Exhibit 4.19
AMKOR TECHNOLOGY, INC.
AND
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U.S. BANK NATIONAL ASSOCIATION
AS TRUSTEE
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$100,000,000
6 1/4% Convertible Subordinated Notes due 2013
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INDENTURE
Dated as of November 18, 2005
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.................................................... 1
Section 1.01. Definitions........................................... 1
Section 1.02. Other Definitions..................................... 9
Section 1.03. Incorporation by Reference of Trust Indenture Act..... 10
Section 1.04. Rules of Construction................................. 10
ARTICLE II THE CONVERTIBLE SUBORDINATED NOTES............................ 11
Section 2.01. Form and Dating....................................... 11
Section 2.02. Execution and Authentication.......................... 13
Section 2.03. The Trustee Registrar, Paying Agent and Conversion
Agent................................................. 13
Section 2.04. Paying Agent To Hold Money in Trust................... 14
Section 2.05. Holder Lists.......................................... 14
Section 2.06. Transfer and Exchange................................. 14
Section 2.07. Replacement Convertible Subordinated Notes............ 18
Section 2.08. Outstanding Convertible Subordinated Notes............ 19
Section 2.09. When Treasury Convertible Subordinated Notes
Disregarded........................................... 19
Section 2.10. Temporary Convertible Subordinated Notes.............. 20
Section 2.11. Cancellation.......................................... 21
Section 2.12. Defaulted Interest.................................... 21
Section 2.13. CUSIP Number.......................................... 21
ARTICLE III REDEMPTION................................................... 21
Section 3.01. Optional Redemption................................... 21
Section 3.02. Notices to Trustee.................................... 22
Section 3.03. Selection of Convertible Subordinated Notes To Be
Redeemed.............................................. 22
Section 3.04. Notice of Redemption.................................. 23
Section 3.05. Effect of Notice of Redemption........................ 24
Section 3.06. Deposit of Redemption Price........................... 24
Section 3.07. Convertible Subordinated Notes Redeemed in Part....... 25
Section 3.08. Conversion Arrangement on Call for Redemption......... 25
ARTICLE IV COVENANTS..................................................... 26
Section 4.01. Payment of Convertible Subordinated Notes............. 26
Section 4.02. Commission Reports.................................... 26
Section 4.03. Compliance Certificate................................ 26
Section 4.04. Maintenance of Office or Agency....................... 27
Section 4.05. Continued Existence................................... 27
Section 4.06. Repurchase Upon Designated Event...................... 27
Section 4.07. Appointments to Fill Vacancies in Trustee's Office.... 30
Section 4.08. Stay, Extension and Usury Laws........................ 30
Section 4.09. Taxes................................................. 30
ARTICLE V SUCCESSORS..................................................... 31
Section 5.01. When the Company May Merge, Etc....................... 31
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Section 5.02. Successor Corporation Substituted..................... 32
Section 5.03. Purchase Option on Change of Control.................. 32
ARTICLE VI DEFAULTS AND REMEDIES......................................... 32
Section 6.01. Events of Default..................................... 32
Section 6.02. Acceleration.......................................... 34
Section 6.03. Other Remedies........................................ 35
Section 6.04. Waiver of Past Defaults............................... 35
Section 6.05. Control by Majority................................... 36
Section 6.06. Limitation on Suits................................... 36
Section 6.07. Rights of Holders To Receive Payment.................. 36
Section 6.08. Collection Suit by Trustee............................ 37
Section 6.09. Trustee May File Proofs of Claim...................... 37
Section 6.10. Priorities............................................ 37
Section 6.11. Undertaking for Costs................................. 38
ARTICLE VII THE TRUSTEE.................................................. 38
Section 7.01. Duties of the Trustee................................. 38
Section 7.02. Rights of the Trustee................................. 39
Section 7.03. Individual Rights of the Trustee...................... 41
Section 7.04. Trustee's Disclaimer.................................. 41
Section 7.05. Notice of Defaults.................................... 41
Section 7.06. Reports by the Trustee to Holders..................... 41
Section 7.07. Compensation and Indemnity............................ 42
Section 7.08. Replacement of the Trustee............................ 43
Section 7.09. Successor Trustee by Merger, etc...................... 44
Section 7.10. Eligibility, Disqualification......................... 44
Section 7.11. Preferential Collection of Claims Against Company..... 44
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE..................... 44
Section 8.01. Discharge of Indenture................................ 44
Section 8.02. Deposited Monies to be Held in Trust by Trustee....... 45
Section 8.03. Paying Agent to Repay Monies Held..................... 45
Section 8.04. Return of Unclaimed Monies............................ 45
Section 8.05. Reinstatement......................................... 46
ARTICLE IX AMENDMENTS.................................................... 46
Section 9.01. Without the Consent of Holders........................ 46
Section 9.02. With the Consent of Holders........................... 47
Section 9.03. Compliance with the Trust Indenture Act............... 48
Section 9.04. Revocation and Effect of Consents..................... 48
Section 9.05. Notation on or Exchange of Convertible Subordinated
Notes................................................. 49
Section 9.06. Trustee Protected..................................... 49
ARTICLE X GENERAL PROVISIONS............................................. 49
Section 10.01. Trust Indenture Act Controls.......................... 49
Section 10.02. Notices............................................... 50
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Section 10.03. Communication by Holders With Other Holders........... 50
Section 10.04. Certificate and Opinion as to Conditions Precedent.... 50
Section 10.05. Statements Required in Certificate or Opinion......... 51
Section 10.06. Rules by Trustee and Agents........................... 51
Section 10.07. Legal Holidays........................................ 51
Section 10.08. No Recourse Against Others............................ 52
Section 10.09. Counterparts.......................................... 52
Section 10.10. Other Provisions...................................... 52
Section 10.11. Governing Law......................................... 53
Section 10.12. No Adverse Interpretation of Other Agreements......... 53
Section 10.13. Successors............................................ 53
Section 10.14. Severability.......................................... 53
Section 10.15. Table of Contents, Headings, Etc...................... 53
ARTICLE XI SUBORDINATION................................................. 53
Section 11.01. Agreement to Subordinate.............................. 53
Section 11.02. Liquidation; Dissolution; Bankruptcy.................. 54
Section 11.03. Default on Senior Debt and/or Designated Senior Debt.. 54
Section 11.04. Acceleration of Convertible Subordinated Notes........ 55
Section 11.05. When Distribution Must Be Paid Over................... 55
Section 11.06. Notice by Company..................................... 56
Section 11.07. Subrogation........................................... 56
Section 11.08. Relative Rights....................................... 56
Section 11.09. Subordination May Not Be Impaired by Company.......... 57
Section 11.10. Distribution or Notice to Representative.............. 57
Section 11.11. Rights of Trustee and Paying Agent.................... 57
Section 11.12. Authorization to Effect Subordination................. 57
Section 11.13. Article Applicable to Paying Agents................... 58
Section 11.14. Senior Debt Entitled to Rely.......................... 58
Section 11.15. Permitted Payments.................................... 58
ARTICLE XII CONVERSION OF CONVERTIBLE SUBORDINATED NOTES................. 58
Section 12.01. Right to Convert...................................... 58
Section 12.02. Exercise of Conversion Privilege; Issuance of Common
Stock on Conversion; No Adjustment for Interest or
Dividends............................................. 59
Section 12.03. Cash Payments in Lieu of Fractional Shares............ 60
Section 12.04. Conversion Price...................................... 61
Section 12.05. Adjustment of Conversion Price........................ 61
Section 12.06. Effect of Reclassification, Consolidation, Merger or
Sale.................................................. 70
Section 12.07. Taxes on Shares Issued................................ 72
Section 12.08. Reservation of Shares; Shares to Be Fully Paid;
Listing of Common Stock............................... 72
Section 12.09. Responsibility of Trustee............................. 73
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Section 12.10. Notice to Holders Prior to Certain Actions............ 73
Section 12.11. Restriction on Common Stock Issuable Upon Conversion.. 74
Section 12.12. Make Whole Premium Upon a Change of Control........... 75
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THIS INDENTURE, dated as of November 18, 2005, is between Amkor
Technology, Inc., a Delaware corporation (the "Company"), and U.S. Bank National
Association, a national banking association organized and existing under laws of
the United States, as trustee (the "Trustee"). The Company has duly authorized
the creation of its 6 1/4% Convertible Subordinated Notes due 2013 (the
"Convertible Subordinated Notes") and to provide therefore the Company and the
Trustee have duly authorized the execution and delivery of this Indenture. Each
party agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the holders from time to time of the Convertible Subordinated
Notes:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
"Acquiring Person" means any "person" (as defined in Section 13(d)(3)
of the Exchange Act) who or which, together with all affiliates and associates
(each as defined in Rule 12b-2 under the Exchange Act), becomes the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act and as further
defined below) of shares of Common Stock or other voting securities of the
Company having more than 50% of the total voting power of the Voting Stock of
the Company; provided, however, that an Acquiring Person shall not include (i)
the Company, (ii) any Subsidiary of the Company, (iii) any Permitted Holder,
(iv) an underwriter engaged in a firm commitment underwriting in connection with
a public offering of the Voting Stock of the Company or (v) any current or
future employee or director benefit plan of the Company or any Subsidiary of the
Company or any entity holding Common Stock of the Company for or pursuant to the
terms of any such plan. For purposes hereof, a person shall not be deemed to be
the beneficial owner of (A) any securities tendered pursuant to a tender or
exchange offer made by or on behalf of such person or any of such person's
affiliates until such tendered securities are accepted for purchase or exchange
thereunder, or (B) any securities if such beneficial ownership (1) arises solely
as a result of a revocable proxy delivered in response to a proxy or consent
solicitation made pursuant to the applicable rules and regulations under the
Exchange Act, and (2) is not also then reportable on Schedule 13D (or any
successor schedule) under the Exchange Act.
"Affiliate" means, when used with reference to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control of, the referent Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct or cause the direction of management or policies of the referent
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise. The terms "controlling" and "controlled"
have meanings correlative of the foregoing.
"Affiliate Securities Legend" means the legend label as such that is
set forth in Exhibit A hereto, which is incorporated in and expressly made a
part of this Indenture.
"Affiliated Entities" means Xxxxx X. Xxx and his estates, spouses,
ancestors and lineal descendants (and spouses thereof), the legal
representatives of any of the foregoing, and the trustee of any bona fide trust
of which one or more of the foregoing are sole beneficiaries or the grantors, or
any Person of which any of the forgoing, individually or collectively,
beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act)
voting securities representing at least a majority of the total voting power of
all classes of Capital Stock of such Person (exclusive of any matters as to
which class voting rights exist).
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Global Security to the extent
applicable to such transaction and as in effect from time to time.
"Board of Directors" means (i) with respect to a corporation, the
board of directors of the corporation or any committee thereof duly authorized
to act on behalf of the board of directors, (ii) with respect to a partnership,
the general partner or the board of directors of the general partner, as
applicable, of the partnership and (iii) with respect to any other entity, the
board or committee of that entity serving a similar function.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, but excluding any debt
securities convertible into such equity.
"Change of Control" means the occurrence of one or more of the
following events: (a) any Person has become an Acquiring Person, (b) the Company
consolidates with or merges into any other corporation, or conveys, transfers or
leases all or substantially all of its assets to any Person, or any other
corporation merges into the Company, and, in the case of any such transaction,
the outstanding Common Stock of the Company is changed or exchanged as a result,
unless the stockholders of the Company immediately before such transaction own,
directly or indirectly immediately following such transaction, at least a
majority of the combined voting power of the outstanding voting securities of
the corporation resulting from such transaction in substantially the same
proportion as their ownership of the Voting Stock of the Company immediately
before such transaction, or (c) any time the Continuing Directors do not
constitute a majority of the Board of Directors of the Company (or, if
applicable, a successor
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corporation to the Company); provided, that a Change of Control shall not be
deemed to have occurred if at least 90% of the consideration (excluding cash
payments for fractional shares) in the transaction or transactions constituting
the Change of Control consists of shares of common stock that are, or upon
issuance will be, traded on a United States national securities exchange or
approved for trading on an established automated over-the-counter trading market
in the United States.
"Commission" means the United States Securities and Exchange
Commission.
"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. Subject to the provisions
of Section 12.06, however, shares issuable on conversion of Convertible
Subordinated Notes shall include only shares of the class designated as Common
Stock of the Company at the Issue Date 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 party named as such above until a successor
replaces it in accordance with Article V and thereafter means the successor.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors who (i) was a member of such Board of Directors
on the Issue Date or (ii) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election.
"Convertible Subordinated Notes" means the 6 1/4% Convertible
Subordinated Notes due 2013 issued, authenticated and delivered under this
Indenture.
"Conversion Price" means the initial conversion price specified in the
form of Convertible Subordinated Note in Paragraph 16 of such form, as adjusted
in accordance with the provisions of Article XII.
"Conversion Rate" means the conversion rate per $1,000 principal
amount of Notes determined by dividing $1,000 by the Conversion Price.
"Corporate Trust Office" means the corporate trust office of the
Trustee at which at any particular time the trust created by this Indenture
shall principally be
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administered; as of the Issue Date, the Corporate Trust Office is located at Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000, Attention: Corporate Trust Services
(Amkor Technology, Inc. 6 1/4% Convertible Subordinated Notes due 2013).
"Credit Agreements" means (i) the Credit Agreement, dated as of June
29, 2004 (as amended, supplemented or otherwise modified from time to time),
among the Company, each financial institution or other entity that (a) is listed
on the signature pages thereof as a lender or (b) from time to time becomes a
party thereto by execution of an assignment and acceptance, each lender or
affiliates of a lender that (a) is listed on the signature pages thereof as an
issuer or (b) becomes an issuer with the approval of the administrative agent
and the Company, Citicorp North America, Inc., as administrative agent for the
lenders and the issuers, Citigroup Global Markets Inc., as sole lead arranger
and sole bookrunner, JPMorgan Chase Bank, as syndication agent for the lenders
and the issuers and Xxxxxxx Xxxxx Capital Corporation, as documentation agent,
as such agreement may be amended, restated, modified, renewed, refunded,
replaced or refinanced, in whole or in part, from time to time, and (ii) the
Credit Agreement, dated as of October 27, 2004 (as amended, supplemented or
otherwise modified from time to time), among the Company, each financial
institution or other entity that (a) is listed on the signature pages thereof as
a lender or (b) from time to time becomes a party thereto by execution of an
assignment and acceptance, Citicorp North America, Inc., as administrative agent
for the lenders and as collateral agent for the secured parties, Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Inc., as syndication agent for the lenders, JPMorgan
Chase Bank, as documentation agent, Citigroup Global Markets Inc., as sole lead
arranger, and Citigroup Global Markets Inc, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Inc., and X.X. Xxxxxx Securities Inc., as joint bookrunners, as such
agreement may be amended, restated, modified, renewed, refunded, replaced or
refinanced, in whole or in part, from time to time.
"Default" means any event that is, or after notice or passage of time,
or both, would be, an Event of Default.
"Depositary" means, with respect to any Global Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Global Securities (or any successor
securities clearing agency so registered), which shall initially be DTC.
"Designated Event" means the occurrence of a Change of Control or a
Termination of Trading.
"Designated Senior Debt" means (i) any Senior Debt outstanding under
the Credit Agreements, (ii) Senior Debt outstanding under the Company's 9 1/4%
Senior Notes due February 15, 2008, 10 1/2% Senior Subordinated Notes due 2009,
7 1/8% Senior Notes due March 15, 2011 and its 7.75% Senior Notes due May 15,
2013, as such notes or the related indentures may be amended, restated,
supplemented, modified, renewed, refunded, replaced or refinanced, in whole or
in part, from time to time, and (iii) any particular Senior Debt if the
instrument creating or evidencing the same or the
4
assumption or guarantee thereof (or related agreements or documents to which the
Company is a party) expressly provides that such Indebtedness shall be
"Designated Senior Debt" for purposes of the Indenture (provided that such
instrument, agreement or document may place limitations and conditions on the
right of such Senior Debt to exercise the rights of Designated Senior Debt).
