrees that it will not within two years after the original
issuance of this security resell or otherwise transfer the
security evidenced hereby or the common stock issuable upon
conversion of this security except (a) to the issuer of this
security or any subsidiary thereof, (b) to a Qualified
Institutional Buyer in compliance with Rule 144A under the
Securities Act, (c) pursuant to an exemption from registration
under the Securities Act to an institutional accredited
investor that is
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purchasing notes in an aggregate principal amount of at least
$100,000 or to a non-institutional accredited investor that is
purchasing notes in an aggregate principal amount of at least
$250,000, and that, in either case, prior to such transfer,
furnishes to U.S. Trust Company, National Association, as
trustee (or any successor trustee, as applicable), a signed
letter containing certain representations and warranties
relating to the restrictions on transfer of the security
evidenced hereby (the form of letter can be obtained from such
trustee), (d) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available),
(e) to a non-U.S. Person outside the United States acquiring
the note in compliance with Regulation S under the Securities
Act or (f) pursuant to a registration statement which has been
declared effective under the Securities Act and which
continues to be effective at the time of such transfer; and
(3) agrees that it will deliver to each person to whom the
security evidenced hereby is transferred (other than a
transfer pursuant to clause 2(f) above) a notice substantially
to the effect of this legend.
In connection with any transfer of the security evidenced hereby within
two years after the original issuance of this security (other than a
transfer pursuant to clause 2(f) above), the holder must check the
appropriate box set forth on the reverse hereof relating to the manner
of such transfer and submit this certificate to the trustee (or any
successor trustee, as applicable). If the proposed transfer is pursuant
to clause 2(d) above, the holder must, prior to such transfer, furnish
to the trustee (or any successor trustee, as applicable), such
certifications, legal opinions or other information as the issuer of
this security may reasonably require to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act. This
legend will be removed upon the earlier of the transfer of the security
evidenced hereby pursuant to clause 2(f) above or the expiration of two
years from the original issuance of the security evidenced hereby. As
used herein, the terms "United States" and "U.S. Person" have the
meanings given to them by Regulation S under the Securities Act."
(ii) RESTRICTED SECURITIES LEGEND FOR COMMON STOCK ISSUED UPON
CONVERSION OF NOTES.
Except as provided in Section 2(a)(iii), until two years after
the original issuance date of any Note, any stock certificate representing
Common Stock issued upon conversion of such Note shall bear a Restricted
Securities Legend in substantially the following form:
"The security evidenced hereby has not been registered under
the Securities Act of 1933, as amended (the "Securities Act"),
or any state securities laws, and may not be offered or sold
within the United States or to, or for the account or benefit
of, U.S. Persons except as set forth in the following
sentence. The holder hereof agrees that until the expiration
of two years after the original issuance of the security upon
the conversion of which the common stock evidenced hereby was
issued,
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(1) it will not resell or otherwise transfer this security except
(a) to the issuer of this security or any subsidiary thereof,
(b) pursuant to an exemption from registration under the
Securities Act to an institutional accredited investor (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that is purchasing a number of shares of
common stock of the issuer at least equal to $100,000 divided
by $67.8038 (the initial conversion price) or to a
non-institutional accredited investor (as defined in rule
501(a)(4), (5) or (6) under the Securities Act) that is
purchasing a number or shares of common stock of the issuer at
least equal to $250,000 divided by $67.8038 (the initial
conversion price), and that, in either case, furnishes to
ChaseMellon Shareholder Services, L.L.C., as transfer agent
(or any successor transfer agent, as applicable), a signed
letter containing certain representations and warranties
relating to the restrictions on transfer of the security
evidenced hereby (the form of which letter can be obtained
from such transfer agent), (d) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if
available), (e) to a non-U.S. Person outside the United States
acquiring the security in compliance with Regulation S under
the Securities Act or (f) pursuant to a registration statement
which has been declared effective under the Securities Act and
which continues to be effective at the time of such transfer;
(2) prior to any such transfer other than under clause 1(f) above,
it will furnish to such transfer agent, (or any successor
transfer agent, as applicable) such certifications, legal
opinions or other information as the Company may reasonably
require to confirm that such transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act; and
(3) it will deliver to each person to whom the common stock
evidenced hereby is transferred (other than a transfer
pursuant to clause 1(f) above) a notice substantially to the
effect of this legend.
This legend will be removed upon the earlier of the transfer of the
common stock evidenced hereby pursuant to clause 1(f) above or the
expiration of two years from the original issuance of this security
upon the conversion of which the common stock evidenced hereby was
issued. As used herein, the terms "United States" and "U.S. Person"
have the meanings given to them by Regulation S under the Securities
Act."
(iii) REMOVAL OF THE RESTRICTED SECURITIES LEGENDS.
Each Note or share of Common Stock issued upon conversion of
such Note shall bear the Restricted Securities Legend set forth in Section
2.3(a)(i) or 2.3(a)(ii), as the case may be, until the earlier of:
(A) two years after the original issuance date of such Note,
in the case of each U.S. Global Note and each U.S. Physical Note, and
one year after the original issue date
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of each Note, in the case of each Offshore Global Note and each
Offshore Physical Note (such date being referred to as the "Offshore
Restriction Date");
(B) such Note or Common Stock has been sold pursuant to a
registration statement that has been declared effective under the
Securities Act (and which continues to be effective at the time of such
sale);
(C) such Common Stock has been issued upon conversion of Notes
that have been sold pursuant to a registration statement that has been
declared effective under the Securities Act (and which continues to be
effective at the time of such sale);
(D) the date when holders of such Note or Common Stock are
able to sell such Note or Common Stock immediately without restriction
pursuant to the volume limitation provisions of Rule 144 under the
Securities Act; or
(E) such Note or Common Stock is owned by holders who complete
and deliver in a timely manner the selling securityholder election and
questionnaire described in the Resale Registration Rights Agreement and
dispose of such Note or Common Stock under the shelf registration
statement described in the Resale Registration Rights Agreement.
The Holder must give written notice thereof to the Trustee and any transfer
agent for the Common Stock, as applicable.
Notwithstanding the foregoing, the Restricted Securities
Legend may be removed if there is delivered to the Company such satisfactory
evidence, which may include an opinion of independent counsel, as may be
reasonably required by the Company that neither such legend nor the restrictions
on transfer set forth therein are required to ensure that transfers of such Note
or Common Stock will not violate the registration requirements of the Securities
Act. Upon provision of such satisfactory evidence, the Trustee, at the written
direction of the Company, shall authenticate and deliver in exchange for such
Notes another Note or Notes having an equal aggregate principal amount that does
not bear such legend. If the Restricted Securities Legend has been removed from
a Note as provided above, no other Note issued in exchange for all or any part
of such Note shall bear such legend, unless the Company has reasonable cause to
believe that such other Note is a "restricted security" within the meaning of
Rule 144 and instructs the Trustee in writing to cause a Restricted Securities
Legend to appear thereon.
Any Note (or security issued in exchange or substitution
thereof) as to which such restrictions on transfer shall have expired in
accordance with their terms or as to which the conditions for removal of the
Restricted Securities Legend set forth in Section 2.3(a)(i) as set forth therein
have been satisfied may, upon surrender of such Note for exchange to the
Registrar in accordance with the provisions of Section 2.7 hereof, be exchanged
for a new Note or Notes, of like tenor and aggregate principal amount, which
shall not bear the Restricted Securities Legend required by Section 2.3(a)(i).
Any such Common Stock as to which such restrictions on
transfer shall have expired in accordance with their terms or as to which the
conditions for removal of the Restricted Securities Legend set forth in Section
2.3(a)(ii) as set forth therein have been satisfied may, upon
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surrender of the certificates representing such shares of Common Stock for
exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like aggregate
number of shares of Common Stock, which shall not bear the Restricted Securities
Legend required by Section 2.3(a)(ii).
(b) GLOBAL NOTE LEGEND.
Each Global Note shall also bear the following legend on the
face thereof:
"Unless this certificate is presented by an authorized representative
of The Depository Trust Company ("DTC") to RadiSys Corporation (or its
successor) or its agent for registration of transfer, exchange,
conversion or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other entity as requested by an
authorized representative of DTC (and any payment hereon 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 since the registered
owner hereof, Cede & Co., has an interest herein."
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Two Officers shall execute the Notes on behalf of the Company
by manual or facsimile signature. If an Officer whose signature is on a Note no
longer holds that office at the time the Note is authenticated, the Note shall
be valid nevertheless.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes, and the Trustee in accordance with
such Company Order shall authenticate and deliver such Notes as in this
Indenture provided and not otherwise.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture,
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by or on behalf of the Trustee by manual signature, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder.
The Trustee may appoint an authenticating agent or agents
reasonably acceptable to the Company with respect to the Notes. Unless limited
by the terms of such appointment, 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.
SECTION 2.5 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange (the "Registrar") and
an office or agency where Notes may be presented for payment (the "Paying
Agent"). The Registrar shall keep a register of the
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Notes (the "Register") and of their transfer and exchange. The Company may
appoint one or more co-Registrars and one or more additional Paying Agents for
the Notes. The term "Paying Agent" includes any additional paying agent and the
term "Registrar" includes any additional registrar. The Company may change any
Paying Agent or Registrar without prior notice to any Holder.
The Company will cause each Paying Agent (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of and premium, if any, or interest (including Liquidated Damages, if
any) on Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as provided in this Indenture;
(2) give the Trustee notice of any Default by the Company in
the making of any payment of principal and premium, if any, or interest
(including Liquidated Damages, if any); and
(3) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company shall give prompt written notice to the Trustee of
the name and address of any Paying Agent who is not a party to this Indenture.
If the Company fails to appoint or maintain another entity as Registrar or
Paying Agent, the Trustee shall act as such. The Company or any Affiliate of the
Company may act as Paying Agent or Registrar; provided, however, that none of
the Company, its subsidiaries or the Affiliates of the foregoing shall act:
(i) as Paying Agent in connection with redemptions, offers to
purchase and discharges, as otherwise specified in this Indenture, and
(ii) as Paying Agent or Registrar if a Default or Event of
Default has occurred and is continuing.
The Company hereby initially appoints the Trustee as Registrar
and Paying Agent for the Notes.
SECTION 2.6 PAYING AGENT TO HOLD ASSETS IN TRUST.
Not later than 8:00 a.m. (New York City time) on each due date
of the principal, premium, if any, and interest (including Liquidated Damages,
if any) on any Notes, the Company shall deposit with one or more Paying Agents
money in immediately available funds sufficient to pay such principal, premium,
if any, and interest (including Liquidated Damages, if any) so becoming due. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than
the Company) shall have no further liability for the money so paid over to the
Trustee.
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If the Company shall act as a Paying Agent, it shall, prior to
or on each due date of the principal of and premium, if any, or interest
(including Liquidated Damages, if any) on any of the Notes, segregate and hold
in trust for the benefit of the Holders a sum sufficient with monies held by all
other Paying Agents, to pay the principal and premium, if any, or interest
(including Liquidated Damages, if any) so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as provided in this Indenture, and
shall promptly notify the Trustee of its action or failure to act.
SECTION 2.7 GENERAL PROVISIONS RELATING TO TRANSFER AND
EXCHANGE.
The Notes are issuable only in registered form. A Holder may
transfer a Note only by written application to the Registrar stating the name of
the proposed transferee and otherwise complying with the terms of this
Indenture. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Register. Furthermore, any Holder of a
Global Note shall, by acceptance of such Global Note, agree that transfers of
beneficial interests in such Global Note may be effected only through a
book-entry system maintained by the Holder of such Global Note (or its agent)
and that ownership of a beneficial interest in the Note shall be required to be
reflected in a book-entry.
Notwithstanding the foregoing, in the case of a Restricted
Security, a beneficial interest in a Global Note being transferred in reliance
on an exemption from the registration requirements of the Securities Act other
than in accordance with Rule 144 and Rule 144A may only be transferred for a
Physical Note.
Transfer of any shares of Common Stock issued upon conversion
of any Note that are Restricted Securities may only be effected by written
application to the transfer agent for the Common Stock stating the name of the
proposed transferee and otherwise complying with the requirements set forth in
Section 2.3(a) and any other requirements put in place by the Company or such
transfer agent. No such transfer shall be effected until, and such transferee
shall succeed to the rights of a holder of such Common Stock only upon, final
acceptance and registration of the transfer by the Company and such transfer
agent. Furthermore, any such holder by acceptance of such Common Stock issued
upon conversion of any Restricted Security, agrees that transfers of beneficial
interests in such Common Stock may be effected only through a book-entry system
maintained by the holder of such Common Stock (or its agent) and that ownership
of a beneficial interest in the Common Stock shall be required to be reflected
in a book-entry.
When Notes are presented to the Registrar with a request to
register the transfer or to exchange them for an equal aggregate principal
amount of Notes of other authorized denominations, the Registrar shall register
the transfer or make the exchange as requested if its requirements for such
transactions are met (including that such Notes are duly endorsed or accompanied
by a written instrument of transfer duly executed by the Holder thereof or by an
attorney who is authorized in writing to act on behalf of the Holder). Subject
to Section 2.4 hereof, to permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Notes at the
Registrar's request. No service charge shall be made for any registration of
transfer or exchange or redemption of the Notes, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge
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payable in connection therewith (other than any such transfer taxes or
other similar governmental charge payable upon exchanges pursuant to Section
2.14, 7.5 or 10.7 hereof).
Neither the Company nor the Registrar shall be required to
exchange or register a transfer of any Notes:
(1) for a period of 15 Business Days prior to the day of any
selection of Notes for redemption under Article 10 hereof;
(2) so selected for redemption or, if a portion of any Note is
selected for redemption, such portion thereof selected for redemption;
or
(3) surrendered for conversion or, if a portion of any Note is
surrendered for conversion, such portion thereof surrendered for
conversion.
SECTION 2.8 BOOK-ENTRY PROVISIONS FOR THE GLOBAL NOTES.
(a) The Global Notes initially shall:
(i) be registered in the name of the Depositary (or a
nominee thereof);
(ii) be delivered to the Trustee as custodian for
such Depositary; and
(iii) bear the Restricted Securities Legend as set
forth in Section 2.3(a)(i) hereof.
Members of, or participants in, the Depositary ("DTC
Participants") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary, or the Trustee as its
custodian, or under such Global Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing contained herein shall prevent the Company, the Trustee or
any agent of the Company or Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and the DTC Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(b) The registered Holder of a Global Note may grant proxies
and otherwise authorize any Person, including DTC Participants and Persons that
may hold interests through DTC Participants, to take any action which a Holder
is entitled to take under this Indenture or the Notes.