"DTC" means The Depository Trust Company, a New York corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Existing Convertible Subordinated Notes" means all of the Company's
outstanding indebtedness under its 5.75% Convertible Subordinated Notes due 2006
and its 5% Convertible Subordinated Notes due 2007.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect from time to time.
"Global Security" means a Security in global form that is deposited
with the Depositary or its custodian and registered in the name of the
Depositary or its nominee
"Global Securities Legend" means the legend labeled as such and that
is set forth in Exhibit A hereto, which is incorporated in and expressly made a
part of this Indenture.
"Indebtedness" means, with respect to any Person, all obligations,
whether or not contingent, of such Person (i) (a) for borrowed money (including,
but not limited to, any indebtedness secured by a security interest, mortgage or
other lien on the assets of that Person that is (1) given to secure all or part
of the purchase price of property subject thereto, whether given to the vendor
of such property or to another, or (2) existing on property at the time of
acquisition thereof), (b) evidenced by a note, debenture, bond or other written
instrument, (c) under a lease required to be capitalized on the balance sheet of
the lessee under GAAP or under any lease or related document (including a
purchase agreement) that provides that such Person is contractually obligated to
purchase or cause a third party to purchase and thereby guarantee a minimum
residual value of the lease property to the lessor and the obligations of the
Company under such lease or related document to purchase or to cause a third
party to purchase such leased property, (d) in respect of letters of credit,
bank guarantees or bankers' acceptances (including reimbursement obligations
with respect to any of the foregoing), (e) with respect to Indebtedness secured
by a mortgage, pledge, lien, encumbrance, charge or adverse claim affecting
title or resulting in an encumbrance to which the property or assets of such
5
Person are subject, whether or not the obligation secured thereby shall have
been assumed by or shall otherwise be such Person's legal liability, (f) in
respect of the balance of deferred and unpaid purchase price of any property or
assets, (g) under interest rate or currency swap agreements, cap, floor and
collar agreements, spot and forward contracts and similar agreements and
arrangements; (ii) with respect to any obligation of others of the type
described in the preceding clause (i) or under clause (iii) below assumed by or
guaranteed in any manner by such Person through an agreement to purchase
(including, without limitation, "take or pay" and similar arrangements),
contingent or otherwise (and the obligations of such Person under any such
assumptions, guarantees or other such arrangements); and (iii) any and all
deferrals, renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any of the foregoing.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Interest Payment Date" means June 1 and December 1 of each year,
commencing June 1, 2006.
"Investors Rights Agreement" means the Investors Rights Agreement
relating to the Convertible Subordinated Notes and Common Stock issuable upon
conversion of such Convertible Subordinated Notes dated as of November 18, 2005,
between the Company and the investors named therein, as such agreement may be
amended, modified or supplemented from time to time.
"Issue Date" means November 18, 2005.
"Liquidated Damages" shall have the meaning set forth in the Investors
Rights Agreement.
"Material Subsidiary" means any Subsidiary of the Company which at the
date of determination is a "significant Subsidiary" as defined in Rule 1-02(w)
of Regulation S-X under the Securities Act and the Exchange Act.
"Maturity Date" means December 1, 2013.
"Note Custodian" means U.S. Bank National Association, as custodian
with respect to any Global Security, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, the Chief Accounting
Officer, any Executive Vice President, Senior Vice President or Vice President
(whether or not designated by a
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number or numbers or word or words before or after the title "Vice President"),
the Treasurer, any other executive officer, the Secretary and any Assistant
Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who
may be an employee of or counsel to the Company or the Trustee except to the
extent otherwise indicated in this Indenture.
"Permitted Holders" means Xxxxx X. Xxx and his estates, spouses,
ancestors and lineal descendants (and spouses thereof), the legal
representatives of any of the foregoing, and the trustee of any bona fide trust
of which one or more of the foregoing are sole beneficiaries or the grantors, or
any Person of which any of the forgoing, individually or collectively,
beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act)
voting securities representing at least a majority of the total voting power of
all classes of Capital Stock of such Person (exclusive of any matters as to
which class voting rights exist).
"Person" means any individual, corporation, partnership, joint
venture, trust, estate, unincorporated organization, limited liability company
or government or any agency or political subdivision thereof.
"Redemption Date" when used with respect to any of the Convertible
Subordinated Notes to be redeemed, means the date fixed by the Company for such
redemption pursuant to Article III of this Indenture and the Convertible
Subordinated Notes.
"Redemption Price" when used with respect to any of the Convertible
Subordinated Notes to be redeemed, means the price fixed for such redemption
pursuant to Article III of this Indenture and the Convertible Subordinated
Notes.
"Regular Record Date" means the May 15 or November 15 immediately
preceding each Interest Payment Date.
"Representative" means (a) the indenture trustee or other trustee,
agent or representative for any Senior Debt or (b) with respect to any Senior
Debt that does not have any such trustee, agent or other representative, (i) in
the case of such Senior Debt issued pursuant to an agreement providing for
voting arrangements as among the holders or owners of such Senior Debt, any
holder or owner of such Senior Debt acting with the consent of the required
Persons necessary to bind such holders or owners of such Senior Debt and (ii) in
the case of all other such Senior Debt, the holder or owner of such Senior Debt.
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"Restricted Common Stock Legend" means the legend labeled as such and
that is set forth in Exhibit B hereto, which is incorporated in and expressly
made a part of this Indenture.
"Restricted Securities Legend" means the legend labeled as such and
that is set forth in Exhibit A hereto, which is incorporated in and expressly
made a part of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Senior Debt" means the principal of, premium, if any, and interest
on, rent under, and any other amounts payable on or in respect of any
Indebtedness of the Company (including, without limitation, any Obligations in
respect of such Indebtedness and, in the case of Designated Senior Debt, any
interest accruing after the filing of a petition by or against the Company under
any bankruptcy law, whether or not allowed as a claim after such filing in any
proceeding under such bankruptcy law), whether outstanding on the Issue Date or
thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the
Company (including all deferrals, renewals, extensions or refundings of, or
amendments, modifications or supplements to the foregoing); provided, however,
that Senior Debt does not include (v) Indebtedness evidenced by the Convertible
Subordinated Notes, (w) any liability for federal, state, local or other taxes
owed or owing by the Company, (x) Indebtedness of the Company to any Subsidiary
of the Company except to the extent such Indebtedness is of a type described in
clause (ii) of the definition of Indebtedness, (y) trade payables of the Company
for goods, services or materials purchased in the ordinary course of business
(other than, to the extent they may otherwise constitute trade payables, any
obligations of the type described in clause (ii) of the definition of
Indebtedness), and (z) any particular Indebtedness in which the instrument
creating or evidencing the same expressly provides that such Indebtedness shall
not be senior in right of payment to, or is pari passu with, or is subordinated
or junior to, the Convertible Subordinated Notes.
"Shelf Registration Statement" shall have the meaning set forth in the
Investors Rights Agreement.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
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"Termination of Trading" will be deemed to have occurred if the Common
Stock (or other common stock into which the Convertible Subordinated Notes are
then convertible) is neither listed for trading on a United States national
securities exchange nor approved for trading on an established automated
over-the-counter trading market in the United States.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the Issue Date, except as provided in Sections
9.03 and 12.06.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor.
"Trust Officer" means an officer in the Corporate Trust Office of the
Trustee.
"U.S. Government Obligations" means direct obligation of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged. In order to have money available on a
payment date to pay principal or interest on the Convertible Subordinated Notes,
the U.S. Government Obligations shall be payable as to principal or interest on
or before such payment date in such amounts as will provide the necessary money.
U.S. Government Obligations shall not be callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
SECTION 1.02. Other Definitions.
DEFINED IN SECTION
------------------
"Bankruptcy Law"........................................... Section 6.01
"Business Day"............................................. Section 10.07
"Current Market Price"..................................... Section 12.05
"Closing Price"............................................ Section 12.05
"Conversion Agent"......................................... Section 2.03
"Custodian"................................................ Section 6.01
"Definitive Securities".................................... Section 2.01
"Designated Event Date".................................... Section 4.06
"Designated Event Offer"................................... Section 4.06
"Designated Event Offer Termination Date".................. Section 4.06
"Designated Event Payment"................................. Section 4.06
"Designated Event Payment Date"............................ Section 4.06
"Event of Default"......................................... Section 6.01
"Expiration Time".......................................... Section 12.05
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"fair market value"........................................ Section 12.05
"Global Security".......................................... Section 2.01
"Legal Holiday"............................................ Section 10.07
"Make Whole Premium"....................................... Section 12.12
"New Rights Plan........................................... Section 12.05
"non-electing share"....................................... Section 12.06
"Paying Agent"............................................. Section 2.03
"Payment Blockage Notice".................................. Section 10.04
"Purchase Agreement"....................................... Section 2.01
"Purchased Shares"......................................... Section 12.05
"QIBs"..................................................... Section 2.01
"Record Date".............................................. Section 12.05
"Register"................................................. Section 2.03
"Registrar"................................................ Section 2.03
"Regulation S"............................................. Section 2.06
"Rule 144A"................................................ Section 2.01
"Securities"............................................... Section 12.05
"trading day".............................................. Section 12.05
"Trigger Event"............................................ Section 12.05
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Commission;
"indenture securities" means the Convertible Subordinated Notes;
"indenture security holder" means a holder of a Convertible
Subordinated Note;
"indenture to be qualified" means this Indenture; "indenture
trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Convertible Subordinated Notes means the Company
or any other obligor on the Convertible Subordinated Notes.
All other terms in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
SECTION 1.04. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
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(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) the male, female and neuter genders include one another.
The terms and provisions contained in the Convertible Subordinated
Notes shall constitute, and are hereby expressly made, a part of this Indenture
and the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Convertible Subordinated Note
conflicts with the express provisions of this Indenture, the provisions of this
Indenture shall govern and be controlling.
ARTICLE II
THE CONVERTIBLE SUBORDINATED NOTES
SECTION 2.01. Form and Dating.
(a) Global Securities. The Convertible Subordinated Notes are being
offered and sold by the Company pursuant to a Purchase Agreement relating to the
Convertible Subordinated Notes, dated November 14, 2005, among the Company and
the investors named therein (the "Purchase Agreement").
Convertible Subordinated Notes offered and sold to "accredited
investors" as defined in Rule 501 of the Securities Act or to "qualified
institutional buyers" as defined in Rule 144A ("QIBs") in reliance on Rule 144A
under the Securities Act ("Rule 144A"), as provided in the Purchase Agreement,
shall be issued in the form of one or more definitive, fully registered form of
securities without interest coupons with the Global Securities Legend, if
applicable, or Restricted Securities Legend or Affiliate Securities Legend set
forth in Exhibit A hereto, which is incorporated in and expressly made a part of
this Indenture. Any Global Security shall be deposited on behalf of the
purchasers of the Convertible Subordinated Notes represented thereby with the
Trustee, at its New York office, as custodian for the Depositary, and registered
in the name of the Depositary or a nominee of the Depositary for the accounts of
participants in the Depositary, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The aggregate principal amount of any
Global Security may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary or its nominee as
hereinafter provided.
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(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to a
Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(b) and the written order of the Company, authenticate and
deliver initially one or more Global Securities that (i) shall be registered in
the name of Cede & Co. or other nominee of such Depositary and (ii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Trustee as custodian for the Depositary pursuant to
a FAST Balance Certificate Agreement between the Depositary and the Trustee.
Agent Members shall have no rights under this Indenture with respect
to any Global Security held on their behalf by the Depositary or by the Trustee
as the custodian of the Depositary or under such Global Security, 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 Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices of such Depositary governing the exercise of
the rights of a holder of a beneficial interest in any Global Security.
(c) Definitive Securities. Except as provided in Section 2.06 and
2.10, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of certificated Convertible Subordinated Notes in
definitive form. Purchasers of Securities who are accredited investors (referred
to herein as the "Non-Global Purchasers") will receive certificated Convertible
Subordinated Notes in definitive form bearing the Restricted Securities Legend
or Affiliate Securities Legend, as the case may be, set forth in Exhibit A
hereto, which is incorporated in and expressly made a part of this Indenture
("Definitive Securities"). Definitive Securities will bear the Restricted
Securities Legend or Affiliate Securities Legend set forth on Exhibit A unless
removed in accordance with Section 2.06(b).
(d) Affiliate Legend. Any certificate evidencing a Security that has
been (i) issued to an Affiliate or (ii) transferred to an Affiliate of the
Company within two years after the original issuance date of the Security, as
evidenced by a notation on the Assignment Form for such transfer or in the
representation letter delivered in respect thereof, for so long as such Security
is held by such Affiliate, shall, unless transferred pursuant to a Shelf
Registration Statement that was effective at the time of such transfer, until
two years after the last date on which the Company or any Affiliate of the
Company was an owner of such Security, in each case, bear the Affiliate
Securities Legend set forth in Exhibit A hereto, unless otherwise agreed by the
Company (with written notice thereof to the Trustee).
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SECTION 2.02. Execution and Authentication. One Officer shall sign the
Convertible Subordinated Notes for the Company by manual or facsimile signature.
The Company's seal, if required, may be reproduced on the Convertible
Subordinated Notes.
If an Officer whose signature is on a Convertible Subordinated Note no
longer holds that office at the time the Convertible Subordinated Note is
authenticated, the Convertible Subordinated Note shall nevertheless be valid.
A Convertible Subordinated Note shall not be valid until authenticated
by the manual signature of the Trustee. The signature shall be conclusive
evidence that the Convertible Subordinated Note has been authenticated under
this Indenture.
Upon a written order of the Company signed by an Officer of the
Company, the Trustee shall authenticate Convertible Subordinated Notes for
original issue up to an aggregate principal amount of $100,000,000. The
aggregate principal amount of Convertible Subordinated Notes outstanding at any
time may not exceed that amount except as provided in Section 2.07.
The Convertible Subordinated Notes shall be issuable only in
registered form without coupons and only in denominations of $1,000 or any
integral multiple thereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Convertible Subordinated Notes. An authenticating agent
may authenticate Convertible Subordinated Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same right as an
Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.03. The Trustee Registrar, Paying Agent and Conversion Agent. The
Company shall maintain or cause to be maintained in such locations as it shall
determine, which may be the Corporate Trust Office, an office or agency: (i)
where securities may be presented for registration of transfer or for exchange
("Registrar"); (ii) where Convertible Subordinated Notes may be presented for
payment ("Paying Agent"); (iii) an office or agency where Convertible
Subordinated Notes may be presented for conversion (the "Conversion Agent"); and
(iv) where notices and demands to or upon the Company in respect of Convertible
Subordinated Notes and this Indenture may be served by the holders of the
Convertible Subordinated Notes. The Registrar shall keep a Register ("Register")
of the Convertible Subordinated Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars, one or more additional paying
agents and one or more additional conversion agents. The term "Paying Agent"
includes any additional paying agent and the term "Conversion Agent" includes
any additional Conversion Agent. The Company may change any Paying Agent,
Registrar, Conversion Agent or co-registrar without prior notice. The Company
shall notify the Trustee of the name and address of any Agent not a party to
this Indenture and shall enter into an appropriate agency agreement with any
Registrar, Paying Agent,
13
Conversion Agent or co-registrar not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company or any of its subsidiaries may act as Paying Agent, Registrar,
Conversion Agent or co-registrar, except that for purposes of Articles III and
VIII and Section 4.06, neither the Company nor any of its subsidiaries shall act
as Paying Agent. If the Company fails to appoint or maintain another entity as
Registrar, or Paying Agent or Conversion Agent, the Trustee shall act as such,
and the Trustee shall initially act as such.
SECTION 2.04. Paying Agent To Hold Money in Trust. The Company shall
require each Paying Agent (other than the Trustee, who hereby so agrees), to
agree in writing that the Paying Agent will hold in trust for the benefit of
holders of the Convertible Subordinated Notes or the Trustee all money held by
the Paying Agent for the payment of principal or interest (including Liquidated
Damages) on the Convertible Subordinated Notes, and will notify the Trustee of
any default by the Company in respect of making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary of the Company) shall
have no further liability for the money. If the Company or a Subsidiary of the
Company acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the holders of the Convertible Subordinated Notes all
money held by it as Paying Agent.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names
and addresses of holders of Convertible Subordinated Notes and shall otherwise
comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least seven Business Days before each Interest
Payment Date, and as the Trustee may request in writing within fifteen (15) days
after receipt by the Company of any such request (or such lesser time as the
Trustee may reasonably request in order to enable it to timely provide any
notice to be provided by it hereunder), a list in such form and as of such date
as the Trustee may reasonably require of the names and addresses of holders of
Convertible Subordinated Notes.
SECTION 2.06. Transfer and Exchange. NO CONVERTIBLE SUBORDINATED NOTES OR
SHARES OF COMMON STOCK ISSUED UPON CONVERSION OF CONVERTIBLE SUBORDINATED NOTES
MAY BE TRANSFERRED OR EXCHANGED DURING THE PERIOD FROM THE ISSUE DATE UNTIL
NOVEMBER 18, 2006; PROVIDED, HOWEVER, THAT A HOLDER OF CONVERTIBLE SUBORDINATED
NOTES OR SHARES OF COMMON STOCK ISSUED UPON CONVERSION OF CONVERTIBLE
SUBORDINATED NOTES MAY TRANSFER SUCH SECURITIES TO AN AFFILIATED ENTITY,
PROVIDED THAT SUCH AFFILIATED ENTITY AGREES TO BE BOUND BY THE TRANSFER
PROVISIONS OF THIS INDENTURE AND THE INVESTORS RIGHTS AGREEMENT. When
Convertible Subordinated Notes are presented to the Registrar or a co-registrar
with a request to register a transfer or to exchange them for an equal principal
amount of Convertible Subordinated Notes for other denominations, the Registrar
shall register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and
14
exchanges, the Company shall issue and the Trustee shall authenticate
Convertible Subordinated Notes at the Registrar's request, bearing registration
numbers not contemporaneously outstanding. No service charge shall be made to a
holder for any registration of transfer or exchange (except as otherwise
expressly permitted herein), but the Company may require payment of a sum
sufficient to cover any transfer tax or other governmental charge payable upon
exchanges pursuant to Sections 2.10, 3.07, 9.05 or 12.02.
The Company or the Registrar shall not be required (i) to issue,
register the transfer of or exchange Convertible Subordinated Notes during a
period beginning at the opening of business fifteen (15) days before the day of
any selection of Convertible Subordinated Notes for redemption under Section
3.03 and ending at the close of business on the day of selection, (ii) to
register the transfer or exchange of any Convertible Subordinated Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Convertible Subordinated Note being redeemed in part or (iii) to register
the transfer of any Convertible Subordinated Notes surrendered for repurchase
pursuant to Section 4.06.
All Convertible Subordinated Notes issued upon any transfer or
exchange of Convertible Subordinated Notes in accordance with this Indenture
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture as the Convertible
Subordinated Notes surrendered upon such registration of transfer or exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, or of any
beneficial interest therein, shall only be made in accordance with Sections
2.01(b) and 2.10 and this Section 2.06(a); provided, however, that beneficial
interests in a Global Security may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the Global Security in
accordance with the transfer restrictions set forth in the Restricted Securities
Legend.
Except for transfers or exchanges made in accordance with paragraphs
(i) through (iv) of this Section 2.06(a) and Section 2.10, transfers of a Global
Security shall be limited to transfers of such Global Security in whole, but not
in part, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
(i) Global Security To Definitive Security. If an owner of a
beneficial interest in a Global Security deposited with the Depositary or
with the Trustee as custodian for the Depositary wishes at any time to
transfer its interest in such Global Security to a Person who is required
to take delivery thereof in the form of a Definitive Security, such owner
may, subject to the rules and procedures of the Depositary, cause the
exchange of such interest for one or more Definitive Securities of any
authorized denomination or denominations and of the same aggregate
principal amount. Upon receipt by the Registrar of
15
(1) instructions from the Depositary directing the Trustee to authenticate
and deliver one or more Definitive Securities of the same aggregate
principal amount as the beneficial interest in the Global Security to be
exchanged, such instructions to contain the name or names of the designated
transferee or transferees, the authorized denomination or denominations of
the Definitive Securities to be so issued and appropriate delivery
instructions, and (2) such certifications or other information and, in the
case of transfers pursuant to Rule 144 under the Securities Act, legal
opinions as the Company may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act, then
the Registrar will instruct the Depositary to reduce or cause to be reduced
such Global Security by the aggregate principal amount of the beneficial
interest therein to be exchanged and to debit or cause to be debited from
the account of the Person making such transfer the beneficial interest in
the Global Security that is being transferred, and concurrently with such
reduction and debit the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Definitive Securities of the same
aggregate principal amount in accordance with the instructions referred to
above.
(ii) Definitive Security to Definitive Security. If a holder of a
Definitive Security wishes at any time to transfer such Definitive Security
(or portion thereof) to a Person who is required to take delivery thereof
in the form of a Definitive Security, such holder may, subject to the
restrictions on transfer set forth herein and in such Definitive Security,
cause the transfer of such Definitive Security (or any portion thereof in a
principal amount equal to an authorized denomination) to such transferee.
Upon receipt by the Registrar of (1) such Definitive Security, duly
endorsed as provided herein, (2) instructions from such holder directing
the Trustee to authenticate and deliver one or more Definitive Securities
of the same aggregate principal amount as the Definitive Security (or
portion thereof) to be transferred, such instructions to contain the name
or names of the designated transferee or transferees, the authorized
denomination or denominations of the Definitive Securities to be so issued
and appropriate delivery instructions, and (3) such certifications or other
information and, in the case of transfers pursuant to Rule 144 under the
Securities Act, legal opinions as the Company may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the
Securities Act, then the Registrar, shall cancel or cause to be canceled
such Definitive Security and concurrently therewith, the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Definitive Securities in the appropriate aggregate principal amount, in
accordance with the instructions referred to above and, if only a portion
of a Definitive Security is transferred as aforesaid, concurrently
therewith Company shall execute and the Trustee shall authenticate and
deliver to the transferor a Definitive Security in a principal amount equal
to the principal amount which has not been transferred. A holder of a
Definitive Security may at any time exchange such Definitive Security
16
for one or more Definitive Securities of other authorized denominations and
in the same aggregate principal amount and registered in the same name by
delivering such Definitive Security, duly endorsed as provided herein, to
the Trustee together with instructions directing the Trustee to
authenticate and deliver one or more Definitive Securities in the same
aggregate principal amount and registered in the same name as the
Definitive Security to be exchanged, and the Registrar thereupon shall
cancel or caused to be canceled such Definitive Security and concurrently
therewith the Company shall execute and Trustee shall authenticate and
deliver, one or more Definitive Securities in the same aggregate principal
amount and registered in the same name as the Definitive Security being
exchanged.
(iii) Definitive Security to Global Security. If a holder of a
Definitive Security wishes at any time to transfer such Definitive Security
(or portion thereof) to a Person who is not required to take delivery
thereof in the form of a Definitive Security, such holder shall, subject to
the restrictions on transfer set forth herein and in such Definitive
Security and the rules of the Depositary cause the exchange of such
Definitive Security for a beneficial interest in the Global Security. Upon
receipt by the Registrar of (1) such Definitive Security, duly endorsed as
provided herein, (2) instructions from such holder directing the Trustee to
increase the aggregate principal amount of the Global Security deposited
with the Depository or with the Trustee as custodian for the Depository by
the same aggregate principal amount at maturity as the Definitive Security
to be exchanged, such instructions to contain the name or names of a member
of, or participant in, the Depository that is designated as the transferee,
the account of such member or participant and other appropriate delivery
instructions, (3) the assignment form on the back of the Definitive
Security completed in full, and (4) such certifications or other
information and, in the case of transfers pursuant to Rule 144 under the
Securities Act, legal opinions as the Company may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the
Securities Act, then the Trustee shall cancel or cause to be canceled such
Definitive Security and concurrently therewith shall increase the aggregate
principal amount of the Global Security by the same aggregate principal
amount as the Definitive Security canceled.
(iv) Other Exchanges. In the event that a Global Security is
exchanged for Convertible Subordinated Notes in definitive registered form
pursuant to Section 2.10 prior to the effectiveness of a Shelf Registration
Statement with respect to such Convertible Subordinated Notes, such
Convertible Subordinated Notes may be exchanged only in accordance with
such procedures as are substantially consistent with the provisions of
clauses (ii) and (iii) above.
(b) Except with a transfer or sale of Securities made pursuant to the
Shelf Registration Statement contemplated by and in accordance with the terms of
the Investors Rights Agreement, if Convertible Subordinated Notes are issued
upon the registration of
17
transfer, exchange or replacement of Convertible Subordinated Notes bearing an
Affiliate Securities Legend or a Restricted Securities Legend, as the case may
be, or if a request is made to remove such an Affiliate Securities Legend or a
Restrictive Securities Legend, as the case may be, on Convertible Subordinated
Notes, the Convertible Subordinated Notes so issued shall bear the Affiliate
Securities Legend or the Restricted Securities Legend, as the case may be,
unless there is delivered to the Company such satisfactory evidence, which, in
the case of a transfer made pursuant to Rule 144 under the Securities Act, may
include an opinion of counsel given in accordance with the laws in the State of
New York, as may be reasonably required by the Company, that neither the legend
nor the restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of the U.S. federal securities
laws. Upon provision to the Company of such satisfactory evidence, the Trustee,
at the written direction of the Company, shall authenticate and deliver
Convertible Subordinated Notes that do not bear the legend. The Company shall
not otherwise be entitled to require the delivery of a legal opinion in
connection with any transfer or exchange of Securities.
(c) Neither the Trustee nor any Agent shall have any responsibility
for any actions taken or not taken by the Depositary.
(d) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Convertible Subordinated Notes (including any transfers between or among
Depositary's participants or beneficial owners of interests in any Global
Security) other than to require delivery of such certificates and other
documentation as is expressly required by, and to do so if and when expressly
required by, the terms of this Indenture and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 2.07. Replacement Convertible Subordinated Notes. If the holder of
a Convertible Subordinated Note claims that the Convertible Subordinated Note
has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Convertible Subordinated Note if the
Trustee's requirements are met. If required by the Trustee or the Company as a
condition of receiving a replacement Convertible Subordinated Note, the holder
of a Convertible Subordinated Note must provide a certificate of loss and an
indemnity and/or an indemnity bond sufficient, in the judgment of both the
Company and the Trustee, to fully protect the Company, the Trustee, any Agent
and any authenticating agent from any loss, liability, cost or expense which any
of them may suffer or incur if the Convertible Subordinated Note is replaced.
The Company and the Trustee may charge the relevant holder for their expenses in
replacing any Convertible Subordinated Note.
The Trustee or any authenticating agent may authenticate any such
substituted Convertible Subordinated Note, and deliver the same upon the receipt
of such security or indemnity as the Trustee, the Company and, if applicable,
such authenticating agent may require. Upon the issuance of any substituted
Convertible Subordinated Note, the Company may require the payment of a sum
sufficient to cover any tax or other
18
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Convertible Subordinated Note which
has matured or is about to mature, or has been called for redemption pursuant to
Article III, submitted for repurchase pursuant to Section 4.06 or is about to be
converted into Common Stock pursuant to Article XII, shall become mutilated or
be destroyed, lost or stolen, the Company may, instead of issuing a substitute
Convertible Subordinated Note, pay or authorize the payment of or convert or
authorize the conversion of the same (without surrender thereof except in the
case of a mutilated Convertible Subordinated Note), as the case may be, if the
applicant for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to the authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or connected with such substitution, and,
in case of destruction, loss or theft, evidence satisfactory to the Company, the
Trustee and, if applicable, any paying agent or conversion agent of the
destruction, loss or theft of such Convertible Subordinated Note and of the
ownership thereof.
Every replacement Convertible Subordinated Note is an additional
obligation of the Company and shall be entitled to all the benefits provided
under this Indenture equally and proportionately with all other Convertible
Subordinated Notes duly issued, authenticated and delivered hereunder.
SECTION 2.08. Outstanding Convertible Subordinated Notes. The Convertible
Subordinated Notes outstanding at any time are all the Convertible Subordinated
Notes properly authenticated by the Trustee except for those canceled by the
Trustee, those delivered to it for cancellation, and those described in this
Section as not outstanding.
If a Convertible Subordinated Note is replaced pursuant to Section
2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory
to it that the replaced Convertible Subordinated Note is held by a bona fide
purchaser.
If Convertible Subordinated Notes are considered paid under Section
4.01 or converted under Article XII, they cease to be outstanding and interest
(including Liquidated Damages, if any) on them ceases to accrue.
Subject to Section 2.09 hereof, a Convertible Subordinated Note does
not cease to be outstanding because the Company or an Affiliate of the Company
holds the Convertible Subordinated Note.
SECTION 2.09. When Treasury Convertible Subordinated Notes Disregarded. In
determining whether the holders of the required principal amount of Convertible
Subordinated Notes have concurred in any direction, waiver or consent,
Convertible Subordinated Notes owned by the Company or an Affiliate of the
Company shall be considered as though they are not outstanding except that for
the purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Convertible Subordinated Notes which
the Trustee knows are so owned shall be so disregarded; provided however, that
this Section 2.09 shall not apply to any
19
applicable Convertible Subordinated Notes owned by a holder that is an Affiliate
of the Company and is also an Affiliated Entity from the Issue Date until the
applicable Convertible Subordinated Notes are first transferred to a holder that
is not an Affiliated Entity.
SECTION 2.10. Temporary Convertible Subordinated Notes.
(a) Until definitive Convertible Subordinated Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Convertible Subordinated Notes. Temporary Convertible Subordinated Notes shall
be substantially in the form of definitive Convertible Subordinated Notes but
may have variations that the Company considers appropriate for temporary
Convertible Subordinated Notes and shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Convertible Subordinated Notes in exchange for
temporary Convertible Subordinated Notes.
(b) Except for transfers made in accordance with Section 2.06(a), a
Global Security deposited with the Depositary or with the Trustee as custodian
for the Depositary pursuant to Section 2.01 shall be transferred to the
beneficial owners thereof in the form of certificated Convertible Subordinated
Notes in definitive form only if such transfer complies with Section 2.06 and
(i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a "clearing agency" registered under the Exchange Act
and a successor Depositary is not appointed by the Company within 90 days of
such notice, or (ii) an Event of Default has occurred and is continuing.
(c) Any Global Security or interest thereon that is transferable to
the beneficial owners thereof in the form of certificated Convertible
Subordinated Notes in definitive form shall, if held by the Depository, be
surrendered by the Depositary to the Trustee, without charge, and the Trustee
shall authenticate and deliver, upon such transfer of each portion of such
Global Security, an equal aggregate principal amount of Convertible Subordinated
Notes of authorized denominations in the form of certificated Convertible
Subordinated Notes in definitive form. Any portion of a Global Security
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depositary shall direct. Any Convertible
Subordinated Notes in the form of certificated Convertible Subordinated Notes in
definitive form delivered in exchange for an interest in the Global Security
shall, except as otherwise provided by Section 2.06(b), bear the Restricted
Securities Legend set forth in Exhibit A hereto.
(d) Prior to any transfer pursuant to Section 2.10(b), the registered
holder of a Global Security may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a holder is entitled to take under this
Indenture or the Convertible Subordinated Notes.
20
(e) The Company will make available to the Trustee a reasonable supply
of certificated Convertible Subordinated Notes in definitive form without
interest coupons.
SECTION 2.11. Cancellation. The Company at any time may deliver Convertible
Subordinated Notes to the Trustee for cancellation. The Registrar and Paying
Agent shall forward to the Trustee any Convertible Subordinated Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else may cancel Convertible Subordinated Notes surrendered
for registration of transfer, exchange, payment, replacement, conversion,
redemption, repurchase or cancellation. Upon written instructions of the
Company, the Trustee shall destroy and dispose of canceled Convertible
Subordinated Notes as the Company directs and, after such destruction, shall
deliver a certificate of destruction to the Company. The Company may not issue
new Convertible Subordinated Notes to replace Convertible Subordinated Notes
that it has paid, redeemed or repurchased or that have been delivered to the
Trustee for cancellation or that any holder has (i) converted pursuant to
Article XII hereof, (ii) submitted for redemption pursuant to Article III hereof
or (iii) submitted for repurchase pursuant to Section 4.06 hereof (unless
revoked).