(c) A Global Note may not be transferred, in whole or in part,
to any Person other than the Depositary (or a nominee thereof), and no such
transfer to any such other Person may be registered. Beneficial interests in a
Global Note may be transferred in accordance with the rules and procedures of
the Depositary and the provisions of Section 2.9 hereof.
(d) If at any time:
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(i) the Depositary notifies the Company in writing
that it is no longer willing or able to continue to act as
Depositary for the Global Notes, or the Depositary ceases to
be a "clearing agency" registered under the Exchange Act and a
successor depositary for the Global Notes is not appointed by
the Company within 90 days of such notice or cessation;
(ii) the Company, at its option, notifies the Trustee
in writing that it elects to cause the issuance of the Notes
in definitive form under this Indenture in exchange for all or
any part of the Notes represented by a Global Note or Global
Notes; or
(iii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the
Depositary for the issuance of Physical Notes in exchange for
such Global Note or Global Notes,
the Depositary shall surrender such Global Note or Global Notes to the Trustee
for cancellation and the Company shall execute, and the Trustee, upon receipt of
an Officers' Certificate and Company Order for the authentication and delivery
of Notes, shall authenticate and deliver in exchange for such Global Note or
Global Notes, Physical Notes in an aggregate principal amount equal to the
aggregate principal amount of such Global Note or Global Notes. Such Physical
Notes shall be registered in such names as the Depositary (or any nominee
thereof) shall identify in writing as the beneficial owners of the Notes
represented by such Global Note or Global Notes.
(e) Notwithstanding the foregoing, in connection with any
transfer of beneficial interests in a Global Note to beneficial owners pursuant
to Section 2.8(d) hereof, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of such Global Note in an amount
equal to the principal amount of the beneficial interest in such Global Note to
be transferred.
SECTION 2.9 SPECIAL TRANSFER PROVISIONS.
(a) GENERAL. The provisions of this Section 2.9 shall apply to
all transfers involving any Physical Note and any beneficial interest in any
Global Note. The Company shall, as promptly as practicable upon receipt of a
written notice from any Holder wishing to effectuate a transfer pursuant to
Regulation S, cause an Offshore Global Note to be executed, authenticated and
delivered as set forth in Section 2.4, in order to facilitate such transfer.
(b) CERTAIN DEFINITIONS. As used in this Section 2.9 only,
"delivery" of a certificate by a transferee or transferor means the delivery to
the Registrar by such transferee or transferor of the applicable certificate
duly completed; "holding" includes both possession of a Physical Note and
ownership of a beneficial interest in a Global Note, as the context requires;
"transferring" a Global Note means transferring that portion of the principal
amount of the transferor's beneficial interest therein that the transferor has
notified the Registrar that it has agreed to transfer; and "transferring" a
Physical Note means transferring that portion of the principal amount thereof
that the transferor has notified the Registrar that it has agreed to transfer.
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As used in this Indenture, "Regulation S Certificate" means a
certificate substantially in the form set forth in Exhibit B; "Rule 144A
Certificate" means a certificate substantially in the form set forth in Exhibit
C; "Accredited Investor Certificate" means a certificate substantially in the
form set forth in Exhibit D; and "Rule 144 Non-Registration and Supporting
Evidence" means a written opinion of counsel reasonably acceptable to the
Company to the effect that, and such other certification or information as the
Company may reasonably require to confirm that, the proposed transfer is being
made pursuant to the exemption from the registration requirements of the
Securities Act provided by Rule 144.
(c) The following provisions shall apply with respect to the
registration of any proposed transfer of Notes to any Institutional Accredited
Investor which is not a QIB, or any Non-institutional Accredited Investor:
(i) The Registrar shall register the transfer if the proposed
transferee has delivered to the Trustee (A) an Accredited Investor
Certificate and (B) such opinion of counsel and other evidence
satisfactory to the Company that such transfer is in compliance with
the Securities Act, as requested by the Company.
(ii) If the proposed transferor is a DTC Participant holding a
beneficial interest in Global Notes, upon receipt by the Registrar of
the documents required by clause (i) of this Section 2.9(c) and
instructions given in accordance with the procedures of the Depositary
and of the Registrar, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Global
Notes in an amount equal to the principal amount of the beneficial
interest in the Global Notes to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Physical Notes of like tenor and amount.
(iii) If the Notes to be transferred consist of Physical
Notes, upon receipt by the Registrar of the documents referred to in
clause (i) of this Section 2.9(c), the Company shall execute and the
Trustee shall authenticate and deliver, new Physical Notes registered
in the name of the transferee and the Trustee shall cancel the Physical
Notes presented for transfer.
(d) DEEMED DELIVERY OF A RULE 144A CERTIFICATE IN CERTAIN
CIRCUMSTANCES. A Rule 144A Certificate, if not actually delivered, will be
deemed delivered if (A) (i) the transferor advises the Company and the Trustee
in writing that the relevant offer and sale were made in accordance with the
provisions of Rule 144A (or, in the case of a transfer of a Physical Note, the
transferor checks the box provided on the Physical Note to that effect) and (ii)
the transferee advises the Company and the Trustee in writing that (x) it is a
qualified institutional buyer within the meaning of Rule 144A and, if
applicable, it holds a reasonable belief that each account for which it is
acting in connection with the relevant transfer is a qualified institutional
buyer within the meaning of Rule 144A, (y) it is aware that the transfer of
Notes to it is being made in reliance on the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A, and (z) if at any time
the Company is not subject to Section 13 or 15(d) of the Exchange Act, prior to
the proposed date of transfer the transferee has been given the opportunity to
obtain from the Company the information referred to in Rule 144A(d)(4), and has
either declined such opportunity or has received such information (or, in the
case of a transfer of a Physical Note, the
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transferee signs the certification provided on the Physical Note to that
effect); or (B) the transferor holds the U.S. Global Note and is transferring to
a transferee that will take delivery in the form of the U.S. Global Note.
(e) PROCEDURES AND REQUIREMENTS.
(1) if the proposed transfer occurs prior to the Offshore
Restriction Date, and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the
Registrar, and the proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant
to clause (d) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical Note, then
the Registrar shall (x) register such transfer in the name of such
transferee and record the date thereof in its books and records, (y)
cancel such surrendered U.S. Physical Note and (z) deliver a new U.S.
Physical Note to such transferee duly registered in the name of such
transferee in principal amount equal to the principal amount being
transferred of such surrendered U.S. Physical Note;
(ii) delivers (or is deemed to have delivered
pursuant to clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through a member of, or participant in, the
Depository (an "Agent Member") and requests that the proposed
transferee receive a beneficial interest in the U.S. Global Note, then
the Registrar shall (x) cancel such surrendered U.S. Physical Note, (y)
record an increase in the principal amount of the U.S. Global Note
equal to the principal amount being transferred of such surrendered
U.S. Physical Note and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer; or
(iii) delivers a Regulation S Certificate and the
proposed transferee is or is acting through an Agent Member and
requests that the proposed transferee receive a beneficial interest in
an Offshore Global Note, then, if an Offshore Global Note was
theretofore issued, the Registrar shall (x) cancel such surrendered
U.S. Physical Note, (y) record an increase in the principal amount of
the Offshore Global Note equal to the principal amount being
transferred of such surrendered U.S. Physical Note and (z) notify the
Depositary in accordance with the procedures of the Depositary that it
approves of such transfer.
In any of the cases described in this Section 2.9(e)(1)(A),
the Registrar shall deliver to the transferor a new U.S. Physical Note in
principal amount equal to the principal amount not being transferred of such
surrendered U.S. Physical Note, as applicable.
(B) an interest in the U.S. Global Note, and the
proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant
to clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in
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the U.S. Global Note, then the transfer shall be effected in accordance
with the procedures of the Depositary therefor; or
(ii) delivers a Regulation S Certificate and the
proposed transferee is or is acting through an Agent Member and
requests that the proposed transferee receive a beneficial interest in
an Offshore Global Note, then, if an Offshore Global Note was
theretofore issued, the Registrar shall (w) register such transfer in
the name of such transferee and record the date thereof in its books
and records, (x) record a decrease in the principal amount of the U.S.
Global Note in an amount equal to the beneficial interest therein being
transferred, (y) record an increase in the principal amount of the
Offshore Global Note equal to the amount of such decrease and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer.
(C) an interest in an Offshore Global Note, and the
proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant
to clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the U.S.
Global Note, then the Registrar shall (x) record a decrease in the
principal amount of the Offshore Global Note in an amount equal to the
beneficial interest therein being transferred, (y) record an increase
in the principal amount of the U.S. Global Note equal to the amount of
such decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer; or
(ii) delivers a Regulation S Certificate and the
proposed transferee is or is acting through an Agent Member and
requests that the proposed transferee receive a beneficial interest in
an Offshore Global Note, then, if an Offshore Global Note was
theretofore issued, the transfer shall be effected in accordance with
the procedures of the Depositary therefor; provided, however, that
until one year after the original issuance of any Note, beneficial
interests in the Offshore Global Note may be held only in or through
accounts maintained at the Depositary by Euroclear or Cedel (or by
Agent Members acting for the account thereof), and no person shall be
entitled to effect any transfer or exchange that would result in any
such interest being held otherwise than in or through such an account.
(2) If the proposed transfer occurs on or after the Offshore
Restriction Date, and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the
Registrar, and the proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant
to clause (d) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical Note, then
the procedures set forth in Section 2.9(e)(1)(A)(i) shall apply.
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(ii) delivers (or is deemed to have delivered
pursuant to clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the Offshore
Global Note, then, if an Offshore Global Note was theretofore issued,
the procedures set forth in Section 2.9(e)(1)(A)(ii) shall apply; or
(iii) delivers a Regulation S Certificate, then the
Registrar shall cancel such surrendered U.S. Physical Note and at the
direction of the transferee, either:
(x) register such transfer in the name of
such transferee, record the date thereof in its books
and records and deliver a new Offshore Physical Note
to such transferee in principal amount equal to the
principal amount being transferred of such
surrendered U.S. Physical Note, or
(y) if the proposed transferee is or is
acting through an Agent Member, and if an Offshore
Global Note was theretofore issued, record an
increase in the principal amount of the Offshore
Global Note equal to the principal amount being
transferred of such surrendered U.S. Physical Note
and notify the Depositary in accordance with the
procedures of the Depositary that it approves of such
transfer.
In any of the cases described in this Section 2.9(e)(2)(A)(i),
(ii) or (iii)(x), the Registrar shall deliver to the transferor a new U.S.
Physical Note in principal amount equal to the principal amount not being
transferred of such surrendered U.S. Physical Note, as applicable.
(B) an interest in the U.S. Global Note, and the
proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant
to clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests that
the proposed transferee receive a beneficial interest in the U.S.
Global Note, then the procedures set forth in Section 2.9(e)(1)(B)(i)
shall apply; or
(ii) delivers a Regulation S Certificate, then the
Registrar shall (x) record a decrease in the principal amount of the
U.S. Global Note in an amount equal to the beneficial interest therein
being transferred, (y) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer and (z)
at the direction of the transferee, if the proposed transferee is or is
acting through an Agent Member and if an Offshore Global Note was
theretofore issued,, record an increase in the principal amount of the
Offshore Global Note equal to the amount of such decrease.
(C) an Offshore Physical Note which is surrendered to
the Registrar, and the proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant
to clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests
delivery in the form of the U.S. Global Note, then the Registrar shall
(x) cancel such surrendered Offshore Physical Note, (y) record an
increase
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in the principal amount of the U.S. Global Note equal to the principal
amount being transferred of such surrendered Offshore Physical Note and
(z) notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) where the proposed transferee is or is acting
through an Agent Member and, if an Offshore Global Note was theretofore
issued, requests that the proposed transferee receive a beneficial
interest in the Offshore Global Note, then the Registrar shall (x)
cancel such surrendered Offshore Physical Note, (y) record an increase
in the principal amount of the Offshore Global Note equal to the
principal amount being transferred of such surrendered Offshore
Physical Note and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer; or
(iii) does not make a request covered by Section
2.9(e)(2)(C)(i) or Section 2.9(e)(2)(C)(ii), then the Registrar shall
(x) register such transfer in the name of such transferee and record
the date thereof in its books and records, (y) cancel such surrendered
Offshore Physical Note and (z) deliver a new Offshore Physical Note to
such transferee duly registered in the name of such transferee in
principal amount equal to the principal amount being transferred of
such surrendered Offshore Physical Note.
In any of the cases described in this Section 2.9(e)(2)(C),
the Registrar shall deliver to the transferor a new U.S. Physical Note in
principal amount equal to the principal amount not being transferred of such
surrendered U.S. Physical Note, as applicable.
(D) an interest in an Offshore Global Note, and the
proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant
to clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests
delivery in the form of the U.S. Global Note, then the Registrar shall
(x) record a decrease in the principal amount of the Offshore Global
Note in an amount equal to the beneficial interest therein being
transferred, (y) record an increase in the principal amount of the U.S.
Global Note equal to the amount of such decrease and (z) notify the
Depositary in accordance with the procedures of the Depositary that it
approves of such transfer; or
(ii) where the proposed transferee is or is acting
through an Agent Member, requests that the proposed transferee receive
a beneficial interest in the Offshore Global Note, then the transfer
shall be effected in accordance with the procedures of the Depositary
therefor.
(f) EXECUTION, AUTHENTICATION AND DELIVERY OF PHYSICAL NOTES.
In any case in which the Registrar is required to deliver a Physical Note to a
transferee or transferor, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, such Physical Note.
(g) CERTAIN ADDITIONAL TERMS APPLICABLE TO PHYSICAL NOTES. Any
transferee entitled to receive a Physical Note may request that the principal
amount thereof be evidenced by
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one or more Physical Notes in any authorized denomination or denominations, and
the Registrar shall comply with such request if all other transfer restrictions
are satisfied.
(h) Transfers Not Covered by Section 2.9(e).
(i) The Registrar shall effect and record, upon
receipt of a written request from the Company so to do, a transfer of
Notes not otherwise permitted by Section 2.9(e), such recording to be
done in accordance with the otherwise applicable provisions of Section
2.9(e), upon the furnishing by the proposed transferor or transferee of
a Rule 144 Non-Registration Opinion and Supporting Evidence.