SECTION 2.12. Defaulted Interest. If the Company fails to make a payment of
interest on the Convertible Subordinated Notes, it shall pay such defaulted
interest plus, to the extent lawful, any interest payable on the defaulted
interest. It may pay such defaulted interest, plus any such interest payable on
it, to the Persons who are holders of Convertible Subordinated Notes on a
subsequent special record date. The Company shall fix any such special record
date and payment date. At least 15 days before any such special record date, the
Company shall mail to holders of the Convertible Subordinated Notes a notice
that states the special record date, payment date and amount of such interest to
be paid.
SECTION 2.13. CUSIP Number. The Company in issuing the Convertible
Subordinated Notes may use a "CUSIP" number, and if so, such CUSIP number shall
be included in notices of redemption, repurchase or exchange as a convenience to
holders of Convertible Subordinated Notes; provided, however, that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Convertible
Subordinated Notes and that reliance may be placed only on the other
identification numbers printed on the Convertible Subordinated Notes. The
Company will promptly notify the Trustee of any change in the CUSIP number.
ARTICLE III
REDEMPTION
SECTION 3.01. Optional Redemption. The Company may redeem all or any
portion of the Convertible Subordinated Notes upon the terms and at the
Redemption Prices set forth in each of the Convertible Subordinated Notes. Any
redemption shall be made pursuant to Paragraph 5 of the Convertible Subordinated
Notes and this Article III.
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SECTION 3.02. Notices to Trustee. If the Company elects to redeem
Convertible Subordinated Notes pursuant to the optional redemption provisions of
paragraph 5 of the Convertible Subordinated Notes, it shall furnish to the
Trustee, at least 30 (35 if less than all of the then outstanding Convertible
Subordinated Notes are to be redeemed or if the Company requests the Trustee to
give notice of redemption pursuant to Section 3.04) days but not more than 60
days before a Redemption Date (unless a shorter period shall be satisfactory to
the Trustee), an Officers' Certificate setting forth (i) the Section of this
Indenture pursuant to which the redemption shall occur, (ii) the Redemption
Date, (iii) the principal amount of Convertible Subordinated Notes (if less than
all) to be redeemed, (iv) the Redemption Price and (v) the CUSIP number of the
Convertible Subordinated Notes being redeemed.
SECTION 3.03. Selection of Convertible Subordinated Notes To Be Redeemed.
If less than all the Convertible Subordinated Notes are to be redeemed, the
Trustee shall select the Convertible Subordinated Notes to be redeemed by a
method that complies with the requirements of the principal national securities
exchange, if any, on which the Convertible Subordinated Notes are listed or
quoted or, if the Convertible Subordinated Notes are not so listed, on a pro
rata basis by lot or by any other method that the Trustee considers fair and
appropriate. The Trustee shall make the selection not more than 60 days and not
less than 30 days before the Redemption Date from Convertible Subordinated Notes
outstanding and not previously called for redemption. The Trustee may select for
redemption a portion of the principal of any Convertible Subordinated Notes that
has a denomination larger than $1,000. Convertible Subordinated Notes and
portions thereof will be redeemed in the amount of $1,000 or integral multiples
of $1,000.
Provisions of this Indenture that apply to Convertible Subordinated
Notes called for redemption also apply to portions of Convertible Subordinated
Notes called for redemption. The Trustee shall notify the Company promptly of
the Convertible Subordinated Notes or portions of Convertible Subordinated Notes
to be called for redemption.
If any Convertible Subordinated Note selected for partial redemption
is converted in part after such selection, the converted portion of such
Convertible Subordinated Note shall be deemed (so far as may be) to be the
portion to be selected for redemption. The Convertible Subordinated Notes (or
portion thereof) so selected shall be deemed duly selected for redemption for
all purposes hereof, notwithstanding that any such Convertible Subordinated Note
is converted in whole or in part before the mailing of the notice of redemption.
Upon any redemption of less than all the Convertible Subordinated Notes, the
Company and the Trustee may treat as outstanding any Convertible Subordinated
Notes surrendered for conversion during the period of 15 days next preceding the
mailing of a notice of redemption and need not treat as outstanding any
Convertible Subordinated Note authenticated and delivered during such period in
exchange for the unconverted portion of any Convertible Subordinated Note
converted in part during such period.
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SECTION 3.04. Notice of Redemption. At least 30 days but not more than 60
days before a Redemption Date, the Company shall mail by first class mail a
notice of redemption to each holder whose Convertible Subordinated Notes are to
be redeemed.
The notice shall identify the Convertible Subordinated Notes to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if any Convertible Subordinated Note is being redeemed
in part, the portion of the principal amount of such Convertible
Subordinated Note to be redeemed and that, after the Redemption Date, upon
surrender of such Convertible Subordinated Note, a new Convertible
Subordinated Note or Convertible Subordinated Notes in principal amount
equal to the unredeemed portion will be issued in the name of the holder
thereof;
(4) that Convertible Subordinated Notes called for
redemption must be surrendered to the Paying Agent to collect the
Redemption Price;
(5) that interest and Liquidated Damages, if applicable, on
Convertible Subordinated Notes called for redemption and for which funds
have been set apart for payment, ceases to accrue on and after the
Redemption Date (unless the Company defaults in the payment of the
Redemption Price or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture);
(6) the paragraph of the Convertible Subordinated Notes
pursuant to which the Convertible Subordinated Notes called for redemption
are being redeemed;
(7) the aggregate principal amount of Convertible
Subordinated Notes (if less than all) that are being redeemed;
(8) the CUSIP number of the Convertible Subordinated Notes
(provided that the disclaimer permitted by Section 2.13 may be made);
(9) the name and address of the Paying Agent;
(10) that Convertible Subordinated Notes called for
redemption may be converted at any time prior to the close of business on
the last trading day immediately preceding the Redemption Date and if not
converted prior to the close of business on such Redemption Date, the right
of conversion with respect to the Convertible Subordinated Notes called for
redemption will be lost; and
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(11) that in the case of Convertible Subordinated Notes or
portions thereof called for redemption on a date that is also an Interest
Payment Date, the interest payment and Liquidated Damages, if any, due on
such date shall be paid to the Person in whose name the Convertible
Subordinated Note is registered at the close of business on the relevant
Regular Record Date.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the holder of any Convertible Subordinated Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any Convertible Subordinated Note.
At the Company's request, the Trustee shall give notice of redemption
in the Company's name and at its expense.
SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption is
mailed, Convertible Subordinated Notes called for redemption become due and
payable on the Redemption Date at the Redemption Price set forth in the
Convertible Subordinated Note.
SECTION 3.06. Deposit of Redemption Price. On or before 10:00 a.m., New
York City time, the Redemption Date, the Company shall deposit with the Trustee
or with the Paying Agent money in immediately available funds sufficient to pay
the Redemption Price of and accrued interest (including Liquidated Damages) on
all Convertible Subordinated Notes to be redeemed on that date. The Trustee or
the Paying Agent shall return to the Company any money not required for that
purpose.
On and after the Redemption Date, unless the Company shall default in
the payment of the Redemption Price, interest and Liquidated Damages, if
applicable, will cease to accrue on the principal amount of the Convertible
Subordinated Notes or portions thereof called for redemption and for which funds
have been set apart for payment and such Convertible Subordinated Notes, or
portions thereof, shall cease after the close of business on the Business Day
immediately preceding the Redemption Date to be convertible into Common Stock
and, except as provided in this Section 3.06 and 8.04, to be entitled to any
benefit or security under this Indenture, and the holders thereof shall have no
right in respect of such Convertible Subordinated Notes, or portions thereof,
except the right to receive the Redemption Price thereof and unpaid interest and
Liquidated Damages, if any, to (but excluding) the Redemption Date. In the case
of Convertible Subordinated Notes or portions thereof redeemed on a Redemption
Date which is also an Interest Payment Date, the interest payment and Liquidated
Damages, if any, due on such Interest Payment Date shall be paid to the Person
in whose name the Convertible Subordinated Note is registered at the close of
business on the relevant Regular Record Date.
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SECTION 3.07. Convertible Subordinated Notes Redeemed in Part. Upon
surrender of a Convertible Subordinated Note that is redeemed in part only, the
Company shall issue and the Trustee shall authenticate and deliver to the holder
of a Convertible Subordinated Note a new Convertible Subordinated Note equal in
principal amount to the unredeemed portion of the Convertible Subordinated Note
surrendered, at the expense of the Company, except as specified in Section 2.06.
SECTION 3.08. Conversion Arrangement on Call for Redemption. In connection
with any redemption of Convertible Subordinated Notes, the Company may arrange
for the purchase and conversion of any Convertible Subordinated Notes by an
arrangement with one or more investment bankers or other purchasers to purchase
such Convertible Subordinated Notes by paying to the Trustee in trust for the
holders, on or before 10:00 a.m., New York City time, on the Redemption Date, an
amount not less than the applicable Redemption Price, together with interest and
Liquidated Damages, if any, accrued to the Redemption Date, of such Convertible
Subordinated Notes. Notwithstanding anything to the contrary contained in this
Article III, the obligation of the Company to pay the Redemption Price of such
Convertible Subordinated Notes, together with interest and Liquidated Damages,
if any, accrued to the Redemption Date, shall be deemed to be satisfied and
discharged to the extent such amount is so paid by the purchasers. If such an
agreement is entered into, a copy of which will be filed with the Trustee prior
to the Redemption Date, any Convertible Subordinated Notes not duly surrendered
for conversion by the holders thereof may, at the option of the Company, be
deemed, to the fullest extent permitted by law, acquired by such purchasers from
such holders and (notwithstanding anything to the contrary contained in Article
XII) surrendered by such purchasers for conversion, all as of immediately prior
to the close of business on the Redemption Date (and the right to convert any
such Convertible Subordinated Notes shall be deemed to have been extended
through such time), subject to payment of the above amount as aforesaid. At the
direction of the Company, the Trustee shall hold and dispose of any such amount
paid to it in the same manner as it would monies deposited with it by the
Company for the redemption of Convertible Subordinated Notes. Without the
Trustee's prior written consent, no arrangement between the Company and such
purchasers for the purchase and conversion of any Convertible Subordinated Notes
shall increase or otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Convertible Subordinated Notes between
the Company and such purchasers to which the Trustee has not consented in
writing, including the costs and expenses incurred by the Trustee in the defense
of any claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations under
this Indenture.
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ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Convertible Subordinated Notes. The Company shall
pay the principal of and interest (including Liquidated Damages) on the
Convertible Subordinated Notes on the dates and in the manner provided in the
Convertible Subordinated Notes. Principal, interest, the Redemption Price or the
Designated Event Payment shall be considered paid on the date due if the Trustee
or Paying Agent (other than the Company or a Subsidiary of the Company) holds as
of 10:00 a.m. New York City time on that date immediately available funds
designated for and sufficient to pay all principal, interest (including
Liquidated Damages), the Redemption Price and the Designated Event Payment then
due; provided, however, that money held by the Agent for the benefit of holders
of Senior Debt pursuant to the provisions of Article XI hereof or the payment of
which to the holders of the Convertible Subordinated Notes is prohibited by
Article XI shall not be considered to be designated for the payment of any
principal of or interest on the Convertible Subordinated Notes within the
meaning of this Section 4.01.
To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on (i)
overdue principal, at the rate borne by Convertible Subordinated Notes,
compounded semiannually; and (ii) overdue installments of interest (without
regard to any applicable grace period) at the same rate, compounded
semiannually.
SECTION 4.02. Commission Reports. Whether or not required by the rules and
regulations of the Commission, so long as any Convertible Subordinated Notes are
outstanding, the Company will file with the Commission and furnish to the
Trustee and the holders of Convertible Subordinated Notes all quarterly and
annual financial information (without exhibits) required to be contained in a
filing with the Commission on Forms 10-Q and 10-K, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual consolidated financial statements only, a report
thereon by the Company's independent auditors. The Company shall not be required
to file any report or other information with the Commission if the Commission
does not permit such filing, although such reports or other information will be
required to be furnished to the Trustee.
SECTION 4.03. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company, an
Officers' Certificate stating that a review of the activities of the Company and
its subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has fully performed its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge, the Company is not in default in the performance or
observance of any of the terms and conditions hereof (or, if any Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default
26
of which he or she may have knowledge) and, that to the best of his or her
knowledge, no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest (including Liquidated
Damages) on the Convertible Subordinated Notes are prohibited.
The Company shall, so long as any of the Convertible Subordinated
Notes are outstanding, deliver to the Trustee, forthwith upon becoming aware of
any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default.
SECTION 4.04. Maintenance of Office or Agency. The Company shall maintain
or cause to be maintained the office or agency required under Section 2.03. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency not maintained by the Trustee.
If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof,
presentations, surrenders, notices and demands with respect to the Convertible
Subordinated Notes may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Convertible Subordinated Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designation.
SECTION 4.05. Continued Existence. Subject to Article V, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 4.06. Repurchase Upon Designated Event. Following a Designated
Event (the date of each such occurrence being the "Designated Event Date"), the
Company shall notify the holders of Convertible Subordinated Notes and the
Trustee in writing of such occurrence and shall make an offer (the "Designated
Event Offer") to repurchase all Convertible Subordinated Notes then outstanding
at a repurchase price in cash (the "Designated Event Payment") equal to 100% of
the principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to, but excluding, the Designated Event Payment Date (as
defined below). Unless and until the Trustee shall receive a notice of the
occurrence of a Designated Event, the Trustee may assume without inquiry that
none has occurred.
Notice of a Designated Event shall be mailed by or at the direction of
the Company to the holders of Convertible Subordinated Notes as shown on the
Register of such holders maintained by the Registrar not more than 20 days after
the applicable Designated Event Date at the addresses as shown on the Register
of holders maintained by the Registrar, with a copy to the Trustee and the
Paying Agent. The Designated Event Offer shall remain open until a specified
date (the "Designated Event Offer Termination Date") which is at least 20
Business Days from the date such notice is mailed. During the period specified
in such notice, holders of Convertible Subordinated Notes may elect
27
to tender their Convertible Subordinated Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. Payment shall be made by the Company
in respect of Convertible Subordinated Notes properly tendered pursuant to this
Section on a specified Business Day (the "Designated Event Payment Date") which
shall be no earlier than five Business Days after the applicable Designated
Event Offer Termination Date and no later than 60 days after the applicable
Designated Event.
The notice, which shall govern the terms of the Designated Event
Offer, shall include such disclosures as are required by law and shall state:
(a) that a Designated Event Offer is being made pursuant to this
Section 4.06 and that all Convertible Subordinated Notes will be accepted for
payment;
(b) the transaction or transactions that constitute the Designated
Event;
(c) the Designated Event Payment for each Convertible Subordinated
Note, the Designated Event Offer Termination Date and the Designated Event
Payment Date;
(d) that any Convertible Subordinated Note not accepted for payment
will continue to accrue interest and Liquidated Damages, if applicable, in
accordance with the terms thereof;
(e) that, unless the Company defaults on making the Designated Event
Payment, any Convertible Subordinated Note accepted for payment pursuant to the
Designated Event Offer shall cease to accrue interest and Liquidated Damages, if
applicable, on the Designated Event Payment Date and no further interest or
Liquidated Damages shall accrue on or after such date;
(f) that holders electing to have Convertible Subordinated Notes
repurchased pursuant to a Designated Event Offer will be required to surrender
their Convertible Subordinated Notes to the Paying Agent at the address
specified in the notice prior to 5:00 p.m., New York City time, on the
Designated Event Offer Termination Date and must complete any form letter of
transmittal proposed by the Company and acceptable to the Trustee and the Paying
Agent;
(g) that holders of Convertible Subordinated Notes will be entitled to
withdraw their election if the Paying Agent receives, not later than 5:00 p.m.,
New York City time, on the Designated Event Offer Termination Date, a facsimile
transmission or letter setting forth the name of the holder, the principal
amount of Convertible Subordinated Notes the holder delivered for purchase, the
Convertible Subordinated Note certificate number (if any) and a statement that
such holder is withdrawing his election to have such Convertible Subordinated
Notes purchased;
28
(h) that holders whose Convertible Subordinated Notes are repurchased
only in part will be issued Convertible Subordinated Notes equal in principal
amount to the unpurchased portion of the Convertible Subordinated Notes
surrendered;
(i) the instructions that holders must follow in order to tender their
Convertible Subordinated Notes; and
(j) that in the case of a Designated Event Offer Termination Date that
is also an Interest Payment Date, the interest payment and Liquidated Damages,
if any, due on such Interest Payment Date shall be paid to the Person in whose
name the Convertible Subordinated Note is registered at the close of business on
the relevant Designated Event Offer Termination Date.