(ii) Transfers of Common Stock issued upon conversion
of any Restricted Security will be effected according to the policies
and procedures of the Company, the Depositary and the transfer agent
for such Common Stock, and may require, but is not limited to, delivery
of certification by the holder of such Common Stock in a form
substantially the same as the Rule 144A Certificate, the Regulation S
Certificate and/or Rule 144 Non-Registration and Supporting Evidence.
(i) GENERAL. By its acceptance of any Note or shares of Common
Stock issuable upon conversion of the Notes bearing the Restricted Securities
Legend, each Holder of such Note or shares of Common Stock issuable upon
conversion of the Notes acknowledges the restrictions on transfer of such Note
and such Common Stock set forth in this Indenture and in the Restricted
Securities Legend and agrees that it will transfer such Note and such Common
Stock only as provided in the Indenture. The Registrar shall not register a
transfer of any Note unless such transfer complies with the restrictions with
respect thereto set forth in this Indenture.
In connection with any transfer of Notes, each Holder agrees
by its acceptance of the Notes to furnish the Registrar or the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act. The Registrar shall not be required to determine (but may
rely upon a determination made by the Company) the sufficiency or accuracy of
any such certifications, legal opinions, other information or document.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.8 hereof or this
Section 2.9. 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.
SECTION 2.10 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 and shall otherwise comply with Section 312(a) of the TIA.
If the Trustee is not the Registrar, the Company shall furnish to the Trustee
every six months (prior to or on each Interest Payment Date) and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of Holders
relating to such Interest Payment Date
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or request, as the case may be, and the Company shall otherwise comply with
Section 312(a) of the TIA.
SECTION 2.11 PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the registered Holder of a Global Note as the absolute owner
of such Global Note for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not such Note is
overdue, and notwithstanding any notice of ownership or writing thereon, or any
notice of previous loss or theft or other interest therein. The Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Note is registered as the owner of such Note for the purpose of
receiving payment of principal of and premium, if any, and interest (including
Liquidated Damages, if any) on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and notwithstanding any notice of ownership
or writing thereon, or any notice of previous loss or theft or other interest
therein.
SECTION 2.12 MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there is delivered to the Company and the Trustee
(1) evidence to their satisfaction of the destruction, loss or
theft of any Note, and
(2) such Note or indemnity as may be required by either of
them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Note has been acquired by a bona fide purchaser, the Company shall
execute and, upon written request, the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note
of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion, but
subject to any conversion rights, may, instead of issuing a new Note, pay such
Note, upon satisfaction of the condition set forth in the preceding paragraph.
Upon the issuance of any new Note under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and
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such new Note shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.13 TREASURY NOTES.
In determining whether the Holders of the requisite principal
amount of Outstanding Notes are present at a meeting of Holders for quorum
purposes or have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Notes owned by the Company or any Affiliate of the
Company shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
determination as to the presence of a quorum or upon any such request, demand,
authorization, direction, notice, consent or waiver, only such Notes of which
the Trustee has received written notice and are so owned shall be so
disregarded.
SECTION 2.14 TEMPORARY NOTES.
Pending the preparation of Notes in definitive form, the
Company may execute and the Trustee shall, upon written request of the Company,
authenticate and deliver temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in the
form of the Notes in definitive form but with such omissions, insertions and
variations as may be appropriate for temporary Notes, all as may be determined
by the Company. Every such temporary Note shall be executed by the Company and
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the Notes in definitive form. Without
unreasonable delay, the Company will execute and deliver to the Trustee Notes in
definitive form (other than in the case of Notes in global form) and thereupon
any or all temporary Notes (other than any such Notes in global form) may be
surrendered in exchange therefor, at each office or agency maintained by the
Company pursuant to Section 9.2 and the Trustee shall authenticate and deliver
in exchange for such temporary Notes an equal aggregate principal amount of
Notes in definitive form. Such exchange shall be made by the Company at its own
expense and without any charge therefor. Until so exchanged, the temporary Notes
shall in all respects be entitled to the same benefits and subject to the same
limitations under this Indenture as Notes in definitive form authenticated and
delivered hereunder.
SECTION 2.15 CANCELLATION.
All Notes surrendered for payment, redemption, repurchase,
conversion, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Notes so
delivered shall be canceled promptly by the Trustee, and no Notes shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Indenture. Upon written instructions of the Company, the Trustee shall
destroy canceled Notes and, after such destruction, shall deliver a certificate
of such destruction to the Company. If the Company shall acquire any of the
Notes, such acquisition shall not operate as a redemption
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or satisfaction of the indebtedness represented by such Notes unless the same
are delivered to the Trustee for cancellation.
SECTION 2.16 CUSIP NUMBERS.
The Company in issuing the Notes or shares of Common Stock
which are Restricted Securities may use "CUSIP" numbers (if then generally in
use), and the Trustee shall use CUSIP numbers in notices of redemption or
exchange of Notes as a convenience to Holders; provided that any such notice
shall state that no representation is made as to the correctness of such numbers
either as printed on the Notes or the Common Stock, as the case may be, or as
contained in any such notice and that reliance may be placed only on the other
identification numbers printed on the Notes or the Common Stock, and any such
redemption of the Notes shall not be affected by any defect in or omission of
such numbers. The Company shall promptly notify the Trustee of any change in the
CUSIP numbers.
SECTION 2.17 DEFAULTED INTEREST.
If the Company fails to make a payment of interest (including
Liquidated Damages, if any) on any Note when due and payable ("Defaulted
Interest"), it shall pay such Defaulted Interest plus (to the extent lawful) any
interest payable on the Defaulted Interest (calculated using the Interest Rate),
in any lawful manner. It may elect to pay such Defaulted Interest, plus any such
interest payable on it, to the Persons who are Holders of such Notes on which
the interest is due on a subsequent Special Record Date. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each such Note. The Company shall fix any such Special Record Date and
payment date for such payment. At least 15 days before any such Special Record
Date, the Company shall mail to Holders affected thereby a notice that states
the Special Record Date, the Interest Payment Date, and amount of such interest
(and such Liquidated Damages, if any) to be paid.
ARTICLE III
SATISFACTION AND DISCHARGE
SECTION 3.1 SATISFACTION AND DISCHARGE OF INDENTURE.
When:
(1) the Company shall deliver to the Trustee for cancellation all Notes
previously authenticated (other than any Notes which 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 canceled, or
(2) (A) all the Notes not previously canceled or delivered to the
Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year
or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption,
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(B) the Company shall deposit with the Trustee, in trust, cash
in U.S. Dollars and/or U.S. Government Obligations which
through the payment of interest and principal in respect
thereof, in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be
imposed on such Trustee), not later than one day before the
due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay
principal of, premium, if any, or interest (including
Liquidated Damages, if any) on all of the Notes (other than
any Notes which shall have been mutilated, destroyed, lost or
stolen and in lieu of or in substitution for which other Notes
shall have been authenticated and delivered) not previously
canceled or delivered to the Trustee for cancellation, on the
dates such payments of principal, premium, if any, or interest
(including Liquidated Damages, if any) are due to such date of
maturity or redemption, as the case may be, and
(C) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by
the Company with the intent of preferring the Holders of Notes
over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the
Company of others, and
if, in the case of either clause (1) or (2), 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 and premium, if any, and interest (including
Liquidated Damages, 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 5.8 hereof 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.
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SECTION 3.2 DEPOSITED MONIES TO BE HELD IN TRUST.
Subject to Section 3.3 hereof, all monies deposited with the
Trustee pursuant to Section 3.1 hereof shall be held in trust and applied by it
to the payment, notwithstanding the provisions of Article 13 hereof, 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 Liquidated Damages, if any). All monies deposited with the Trustee
pursuant to Section 3.1 hereof (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 3.3 RETURN OF UNCLAIMED MONIES.
Anything contained herein to the contrary notwithstanding, and
subject to any applicable law, any money held by the Trustee in trust for the
payment and discharge of the principal, interest (including Liquidated Damages,
if any) or premium, if any, on any of the Notes which remains unclaimed for two
years after the date when each payment of such principal, interest and premium
has become payable shall be repaid within sixty days of such date by the Trustee
to the Company as its absolute property free from trust, and the Trustee shall
thereupon be released and discharged with respect thereto and the Holders shall
look only to the Company for the payment of the principal, interest (including
Liquidated Damages, if any) and premium, if any, on such Notes. The Company may
cause, or, if requested by the Company, the Trustee shall cause notice of such
payment to the Company to be mailed to each Holder of a Note entitled thereto
prior to such payment. The Trustee shall not be liable to the Company or any
Holder for interest on funds held by it for the payment and discharge of the
principal, interest (including Liquidated Damages, if any) or premium, if any,
on of any of the Notes to any Holder. The Company shall not be liable for any
interest on the sums paid to it pursuant to this paragraph and shall not be
regarded as a trustee of such money.
ARTICLE IV
DEFAULTS AND REMEDIES
SECTION 4.1 EVENTS OF DEFAULT.
An "Event of Default," wherever used herein, means any one of
the following events (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 of principal of (or premium, if
any, on) any Note at its stated maturity, upon redemption or exercise
of a Repurchase Right or otherwise, whether or not such payment is
prohibited by Article XIII hereof;
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(b) default in the payment of interest or Liquidated Damages,
if any, on any Note when due and payable and continuance of such
default for a period of 30 days, whether or not such payment is
prohibited by Article XIII hereof;
(c) default in the performance or breach of any term, covenant
or agreement of the Company in this Indenture 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 default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Significant Subsidiaries, whether such Indebtedness now
exists or shall be created hereafter, which default (i) is caused by a
failure to pay principal of such Indebtedness prior to the expiration
of the grace period provided in such Indebtedness on the date of such
default (a "Payment Default") or (ii) results in the acceleration of
such Indebtedness prior to its stated maturity and, in each case, the
principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there is then
existing a Payment Default or the maturity of which has been so
accelerated, aggregates $15 million or more, for a period of 30 days
after written notice to the Company by the Trustee or to the Company
and the Trustee by Holders of at least 25% in aggregate principal
amount of the Outstanding Notes;
(e) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any
Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency 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
Significant Subsidiary or (C) the winding up or liquidation of the
affairs of the Company or any Significant Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period
of 30 consecutive days;
(f) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency 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 Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) effects any general assignment for the
benefit of creditors; or
(g) failure by the Company to deliver shares of Common Stock
(together with cash in lieu of fractional shares of Common Stock
pursuant to Section 12.3) when such Common Stock (or such cash in lieu
of fractional shares) are required to be delivered
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upon conversion of any Note pursuant to Article XII, and continuance of
such default for a period of 10 days.
SECTION 4.2 ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
(a) If an Event of Default with respect to Outstanding Notes
(other than an Event of Default specified in Section 4.1(e) or 4.1 (f) hereof)
occurs and is continuing, the Trustee, upon written notice to it and the Company
from the Holders of at least 25% in aggregate principal amount of the
Outstanding Notes specifying such Event of Default and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder, or the
Holders of at least 25% in aggregate principal amount of the Outstanding Notes,
by such written notice to the Company, may declare due and payable 100% of the
principal amount of all Outstanding Notes plus any accrued and unpaid interest
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.
(b) If an Event of Default specified in Section 4.1(e) or
4.1(f) hereof occurs, all unpaid principal and accrued and unpaid interest
(including Liquidated Damages, 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 8.4) is present, may rescind and annul
an acceleration and its consequences if:
(1) all existing Events of Default, other than the nonpayment
of principal of or interest (including Liquidated Damages, if any) on
the Notes which have become due solely because of the acceleration,
have been remedied, cured or waived, and
(2) 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 4.1(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 rescinded
their declaration of acceleration in respect of such Indebtedness, and written
notice of such discharge or rescission, 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 which has not been cured
or waived during such period.
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SECTION 4.3 OTHER REMEDIES.
If an Event of Default with respect to Outstanding Notes
occurs and is continuing, the Trustee may 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 4.4 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 8.4) 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:
(1) in the payment of the principal of or premium, if any, or
interest (including Liquidated Damages, if any) on any Note (provided,
however, that subject to Section 4.7 hereof, 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);
(2) in respect of a covenant or provision hereof which, under
Section 7.2 hereof, including Section 7.2(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.
SECTION 4.5 CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the
Outstanding Notes (or such lesser amount as shall have acted at a meeting
pursuant to the provisions of this Indenture) 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:
(1) conflicts with any law or with this Indenture;
(2) the Trustee determines may be unduly prejudicial to the
rights of the Holders not joining therein, or
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(3) may expose the Trustee to personal liability.
The Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 4.6 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:
(1) such Holder has previously given written notice to the
Trustee of an Event of Default that is continuing;
(2) 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;
(3) 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;
(4) the Trustee has failed to comply with the request for 60
days after its receipt of such notice, request and offer of indemnity;
and
(5) 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 or to obtain preference or priority over
another Holder.
SECTION 4.7 UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE PAYMENT
AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and interest (including
Liquidated Damages, if any) on such Note on the stated maturity 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 the Repurchase Date, and to convert such
Note in accordance with Article 12, and to bring suit for the enforcement of any
such payment on or after such respective dates and right to convert, and such
rights shall not be impaired or affected without the consent of such Holder.
SECTION 4.8 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY THE TRUSTEE.
The Company covenants that if:
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(1) a default is made in the payment of any interest
(including Liquidated Damages, if any) on any Note when such interest
(including Liquidated Damages, if any) becomes due and payable and such
default continues for a period of 30 days, or
(2) 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 4.2
hereof) on such Notes for principal and premium, if any, and interest (including
Liquidated Damages, 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 Liquidated Damages, if any),
calculated using the Interest Rate, 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 4.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or the property of the Company
or its 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 or interest (including
Liquidated Damages, if any)) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal and premium, if any, and interest (including Liquidated
Damages, 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
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(2) 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 5.8.
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 payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 2.12, 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.
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 by
the Holders of Notes, as the case may be.
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SECTION 4.13 APPLICATION OF MONEY COLLECTED.
Subject to Article 13, 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 Liquidated
Damages, 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;
SECOND: To the payment of the amounts then due and unpaid for
principal of and premium, if any, and interest (including Liquidated Damages, 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 Liquidated Damages, 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
Liquidated Damages, if any) on any Note on or after the stated maturity
expressed in such Note (or, in the case of redemption or exercise of a
Repurchase Right, on or after the Redemption Date) or for the enforcement of the
right to convert any Note in accordance with Article 12.
SECTION 4.15 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim to take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
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ARTICLE V
THE TRUSTEE
SECTION 5.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) The Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture or the TIA,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; provided, however, that in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the
certificates or opinions to determine whether or not, on their face,
they conform to the requirements to this Indenture (but need not
investigate or confirm the accuracy of any facts stated therein).