On the Designated Event Offer Termination Date the Company shall (i)
accept for payment all Convertible Subordinated Notes or portions thereof
properly tendered pursuant to the Designated Event Offer, (ii) deposit with the
Paying Agent money sufficient to pay the Designated Event Payment with respect
to all Convertible Subordinated Notes or portions thereof so tendered and
accepted and (iii) deliver or cause to be delivered to the Trustee the
Convertible Subordinated Notes so accepted together with an Officers'
Certificate setting forth the aggregate principal amount of Convertible
Subordinated Notes or portions thereof tendered to and accepted for payment by
the Company. On the Designated Event Payment Date, the Paying Agent shall mail
or deliver to the holders of Convertible Subordinated Notes so accepted, the
Designated Event Payment, and the Trustee shall promptly authenticate and mail
or cause to be transferred by book entry to such holders a new Convertible
Subordinated Note equal in principal amount to any unpurchased portion of the
Convertible Subordinated Note surrendered, if any; provided that such new
Convertible Subordinate Notes will be in a principal amount of $1,000 or an
integral multiple thereof. Any Convertible Subordinated Notes not so accepted
shall be promptly mailed or delivered by the Company to the holder thereof.
In the case of any reclassification, change, consolidation, merger,
combination or sale or conveyance to which Section 12.06 applies, in which the
Common Stock of the Company is changed or exchanged as a result into the right
to receive stock, securities or other property or assets (including cash) which
includes shares of common stock of the Company or another Person that are, or
upon issuance will be, traded on a United States national securities exchange or
approved for trading on an established automated over-the-counter trading market
in the United States and such shares constitute at the time such change or
exchange becomes effective in excess of 50% of the aggregate fair market value
of such stock, securities other property and assets (including cash) (as
determined by the Company, which determination shall be conclusive and binding),
then the Person formed by such consolidation or resulting from such merger or
which acquires such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture (which shall comply with the TIA as in force at
the date of execution of such supplemental indenture) modifying the provisions
of this Indenture relating to the right of holders of Convertible Subordinated
Notes to cause the Company to repurchase
29
Convertible Subordinated Notes following a Designated Event, including the
applicable provisions of this Section 4.06 and the definitions of Designated
Event, Change of Control and Termination of Trading, as appropriate, as
determined in good faith by the Company (which determination shall be conclusive
and binding), to make such provision apply to such common stock and the issuer
thereof if different from the Company and Common Stock of the Company (in lieu
of the Company and the Common Stock of the Company).
The Designated Event Offer shall be made by the Company in compliance
with all applicable provisions of the Exchange Act, and all applicable tender
offer rules promulgated thereunder, to the extent such laws and regulations are
then applicable and shall include all instructions and materials that the
Company shall reasonably deem necessary to enable such holders of Convertible
Subordinated Notes to tender their Convertible Subordinated Notes.
SECTION 4.07. Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.08, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 4.08. Stay, Extension and Usury Laws. The Company covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter
enforced, that may affect the Company's obligation to pay the Convertible
Subordinated Notes; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law insofar as such
law applies to the Convertible Subordinated Notes, and covenants that it shall
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law has been enacted.
SECTION 4.09. Taxes. The Company shall, and shall cause each of its
subsidiaries to, pay prior to delinquency all taxes, assessments and government
levies; provided, however, that the Company shall not be required to pay or
cause to be paid any such tax, assessment or levy (A) if the failure to do so
will not, in the aggregate, have a material adverse impact on the Company and
its subsidiaries taken as a whole, or (B) if the amount, applicability or
validity is being contested in good faith by appropriate proceedings.
SECTION 4.10. Liquidated Damages. If Liquidated Damages are payable by the
Company pursuant to Section 5 of the Investors Rights Agreement, the Company
shall deliver to the Trustee a certificate to the effect stating (i) the amount
of such Liquidated Damages that are payable and (ii) the date on which such
damages are payable. Unless and until a Trust Officer of the Trustee receives
such a certificate, the Trustee may assume without inquiry that no Liquidated
Damages are payable. If the Company has
30
paid Liquidated Damages directly to the persons entitled to them, the Company
shall deliver to the Trustee a certificate setting forth the particulars of such
payment.
ARTICLE V
SUCCESSORS
SECTION 5.01. When the Company May Merge, Etc. The Company may not, in a
single transaction or series of related transactions, consolidate or merge with
or into (whether or not the Company is the surviving corporation), or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets to, any Person as an entirety or substantially as an
entirety unless:
(a) either
(i) the Company shall be the surviving or continuing corporation
or
(ii) the Person formed by or surviving any such consolidation or
into which the Company is merged (if other than the Company) or the Person
which acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of the Company substantially as an
entirety
(1) shall be a corporation organized and validly existing
under the laws of the United States or any State thereof or the
District of Columbia and
(2) shall expressly assume, by indenture in form reasonably
satisfactory to the Trustee, executed and delivered to the Trustee,
the due and punctual payment of the principal of, and premium, if any,
and interest and Liquidated Damages, if any, on all of the Convertible
Subordinated Notes and the performance of every covenant of the
Convertible Subordinated Notes and this Indenture and the Investors
Rights Agreement on the part of the Company to be performed or
observed, including, without limitation, modifications to rights of
holders to cause the repurchase of Convertible Subordinated Notes upon
a Designated Event in accordance with the penultimate paragraph of
Section 4.06 and conversion rights in accordance with Section 12.06 to
the extent required by such Sections;
(b) immediately after giving effect to such transaction no Default and
no Event of Default shall have occurred and be continuing; and
(c) the Company or such Person shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation,
31
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this provision of this Indenture and that all conditions precedent
in this Indenture relating to such transaction have been satisfied.
For purposes of this Section 5.01, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more subsidiaries of the
Company, the capital stock of which constitutes all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
SECTION 5.02. Successor Corporation Substituted. Upon any such
consolidation, merger, sale, assignment, conveyance, lease, transfer or other
disposition in accordance with Section 5.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
assignment, conveyance, lease, transfer or other disposition is made will
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor had
been named as the Company therein, and thereafter (except in the case of a sale,
assignment, transfer, lease, conveyance or other disposition) the predecessor
corporation will be relieved of all further obligations and covenants under this
Indenture and the Convertible Subordinated Notes.
SECTION 5.03. Purchase Option on Change of Control. This Article V does not
affect the obligations of the Company (including without limitation any
successor to the Company) under Section 4.06.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" with respect to any
Convertible Subordinated Notes occurs if:
(a) the Company defaults in the payment (whether or not such payment
is prohibited by the subordination provisions set forth in Article XI of
this Indenture) of principal of, or premium, if any, on the Convertible
Subordinated Notes when due at maturity, upon repurchase, upon acceleration
or otherwise, including, without limitation, failure of the Company to make
any optional redemption payment when required pursuant to Article III; or
(b) the Company defaults in the payment (whether or not such payment
is prohibited by the subordination provisions set forth in Article XI of
this Indenture) of any installment of interest or Liquidated Damages on the
Convertible Subordinated Notes when due (including any interest or
Liquidated Damages payable in connection with a repurchase pursuant to
Section 4.06 or in
32
connection with any optional redemption payment pursuant to Article III)
and continuance of such default for 30 days or more; or
(c) the Company defaults (other than a default set forth in clauses
(a) and (b) above and clauses (d) and (e) below) in the performance of, or
breaches, any other covenant or warranty of the Company set forth in this
Indenture or the Convertible Subordinated Notes and fails to remedy such
default or breach within a period of 60 days after the receipt of written
notice from the Trustee or the holders of at least 25% in aggregate
principal amount of the then outstanding Convertible Subordinated Notes; or
(d) the Company defaults in the payment of the Designated Event
Payment in respect of the Convertible Subordinated Notes on the Designated
Event Payment Date, whether or not such payment is prohibited by the
subordination provisions set forth in Article XI of this Indenture; or
(e) the Company fails to provide timely notice of any Designated Event
in accordance with Section 4.06 hereof; or
(f) failure of the Company or any Material Subsidiary to make any
payment at maturity, including any applicable grace period, in respect of
indebtedness for borrowed money of, or guaranteed or assumed by, the
Company or any Material Subsidiary, which payment is in an amount in excess
of $20,000,000, and continuance of such failure for 30 days after notice
thereof from the Trustee or the holders of at least 25% in aggregate
principal amount of the then outstanding Convertible Subordinated Notes; or
(g) default by the Company or any Material Subsidiary with respect to
any indebtedness referred to in clause (f) above, which default results in
the acceleration of any such indebtedness of an amount in excess of
$20,000,000 without such indebtedness having been paid or discharged or
such acceleration having been cured, waived, rescinded or annulled for 30
days after notice thereof from the Trustee or the holders of at least 25%
in aggregate principal amount of the then outstanding Convertible
Subordinated Notes; or
(h) the Company or any Material Subsidiary, pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
33
(iv) makes a general assignment for the benefit of its creditors;
(v) makes the admission in writing that it generally is unable to
pay its debts as the same become due; or
(i) a court of competent jurisdiction enters a judgment, order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any Material Subsidiary
in an involuntary case,
(ii) appoints a Custodian of the Company or any Material
Subsidiary, and the order or decree remains unstayed and in effect for
90 days.
(iii) orders the liquidation of the Company or any Material
Subsidiary, and the order or decree remains unstayed and in effect for
90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
In the case of any Event of Default, pursuant to the provisions of
this Section 6.01, occurring by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention of avoiding
payment of the premium which the Company would have had to pay if the Company
then had elected to redeem the Convertible Subordinated Notes pursuant to
Paragraph 5 of the Convertible Subordinated Notes, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law,
upon the acceleration of the Convertible Subordinated Notes notwithstanding
anything contained in this Indenture or in the Convertible Subordinated Notes to
the contrary.
If an Event of Default occurs prior to any date on which the Company
is prohibited from redeeming the Convertible Subordinated Notes, pursuant to
Paragraph 5 of the Convertible Subordinated Notes, by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding the prohibition on redemption of the Convertible
Subordinated Notes prior to such date, then the premium specified in this
Indenture shall also become immediately due and payable to the extent permitted
by law upon the acceleration of the Convertible Subordinated Notes.
SECTION 6.02. Acceleration. If an Event of Default (other than an Event of
Default with respect to the Company specified in clauses (h) and (i) of Section
6.01) occurs and is continuing, then and in every such case the Trustee, by
written notice to the Company, or the holders of at least 25% in aggregate
principal amount of the then
34
outstanding Convertible Subordinated Notes, by written notice to the Company and
the Trustee, may declare the unpaid principal of, premium, if any, and accrued
and unpaid interest and Liquidated Damages, if any, on all the Convertible
Subordinated Notes to be due and payable. Upon such declaration such principal
amount, premium, if any, and accrued and unpaid interest and Liquidated Damages,
if any, shall become immediately due and payable, notwithstanding anything
contained in this Indenture or the Convertible Subordinated Notes to the
contrary, but subject to the provisions of Article XI hereof. If any Event of
Default with respect to the Company specified in clauses (h) or (i) of Section
6.01 occurs, all unpaid principal of and premium, if any, and accrued and unpaid
interest and Liquidated Damages, if any, on the Convertible Subordinated Notes
then outstanding shall become automatically due and payable subject to the
provisions of Article XI hereof, without any declaration or other act on the
part of the Trustee or any holder of Convertible Subordinated Notes.
The holders of a majority in aggregate principal amount of the then
outstanding Convertible Subordinated Notes by notice to the Trustee may rescind
an acceleration of the Convertible Subordinated Notes and its consequences if
all existing Events of Default (other than nonpayment of principal of or
premium, if any, and interest and Liquidated Damages, if any, on the Convertible
Subordinated Notes which has become due solely by virtue of such acceleration)
have been cured or waived and if the rescission would not conflict with any
judgment or decree of any court of competent jurisdiction. No such rescission
shall affect any subsequent Default or Event of Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default 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 or Liquidated
Damages, if applicable, on the Convertible Subordinated Notes or to enforce the
performance of any provision of the Convertible Subordinated Notes or this
Indenture. The Trustee may maintain a proceeding even if it does not possess any
of the Convertible Subordinated Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any holder of a Convertible
Subordinated Note in exercising any right or remedy occurring upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent
permitted by law.
SECTION 6.04. Waiver of Past Defaults. The holders of a majority in
aggregate principal amount of the Convertible Subordinated Notes then
outstanding may, on behalf of the holders of all the Convertible Subordinated
Notes, waive an existing Default or Event of Default and its consequences,
except a Default or Event of Default in the payment of the principal of,
premium, if any, or interest or Liquidated Damages, if applicable, on the
Convertible Subordinated Notes (other than the non-payment of principal of and
premium, if any, and interest or Liquidated Damages, if any, on the Convertible
Subordinated Notes which has become due solely by virtue of an acceleration
which has been duly rescinded as provided above), or in respect of a covenant or
provision of this Indenture which cannot be modified or amended without the
35
consent of all holders of Convertible Subordinated Notes. When a Default or
Event of Default is waived, it is cured and stops continuing. No waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
SECTION 6.05. Control by Majority. The holders of a majority in aggregate
principal amount of the then outstanding Convertible Subordinated Notes may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture that the Trustee determines may be unduly prejudicial to the
rights of other holders of Convertible Subordinated Notes or that may involve
the Trustee in personal liability; provided that the Trustee shall have no duty
or obligation (subject to Section 7.01) to ascertain whether or not such actions
of forbearances are unduly prejudicial to such holders; provided, further, that
the Trustee may take any other action the Trustee deems proper that is not
inconsistent with such directions.
SECTION 6.06. Limitation on Suits. A holder of a Convertible Subordinated
Note may not pursue any remedy with respect to this Indenture or the Convertible
Subordinated Notes unless:
(1) the holder gives to the Trustee notice of a continuing
Event of Default;
(2) the holders of at least 25% in principal amount of the
then outstanding Convertible Subordinated Notes make a request to the
Trustee to pursue the remedy;
(3) such holder or holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 60-day period the holders of a majority in
principal amount of the then outstanding Convertible Subordinated Notes do
not give the Trustee a direction inconsistent with the request.
A holder of a Convertible Subordinated Note may not use this Indenture
to prejudice the rights of another holder or to obtain a preference or priority
over another holder.
SECTION 6.07. Rights of Holders To Receive Payment. Subject to the
provisions of Article XI hereof, notwithstanding any other provision of this
Indenture, the
36
right of any holder of a Convertible Subordinated Note to receive payment of
principal, premium, if any, and interest and Liquidated Damages, if any, on the
Convertible Subordinated Note, on or after the respective due dates expressed in
the Convertible Subordinated Note, or to bring suit for the enforcement of any
such payment on or after such respective dates, or to bring suit for the
enforcement of the right to convert the Convertible Subordinated Note shall not
be impaired or affected without the consent of the holder of a Convertible
Subordinated Note.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified
in Section 6.01(a), (b) or (d) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal and interest and Liquidated Damages, if any,
remaining unpaid on the Convertible Subordinated Notes and interest and
Liquidated Damages, if any, on overdue principal and interest and Liquidated
Damages, if any, and such further amount as shall be sufficient to cover the
costs and, to the extent lawful, expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the holders of Convertible
Subordinated Notes allowed in any judicial proceedings relative to the Company,
its creditors or its property. Nothing contained herein shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any holder of a Convertible Subordinated Note any plan of reorganization,
arrangement, adjustment or composition affecting the Convertible Subordinated
Notes or the rights of any holder thereof, or to authorize the Trustee to vote
in respect of the claim of any holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to
this Article VI, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07,
including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee, and the costs and
expenses of collection;
Second: to holders of Senior Debt to the extent required by
Article XI;
Third: to holders of Convertible Subordinated Notes for amounts
due and unpaid on the Convertible Subordinated Notes for principal,
premium, if any, and interest and Liquidated Damages, if any, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Convertible Subordinated Notes for principal,
premium, if any, and interest and Liquidated Damages, if any,
respectively; and
37
Fourth: to the Company.
The Trustee may fix a special record date and payment date for any
payment to holders of Convertible Subordinated Notes made pursuant to this
section. At least 15 days before any such special record date, the Trustee shall
mail to holders of the Convertible Subordinated Notes a notice that states the
special record date, payment date and amount of such interest to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit, other than the Trustee, of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a holder pursuant to Section 6.07 or a suit by
holders of more than 10% in principal amount of the then outstanding Convertible
Subordinated Notes.
ARTICLE VII
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed. 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 Article VII.
SECTION 7.01. Duties of the Trustee.
(a) If an Event of Default known to 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 his or her own affairs.
(b) Except during the continuance of an Event of Default known to the
Trustee:
(1) The duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
38
(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 any statements, certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the form required by
this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section;
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that is in any way related to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any financial liability in the performance of any
of its duties or the exercise of any of its rights and powers hereunder, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk of liability is not reasonably assured to
it.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.02. Rights of the Trustee.
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, security or other 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 contained therein.
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically prescribed). In addition,
before the Trustee acts or
39
refrains from acting, it may require an Officers' Certificate, an Opinion of
Counsel or both. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers' Certificate or Opinion
of Counsel. The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its attorneys and
agents and other Persons not regularly in its employ and shall not be
responsible for the misconduct or negligence of any attorney or agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith without negligence or willful misconduct which it believes
to be authorized or within its discretion, rights or powers.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by Officers of the Company.
(f) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
discretion of any of the holders of Convertible Subordinated Notes pursuant to
the provisions of this Indenture, unless such holders have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred therein or thereby.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, security or other document
unless requested in writing to do so by the holders of not less than a majority
in aggregate principal amount of the Convertible Subordinated Notes then
outstanding, provided that if the Trustee determines in its discretion to make
any such investigation, then it shall be entitled, upon reasonable prior notice
and during normal business hours, to examine the books and records and the
premises of the Company, personally or by agent or attorney, and the reasonable
expenses of every such examination shall be paid by the Company or, if paid by
the Trustee or any predecessor Trustee, shall be reimbursed by the Company upon
demand.
(i) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful misconduct
(j) The Trustee shall not be responsible for the computation of any
adjustment to the Conversion Price or for any determination as to whether an
adjustment
40
is required and shall not be deemed to have knowledge of any adjustment unless
and until it shall have received the notice from the Company contemplated by
Section 12.05(j).
SECTION 7.03. Individual Rights of the Trustee. Subject to Sections 7.10
and 7.11, the Trustee in its individual or any other capacity may become the
owner or pledgee of Convertible Subordinated Notes with the same rights it would
have if it were not the Trustee and may otherwise deal with the Company or an
Affiliate of the Company and receive, collect, hold and retain collections from
the Company with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Convertible Subordinated Notes. It shall not be accountable for the
Company's use of the proceeds from the Convertible Subordinated Notes or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture. It shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the
Convertible Subordinated Notes or any other document in connection with the sale
of the Convertible Subordinated Notes or pursuant to this Indenture other than
its certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default or Event of Default occurs
and is continuing and if it is known to the Trustee, the Trustee shall mail to
each holder of a Convertible Subordinated Note a notice of the Default or Event
of Default within 60 days after it occurs. A Default or an Event of Default
shall not be considered known to the Trustee unless it is a Default or Event of
Default in the payment of principal or interest when due under Section 6.01(a),
(b) or (d) or the Trustee shall have received notice thereof, in accordance with
this Indenture, from the Company or from the holders of a majority in principal
amount of the outstanding Convertible Subordinated Notes. Except in the case of
a Default or Event of Default in payment of principal of, premium, if any, or
interest or Liquidated Damages, if any, on any Convertible Subordinated Note,
the Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the interest
of the holders of the Convertible Subordinated Notes.
SECTION 7.06. Reports by the Trustee to Holders. Within 60 days after the
reporting date stated in Section 10.10, the Trustee shall mail to holders of
Convertible Subordinated Notes a brief report dated as of such reporting date
that complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within twelve months preceding the reporting date, no report
need be transmitted). The Trustee also shall comply with TIA Section 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA Section
313(c).
A copy of each report at the time of its mailing to holders of
Convertible Subordinated Notes shall be filed, at the expense of the Company, by
the Trustee with the Commission and each stock exchange or securities market, if
any, on which the
41
Convertible Subordinated Notes are listed. The Company shall timely notify the
Trustee when the Convertible Subordinated Notes are listed or quoted on any
stock exchange or securities market.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time and the Trustee shall be entitled to reasonable
compensation for its acceptance of this Indenture and its services hereunder.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by or on behalf of it in addition to the compensation for its services.
Such expenses may include the reasonable compensation, disbursements and
expenses of the Trustee's agents, counsel and other persons not regularly in its
employ.
The Company shall indemnify the Trustee against any loss, liability or
expense incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture and the trusts hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in the premises, except as set forth in the next
paragraph. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim with counsel designated by the Company, who may be outside counsel to the
Company but shall in all events be reasonably satisfactory to the Trustee, and
the Trustee shall cooperate in the defense. In addition, the Trustee may retain
one separate counsel and, if deemed advisable by such counsel, local counsel,
and the Company shall pay the reasonable fees and expenses of such separate
counsel and local counsel. The indemnification herein extends to any settlement,
provided that the Company will not be liable for any settlement made without its
consent, provided, further, that such consent will not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own negligence or willful
misconduct.
The Trustee shall have a lien prior to the Convertible Subordinated
Notes on all money or property held or collected by the Trustee to secure the
Company's payment obligations in this Section 7.07, except that held in trust to
pay principal and interest and Liquidated Damages, if any, on Convertible
Subordinated Notes. Such liens and the Company's obligations under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
42
SECTION 7.08. Replacement of the 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
7.08.
The Trustee may resign at any time and be discharged from the trust
hereby created by so notifying the Company. The holders of a majority in
principal amount of the then outstanding Convertible Subordinated Notes may
remove the Trustee by so notifying the Trustee and the Company in writing and
may appoint a successor Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) 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;
(3) a Custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the holders
of a majority in principal amount of the then outstanding Convertible
Subordinated Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
holders of at least 10% in principal amount of the then outstanding Convertible
Subordinated Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee after written request by any holder of a Convertible
Subordinated Note who has been a holder for at least six months fails to comply
with Section 7.10, such holder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to holders of Convertible Subordinated Notes. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, provided that all sums owing to the retiring Trustee hereunder have
been paid and subject to the lien provided for in Section 7.07. Notwithstanding
the replacement of the Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall
43
continue for the benefit of the retiring Trustee with respect to expenses and
liabilities incurred by it prior to such replacement.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business (including the trust created by this Indenture) to,
another corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall be the successor Trustee with the same effect as if the successor Trustee
had been named as the Trustee herein.
SECTION 7.10. Eligibility, Disqualification. This Indenture shall always
have a Trustee who satisfies the requirements of TIA Section 310(a)(1). The
Trustee shall always have a combined capital and surplus as stated in Section
10.10. The Trustee is subject to TIA Section 310(b) regarding the
disqualification of a trustee upon acquiring a conflicting interest.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship set forth in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Indenture. When (a) the Company delivers to the
Trustee for cancellation all Convertible Subordinated Notes theretofore
authenticated (other than any other Convertible Subordinated Notes which have
been destroyed, lost or stolen and in lieu of or in substitution for which other
Convertible Subordinated Notes have been authenticated and delivered) and not
theretofore canceled, or (b) all the Convertible Subordinated Notes not
theretofore canceled or delivered to the Trustee for cancellation have become
due and payable, or are by their terms will 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, and the
Company deposits with the Trustee, in trust, amounts sufficient to pay at
maturity or upon redemption of all of the Convertible Subordinated Notes (other
than any Convertible Subordinated Notes which have been mutilated, destroyed,
lost or stolen and in lieu of or in substitution for which other Convertible
Subordinated Notes have been authenticated and delivered) not theretofore
canceled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest and Liquidated Damages, if any, due or to become
due to such date of maturity or Redemption Date, as
44
the case may be, and if in either case the Company also pays, or causes 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) rights of registration of
transfer, substitution, replacement and exchange and conversion of Convertible
Subordinated Notes, (ii) rights hereunder of holders of Convertible Subordinated
Notes to receive payments of principal of and premium, if any, and interest and
Liquidated Damages, if any, on, the Convertible Subordinated Notes, (iii) the
obligations under Sections 2.03 and 8.05 hereof and (iv) the rights, obligations
and immunities of the Trustee hereunder), and the Trustee, on demand of the
Company accompanied by an Officers' Certificate and an Opinion of Counsel as
required by Section 10.04 and at the Company's cost and expense, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture;
the Company, however, hereby agrees to reimburse the Trustee 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 Convertible
Subordinated Notes.
SECTION 8.02. Deposited Monies to be Held in Trust by Trustee. Subject to
Section 8.04, all monies deposited with the Trustee pursuant to Section 8.01
shall be held in trust and applied by it to the payment, notwithstanding the
provisions of Article XI, either directly or through the Paying Agent, to the
holders of the particular Convertible Subordinated 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 and interest, and Liquidated
Damages, if any, and premium, if any.
SECTION 8.03. Paying Agent to Repay Monies Held. Upon the satisfaction and
discharge of this Indenture, all monies then held by any Paying Agent (other
than the Trustee) shall, upon the Company's demand, be repaid to it or paid to
the Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.
SECTION 8.04. Return of Unclaimed Monies. Subject to the requirements of
applicable law, any monies deposited with or paid to the Trustee for payment of
the principal of, premium, if any, or interest (including Liquidated Damages) if
any on Convertible Subordinated Notes and not applied but remaining unclaimed by
the holders thereof for two years after the date upon which the principal of,
premium, if any, or interest (including Liquidated Damages) on such Convertible
Subordinated Notes, as the case may be, have become due and payable, shall be
repaid to the Company by the Trustee on demand; provided, however, that the
Company, or the Trustee at the request of the Company, shall have first caused
notice of such payment to the Company to be mailed to each holder of a
Convertible Subordinated Note entitled thereto no less than 30 days prior to
such payment and all liability of the Trustee shall thereupon cease with respect
to such monies; and the holder of any of the Convertible Subordinated Notes
shall thereafter look only to the Company for any payment which such holder may
be entitled to collect unless an applicable abandoned property law designates
another Person.
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SECTION 8.05. Reinstatement. If the Trustee or the Paying Agent is unable
to apply any money in accordance with Section 8.02 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Convertible Subordinated Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.01 until such time as
the Trustee or the Paying Agent is permitted to apply all such money in
accordance with Section 8.02; provided, however, that if the Company makes any
payment of interest (including Liquidated Damages) on or principal of any
Convertible Subordinated Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the holders thereof to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without the Consent of Holders. The Company and the Trustee
may amend this Indenture or the Convertible Subordinated Notes without notice to
or the consent of any holder of a Convertible Subordinated Note for the purposes
of:
(a) curing any ambiguity or correcting or supplementing any defective
or inconsistent provision contained in this Indenture or making any other
changes in the provisions of this Indenture which the Company and the Trustee
may deem necessary or desirable provided such amendment does not materially and
adversely affect the legal rights under the Indenture of the holders of
Convertible Subordinated Notes.
(b) providing for uncertificated Convertible Subordinated Notes in
addition to or in place of certificated Convertible Subordinated Notes;
(c) evidencing the succession of another Person to the Company and
providing for the assumption by such successor of the covenants and obligations
of the Company thereunder and in the Convertible Subordinated Notes as permitted
by Section 5.01;
(d) providing for conversion rights and/or repurchase rights of
holders of Convertible Subordinated Notes in the event of consolidation, merger
or sale of all or substantially all of the assets of the Company as required to
comply with Sections 5.01 and/or 12.06;
(e) reducing the Conversion Price;
(f) making any changes that would provide the holders of the
Convertible Subordinated Notes with any additional rights or benefits or that
does not adversely affect the legal rights under this Indenture of any such
holder; or
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(g) complying with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the TIA.
SECTION 9.02. With the Consent of Holders. Subject to Section 6.07, the
Company and the Trustee may amend this Indenture or the Convertible Subordinated
Notes with the written consent of the holders of at least a majority in
principal amount of the then outstanding Convertible Subordinated Notes
(including consents obtained in connection with a tender offer or exchange offer
for Convertible Subordinated Notes).
Subject to Sections 6.04 and 6.07, the holders of a majority in
principal amount of the Convertible Subordinated Notes then outstanding may also
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Convertible Subordinated Notes.
However, without the consent of each holder of a Convertible
Subordinated Note affected, an amendment or waiver under this Section may not
(with respect to any Convertible Subordinated Notes held by a non-consenting
holder):
(a) reduce the principal amount of Convertible Subordinated Notes
whose holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of, Redemption Price, Designated Event
Payment (including any Make Whole Premium payable) (as applicable), or
premium on or change the fixed maturity of any Convertible Subordinated
Note or, except as permitted pursuant to Section 9.01(a), alter the
redemption provisions with respect thereto;
(c) reduce the rate of, or change the time for payment of, interest,
including defaulted interest or Liquidated Damages on any Convertible
Subordinated Note;
(d) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest or Liquidated Damages on the Convertible
Subordinated Notes (except a rescission of acceleration of the Convertible
Subordinated Notes by the holders of at least a majority in aggregate
principal amount of the Convertible Subordinated Notes then outstanding and
a waiver of the payment default that resulted from such acceleration);
(e) make the principal of, or premium, if any, or interest or
Liquidated Damages on any Convertible Subordinated Note payable in money
other than as provided for herein and in the Convertible Subordinated
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or Events of Default or the rights of holders of
Convertible Subordinated Notes to receive payments of principal of,
premium, if any, or interest or Liquidated Damages on the Convertible
Subordinated Notes;
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(g) waive a redemption payment with respect to any Convertible
Subordinated Notes;
(h) except as permitted herein (including Section 9.01(a)), increase
the Conversion Price or modify the provisions contained herein relating to
conversion of the Convertible Subordinated Notes in a manner adverse to the
holders thereof; or
(i) make any change to the abilities of holders of Convertible
Subordinated Notes to enforce their rights hereunder or the provisions of
clauses (a) through (i) of this Section 9.02.
To secure a consent of the holders of Convertible Subordinated Notes
under this Section, it shall not be necessary for such holders to approve the
particular form of any proposed amendment or waiver, but it shall be sufficient
if such consent approves the substance thereof.
After an amendment or waiver under this Article IX becomes effective,
the Company shall mail to holders of Convertible Subordinated Notes a notice
briefly describing the amendment or waiver.
In order to amend any provisions of Article XI, holders of at least
75% in aggregate principal amount of Convertible Subordinated Notes then
outstanding must consent to such amendment if such amendment would adversely
affect the rights of holders of Convertible Subordinated Notes.
SECTION 9.03. Compliance with the Trust Indenture Act. Every amendment to
this Indenture or the Convertible Subordinated Notes shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents. Until an amendment or
waiver becomes effective, a consent to it by a holder of a Convertible
Subordinated Note is a continuing consent by the holder and every subsequent
holder of a Convertible Subordinated Note or portion of a Convertible
Subordinated Note that evidences the same debt as the consenting holder's
Convertible Subordinated Note, even if notation of the consent is not made on
any Convertible Subordinated Note. However, any such holder or subsequent holder
may revoke the consent as to his or her Convertible Subordinated Note or portion
of a Convertible Subordinated Note if the Trustee receives the notice of
revocation before the date on which the Trustee receives an Officers'
Certificate certifying that the holders of the requisite principal amount of
Convertible Subordinated Notes have consented to the amendment or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the holders of Convertible Subordinated Notes
entitled to consent to any amendment or waiver. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those
Persons who were holders of
48
Convertible Subordinated Notes at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent to such amendment
or waiver or to revoke any consent previously given, whether or not such Persons
continue to be holders after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
holders of the principal amount of Convertible Subordinated Notes required
hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
holder of a Convertible Subordinated Note, unless it is of the type described in
clauses (a) through (i) of Section 9.02. In such cases, the amendment or waiver
shall bind each holder of a Convertible Subordinated Note who has consented to
it and every subsequent holder of a Convertible Subordinated Note or portion of
a Convertible Subordinated Note that evidences the same debt as the consenting
holder's Convertible Subordinated Note.