(b) In case an Event of Default actually known to a
Responsible Officer of the Trustee 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 such person's
own affairs.
(c) o provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph (c) shall not be construed to limit the
effect of paragraph (a) of this Section 5.1;
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with a
direction received by it of the Holders of a majority in principal
amount of the Outstanding Notes (or such lesser amount as shall have
acted at a meeting pursuant to the provisions of this Indenture)
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
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(d) Whether or not herein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 5.1.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers. The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any loss,
liability, cost or expense (including, without limitation, reasonable fees of
counsel).
(f) The Trustee shall not be obligated to pay interest on any
money or other assets received by it unless otherwise agreed in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
Note, note, coupon, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may, but shall have no duty or obligation
to, make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation or lack thereof.
(h) The Trustee shall not be deemed to have notice or actual
knowledge of any Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event which is in
fact a Default is received by the Trustee pursuant to Section 14.2 hereof, and
such notice references the Notes and this Indenture.
(i) The rights, privileges, protections, immunities and
benefits given to the Trustee hereunder, 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 each Paying Agent,
authenticating agent, Conversion Agent or Registrar acting hereunder.
SECTION 5.2 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 5.1 hereof and subject to
Section 315(a) through (d) of the TIA:
(1) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on the Officers' Certificate or Opinion of
Counsel.
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(3) The Trustee may act through attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care.
(4) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith which it believed to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture, unless the Trustee's conduct constitutes
negligence.
(5) The Trustee may consult with counsel of its selection and
the advice of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.
(6) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(7) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty unless so
specified herein.
SECTION 5.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as such term is defined in Section 310(b) of the TIA), it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee (to the extent permitted under Section 310(b) of the TIA) or
resign. Any agent may do the same with like rights and duties. The Trustee is
also subject to Sections 5.11 and 5.12 hereof.
SECTION 5.4 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder shall be
segregated from other funds. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise expressly
agreed with the Company.
SECTION 5.5 TRUSTEE'S DISCLAIMER.
The recitals contained herein and in the Notes (except for
those in the certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity, sufficiency or priority
of this Indenture or of the Notes. The Trustee shall not be accountable for the
use or application by the Company of Notes or the proceeds thereof.
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SECTION 5.6 NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default or Event of
Default hereunder of which the Trustee has received written notice, the Trustee
shall give notice to Holders pursuant to Section 14.2 hereof, unless such
Default or Event of Default shall have been cured or waived; provided, however,
that, except in the case of a Default or Event of Default in the payment of the
principal of or premium, if any, or interest (including Liquidated Damages, if
any), or in the payment of any redemption or repurchase obligation on any Note,
the Trustee shall be protected in withholding such notice if and so long as
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders.
SECTION 5.7 REPORTS BY TRUSTEE TO HOLDERS.
The Trustee shall transmit to Holders and to such other
Persons as may be required by Section 313(c) of the TIA such reports concerning
the Trustee and its actions under this Indenture as may be required by Section
313 of the TIA at the times and in the manner provided by the TIA.
A copy of each report at the time of its mailing to Holders
shall be filed with the SEC, if required, and each stock exchange, if any, on
which the Notes are listed. The Company shall promptly notify the Trustee when
the Notes become listed on any stock exchange.
SECTION 5.8 COMPENSATION AND INDEMNIFICATION.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Company covenants and
agrees to pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ), except to the extent
that any such expense, disbursement or advance is due to its gross negligence or
bad faith. When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 4.1 hereof, the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy law. The Company also covenants to indemnify
the Trustee and its officers, directors, employees and agents for, and to hold
such Persons harmless against, any loss, liability or expense incurred by them,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder or the performance of their duties hereunder,
including the costs and expenses of defending themselves against or
investigating any claim of liability in the premises, except to the extent that
any such loss, liability or expense was due to the gross negligence or willful
misconduct of such Persons. The obligations of the Company under this Section
5.8 to compensate and indemnify the Trustee and its officers, directors,
employees and agents and to pay or reimburse such Persons for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture or the
earlier resignation or removal
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of the Trustee. Such additional indebtedness shall be a senior claim to that of
the Notes upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular Notes,
and the Notes are hereby subordinated to such senior claim. "Trustee" for
purposes of this Section 5.8 shall include any predecessor Trustee, but the
negligence or willful misconduct of any Trustee shall not affect the
indemnification of any other Trustee.
SECTION 5.9 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 5.9.
The Trustee may resign and be discharged from the trust hereby
created by so notifying the Company in writing. The Holders of at least a
majority in aggregate principal amount of Outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company must
remove the Trustee if:
(i) the Trustee fails to comply with Section 5.11 hereof or
Section 310 of the TIA;
(ii) the Trustee becomes incapable of acting;
(iii) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law; or
(iv) a Custodian or public officer takes charge of the Trustee
or its property.
If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee. The Trustee shall be entitled to payment of its fees and
reimbursement of its expenses while acting as Trustee. Within one year after the
successor Trustee takes office, the Holders of at least a majority in aggregate
principal amount of Outstanding Notes may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.
Any Holder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee if the
Trustee fails to comply with Section 5.11 hereof.
If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation or removal, the resigning or removed Trustee, as the case
may be, may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The Company shall mail a notice of the successor
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Trustee's succession to the Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 5.9, the
Company's obligations under Section 5.8 hereof shall continue for the benefit of
the retiring Trustee with respect to expenses, losses and liabilities incurred
by it prior to such replacement.
SECTION 5.10 SUCCESSOR TRUSTEE BY MERGER, ETC.
Subject to Section 5.11 hereof, if the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or national banking
association, the successor entity without any further act shall be the successor
Trustee as to the Notes.
SECTION 5.11 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
The Trustee shall at all times satisfy the requirements of
Section 310(a)(1), (2) and (5) of the TIA. The Trustee shall at all times have
(or, in the case of a corporation included in a bank holding company system, the
related bank holding company shall at all times have), a combined capital and
surplus of at least $100 million as set forth in its (or its related bank
holding company's) most recent published annual report of condition. The Trustee
is subject to Section 310(b) of the TIA.
SECTION 5.12 COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to Section 311(a) of the TIA, excluding
any creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated therein.
ARTICLE VI
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 6.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with, merge with or into, or
sell, convey, transfer, lease or otherwise dispose of all or substantially all
of its property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to, any Person or permit any
Person to merge with or into the Company (including the sale, conveyance,
transfer or lease of all or substantially all of such Person's assets to the
Company), unless:
(1) either (A) the Company shall be the continuing Person, or
(B) the Person (if other than the Company) formed by such consolidation
or into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of
the Company substantially as an entirety (i) shall be a corporation,
and validly existing under the laws of the United States of America or
any jurisdiction thereof and (ii) shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the
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Company's obligation for the due and punctual payment of the principal
of (and premium and Liquidated Damages, if any) and interest on all
Notes and the performance and observance of every covenant of the
Indenture on the part of the Company to be performed or observed and
shall have provided for conversion rights in accordance with Section
12.11 hereof;
(2) immediately after giving effect to such transaction, no
Default or Event of Default which, after notice or lapse of time, would
become an Event of Default, shall have occurred and be continuing; and
(3) the Company or such Person shall have delivered to the
Trustee an Officer's 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 complies with this Article and
that all conditions precedent provided for herein relating to such
transaction have been complied with.
SECTION 6.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation of the Company with or merger of the
Company with or into any other corporation or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 6.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and 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 which shall theretofore
become such in the manner described in Section 6.1), except in the case of a
lease to another Person, shall be discharged of all obligations and covenants
under this Indenture and the Notes.
ARTICLE VII
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 7.1 WITHOUT CONSENT OF HOLDERS OF NOTES.
Without the consent of any Holders of Notes, the Company, when
authorized by a Board Resolution, 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 of Notes;
(b) surrender any right or power herein conferred upon the
Company;
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(c) make provision with respect to the conversion rights of
Holders of Notes pursuant to Section 12.11 hereof;
(d) provide for the assumption of the Company's obligations to
the Holders of Notes in the case of a merger, consolidation,
conveyance, transfer or lease pursuant to Article 6 hereof;
(e) reduce the Conversion Price; provided, that such reduction
in the Conversion Price shall not adversely affect the interest of the
Holders of Notes;
(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 under the
Securities Act as contemplated in the Resale Registration Rights
Agreement, provided, that such action pursuant to this clause (g) does
not, in the good faith opinion of the Board of Directors and the
Trustee, adversely affect the interests of the Holders of Notes in any
material respect;
(h) cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or
which is otherwise defective, or to make any other provisions with
respect to matters or questions arising under this Indenture which the
Company and the Trustee may deem necessary or desirable and which shall
not be inconsistent with the provisions of this Indenture, provided,
that such action pursuant to this clause (h) does not, in the good
faith opinion of the Board of Directors and the Trustee, adversely
affect the interests of the Holders of Notes in any material respect;
or
(i) add or modify any other provisions with respect to matters
or questions arising under this Indenture which the Company and the
Trustee may deem necessary or desirable and which 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 of Notes.
SECTION 7.2 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 7.2, this 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 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 of Notes so affected, an amendment, modification or waiver under this
Section 7.2 may not:
51
(a) change the stated maturity of the principal of, or any
installment of interest (including Liquidated Damages, if any) on, any
Note;
(b) reduce the principal amount of, or premium, if any, on any
Note;
(c) reduce the interest (including Liquidated Damages, if any)
on any Note;
(d) change the currency of payment of principal of, premium,
if any, or interest (including Liquidated Damages, if any) on any Note;
(e) impair the right of any Holder to institute suit for the
enforcement of any payment in or with respect to any Note;
(f) modify the obligation of the Company to maintain an office
or agency in The City of New York pursuant to Section 9.2 hereof;
(g) except as permitted by Section 12.11 hereof, adversely
affect the Repurchase Right or the right to convert any Note as
provided in Article 12 hereof;
(h) modify the subordination provisions of the Notes in a
manner adverse to the Holders of Notes,
(i) modify the redemption payment provisions of the Indenture
in a manner adverse to the Holders of the Notes;
(j) reduce the percentage of in aggregate principal amount of
Notes outstanding required 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
(k) reduce the requirements of Section 8.4 hereof for quorum
or voting, or reduce the percentage in 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 to approve the particular form of any proposal supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 7.3 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 7.4 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
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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.
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 (j) of Section 7.2 hereof, the
amendment, supplement or waiver shall bind only each Holder of a Note which 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.
SECTION 7.5 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 7.6 TRUSTEE TO SIGN AMENDMENT, ETC.
The Trustee shall sign any amendment authorized pursuant to
this Article 7 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 8.1 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 8.2 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 8.1 hereof, 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 14.2 hereof, 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 8.1 hereof, 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 8.3 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 8.4 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
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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 8.2(a) hereof, 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. Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum, the Persons entitled to vote 25% in principal
amount of the Outstanding Notes at the time shall constitute a quorum for the
taking of any action set forth in the notice of the original meeting. Notice of
such reconvening of an adjourned meeting shall expressly state such percentage
of the principal amount of the Outstanding Notes which shall constitute a
quorum.
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 7.2 hereof) 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 shall be binding on
all the Holders of Notes, whether or not present or represented at the meeting.
SECTION 8.5 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 8.3 hereof and the appointment of any
proxy shall be proved in the manner specified in Section 8.3 hereof. 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 8.3 hereof 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 8.2(b) hereof, 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
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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 8.2 hereof at which a quorum 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.
SECTION 8.6 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 8.2 hereof and, if
applicable, Section 8.4 hereof. 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 9.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of and
premium, if any, and interest (including Liquidated Damages, if any) in respect
of the Notes in accordance with the terms of the Notes and this Indenture. The
Company will deposit or cause to be deposited with the Trustee as directed by
the Trustee, no later than the day prior to the stated maturity of any Note or
installment of interest (including Liquidated Damages, if any), all payments so
due.
SECTION 9.2 MAINTENANCE OF OFFICES OR AGENCIES.
The Company hereby appoints the Trustee's Corporate Trust
Office as its office in The City of New York, where Notes may be:
(i) presented or surrendered for payment;
(ii) surrendered for registration of transfer or exchange;
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(iii) surrendered for conversion;
and where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served.
The Company may at any time and from time to time vary or
terminate the appointment of any such office or appoint any additional offices
for any or all of such purposes; provided, however, that until all of the Notes
have been delivered to the Trustee for cancellation, or moneys sufficient to pay
the principal of and premium, if any, and interest (including Liquidated
Damages, if any) on the Notes have been made available for payment and either
paid or returned to the Company pursuant to the provisions of Section 4.13
hereof, the Company will maintain in The City of New York, an office or agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange, where Notes may be
surrendered for conversion and where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee, and notice to the Holders in accordance
with Section 14.2 hereof, of the appointment or termination of any such agents
and of the location and any change in the location of any such office or agency.
If at any time the Company shall fail to maintain any such
required office or agency in The City of New York, or shall fail to furnish the
Trustee with the address thereof, presentations and surrenders may be made at,
and notices and demands may be served on, the Corporate Trust Office of the
Trustee.
SECTION 9.3 CORPORATE EXISTENCE.
Subject to Article 6 hereof, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises of the
Company and each Significant Subsidiary; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries as a whole
and that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 9.4 MAINTENANCE OF PROPERTIES.
The Company will cause all properties owned by the Company or
any Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all 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; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the maintenance of any of such properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
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SECTION 9.5 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will, and will cause any Significant Subsidiary
to, pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) 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 and (b) all claims for labor,
materials and supplies, which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 9.6 REPORTS.
(a) The Company shall deliver to the Trustee within 15 days
after it files them with the SEC copies of the annual reports and of the
information, documents, and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act; provided, however, the Company shall not be required to deliver to
the Trustee any materials for which the Company has sought and received
confidential treatment by the SEC. The Company also shall comply with the other
provisions of Section 314(a) of the TIA.
(b) If at any time the Company is not subject to Section 13 or
15(d) of the Exchange Act, upon the request of a Holder of a Note, the Company
will promptly furnish or cause to be furnished to such Holder or to a
prospective purchaser of such Note designated by such Holder, as the case may
be, the information, if any, required to be delivered by it pursuant to Rule
144A(d)(4) under the Securities Act to permit compliance with Rule 144A in
connection with the resale of such Note; provided, however, that the Company
shall not be required to furnish such information in connection with any request
made on or after the date which is two years from the later of the date such
Note was last acquired from the Company or an "affiliate" of the Company.