SECTION 9.05. Notation on or Exchange of Convertible Subordinated Notes.
Convertible Subordinated Notes authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article IX may, and shall if
required by the Trustee, bear a notation in the form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Convertible Subordinated Notes so modified as to conform, in
the opinion of the Company and the Trustee, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for outstanding Convertible Subordinated Notes without
charge to the holders of the Convertible Subordinated Notes, except as specified
in Section 2.06.
SECTION 9.06. Trustee Protected. The Trustee shall sign any amendment or
supplemental indenture authorized pursuant to this Article IX if such amendment
or supplemental indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign it. In signing such amendment or supplemental indenture, 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 or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by TIA Section
318(c), such duties imposed by such section of the TIA shall control. If any
provision of this Indenture expressly modifies or excludes any provision of the
TIA that may be so modified or excluded, the Indenture provision so modifying or
excluding such provision of the TIA shall be deemed to apply.
49
SECTION 10.02. Notices. Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first-class mail, with postage prepaid (registered or certified,
return receipt requested), or sent by facsimile or overnight air couriers
guaranteeing next day delivery, to the other's address as stated in Section
10.10. The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to holders of
Convertible Subordinated Notes) shall be deemed to have been duly given at the
time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when transmission is
confirmed, if transmitted by facsimile; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery. Notwithstanding the foregoing, all notices to the Trustee shall be
effective only upon receipt by a Trust Officer.
Any notice or communication to a holder of a Convertible Subordinated
Note shall be mailed by first-class mail, with postage prepaid, to his or her
address shown on the Register kept by the Registrar. Failure to mail a notice or
communication to a holder or any defect in it shall not affect its sufficiency
with respect to other holders.
If a notice or communication is sent in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company sends a notice or communication to holders of
Convertible Subordinated Notes, it shall send a copy to the Trustee and each
Agent at the same time.
All notices or communications shall be in writing.
SECTION 10.03. Communication by Holders With Other Holders. Holders may
communicate pursuant to TIA Section 312(b) with other holders with respect to
their rights under this Indenture or the Convertible Subordinated Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the statements
set forth in Section 10.05) stating that, in the opinion of such person,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
50
in Section 10.05) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA Section 314(a)(4)) shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or
she has made such examination or investigation as is necessary to enable
him or her 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 or not, in the opinion of such
person, such condition or covenant has been complied with.
Any Officers' Certificate may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, unless such Officer knows that the opinion
with respect to the matters upon which his or her certificate may be based as
aforesaid is erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters, upon certificates, statements or opinions of, or
representations by, an officer or officers of the Company, or other Persons or
firms deemed appropriate by such counsel, unless such counsel knows that the
certificates, statements or opinions or representations with respect to the
matters upon which his or her opinion may be based as aforesaid are erroneous.
Any Officers' Certificate, statement or Opinion of Counsel may be
based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representation by an accountant (who may be an employee of the
Company), or firm of accountants, unless such Officer or counsel, as the case
may be, knows that the certificate or opinion or representation with respect to
the accounting matters upon which his or her certificate, statement or opinion
may be based as aforesaid is erroneous.
SECTION 10.06. Rules by Trustee and Agents. The Trustee may make reasonable
rules for action by, or a meeting of, holders of Convertible Subordinated Notes.
The Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
SECTION 10.07. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or
a day on which banking institutions in the City of New York, the city in which
the
51
Corporate Trust Office of the Trustee is located or the City of New York, New
York are not required to be open, and a "Business Day" is any day that is not a
Legal Holiday. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If any date
specified in this Indenture, including, without limitation, a Redemption Date
under Paragraph 5 of Convertible Subordinated Notes, is a Legal Holiday, then
such date shall be the next succeeding Business Day.
SECTION 10.08. No Recourse Against Others. No director, officer, employee
or stockholder, as such, of the Company from time to time shall have any
liability for any obligations of the Company under the Convertible Subordinated
Notes or this Indenture or for any claim based on, in respect of, or by reason
of such obligations or their creation. Each holder by accepting a Convertible
Subordinated Note waives and releases all such liability. This waiver and
release are part of the consideration for the Convertible Subordinated Notes.
Each of such directors, officers, employees and stockholders is a third party
beneficiary of this Section 10.08.
SECTION 10.09. Counterparts. This Indenture may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 10.10. Other Provisions. The Company initially appoints the Trustee
as Paying Agent, Registrar and authenticating agent.
The reporting date for Section 7.06 is May 15 of each year. The first
reporting date is the March 1 following the issuance of Convertible Subordinated
Notes hereunder.
The Trustee shall always have, or shall be a Subsidiary of a bank or
bank holding company which has, a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
The Company's address is:
Amkor Technology, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Trustee's address is:
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx
00
Xxxxxx, XX 00000
Attention: Corporate Trust Services (Amkor Technology, Inc.
6 1/4% Convertible Notes due 2013)
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
SECTION 10.11. Governing Law. The internal laws of the State of New York
shall govern this Indenture and the Convertible Subordinated Notes, without
regard to the conflict of laws provisions thereof.
SECTION 10.12. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or a Subsidiary of the Company. Any such other indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 10.13. Successors. All agreements of the Company in this Indenture
and the Convertible Subordinated Notes shall bind its successor. All agreements
of the Trustee in this Indenture shall bind its successor.
SECTION 10.14. Severability. In case any provision in this Indenture or in
the Convertible Subordinated 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 10.15. Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the terms
or provisions hereof.
ARTICLE XI
SUBORDINATION
SECTION 11.01. Agreement to Subordinate. The Company agrees, and each
holder of Convertible Subordinated Notes by accepting a Convertible Subordinated
Note agrees, that the indebtedness evidenced by the Convertible Subordinated
Note is subordinated in right of payment, to the extent and in the manner
provided in this Article XI, to the prior payment in full in cash or payment
satisfactory to holders of Senior Debt of all Senior Debt (whether outstanding
on the Issue Date or thereafter created, incurred, assumed or guaranteed), and
that the subordination is for the benefit of the holders of Senior Debt. The
Company agrees, and each holder of Convertible Subordinated Notes by accepting a
Convertible Subordinated Note agrees, that the indebtedness evidenced by the
Convertible Subordinated Note is pari passu in right of payment to the Existing
Convertible Subordinated Notes.
53
SECTION 11.02. Liquidation; Dissolution; Bankruptcy. Upon any distribution
to creditors of the Company in a liquidation or dissolution of the Company or in
a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property, in an assignment for the benefit of
creditors or any marshaling of the Company's assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive
payment in full of all Obligations due in respect of such Senior Debt
(including interest and Liquidated Damages, if any, after the commencement
of any such proceeding at the rate specified in the applicable Senior Debt)
in cash or other payment satisfactory to the holders of the Senior Debt
before holders of Convertible Subordinated Notes shall be entitled to
receive any payment with respect to the Convertible Subordinated Notes; and
(2) until all Senior Debt is paid in full in cash or other
payment satisfactory to the holders of the Senior Debt, any distribution to
which holders of Convertible Subordinated Notes would be entitled but for
this Article XI shall be made to holders of Senior Debt, as their interests
may appear.
SECTION 11.03. Default on Senior Debt and/or Designated Senior Debt. The
Company may not make any payment or distribution to the Trustee or any holder of
Convertible Subordinated Notes in respect of Obligations with respect to the
Convertible Subordinated Notes and may not acquire from the Trustee or any
holder of Convertible Subordinated Notes any Convertible Subordinated Notes
until all Senior Debt has been paid in full in cash or other payment
satisfactory to the holders of the Senior Debt if:
(i) a default in the payment of any principal of, premium, if
any, interest, rent or other Obligations in respect of Senior Debt occurs
and is continuing beyond any applicable grace period in the agreement,
indenture or other document governing such Senior Debt; or
(ii) a default, other than a payment default, on Designated
Senior Debt occurs and is continuing that then permits holders of such
Designated Senior Debt to accelerate its maturity and the Trustee receives
a notice of the default (a "Payment Blockage Notice") from a Person who may
give it pursuant to Section 11.11 hereof.
If the Trustee receives any Payment Blockage Notice pursuant to
Section 11.03 (ii) hereof, no subsequent Payment Blockage Notice shall be
effective for purposes of such Section unless and until at least 365 days shall
have elapsed since the effectiveness of the immediately prior Payment Blockage
Notice. No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the
basis for a subsequent Payment Blockage Notice.
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The Company may and shall resume payments on and distributions in
respect of the Convertible Subordinated Notes and may acquire them upon the
earlier of:
(1) in the case of a payment default, upon the date upon
which the default is cured or waived or ceases to exist, or
(2) in the case of a nonpayment default referred to in
Section 11.03(ii) hereof, the earlier of the date upon which the default is
cured or waived ceases to exist or 179 days after notice is received if the
maturity of such Designated Senior Debt has not been accelerated,
if this Article XI otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
SECTION 11.04. Acceleration of Convertible Subordinated Notes. In the event
of the acceleration of the Convertible Subordinated Notes because of an Event of
Default, the Company may not make any payment or distribution to the Trustee or
any holder of Convertible Subordinated Notes in respect of Obligations with
respect to Convertible Subordinated Notes and may not acquire or purchase from
the Trustee or any holder of Convertible Subordinated Notes any Convertible
Subordinated Notes until all Senior Debt has been paid in full in cash or other
payment satisfactory to the holders of Senior Debt or such acceleration is
rescinded in accordance with the terms of this Indenture.
If payment of the Convertible Subordinated Notes is accelerated
because of an Event of Default, the Company or the Trustee shall promptly notify
holders of Senior Debt or trustee(s) of such Senior Debt of the acceleration.
SECTION 11.05. When Distribution Must Be Paid Over. In the event that the
Trustee, any holder of Convertible Subordinated Notes or any other Person
receives any payment or distributions of assets of the Company of any kind with
respect to the Convertible Subordinated Notes in contravention of any terms
contained in this Indenture, whether in cash, property or securities, including,
without limitation by way of set-off or otherwise, then such payment shall be
held by the recipient in trust for the benefit of holders of Senior Debt, and
shall be immediately paid over and delivered to the holders of Senior Debt or
the representative(s), to the extent necessary to make payment in full of all
Senior Debt remaining unpaid, after giving effect to any concurrent payment or
distribution or provision therefore, to or for the holders of Senior Debt;
provided that the foregoing shall apply to the Trustee only if the Trustee has
actual knowledge (as determined in accordance with Section 11.11) that such
payment or distribution is prohibited by this Indenture.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article XI, 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 shall not be liable to
55
any such holders if the Trustee shall pay over or distribute to or on behalf of
holders of Convertible Subordinated Notes or the Company or any other Person
money or assets to which any holders of Senior Debt shall be entitled by virtue
of this Article XI, except if such payment is made as a result of the willful
misconduct or gross negligence of the Trustee.
SECTION 11.06. Notice by Company. The Company shall promptly notify the
Trustee of any facts known to the Company that would cause a payment of any
Obligations with respect to the Convertible Subordinated Notes or the purchase
of any Convertible Subordinated Notes by the Company to violate this Article XI,
but failure to give such notice shall not affect the subordination of the
Convertible Subordinated Notes to the Senior Debt as provided in this Article
XI.
SECTION 11.07. Subrogation. After all Senior Debt is paid in full and until
the Convertible Subordinated Notes are paid in full, holders of Convertible
Subordinated Notes shall be subrogated (equally and ratably with all other
indebtedness pari passu with the Convertible Subordinated Notes) to the rights
of holders of Senior Debt to receive distributions applicable to Senior Debt to
the extent that distributions otherwise payable to the holders of Convertible
Subordinated Notes have been applied to the payment of Senior Debt. A
distribution made under this Article XI to holders of Senior Debt that otherwise
would have been made to holders of Convertible Subordinated Notes is not, as
between the Company and holders of Convertible Subordinated Notes, a payment by
the Company on the Convertible Subordinated Notes.
SECTION 11.08. Relative Rights. This Article XI defines the relative rights
of holders of Convertible Subordinated Notes and holders of Senior Debt. Nothing
in this Indenture shall:
(1) impair, as between the Company and holders of
Convertible Subordinated Notes, the obligation of the Company, which is
absolute and unconditional, to pay principal of, premium, if any, and
interest (including Liquidated Damages) on the Convertible Subordinated
Notes in accordance with their terms;
(2) affect the relative rights of holders of Convertible
Subordinated Notes and creditors (other than with respect to Senior Debt)
of the Company, other than their rights in relation to holders of Senior
Debt; or
(3) prevent the Trustee or any holder of Convertible
Subordinated Notes from exercising its available remedies upon a Default or
Event of Default, subject to the rights of holders and owners of Senior
Debt to receive distributions and payments otherwise payable to holders of
Convertible Subordinated Notes.
56
If the Company fails because of this Article XI to pay principal of or
interest (including Liquidated Damages) on a Convertible Subordinated Note on
the due date, the failure is still a Default or Event of Default.
SECTION 11.09. Subordination May Not Be Impaired by Company. No right of
any holder of Senior Debt to enforce the subordination of the indebtedness
evidenced by the Convertible Subordinated Notes shall be impaired by any act or
failure to act by the Company or any holder of Convertible Subordinated Notes or
by the failure of the Company or any such holder to comply with this Indenture.
SECTION 11.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article XI, the Trustee and the holders of Convertible Subordinated
Notes shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the holders of Convertible Subordinated Notes for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XI.
SECTION 11.11. Rights of Trustee and Paying Agent. Notwithstanding the
provisions of this Article XI or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution by the Trustee (other
than pursuant to Section 11.04), and the Trustee may continue to make payments
on the Convertible Subordinated Notes, unless a Trust Officer shall have
received at least two Business Days prior to the date of such payment or
distribution written notice of facts that would cause such payment or
distribution with respect to the Convertible Subordinated Notes to violate this
Article XI. Only the Company or a Representative may give the notice.
Nothing in this Article XI shall impair the claims of, or payments to,
the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
SECTION 11.12. Authorization to Effect Subordination. Each holder of a
Convertible Subordinated Note by the holder's acceptance thereof authorizes and
directs the Trustee on the holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article XI, and appoints the Trustee to act as the holder's attorney-in-fact for
any and all such purposes. If the Trustee does not
57
file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 6.09 hereof at least 30 days before the
expiration of the time to file such claim, the holders of any Senior Debt or
their Representatives are hereby authorized to file an appropriate claim for and
on behalf of the holders of the Convertible Subordinated Notes.
SECTION 11.13. Article Applicable to Paying Agents. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article XI shall in
such case (unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article XI in addition to or
in place of the Trustee; provided, however, that the second and third paragraphs
of Section 11.11 shall not apply to the Company or any Subsidiary of the Company
if it or such Subsidiary acts as Paying Agent.
SECTION 11.14. Senior Debt Entitled to Rely. The holders of Senior Debt
shall have the right to rely upon this Article XI, and no amendment or
modification of the provisions contained herein shall diminish the rights of
such holders unless such holders shall have agreed in writing thereto.
SECTION 11.15. Permitted Payments. Notwithstanding anything to the contrary
in this Article XI, the holders of Convertible Subordinated Notes may receive
and retain at any time on or prior to the Maturity Date (i) securities that are
subordinated to at least the same extent as the Convertible Subordinated Notes
to (a) Senior Debt and (b) any securities issued in exchange for Senior Debt and
(ii) payments and other distributions made from any trust created pursuant to
Section 8.01 hereof.