SECTION 9.7 COMPLIANCE CERTIFICATE; NOTICE OF REGISTRATION
DEFAULT.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year of the Company, an Officer's Certificate
signed by two Officers of the Company (at least one of whom shall be the
principal executive officer or the principal financial officer) stating that in
the course of the performance by the signers of their duties as Officers of the
Company, they would normally have knowledge of any failure by the Company to
comply with all conditions, or Default by the Company with respect to any
covenants, under this Indenture, and further stating whether or not they have
knowledge of any such failure or Default and, if so, specifying each such
failure or Default and the nature thereof. In the event an Officer of the
Company comes to have actual knowledge of a Default, regardless of the date, the
Company shall deliver an Officers' Certificate to the Trustee within five
Business Days of obtaining such actual knowledge specifying such Default and the
nature and status thereof.
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(b) When any Registration Default (as defined in the Resale
Registration Rights Agreement) occurs, the Company shall promptly deliver to the
Trustee by registered or certified mail or by telegram, telex or facsimile
transmission an Officer's Certificate specifying the nature of such Registration
Default. In addition, the Company shall deliver to the Trustee on each Interest
Payment Date during the continuance of a Registration Default and on the
Interest Payment Date following the cure of a Registration Default, an Officer's
Certificate specifying the amount of Liquidated Damages which have accrued and
which are then owing under the Resale Registration Rights Agreement.
SECTION 9.8 RESALE OF CERTAIN NOTES.
During the period of two years after the last date of original
issuance of any Notes, the Company shall not, and shall not permit any of its
"affiliates" (as defined under Rule 144 under the Securities Act) to, resell any
Notes, or shares of Common Stock issuable upon conversion of the Notes, which
constitute "restricted securities" under Rule 144, that are acquired by any of
them within the United States or to "U.S. persons" (as defined in Regulation S)
except pursuant to an effective registration statement under the Securities Act
or an applicable exemption therefrom. The Trustee shall have no responsibility
or liability in respect of the Company's performance of its agreement in the
preceding sentence.
SECTION 9.9 INSURANCE.
The Company will at all times keep all of its and its
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by the Company to be responsible, against loss or damage to the extent
that property of similar character is usually so insured by corporations
similarly situated and owning like properties.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 OPTIONAL REDEMPTION.
(a) The Company shall not redeem the Notes at any time prior
to Xxxxxx 00, 0000,
(x) On or after August 20, 2003, the Company may, at its
option, redeem the Notes in whole at any time or in part from time to time, on
any date prior to maturity, upon notice as set forth in Section 10.4 at the
redemption price (expressed as percentages of the principal amount) set forth
below if redeemed during the 12-month period beginning on the dates indicated
(the "Redemption Price"):
Redemption Price
August 20, 2003 to August 14 2004 . . . . . . . . . . . . . . .103.143%
August 15, 2004 to August 14 2005 . . . . . . . . . . . . . . .102.357%
August 15, 2005 to August 14 2006 . . . . . . . . . . . . . . .101.571%
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August 15, 2006 to August 14 2007 . . . . . . . . . . . . . . .100.786%
The Company may redeem the Notes if the Closing Price of the Common Stock equals
or exceeds 140% of the Conversion Price then in effect for at least 20 Trading
Days in any consecutive 30-day trading period ending on the Trading Day prior to
the date the notice of the redemption pursuant to this Section 10.1(a) is mailed
pursuant to Section 10.4.
(c) The Company shall pay any interest on the Notes called for
redemption pursuant to this Section 10.1 (including those Notes which are
converted into Common Stock after the date the notice of the redemption is
mailed and prior to the Redemption Date) accrued but not paid to the Redemption
Date. Such interest shall be paid to the Holder entitled to the Redemption
Price; provided that if the Redemption Date is an Interest Payment Date, the
Company shall pay the interest to the Holder of the Note at the close of
business on the corresponding Regular Record Date.
SECTION 10.2 NOTICE TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the
redemption provisions of Section 10.1(a) or (b) hereof (such election to be
evidenced by a resolution of the Company's board of directors), it shall notify
the Trustee at least 60 days prior to the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee) of such intended Redemption Date,
the principal amount of Notes to be redeemed and the CUSIP numbers of the Notes
to be redeemed.
SECTION 10.3 SELECTION OF NOTES TO BE REDEEMED.
If fewer than all the Notes are to be redeemed, the Trustee
shall select the particular Notes to be redeemed from the Outstanding Notes by a
method that complies with the requirements of any exchange on which the Notes
are listed, or, if the Notes are not listed on an exchange, on a pro rata basis
or by lot or in accordance with any other method the Trustee considers fair and
appropriate. Notes and portions thereof that the Trustee selects shall be in
amounts equal to the minimum authorized denominations for Notes to be redeemed
or any integral multiple thereof.
If any Note selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Notes so selected, the converted portion of such Note shall be deemed to be
the portion selected for redemption (provided, however, that the Holder of such
Note so converted and deemed redeemed shall not be entitled to any additional
interest payment as a result of such deemed redemption than such Holder would
have otherwise been entitled to receive upon conversion of such Note). Notes
which have been converted during a selection of Notes to be redeemed may be
treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Notes selected for redemption and, in the case of
any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
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For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes shall
relate, in the case of any Notes redeemed or to be redeemed only in part, to the
portion of the principal amount of such Notes which has been or is to be
redeemed.
SECTION 10.4 NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 14.2 hereof to the Holders of Notes to be redeemed. Such notice shall be
given not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and interest accrued and unpaid to
the Redemption Date, if any;
(3) if fewer than all the Outstanding Notes are to be
redeemed, the aggregate principal amount of Notes to be redeemed and
the aggregate principal amount of Notes which will be outstanding after
such partial redemption;
(4) that on the Redemption Date the Redemption Price and, as
provided in Section 10.1(c), interest accrued and unpaid to the
Redemption Date, and Liquidated Damages, if any, will become due and
payable upon each such Note to be redeemed, and that interest thereon
shall cease to accrue on and after such date;
(5) the Conversion Price, the date on which the right to
convert the principal of the Notes to be redeemed will terminate and
the places where such Notes may be surrendered for conversion;
(6) the place or places where such Notes are to be surrendered
for payment of the Redemption Price and accrued and unpaid interest, if
any; and
(7) the CUSIP number of the Notes.
(8) The notice given shall specify the last date on which
exchanges or transfers of
Notes may be made pursuant to Section 2.7 hereof, and shall
specify the serial numbers of Notes and the portions thereof called for
redemption.
Notice of redemption of Notes to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name of and at the expense of the Company.
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SECTION 10.5 EFFECT OF NOTICE OF REDEMPTION.
Notice of redemption having been given as provided in Section
10.4 hereof, the Notes so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified (and, as provided in
Section 10.1(c), accrued interest and Liquidated Damages, if any, to the
Redemption Date) and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued and unpaid interest) such
Notes shall cease to bear interest; provided that the Company may specify in
such notice conditions to the redemption of the Notes that must be met on or
prior to the Redemption Date, including the receipt of proceeds from concurrent
equity or other financings, in which case the Redemption Date shall not occur,
and the Notes to be redeemed shall not be due and payable at the Redemption
Price, until such conditions are satisfied. Upon surrender of any such Note for
redemption in accordance with such notice (including the satisfaction of all
applicable conditions), such Note shall be paid by the Company at the Redemption
Price (and, as provided, in Section 10.1(c), Liquidated Damages and accrued
interest, if any, to the Redemption Date); PROVIDED, HOWEVER, that the
installments of interest on Notes whose stated maturity is prior to or on the
Redemption Date shall be payable to the Holders of such Notes, or one or more
Predecessor Notes, registered as such on the relevant Record Date according to
their terms and the provisions of Section 2.7 hereof.
If any Note called for redemption shall not be so paid when
due upon surrender thereof for redemption, the principal and premium, if any,
shall, until paid, bear interest from the Redemption Date at the Interest Rate.
SECTION 10.6 DEPOSIT OF REDEMPTION PRICE.
Prior to or on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust) an amount of money sufficient to pay
the Redemption Price of, and accrued and unpaid interest and Liquidated Damages,
if any, on, all the Notes to be redeemed on that Redemption Date other than any
Notes called for redemption on that date which have been converted prior to the
date of such deposit payable on Notes called for redemption on that date which
have been converted prior to the date of such deposit.
If any Note called for redemption is converted prior to the
Redemption Date, any money deposited with the Trustee or with a Paying Agent or
so segregated and held in trust for the redemption of such Note shall (subject
to any right of the Holder of such Note or any Predecessor Note to receive
interest as provided in the fifth paragraph of Section 2.1 hereof) be paid to
the Company on Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 10.7 NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 9.2 hereof (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or the
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Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Note without service charge, a new Note or Notes of any authorized denomination
as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Note so surrendered.
ARTICLE XI
REPURCHASE AT THE OPTION OF A HOLDER UPON A CHANGE OF CONTROL
SECTION 11.1 REPURCHASE RIGHT.
In the event that a Change in Control shall occur, each Holder
shall have the right (the "Repurchase Right"), at the Holder's option to require
the Company to repurchase, and upon the exercise of such right the Company shall
repurchase, all of such Holder's Notes not theretofore called for redemption, or
any portion of the principal amount thereof that is equal to $1,000 or an
integral multiple thereof (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 an integral multiple thereof), on
the date (the "Repurchase Date") that is 30 days after the date of the Company
Notice at a purchase price equal to 100% of the principal amount of the Notes to
be repurchased (the "Repurchase Price"), plus interest accrued and unpaid to,
but excluding, the Repurchase Date; provided, however, that (i) installments of
interest on Notes whose stated maturity is prior to or on the Repurchase Date
shall be payable to the Holders of such Notes, or one or more Predecessor Notes,
registered as such at the close of business on the relevant Record Date
according to their terms and the provisions of Section 2.1 hereof and (ii) no
Holder shall have a Repurchase Right upon a Change of Control unless prior to
any payment of the Repurchase Price on the Repurchase Date the Company has made
any applicable change of control offers required by the Company's Senior Debt
and has purchased all Senior Debt validly tendered for payment in connection
with such change of control offers.
SECTION 11.2 NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT,
ETC.
(a) Unless the Company shall have theretofore called for
redemption all of the Outstanding Notes, within 20 days after the occurrence of
a Change in Control, the Company, or, at the written request and expense of the
Company within 20 days after such occurrence, the Trustee, shall give to all
Holders of Notes notice, in the manner provided in Section 14.2 hereof, of the
occurrence of the Change of Control and of the Repurchase Right set forth herein
arising as a result thereof (the "Company Notice"). The Company shall also
deliver a copy of such notice of a Repurchase Right to the Trustee. Each notice
of a Repurchase Right shall state:
(1) the Repurchase Date;
(2) the date by which the Repurchase Right must be exercised;
(3) the Repurchase Price and accrued and unpaid interest, if
any;
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(4) a description of the procedure which a Holder must follow
to exercise a Repurchase Right, and the place or places where such
Notes are to be surrendered for payment of the Repurchase Price,
accrued and unpaid interest and Liquidated Damages, if any;
(5) that on the Repurchase Date the Repurchase Price, accrued
and unpaid interest and Liquidated Damages, if any, will become due and
payable upon each such Note designated by the Holder to be repurchased,
and that interest thereon shall cease to accrue on and after said date;
(6) the Conversion Rate then in effect, the date on which the
right to convert Notes terminates and that accrued and unpaid interest
on the Notes is forfeited upon conversion;
(7) the amount of the Notes to be repurchased will terminate
and the place where such Notes may be surrendered for conversion,
(8) if applicable, that no Holder shall have a Repurchase
Right upon a Change of Control unless prior to any payment of the
Repurchase Price on the Repurchase Date the Company has made any
applicable change of control offers required by the Company's Senior
Debt and has purchased all Senior Debt validly tendered for payment in
connection with such change of control offers, and
(9) the place or places where such Notes, together with the
Option to Elect Repayment Upon a Change of Control certificate included
in Exhibit A annexed hereto are to be delivered for payment of the
Repurchase Price and accrued and unpaid interest, if any.
No failure of the Company to give the foregoing notices or
defect therein shall any Holder's right to exercise a Repurchase Right or affect
the validity of the proceedings for the repurchase of Notes.
If any of the foregoing provisions or other provisions of this
Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a Repurchase Right, a Holder shall deliver to
the Trustee prior to or on the 29th day after the date of the Company Notice:
(1) 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 be
repurchased in part, the serial number thereof, the portion of the
principal amount thereof to be repurchased) and a statement that an
election to exercise the Repurchase Right is being made thereby, and
(2) the Notes with respect to which the Repurchase Right is
being exercised.
Such written notice shall be irrevocable, except that the right of the Holder to
convert the Notes with respect to which the Repurchase Right is being exercised
shall continue until the close of
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business on the Business Day immediately preceding the Repurchase Date. The
Company shall not pay accrued and unpaid interest on any Notes so converted.
(c) In the event a Repurchase Right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause to be paid to
the Trustee the Repurchase Price in cash as provided above, for payment to the
Holder on the Repurchase Date, together with Liquidated Damages, if any, and
accrued and unpaid interest to the Repurchase Date payable in cash with respect
to the Notes as to which the Repurchase Right has been exercised; provided,
however, that installments of interest that mature prior to or on the Repurchase
Date shall be payable to the Holders of such Notes, or one or more Predecessor
Notes, registered as such at the close of business on the relevant Regular
Record Date according to their terms and the provisions of Section 2.1 hereof.
(d) If any Note (or portion thereof) surrendered for
repurchase shall not be paid on the Repurchase Date, the principal amount of
such Note (or portion thereof, as the case may be) shall, until paid, bear
interest to the extent permitted by applicable law from the Repurchase Date at
the Interest Rate, and each Note shall remain convertible into Common Stock
until the principal of such Note (or portion thereof, as the case may be) shall
have been paid or duly provided for.
(e) Any Note which is to be repurchased only in part shall be
surrendered to the Trustee (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 his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Note without
service charge, a new Note or Notes, containing identical terms and conditions,
each in an authorized denomination in aggregate principal amount equal to and in
exchange for the unrepurchased portion of the principal of the Note so
surrendered.
(f) All Notes delivered for repurchase shall be delivered to
the Trustee to be canceled at the direction of the Trustee, which shall dispose
of the same as provided in Section 2.15 hereof.
ARTICLE XII
CONVERSION OF NOTES
SECTION 12.1 CONVERSION RIGHT AND CONVERSION PRICE.
Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Outstanding Note or any
portion of the principal amount thereof which is $1,000 or an integral multiple
of $1,000 may be converted into duly authorized, fully paid and nonassessable
shares of Common Stock, at the Conversion Price, determined as hereinafter
provided, in effect at the time of conversion. Such conversion right shall
expire at the close of business on August 15, 2007.
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In case a Note or portion thereof is called for redemption,
such conversion right in respect of the Note or the portion so called, shall
expire at the close of business on the Business Day immediately preceding the
Redemption Date, unless the Company defaults in making the payment due upon
redemption. In the case of a Change of Control for which the Holder exercises
its Repurchase Right with respect to a Note or portion thereof, such conversion
right in respect of the Note or portion thereof shall expire at the close of
business on the Business Day immediately preceding the Repurchase Date.
The price at which shares of Common Stock shall be delivered
upon conversion (the "Conversion Price") shall be initially equal to $67.8038
per share of Common Stock. The Conversion Price shall be adjusted in certain
instances as provided in Section 12.4 hereof.
SECTION 12.2 EXERCISE OF CONVERSION RIGHT.
To exercise the conversion right, the Holder of any Note to be
converted shall surrender such Note duly endorsed or assigned to the Company or
in blank, at the office of any Conversion Agent, accompanied by a duly signed
conversion notice substantially in the form attached to the Note to the Company
stating that the Holder elects to convert such Note or, if less than the entire
principal amount thereof is to be converted, the portion thereof to be
converted.
To the extent provided in Section 2.1, Notes surrendered for
conversion during the period from the close of business on any Regular Record
Date to the opening of business on the next succeeding Interest Payment Date
(except in the case of any Note whose maturity is prior to such Interest Payment
Date) shall be accompanied by payment in New York Clearing House funds or other
funds acceptable to the Company of an amount equal to the interest and
Liquidated Damages, if any, to be received on such Interest Payment Date on the
principal amount of Notes being surrendered for conversion, as well as any taxes
or duties payable pursuant to Section 12.8. To the extent provided in Section
2.1, Notes which have been called for redemption by the Company in a notice of
redemption pursuant to Section 10.4, and are converted prior to redemption,
shall not require such concurrent payment to the Company upon surrender for
conversion, and if converted during the time period set forth in the preceding
sentence, the Holders of such converted Notes shall be entitled to receive (and
retain) any accrued interest on the principal of such surrendered Notes, and
Liquidated Damages, if any.
Notes shall be deemed to have been converted immediately prior
to the close of business on the day of surrender of such Notes for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Notes as Holders shall cease, and the Person or Persons entitled
to receive the Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such Common Stock at such time. As
promptly as practicable on or after the conversion date, but in no event later
than the seventh Business Day following the conversion date, the Company shall
cause to be issued and delivered to such Conversion Agent a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share as provided
in Section 12.3 hereof.
In the case of any Note which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the
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expense of the Company, a new Note or Notes of authorized denominations in
aggregate principal amount equal to the unconverted portion of the principal
amount of such Notes.
If shares of Common Stock to be issued upon conversion of a
Restricted Security, or Notes to be issued upon conversion of a Restricted
Security in part only, are to be registered in a name other than that of the
Holder of such Restricted Security, such Holder must deliver to the Conversion
Agent the Conversion notice in substantially the form set forth in Exhibit A
annexed hereto, dated the date of surrender of such Restricted Security and
signed by such Holder, as to compliance with the restrictions on transfer
applicable to such Restricted Security. Neither the Trustee nor any Conversion
Agent, Registrar or Transfer Agent shall be required to register in a name other
than that of the Holder shares of Common Stock or Notes issued upon conversion
of any Restricted Security not so accompanied by a properly completed
certificate.
The Company hereby initially appoints the Trustee as the
Conversion Agent.
SECTION 12.3 FRACTIONS OF SHARES.
No fractional shares of Common Stock shall be issued upon
conversion of any Note or Notes. If more than one Note shall be surrendered for
conversion at one time by the same Holder, the number of full shares which shall
be issued upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be issued upon conversion of any Note or Notes (or specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction
(calculated to the nearest one-100th of a share) in an amount equal to the same
fraction of the Closing Price of the Common Stock as of the Trading Day
preceding the date of conversion.
SECTION 12.4 ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price shall be subject to adjustments,
calculated by the Company, from time to time as follows:
(a) In case the Company shall hereafter pay a dividend or make
a distribution to all holders of the outstanding Common Stock in shares
of Common Stock, the Conversion Price in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution
shall be reduced by multiplying such Conversion Price by a fraction:
(i) the numerator of which shall be the number of
shares of Common Stock outstanding at the close of business on
the Record Date (as defined in Section 12.4(g)) fixed for such
determination, and
(ii) the denominator of which shall be the sum of
such number of shares and the total number of shares
constituting such dividend or other distribution. Such
reduction shall become effective immediately after the opening
of business on the day following the Record Date. If any
dividend or distribution of the type described in this Section
12.4(a) is declared but not so paid or made,
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the Conversion Price shall again be adjusted to the Conversion
Price which would then be in effect if such dividend or
distribution had not been declared.
(b) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately reduced, and conversely, in case outstanding shares
of Common Stock shall be combined into a smaller number of shares of
Common Stock, the Conversion Price in effect at the opening of business
on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(c) In case the Company shall issue rights or warrants (other
than any rights or warrants referred to in Section 12.4(d)) to all
holders of its outstanding shares of Common Stock entitling them to
subscribe for or purchase shares of Common Stock (or securities
convertible into Common Stock) at a price per share (or having a
conversion price per share) less than the Current Market Price (as
defined in Section 12.4(g)) on the Record Date fixed for the
determination of stockholders entitled to receive such rights or
warrants, the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in
effect at the opening of business on the date after such Record Date by
a fraction:
(i) the numerator of which shall be the number of
shares of Common Stock outstanding at the close of business on
the Record Date plus the number of shares which the aggregate
offering price of the total number of shares so offered for
subscription or purchase (or the aggregate conversion price of
the convertible securities so offered) would purchase at such
Current Market Price, and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding on the close of business on
the Record Date plus the total number of additional shares of
Common Stock so offered for subscription or purchase (or into
which the convertible securities so offered are convertible).
Such adjustment shall become effective immediately after the opening of
business on the day following the Record Date fixed for determination
of stockholders entitled to receive such rights or warrants. To the
extent that shares of Common Stock (or securities convertible into
Common Stock) are not delivered pursuant to such rights or warrants,
upon the expiration or termination of such rights or warrants the
Conversion Price shall be readjusted to the Conversion Price which
would then be in effect had the adjustments made upon the issuance of
such rights or warrants been made on the basis of the delivery of only
the number of shares of Common Stock (or securities convertible into
Common Stock) actually delivered. In the event that such rights or
warrants are not so issued, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if
such date fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In determining
whether any rights or warrants
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entitle the holders to subscribe for or purchase shares of Common Stock
att less than such Current Market Price, and in determining the
aggregate offering price of such shares of Common Stock, there shall be
taken into account any consideration received for such rights or
warrants, the value of such consideration if other than cash, to be
determined by the Board of Directors.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock shares of any class of
capital stock of the Company (other than any dividends or distributions
to which Section 12.4(a) applies) or evidences of its indebtedness,
cash or other assets, including securities, but excluding (1) any
rights or warrants referred to in Section 12.4(c), (2) any stock,
securities or other property or assets (including cash) distributed as
dividends or distributions in connection with a reclassification,
change, merger, combination, sale, conveyance, consolidation or
statutory share exchange to which Section 12.11 hereof applies and (3)
any dividends or distributions paid exclusively in cash (the securities
described in foregoing are hereinafter in this Section 12.4(d) called
the "securities"), then, in each such case, subject to the second
succeeding paragraph of this Section 12.4(d), the Conversion Price
shall be reduced so that the same shall be equal to the price
determined by multiplying the Conversion Price in effect immediately
prior to the close of business on the Record Date (as defined in
Section 12.4(g)) with respect to such distribution by a fraction:
(i) the numerator of which shall be the Current
Market Price (determined as provided in Section 12.4(g)) on
such date less the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive
and set forth in a Board Resolution) on such date of the
portion of the securities so distributed applicable to one
share of Common Stock (determined on the basis of the number
of shares of the Common Stock outstanding on the Record Date),
and
(ii) the denominator of which shall be such Current
Market Price.
Such reduction shall become effective immediately prior to the opening
of business on the day following the Record Date. However, in the event
that the then fair market value (as so determined) of the portion of
the securities so distributed applicable to one share of Common Stock
is equal to or greater than the Current Market Price on the Record
Date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Holder shall have the right to receive upon
conversion of a Note (or any portion thereof) the amount of securities
such Holder would have received had such Holder converted such Note (or
portion thereof) immediately prior to such Record Date. In the event
that such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such dividend or distribution had not
been declared.
If the Board of Directors determines the fair market value of
any distribution for purposes of this Section 12.4(d) by reference to
the actual or when issued trading market for any securities comprising
all or part of such distribution, it must in doing so consider the
prices in such market over the same period (the "Reference Period")
used in
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computing the Current Market Price pursuant to Section 12.4(g)
to the extent possible, unless the Board of Directors in a Board
Resolution determines in good faith that determining the fair market
value during the Reference Period would not be in the best interest of
the Holder.
Rights or warrants distributed by the Company to all holders
of Common Stock entitling the holders thereof to subscribe for or
purchase shares of the Company's capital stock (either initially or
under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events (a "Trigger Event"):
(i) are deemed to be transferred with such shares of Common
Stock;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances of Common
Stock,
shall be deemed not to have been distributed for purposes of this
Section 12.4(d) (and no adjustment to the Conversion Price under this
Section 12.4(d) will be required) until the occurrence of the earliest
Trigger Event. If such right or warrant is subject to subsequent
events, upon the occurrence of which such right or warrant shall become
exercisable to purchase different securities, evidences of indebtedness
or other assets or entitle the holder to purchase a different number or
amount of the foregoing or to purchase any of the foregoing at a
different purchase price, then the occurrence of each such event shall
be deemed to be the date of issuance and record date with respect to a
new right or warrant (and a termination or expiration of the existing
right or warrant without exercise by the holder thereof). In addition,
in the event of any distribution (or deemed distribution) of rights or
warrants, or any Trigger Event or other event (of the type described in
the preceding sentence) with respect thereto, that resulted in an
adjustment to the Conversion Price under this Section 12.4(d):
(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 Price shall be
readjusted upon such final redemption or repurchase to give
effect to such distribution or Trigger Event, as the case may
be, as though it were a cash distribution, equal to the per
share redemption or repurchase price received by a holder of
Common Stock with respect to such rights or warrant (assuming
such holder had retained such rights or warrants), made to all
holders of Common Stock as of the date of such redemption or
repurchase, and
(2) in the case of such rights or warrants all of
which shall have expired or been terminated without exercise,
the Conversion Price shall be readjusted as if such rights and
warrants had never been issued.
For purposes of this Section 12.4(d) and Sections 12.4(a),
12.4(b) and 12.4(c), any dividend or distribution to which this
Section 12.4(d) is applicable that also includes shares of Common
Stock, a subdivision or combination of Common Stock to which Section
12.4(c) applies, or rights or warrants to subscribe for or purchase
shares of
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Common Stock to which Section 12.4(c) applies (or any
combination thereof), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of
indebtedness, assets, shares of capital stock, rights or
warrants other than such shares of Common Stock, such
subdivision or combination or such rights or warrants to which
Sections 12.4(a), 12.4(b) and 12.4(c) apply, respectively (and
any Conversion Price reduction required by this Section
12.4(d) with respect to such dividend or distribution shall
then be made), immediately followed by
(2) a dividend or distribution of such shares of
Common Stock, such subdivision or combination or such rights
or warrants (and any further Conversion Price reduction
required by Sections 12.4(a), 12.4(b) and 12.4(c) with respect
to such dividend or distribution shall then be made), except:
(A) the Record Date of such dividend or distribution
shall be substituted as (x) "the date fixed for the
determination of stockholders entitled to receive such
dividend or other distribution," "Record Date fixed for such
determinations" and "Record Date" within the meaning of
Section 12.4(a), (y) "the day upon which such subdivision
becomes effective" and "the day upon which such combination
becomes effective" within the meaning of Section 12.4(b), and
(z) as "the date fixed for the determination of stockholders
entitled to receive such rights or warrants," "the Record Date
fixed for the determination of the stockholders entitled to
receive such rights or warrants" and such "Record Date" within
the meaning of Section 12.4(c), and
(B) any shares of Common Stock included in such
dividend or distribution shall not be deemed "outstanding at
the close of business on the date fixed for such
determination" within the meaning of Section 12.4(a) and any
reduction or increase in the number of shares of Common Stock
resulting from such subdivision or combination shall be
disregarded in connection with such dividend or distribution.
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed upon a reclassification, change, merger,
combination, sale, conveyance, consolidation or statutory share
exchange to which Section 12.11 hereof applies or as part of a
distribution referred to in Section 12.4(d) hereof), in an aggregate
amount that, combined together with:
(1) the aggregate amount of any other such
distributions to all holders of Common Stock made exclusively
in cash within the 12 months preceding the date of payment of
such distribution, and in respect of which no adjustment
pursuant to this Section 12.4(e) has been made, and
(2) the aggregate of any cash plus the fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and set forth in a Board
Resolution), as of the expiration of any tender or exchange
offer, or
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any consideration payable in respect of such tender
or exchange offer by the Company or any of its subsidiaries
for all or any portion of the Common Stock concluded within
the 12 months preceding the date of such distribution, and in
respect of which no adjustment pursuant to Section 12.4(f)
hereof has been made,
exceeds 10% of the product of the Current Market Price (determined as
provided in Section 12.4(g)) on the Record Date with respect to such
distribution times the number of shares of Common Stock outstanding on
such date, then and in each such case, immediately after the close of
business on such date, the Conversion Price shall be reduced so that
the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the close of business on such
Record Date by a fraction:
(i) the numerator of which shall be equal to the
Current Market Price on the Record Date less an amount equal
to the quotient of (x) the excess of such combined amount over
such 10% and (y) the number of shares of Common Stock
outstanding on the Record Date, and
(ii) the denominator of which shall be equal to
the Current Market Price on such date.
However, in the event that the then fair market value (as so
determined) of the portion of the securities so distributed applicable
to one share of Common Stock is equal to or greater than the Current
Market Price on the Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder shall have the
right to receive upon conversion of a Note (or any portion thereof) the
amount of cash such Holder would have received had such Holder
converted such Note (or portion thereof) immediately prior to such
Record Date. In the event that such dividend or distribution is not so
paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such dividend or
distribution had not been declared.
(f) In case a tender or exchange offer made by the Company or
any of its subsidiaries for all or any portion of the Common Stock
shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders (based on
the acceptance (up to any maximum specified in the terms of the tender
or exchange offer) of Purchased Shares (as defined below)) of an
aggregate consideration having a fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and set
forth in a Board Resolution), as of the expiration of such tender or
exchange offer) that combined together with:
(1) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and set forth in a Board
Resolution), as of the expiration of such tender or exchange
offer, of consideration payable in respect of any other tender
or exchange offers, by the Company or any of its subsidiaries
for all or any portion of the Common Stock expiring within the
12 months preceding the expiration of such tender or
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exchange offer and in respect of which no adjustment pursuant
to this Section 12.4(f) has been made, and
(2) the aggregate amount of any distributions to all
holders of the Company's Common Stock made exclusively in cash
within 12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment pursuant
to Section 12.4(e) has been made,
exceeds 10% of the product of the Current Market Price (determined as
provided in Section 12.4(g)) as of the last time (the "Expiration
Time") tenders or exchanges could have been made pursuant to such
tender or exchange offer (as it may be amended) times the number of
shares of Common Stock outstanding (including any tendered or exchanged
shares) on the Expiration Time, then, and in each such case,
immediately prior to the opening of business on the day after the date
of the Expiration Time, the Conversion Price shall be adjusted so that
the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to close of business on the date of
the Expiration Time by a fraction:
(i) the numerator of which shall be the number of
shares of Common Stock outstanding (including any tendered or
exchanged shares) at the Expiration Time multiplied by the
Current Market Price of the Common Stock on the Trading Day
next succeeding the Expiration Time, and
(ii) the denominator shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance
(up to any maximum specified in the terms of the tender or
exchange offer) of all shares validly tendered or exchanged
and not withdrawn as of the Expiration Time (the shares deemed
so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares)
on the Expiration Time and the Current Market Price of the
Common Stock on the Trading Day next succeeding the Expiration
Time.
Such reduction (if any) shall become effective immediately prior to
the opening of business on the day following the Expiration Time. In
the event that the Company is obligated to purchase 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 Price shall again be
adjusted to be the Conversion Price which would then be in effect if
such tender or exchange offer had not been made. If the application of
this Section 12.4(f) to any tender or exchange offer would result in an
increase in the Conversion Price, no adjustment shall be made for such
tender or exchange offer under this Section 12.4(f).
(g) For purposes of this Section 12.4, the following terms
shall have the meanings indicated:
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(1) "Current Market Price" shall mean the average of
the daily Closing Prices per share of Common Stock for the ten
consecutive Trading Days immediately prior to the date in
question; provided, however, that if:
(i) the "ex" date (as hereinafter defined) for any
event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion
Price pursuant to Section 12.4(a), (b), (c), (d), (e) or (f)
occurs during such ten consecutive Trading Days, the Closing
Price for each Trading Day prior to the "ex" date for such
other event shall be adjusted by multiplying such Closing
Price by the same fraction by which the Conversion Price is so
required to be adjusted as a result of such other event;
(ii) the "ex" date for any event (other than the
issuance or distribution requiring such computation) that
requires an adjustment to the Conversion Price pursuant to
Section 12.4(a), (b), (c), (d), (e) or (f) occurs on or after
the "ex" date for the issuance or distribution requiring such
computation and prior to the day in question, the Closing
Price for each Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such Closing
Price by the reciprocal of the fraction by which the
Conversion Price is so required to be adjusted as a result of
such other event; and
(iii) the "ex" date for the issuance or distribution
requiring such computation is prior to the day in question,
after taking into account any adjustment required pursuant to
clause (i) or (ii) of this proviso, the Closing Price for each
Trading Day on or after such "ex" date shall be adjusted by
adding thereto the amount of any cash and the fair market
value (as determined by the Board of Directors in a manner
consistent with any determination of such value for purposes
of Section 12.4(d) or (f), whose determination shall be
conclusive and set forth in a Board Resolution) of the
evidences of indebtedness, shares of capital stock or assets
being distributed applicable to one share of Common Stock as
of the close of business on the day before such "ex" date.
For purposes of any computation under Section 12.4(f), the Current
Market Price of the Common Stock on any date shall be deemed to be the
average of the daily Closing Prices per share of Common Stock for such
day and the next two succeeding Trading Days; provided, however, that
if the "ex" date for any event (other than the tender or exchange offer
requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 12.4(a), (b), (c), (d), (e) or (f)
occurs on or after the Expiration Time for the tender or exchange offer
requiring such computation and prior to the day in question, the
Closing Price for each Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the Conversion Price is so required
to be adjusted as a result of such other event. For purposes of this
paragraph, the term "ex" date, when used:
(A) with respect to any issuance or distribution,
means the first date on which the Common Stock trades regular
way on the relevant exchange or in the
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relevant market from which the Closing Price was obtained
without the right to receive such issuance or distribution;
(B) with respect to any subdivision or combination of
shares of Common Stock, means the first date on which the
Common Stock trades regular way on such exchange or in such
market after the time at which such subdivision or combination
becomes effective, and
(C) with respect to any tender or exchange offer,
means the first date on which the Common Stock trades regular
way on such exchange or in such market after the Expiration
Time of such offer.
Notwithstanding the foregoing, whenever successive adjustments to the
Conversion Price are called for pursuant to this Section 12.4, such
adjustments shall be made to the Current Market Price as may be
necessary or appropriate to effectuate the intent of this Section 12.4
and to avoid unjust or inequitable results as determined in good faith
by the Board of Directors.
(2) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's length
transaction.
(3) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which
the holders of Common Stock have the right to receive any
cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(h) The Company may make such reductions in the Conversion
Price, in addition to those required by Sections 12.4(a), (b), (c),
(d), (e) or (f), 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.
To the extent permitted by applicable law, the Company from time to
time may reduce the Conversion Price by any amount for any period of time if the
period is at least 20 days and the reduction is irrevocable during the period
and the Board of Directors determines in good faith that such reduction would be
in the best interests of the Company, which determination shall be conclusive
and set forth in a Board Resolution. Whenever the Conversion Price is reduced
pursuant to the preceding sentence, the Company shall mail to the Trustee and
each Holder at the address of such Holder as it appears in the Register a notice
of the reduction at least 15 days prior to the date the reduced Conversion Price
takes effect, and such notice shall state the reduced Conversion Price and the
period during which it will be in effect.
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Adjustment to the Conversion Price is not necessary if Holders may
participate in the transactions otherwise giving rise to an adjustment on a
basis and with notice that the Board of Directors determines to be fair and
appropriate. In cases where the fair market value of the portion of assets, debt
securities or rights, warrants or options to purchase securities of the Company
applicable to one share of Common Stock distributed to stockholders exceeds the
average sale price per share of Common Stock, or the average sale price per
share of options on Common Stock so distributed by less than $1.00, rather than
being entitled to an adjustment in the Conversion Price, a Holder, upon
conversion of a Note, will be entitled to receive (in addition to the shares of
Common Stock into which such Note is convertible) the kind and amounts of
assets, debt securities or rights, options or warrants comprising the
distribution that such Holder would have received if such Holder had converted
such Note immediately prior to the record date for determining the stockholders
entitled to receive such distribution.
(i) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this Section 12.4(i)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article 12 shall be made
by the Company and shall be made to the nearest cent or to the nearest one
hundredth of a share, as the case may be. No adjustment need be made for a
change in the par value or no par value of the Common Stock.
(j) In any case in which this Section 12.4 provides that an adjustment
shall become effective immediately after a Record Date for an event, the Company
may defer until the occurrence of such event (i) issuing to the Holder of any
Note converted after such Record Date and before the occurrence of such event
the additional shares of Common Stock issuable upon such conversion by reason of
the adjustment required by such event over and above the Common Stock issuable
upon such conversion before giving effect to such adjustment and (ii) paying to
such holder any amount in cash in lieu of any fraction pursuant to Section 12.3
hereof.
(k) For purposes of this Section 12.4, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
(l) If the distribution date for the rights provided in the Company's
rights agreement, if any, occurs prior to the date a Note is converted, the
Holder of the Note who converts such Note after the distribution date is not
entitled to receive the rights that would otherwise be attached (but for the
date of conversion) to the shares of Common Stock received upon such conversion;
provided, however, that an adjustment shall be made to the Conversion Price
pursuant to clause 12.4(b) as if the rights were being distributed to the common
stockholders of the Company immediately prior to such conversion. If such an
adjustment is made and the rights are later redeemed, invalidated or terminated,
then a corresponding reversing adjustment shall be made to the Conversion Price,
on an equitable basis, to take account of such event.
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SECTION 12.5 NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the Conversion Price is adjusted as herein provided (other
than in the case of an adjustment pursuant to the second paragraph of Section
12.4(h) for which the notice required by such paragraph has been provided), the
Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officers' Certificate setting forth the adjusted Conversion Price
and showing in reasonable detail the facts upon which such adjustment is based;
provided that the Trustee shall have no duty or obligation to verify the
accuracy of the adjusted Conversion Price. Promptly after delivery of such
Officers' Certificate, the Company shall prepare a notice stating that the
Conversion Price has been adjusted and setting forth the adjusted Conversion
Price and the date on which each adjustment becomes effective, and shall mail
such notice to each Holder at the address of such Holder as it appears in the
Register within 20 days of the effective date of such adjustment. Failure to
deliver such notice shall not effect the legality or validity of any such
adjustment.
SECTION 12.6 NOTICE PRIOR TO CERTAIN ACTIONS.
In case at any time after the date hereof:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of
its capital surplus or its consolidated retained earnings;
(2) the Company shall authorize the granting to the holders of
its Common Stock of rights or warrants to subscribe for or purchase any
shares of capital stock of any class (or of securities convertible into
shares of capital stock of any class) or of any other rights;
(3) there shall occur any reclassification of the Common Stock
of the Company (other than a subdivision or combination of its
outstanding Common Stock, a change in par value, a change from par
value to no par value or a change from no par value to par value), or
any merger, consolidation, statutory share exchange or combination to
which the Company is a party and for which approval of any shareholders
of the Company is required, or the sale, transfer or conveyance of all
or substantially all of the assets of the Company; or
(4) there shall occur the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
the Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of securities pursuant to Section 9.2 hereof, and shall
cause to be provided to the Trustee and all Holders in accordance with Section
14.2 hereof, at least 20 days (or 10 days in any case specified in clause (1) or
(2) above) prior to the applicable record or effective date hereinafter
specified, a notice stating:
(A) the date on which a record is to be taken for the purpose
of such dividend, distribution, rights or warrants, or, if a record is
not to be taken, the date as of which the
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holders of Common Stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined, or
(B) the date on which such reclassification, merger,
consolidation, statutory share exchange, combination, sale, transfer,
conveyance, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon
such reclassification, merger, consolidation, statutory share exchange,
sale, transfer, dissolution, liquidation or winding up.
Neither the failure to give such notice nor any defect therein
shall affect the legality or validity of the proceedings or actions described in
clauses (1) through (4) of this Section 12.6.
SECTION 12.7 COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times use its best efforts to reserve
and keep available, free from preemptive rights, out of its authorized but
unissued Common Stock, for the purpose of effecting the conversion of Notes, the
full number of shares of fully paid and nonassessable Common Stock then issuable
upon the conversion of all Outstanding Notes.
SECTION 12.8 TAXES ON CONVERSIONS.
Except as provided in the next sentence, the Company will pay
any and all taxes (other than taxes on income) and duties that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Notes pursuant hereto. A Holder delivering a Note for conversion shall be liable
for and will be required to pay any tax or duty which may be payable in respect
of any transfer involved in the issue and delivery of shares of Common Stock in
a name other than that of the Holder of the Note or Notes to be converted, and
no such issue or delivery shall be made unless the Person requesting such issue
has paid to the Company the amount of any such tax or duty, or has established
to the satisfaction of the Company that such tax or duty has been paid.
SECTION 12.9 COVENANT AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Notes will upon issue be fully paid and
nonassessable and, except as provided in Section 12.8, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
SECTION 12.10 CANCELLATION OF CONVERTED NOTES.
All Notes delivered for conversion shall be delivered to the
Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 2.9.
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SECTION 12.11 EFFECT OF RECLASSIFICATION, CONSOLIDATION,
MERGER OR SALE.
If any of following events occur, namely:
(i) any reclassification or change of the outstanding shares
of Common Stock (including a compulsory share exchange but other than
changes resulting from a subdivision or combination), 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,
(ii) any merger, consolidation, statutory share exchange or
combination of the Company with another corporation as a result of
which holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to
or in exchange for such Common Stock or
(iii) any sale or conveyance of the properties and assets of
the Company as, or substantially as, an entirety to any other
corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock,
the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply with
the TIA as in force at the date of execution of such supplemental indenture if
such supplemental indenture is then required to so comply) providing that each
Note shall be convertible into the kind and amount of shares of stock and other
securities or property or assets (including cash) which the Holder thereof would
have been entitled to receive upon such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance had
such Notes been converted into Common Stock immediately prior to such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance assuming such holder of Common Stock did not
exercise its rights of election, if any, as to the kind or amount of securities,
cash or other property receivable upon such merger, consolidation, statutory
share exchange, sale or conveyance (provided that, if the kind or amount of
securities, cash or other property receivable upon such merger, consolidation,
statutory share exchange, 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 12.11
the kind and amount of securities, cash or other property receivable upon such
merger, consolidation, statutory share exchange, 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). The Trustee shall be entitled
to rely on an Opinion of Counsel as to whether any such supplemental indenture
is required to and does comply with the TIA. 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 12. If, in the case
of any such reclassification, change, merger,
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consolidation, statutory share exchange, combination, sale or conveyance, the
stock or other securities and assets receivable thereupon by a holder of shares
of Common Stock includes shares of stock or other securities and assets of a
corporation other than the successor or purchasing corporation, as the case may
be, in such reclassification, change, merger, consolidation, statutory share
exchange, 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, including to the extent practicable the provisions providing for the
Repurchase Rights set forth in Article 11 hereof.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder, at the address of such
Holder as it appears on the Register, within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of such
supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.
If this Section 12.11 applies to any event or occurrence,
Section 12.4 hereof shall not apply.
SECTION 12.12 RESPONSIBILITY OF TRUSTEE FOR CONVERSION
PROVISIONS.
The Trustee, subject to the provisions of Section 5.1 hereof,
and any Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Notes to determine whether any facts exist which
may require any adjustment of the Conversion Price, or with respect to the
nature or intent of any such adjustments when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee, subject to the provisions of
Section 5.1 hereof, nor any Conversion Agent shall be accountable with respect
to the validity or value (of the kind or amount) of any Common Stock, or of any
other securities or property, which may at any time be issued or delivered upon
the conversion of any Note; and it or they do not make any representation with
respect thereto. Neither the Trustee, subject to the provisions of Section 5.1
hereof, nor any Conversion Agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares of
stock or share certificates or other securities or property upon the surrender
of any Note for the purpose of conversion; and the Trustee, subject to the
provisions of Section 5.1 hereof, and any Conversion Agent shall not be
responsible or liable for any failure of the Company to comply with any of the
covenants of the Company contained in this Article.
ARTICLE XIII
SUBORDINATION
SECTION 13.1 NOTES SUBORDINATED TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of Notes, by
such Holder's acceptance thereof, likewise covenants and agrees, that the
Indebtedness represented by the Notes and the payment of the principal of and
premium, if any, and interest (including Liquidated Damages, if any) on each and
all of the Notes is hereby expressly subordinated and
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junior, to the extent and in the manner set forth and as set forth in this
Section 13.1, in right of payment to the prior payment in full of all Senior
Debt.
(a) In the event of any distribution of assets of the Company
upon any dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership proceedings or
upon an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise, the holders of all Senior
Debt shall first be entitled to receive payment of the full amount due thereon
in respect of all such Senior Debt and all other amounts due or provision shall
be made for such amount in cash, or other payments satisfactory to the holders
of Senior Debt, before the Holders of any of the Notes are entitled to receive
any payment or distribution of any character, whether in cash, securities or
other property, on account of the principal of or premium, if any, or interest
(including Liquidated Damages, if any) on the Indebtedness evidenced by the
Notes.
(b) In the event of any acceleration of maturity of the Notes
because of an Event of Default, unless the full amount due in respect of all
Senior Debt is paid in cash or other form of payment satisfactory to the holders
of Senior Debt, no payment shall be made by the Company with respect to the
principal of, premium, if any, or interest (including Liquidated Damages, if
any) on the Notes or to acquire any of the Notes (including any redemption,
conversion or cash repurchase pursuant to the exercise of the Repurchase Right)
and the Company shall give prompt written notice of such acceleration to such
holders of Senior Debt.
(c) In the event of and during the continuance of any default
in payment of the principal of or premium, if any, or interest on, or other
payment obligation in respect of, any Senior Debt, unless all such payments due
in respect of such Senior Debt have been paid in full in cash or other payments
satisfactory to the holders of Senior Debt, no payment shall be made by the
Company with respect to the principal of, premium, if any, or interest
(including Liquidated Damages, if any) on the Notes or to acquire any of the
Notes (including any redemption, conversion or cash repurchase pursuant to the
exercise of the Repurchase Right). The Company shall give prompt written notice
to the Trustee of any default under any Senior Debt or under any agreement
pursuant to which Senior Debt may have been issued.
(d) During the continuance of any event of default with
respect to any Senior Debt, as such event of default is defined under any such
Senior Debt or in any agreement pursuant to which any Senior Debt has been
issued (other than a default in payment of the principal of or premium, if any,
or interest on, or other payment obligation in respect of any Senior Debt),
permitting the holder or holders of such Senior Debt to accelerate the maturity
thereof (or in the case of any lease, permitting the landlord either to
terminate the lease or to require the Company to make an irrevocable offer to
terminate the lease following an event of default thereunder), no payment shall
be made by the Company, directly or indirectly, with respect to principal of,
premium, if any, or interest (including Liquidated Damages, if any) on the Notes
for 179 days following notice in writing (a "Payment Blockage Notice") to the
Company, from any holder or holders of such Senior Debt or their representative
or representatives or the trustee or trustees under any indenture or under which
any instrument evidencing any such Senior Debt may have been issued, that such
an event of default has occurred and is continuing, unless such event of default
has been cured or waived or such Senior Debt has been paid in full; provided,
however, if the maturity of such Senior Debt is accelerated (or in the case of
any lease,
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as a result of such event of default, the landlord under the lease
has given the Company notice of its intention to terminate the lease or to
require the Company to make an irrevocable offer to terminate the lease), no
payment may be made on the Notes until such Senior Debt has been paid in full in
cash or other payment satisfactory to the holders of such Senior Debt or such
acceleration (or termination, in the case of any lease) has been cured or
waived.
For purposes of this Section 13.1(d), such Payment Blockage
Notice shall be deemed to include notice of all other events of default under
such indenture or instrument which are continuing at the time of the event of
default specified in such Payment Blockage Notice. The provisions of this
Section 13.1(d) shall apply only to one such Payment Blockage Notice given in
any period of 365 days with respect to any issue of Senior Debt, and no such
continuing event of default that existed or was continuing on the date of
delivery of any Payment Blockage Notice shall be, or shall be made, the basis
for a subsequent Payment Blockage Notice.
(e) In the event that, notwithstanding the foregoing
provisions of Sections 13.1(a), 13.1(b), 13.1(c) and 13.1(d), any payment on
account of principal, premium, if any, or interest (including Liquidated
Damages, if any) on the Notes shall be made by or on behalf of the Company and
received by the Trustee, by any Holder or by any Paying Agent (or, if the
Company is acting as its own Paying Agent, money for any such payment shall be
segregated and held in trust):
(i) after the occurrence of an event specified in Section
13.1(a) or 13.1(b), then, unless all Senior Debt is paid in full in
cash, or provision shall be made therefor,
(ii) after the happening of an event of default of the type
specified in Section 13.1(c) above, then, unless the amount of such
Senior Debt then due shall have been paid in full, or provision made
therefor or such event of default shall have been cured or waived, or
(iii) after the happening of an event of default of the type
specified in Section 13.1(d) above and delivery of a Payment Blockage
Notice, then, unless such event of default shall have been cured or
waived or the 179-day period specified in Section 13.1(d) shall have
expired,
such payment (subject, in each case, to the provisions of Section 13.7 hereof)
shall be held in trust for the benefit of, and shall be immediately paid over
to, the holders of Senior Debt (unless an event described in Section 13.1(a),
(b) or (c) has occurred, in which case the payment shall be held in trust for
the benefit of, and shall be immediately paid over to all holders of Senior
Debt) or their representative or representatives or the trustee or trustees
under any indenture under which any instruments evidencing any of the Senior
Debt, may have been issued, as their interests may appear.
SECTION 13.2 SUBROGATION.
Subject to the payment in full of all Senior Debt to which the
Indebtedness evidenced by the Notes is in the circumstances subordinated as
provided in Section 13.1 hereof, the Holders of the Notes shall be subrogated to
the rights of the holders of such Senior Debt to receive payments or
distributions of cash, property or securities of the Company applicable to
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such Senior Debt until all amounts owing on the Notes shall be paid in full,
and, as between the Company, its creditors other than holders of such Senior
Debt, and the Holders of the Notes, no such payment or distribution made to the
holders of Senior Debt by virtue of this Article which otherwise would have been
made to the holders of the Notes shall be deemed to be a payment by the Company
on account of such Senior Debt, provided that the provisions of this Article are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Notes, on the one hand, and the holders of Senior Debt, on the
other hand.
SECTION 13.3 OBLIGATION OF THE COMPANY IS ABSOLUTE AND
UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Debt, and the Holders of
the Notes, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Notes the principal of and premium, if any, and
interest (including Liquidated Damages, if any) on the Notes as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders of the Notes and creditors
of the Company other than the holders of Senior Debt, nor shall anything
contained herein or therein prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Debt in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
SECTION 13.4 MATURITY OF OR DEFAULT ON SENIOR DEBT.
Upon the maturity of any Senior Debt by lapse of time,
acceleration or otherwise, all principal of or premium, if any, or interest on,
or other payment obligations in respect of all such matured Senior Debt shall
first be paid in full, or such payment shall have been duly provided for, before
any payment on account of principal, or premium, if any, or interest (including
Liquidated Damages, if any) is made upon the Notes.
SECTION 13.5 PAYMENTS ON NOTES PERMITTED.
Except as expressly provided in this Article, nothing
contained in this Article shall affect the obligation of the Company to make, or
prevent the Company from making, payments of the principal of, or premium, if
any, or interest (including Liquidated Damages, if any) on the Notes in
accordance with the provisions hereof and thereof, or shall prevent the Trustee
or any Paying Agent from applying any moneys deposited with it hereunder to the
payment of the principal of, or premium, if any, or interest (including
Liquidated Damages, if any) on the Notes.
SECTION 13.6 EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each Holder of Notes, by such Holder's acceptance thereof,
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes
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Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Notes shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other Person making any
payment or distribution, delivered to the Trustee or to the Holders of the
Notes, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, and as to other facts pertinent to the right of
such Persons under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Persons pending judicial determination as
to the right of such Persons to receive such payment.
SECTION 13.7 KNOWLEDGE OF TRUSTEE.
Notwithstanding the provision of this Article or any other
provisions of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any Senior Debt, of any default in payment of principal of,
premium, if any, or interest on, or other payment obligation in respect of any
Senior Debt, or of any facts which would prohibit the making of any payment of
moneys to or by the Trustee, or the taking of any other action by the Trustee,
unless a Responsible Officer of the Trustee having responsibility for the
administration of the trust established by this Indenture shall have received
written notice thereof from the Company, any Holder of Notes, any Paying or
Conversion Agent of the Company or the holder or representative of any class of
Senior Debt, and, prior to the receipt of any such written notice, the Trustee
shall be entitled in all respects to assume that no such default or facts exist;
provided, however, that unless on the third Business Day prior to the date upon
which by the terms hereof any such moneys may become payable for any purpose the
Trustee shall have received the notice provided for in this Section 13.7, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such moneys and apply the same to the
purpose for which they were received, and shall not be affected by any notice to
the contrary which may be received by it on or after such date.
SECTION 13.8 TRUSTEE'S RELATION TO SENIOR DEBT.
The Trustee shall be entitled to all the rights set forth in
this Article with respect to any Senior Debt at the time held by it, to the same
extent as any other holder of Senior Debt and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing contained in this Article shall apply to claims of or
payments to the Trustee under or pursuant to Section 5.8 hereof.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and the Trustee shall not be liable
to any holder of Senior Debt if it shall pay over or deliver to Holders, the
Company or any other Person moneys or assets to which any holder of Senior Debt
shall be entitled by virtue of this Article or otherwise.
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SECTION 13.9 RIGHTS OF HOLDERS OF SENIOR DEBT NOT
IMPAIRED.
No right of any present or future holder of any Senior Debt to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 13.10 MODIFICATION OF TERMS OF SENIOR DEBT.
Any renewal or extension of the time of payment of any Senior
Debt or the exercise by the holders of Senior Debt of any of their rights under
any instrument creating or evidencing Senior Debt, including without limitation
the waiver of default thereunder, may be made or done all without notice to or
assent from the Holders of the Notes or the Trustee.
No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in respect of,
any liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Debt is outstanding or of such Senior Debt, whether or not such release
is in accordance with the provisions or any applicable document, shall in any
way alter or affect any of the provisions of this Article or of the Notes
relating to the subordination thereof.
SECTION 13.11 CERTAIN CONVERSIONS NOT DEEMED PAYMENT.
For the purposes of this Article 13 only:
(1) the issuance and delivery of junior securities upon
conversion of Notes in accordance with Article 12 hereof shall not be
deemed to constitute a payment or distribution on account of the
principal of, premium, if any, or interest (including Liquidated
Damages, if any) on Notes or on account of the purchase or other
acquisition of Notes, and
(2) the payment, issuance or delivery of cash (except in
satisfaction of fractional shares pursuant to Section 12.3 hereof),
property or securities (other than junior securities) upon conversion
of a Note shall be deemed to constitute payment on account of the
principal of, premium, if any, or interest (including Liquidated
Damages, if any) on such Note.
For the purposes of this Section 13.11, the term "junior securities" means:
(a) shares of any Common Stock or
(b) other securities of the Company that are subordinated in
right of payment to all Senior Debt that may be outstanding at the time
of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent that, the Notes are so subordinated
as provided in this Article.
Nothing contained in this Article 13 or elsewhere in this Indenture or in the
Notes is intended to
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or shall impair, as among the Company, its creditors (other than holders of
Senior Debt) and the Holders of Notes, the right, which is absolute and
unconditional, of the Holder of any Note to convert such Note in accordance
with Article 12 hereof.
ARTICLE XIV
OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 14.1 TRUST INDENTURE ACT CONTROLS.
This Indenture is subject to the provisions of the TIA which
are required to be part of this Indenture, and shall, to the extent applicable,
be governed by such provisions.
SECTION 14.2 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
to the address set forth below:
(a) if to the Company:
RadiSys Corporation
0000 XX Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxx, Xxxxxx 00000
Attention: Mr. Xxxxx Xxxxxxxxxx
with a copy to:
Stoel Rives LLP
000 XX 0xx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxx
(b) if to the Trustee:
U.S. Trust Company, N.A.
Xxx Xxxxxxxxxxx Xxxxxx,
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Corporate Trust
Department
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to a Holder shall be mailed by
first-class mail to his address shown on the Register kept by the Registrar.
Failure to mail a notice or communication
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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 14.3 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 14.4 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:
(1) one or more instruments of substantially similar tenor
signed by such Holders in person or by agent or proxy duly appointed in
writing;
(2) 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 8; or
(3) 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 5.1 hereof) 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 8.6 hereof.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be provided in any manner which 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.
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(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 14.5 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.
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 14.6 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:
(1) 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;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of 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
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 14.7 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 14.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 14.9 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, the holders of Senior Debt 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 LAWS OF THE STATE OF NEW YORK.
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
or stated maturity of any Note or the last day on which a Holder of a Note has a
right to convert such Note shall not
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be a Business Day at any Place of Payment or Place of Conversion, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of interest (including Liquidated Damages, if any) or principal or premium, if
any, or conversion of the Notes, need not be made at such Place of Payment or
Place of Conversion on such day, but may be made on the next succeeding Business
Day at such Place of Payment or Place of Conversion with the same force and
effect as if made on the Interest Payment Date or Redemption Date or at the
stated maturity or on such last day for conversion, 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 or stated maturity, 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 Liquidated Damages, 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 of 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
RADISYS CORPORATION
By: /s/ XXXXXXXX X. XXXXX
-----------------------------
Name:
Title:
U.S. TRUST COMPANY,
NATIONAL ASSOCIATION
By: XXXXXXXXX XXXXXXX
-----------------------------
Name:
Title:
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