ARTICLE XII
CONVERSION OF CONVERTIBLE SUBORDINATED NOTES
SECTION 12.01. Right to Convert. Subject to and upon compliance with the
provisions of this Indenture, each holder of Convertible Subordinated Notes
shall have the right, at his or her option, at any time on or before the close
of business on the last trading day prior to the Maturity Date (except that, (a)
with respect to any Convertible Subordinated Note or portion thereof which is
called for redemption prior to such date, such right shall terminate, except as
provided in the fourth paragraph of Section 12.02, before the close of business
on the last trading day preceding the Redemption Date (unless the Company
defaults in payment of the Redemption Price in which case the conversion right
will terminate at the close of business on the trading day preceding the date
such default is cured) and (b) with respect to any Convertible Subordinated Note
or portion thereof subject to a duly completed election for repurchase, such
right shall terminate on or before the close of business on the Designated Event
Offer Termination Date (unless the Company defaults in the payment due upon
repurchase or such holder elects to withdraw the submission of such election to
repurchase)) to convert the principal
58
amount of any Convertible Subordinated Note held by such holder, or any portion
of such principal amount which is $1,000 or an integral multiple thereof, into
that number of fully paid and non-assessable shares of Common Stock (as such
shares shall then be constituted) obtained by dividing the principal amount of
the Convertible Subordinated Note or portion thereof to be converted by the
Conversion Price in effect at such time, by surrender of the Convertible
Subordinated Note so to be converted in whole or in part in the manner provided
in Section 12.02. A holder of Convertible Subordinated Notes is not entitled to
any rights of a holder of Common Stock until such holder of Convertible
Subordinated Notes has converted his or her Convertible Subordinated Notes to
Common Stock, and only to the extent such Convertible Subordinated Notes are
deemed to have been converted to Common Stock under this Article XII.
SECTION 12.02. Exercise of Conversion Privilege; Issuance of Common Stock
on Conversion; No Adjustment for Interest or Dividends. To exercise, in whole or
in part, the conversion privilege with respect to any Convertible Subordinated
Note, the holder of such Convertible Subordinated Note shall surrender such
Convertible Subordinated Note, duly endorsed, at an office or agency maintained
by the Company pursuant to Section 4.04, accompanied by the funds, if any,
required by the penultimate paragraph of this Section 12.02, and shall give
written notice of conversion in the form provided on the Convertible
Subordinated Notes (or such other notice which is acceptable to the Company) to
the office or agency that the holder of Convertible Subordinated Notes elects to
convert such Convertible Subordinated Note or such portion thereof specified in
said notice. Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for shares of Common Stock
which are issuable on such conversion shall be issued, and shall be accompanied
by transfer taxes, if required pursuant to Section 12.07. Each such Convertible
Subordinated Note surrendered for conversion shall, unless the shares issuable
on conversion are to be issued in the same name as the registration of such
Convertible Subordinated Note, be duly endorsed by, or be accompanied by
instruments of transfer in form satisfactory to the Company duly executed by,
the holder of Convertible Subordinated Notes or his or her duly authorized
attorney.
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, the Company shall issue and shall deliver to such
holder at the office or agency maintained by the Company for such purpose
pursuant to Section 4.04, a certificate or certificates for the number of full
shares of Common Stock issuable upon the conversion of such Convertible
Subordinated Note or portion thereof in accordance with the provisions of this
Article XII and a check or cash in respect of any fractional interest in respect
of a share of Common Stock arising upon such conversion, as provided in Section
12.03 (which payment, if any, shall be paid no later than five Business Days
after satisfaction of the requirements for conversion set forth above).
Certificates representing shares of Common Stock will not be issued or delivered
unless all taxes and duties, if any, payable by the holder have been paid. In
case any Convertible Subordinated Note of a denomination of an integral multiple
greater than $1,000 is surrendered for partial conversion, and subject to
Section 2.02, the Company
59
shall execute, and the Trustee shall authenticate and deliver to the holder of
the Convertible Subordinated Note so surrendered, without charge to him or her,
a new Convertible Subordinated Note or Convertible Subordinated Notes in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Convertible Subordinated Note.
Each conversion shall be deemed to have been effected as to any such
Convertible Subordinated Note (or portion thereof) on the date on which the
requirements set forth above in this Section 12.02 have been satisfied as to
such Convertible Subordinated Note (or portion thereof), and the Person in whose
name any certificate or certificates for shares of Common Stock are issuable
upon such conversion shall be deemed to have become on said date the holder of
record of the shares represented thereby; provided, however, that any such
surrender on any date when the Company's stock transfer books are closed shall
constitute the Person in whose name the certificates are to be issued as the
record holder thereof for all purposes on the next succeeding day on which such
stock transfer books are open, but such conversion shall be at the Conversion
Price in effect on the date upon which such Convertible Subordinated Note is
surrendered.
Any Convertible Subordinated Note or portion thereof surrendered for
conversion during the period from the close of business on the Regular Record
Date for any interest payment through the close of business on the last trading
day immediately preceding such Interest Payment Date shall (unless such
Convertible Subordinated Note or portion thereof being converted has been called
for redemption pursuant to a notice of redemption mailed by the Company to the
holders in accordance with the provisions of Section 3.04) be accompanied by
payment, in funds acceptable to the Company, of an amount equal to the interest
and Liquidated Damages, if any, otherwise payable on such Interest Payment Date
on the principal amount being converted; provided however, that no such payment
need be made if there exists at the time of conversion a default in the payment
of interest or Liquidated Damages, if applicable, on the Convertible
Subordinated Notes. An amount equal to such payment shall be paid by the Company
on such Interest Payment Date to the holder of such Convertible Subordinated
Note at the close of business on such Regular Record Date; provided, however,
that if the Company defaults in the payment of interest or Liquidated Damages,
if applicable, on such Interest Payment Date, such amount shall be paid to the
Person who made such required payment. Except as provided above in this Section
12.02, no adjustment shall be made for interest accrued and Liquidated Damages,
if any, on any Convertible Subordinated Note converted or for dividends on any
shares issued upon the conversion of such Convertible Subordinated Note as
provided in this Article XII.
SECTION 12.03. Cash Payments in Lieu of Fractional Shares. No fractional
shares of Common Stock or scrip representing fractional shares shall be issued
upon conversion of Convertible Subordinated Notes. If more than one Convertible
Subordinated Note shall be surrendered for conversion at one time by the same
holder, the number of full shares which shall be issuable upon conversion shall
be computed on the basis of the aggregate principal amount of the Convertible
Subordinated Notes (or
60
specified portions thereof to the extent permitted hereby) so surrendered for
conversion. If any fractional share of stock otherwise would be issuable upon
the conversion of any Convertible Subordinated Note or Convertible Subordinated
Notes, the Company shall make an adjustment therefore in cash based upon the
Current Market Price (as defined in Section 12.05(g)) of the Common Stock on the
last trading day prior to the date of conversion.
SECTION 12.04. Conversion Price. The conversion price shall be as specified
in the form of Convertible Subordinated Note attached as Exhibit A hereto,
subject to adjustment as provided in this Article XII.
SECTION 12.05. Adjustment of Conversion Price. The Conversion Price shall
be adjusted from time to time by the Company as follows:
(a) If 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 Record Date (as defined in Section 12.05(g)) 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 of which the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the Record Date fixed for
such determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution, such reduction to 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 12.05(a) is declared
but not so paid or made, the Conversion Price shall again be adjusted to
the Conversion Price which would then be in effect if such dividend or
distribution had not been declared.
(b) If 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, if the 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) If the Company shall issue rights or warrants to all or
substantially all holders of its outstanding shares of Common Stock
entitling them to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price (as defined in Section
12.05(g)) on the Record Date fixed for the
61
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 of
which the numerator 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 would purchase at such Current Market Price, and of which the
denominator 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.
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 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 be 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 delivery of only the number of shares
of Common Stock actually delivered. If 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 Record Date fixed for the
determination of stockholders entitled to receive such rights or warrants
had not been fixed. In determining whether any rights or warrants entitle
the holders to subscribe for or purchase shares of Common Stock at less
than such Current Market Price, and in determining the aggregate offering
price of such shares of Common Stock, there shall be taken into account any
consideration received for such rights or warrants, with the value of such
consideration, if other than cash, to be determined in good faith by the
Board of Directors, whose determination shall be conclusive and described
in a resolution of the Board of Directors.
(d) If 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
12.05(a) applies) or evidences of its indebtedness, cash or other assets
(including securities, but excluding (i) any rights or warrants of a type
referred to in Section 12.05(c) and (ii) dividends and distributions paid
exclusively in cash) (the foregoing hereinafter in this Section 12.05(d)
called the "Securities"), then, in each such case, 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 12.05(g)) with
respect to such distribution by a fraction of which the numerator shall be
the Current Market Price (determined as provided in Section 12.05(g)) on
such date less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described
in a resolution of the Board of Directors) on such date of the portion of
the Securities so distributed applicable to
62
one share of Common Stock and the denominator shall be such Current Market
Price, such reduction to become effective immediately prior to the opening
of business on the day following the Record Date; provided, however, that
in the event 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 of Convertible Subordinated Notes shall have the right to
receive upon conversion of a Convertible Subordinated Note (or any portion
thereof) the amount of Securities such holder would have received had such
holder converted such Convertible Subordinated Note (or portion thereof)
immediately prior to such Record Date. If 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
12.05(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 used in computing
the Current Market Price pursuant to Section 12.05(g) to the extent
possible.
Notwithstanding any other provision of this Section 12.05(d) to the
contrary, rights, warrants, evidences of indebtedness, other securities,
cash or other assets (including, without limitation, any rights distributed
pursuant to any stockholder rights plan) shall be deemed not to have been
distributed for purposes of this Section 12.05(d) if the Company makes
proper provision so that each holder of Convertible Subordinated Notes who
converts a Convertible Subordinated Note (or any portion thereof) after the
Record Date fixed for determination of stockholders entitled to receive
such distribution shall be entitled to receive upon such conversion, in
addition to the shares of Common Stock issuable upon such conversion, the
amount and kind of such distributions that such holder would have been
entitled to receive if such holder had, immediately prior to such
determination date, converted such Convertible Subordinated Note into
Common Stock.
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of
the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a
specified event or events ("Trigger Event"): (i) are deemed to be
transferred with such shares of Common Stock; (ii) are not exercisable; and
(iii) are also issued in respect of future issuances of Common Stock, shall
be deemed not to have been distributed for purposes of this Section
12.05(d) (and no adjustment to the Conversion Price under this Section
12.05(d) shall be required) until the occurrence of the earliest Trigger
Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment to the Conversion Price under
this Section 12.05(d)
63
shall be made. If any such rights or warrants, including any such existing
rights or warrants distributed prior to the Issue Date, are subject to
subsequent events, upon the occurrence of each of which such rights or
warrants shall become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the occurrence of each such
event shall be deemed to be such date of issuance and Record Date with
respect to new rights or warrants (and a termination or expiration of the
existing rights or warrants 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 with respect thereto, that was
counted for purposes of calculating a distribution amount for which an
adjustment to the Conversion Price under this Section 12.05 was made, (1)
in the case of any such rights or warrants which shall all have been
redeemed or repurchased without exercise by any holders thereof, the
Conversion 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 or holders of Common
Stock with respect to such rights or warrants (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 which shall have expired or been terminated without
exercise by any holders thereof, the Conversion Price shall be readjusted
as if such rights and warrants had not been issued.
For purposes of this Section 12.05(d) and Sections 12.05(a) and (c),
any dividend or distribution to which this Section 12.05(d) is applicable
that also includes shares of Common Stock, or rights or warrants to
subscribe for or purchase shares of Common Stock to which Section 12.05(c)
applies (or both), 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 or rights
or warrants to which Section 12.05(c) applies (and any Conversion Price
reduction required by this Section 12.05(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 or such rights or warrants
(and any further Conversion Price reduction required by Sections 12.05(a)
and (c) with respect to such dividend or distribution shall then be made,
except that (A) the Record Date of such dividend or distribution shall be
substituted as "the Record Date fixed for the determination of stockholders
entitled to receive such dividend or other distribution", "Record Date
fixed for such determination" and "Record Date" within the meaning of
Section 12.05(a) and as "the Record 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
12.05(c) and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding
64
at the close of business on the date fixed for such determination" within
the meaning of Section 12.05(a)).
(e) If the Company shall, by dividend or otherwise, distribute (a
"Triggering Distribution") cash to all holders of its Common Stock
(excluding any cash that is distributed upon a merger or consolidation to
which Section 12.06 applies or as part of a distribution referred to in
Section 12.05(d)) 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 the record date for
such Triggering Distribution (a "Distribution Determination Date") by a
fraction (i) the numerator of which shall be equal to the Current Market
Price per share of Common Stock on such Distribution Determination Date
less the amount of such cash dividend or distribution applicable to one
share of Common Stock (determined on the basis of the number of shares of
Common Stock outstanding at the close of business on the Distribution
Determination Date) and (ii) the denominator of which shall be equal to the
Current Market Price per share of Common Stock on such Distribution
Determination Date; provided, however, that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater
than the Current Market Price of the Common Stock on the Distribution
Determination Date, in lieu of the foregoing adjustment, adequate provision
shall be made so that each holder of Convertible Subordinated Notes shall
have the right to receive upon conversion of a Convertible Subordinated
Note (or any portion thereof) the amount of cash such holder would have
received had such holder converted such Convertible Subordinated Note (or
portion thereof) immediately prior to such Distribution Determination Date.
If 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. Any
cash distribution to all holders of Common Stock as to which the Company
makes the election permitted by Section 12.05(m) and as to which the
Company has complied with the requirements of such Section shall be treated
as not having been made for all purposes of this Section 12.05(e).
(f) If a tender offer made by the Company or any of its subsidiaries
for all or any portion of the Common Stock expires and such tender offer
(as amended upon the expiration thereof) requires the payment to
stockholders (based on the acceptance (up to any maximum specified in the
terms of the tender offer) of Purchased Shares (as defined below)) of an
aggregate consideration having a fair market value (as determined in good
faith by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors) that exceeds the
Current Market Price per share of Common Stock on the trading day next
succeeding the last date (the "Expiration Date") tenders could have been
made pursuant to such tender offer (as it may be amended) (the last time at
which such tenders could have been made on the Expiration Date is
hereinafter called the "Expiration Time"), then the Conversion Price shall
be
65
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 of which the numerator shall
be the number of shares of Common Stock outstanding (including any
Purchased Shares) on the Expiration Time multiplied by the Current Market
Price of the Common Stock on the trading day next succeeding the Expiration
Time and 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 offer) of all shares validly tendered 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) to become effective immediately prior to the opening of
business on the day following the Expiration Time. If the Company is
obligated to purchase shares pursuant to any such tender offer, but the
Company is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect
if such tender offer had not been made. If the application of this Section
12.05(f) to any tender offer would result in an increase in the Conversion
Price, no adjustment shall be made for such tender offer under this Section
12.05(f).
(g) For purposes of this Section 12.05, the following terms shall have
the meaning indicated:
(1) "Closing Price" with respect to any securities on any
day means the closing price on such day or, if no such sale takes place on
such day, the average of the reported high and low prices on such day, in
each case on the Nasdaq National Market or New York Stock Exchange, as
applicable, or, if such security is not listed or admitted to trading on
such national market or exchange, on the principal national securities
exchange or quotation system on which such security is quoted or listed or
admitted to trading, or, if not quoted or listed or admitted to trading on
any national securities exchange or quotation system, the average of the
high and low prices of such security on the over-the-counter market on the
day in question as reported by the National Quotation Bureau Incorporated,
or a similar generally accepted reporting service, or, if not so available,
in such manner as furnished by any New York Stock Exchange member firm
selected from time to time by the Board of Directors for that purpose, or a
price determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors.
(2) "Current Market Price" means the average of the daily
Closing Prices per share of Common Stock for the 10 consecutive trading
66
days immediately prior to the date in question; provided, however, that (1)
if 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 Sections 12.05(a), (b), (c),
(d), (e) or (f) occurs during such 10 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, (2) if 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 12.05(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 (3) if 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 (1) or (2) 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 Sections 12.05(d) or (f), whose determination shall be
conclusive and described in a resolution of the Board of Directors) 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 12.05(f), the Current Market Price on any date shall be
deemed to be the average of the daily Closing Prices per share of Common
Stock for such day and the next two succeeding trading days; provided,
however, that if the "ex" date for any event (other than the tender offer
requiring such computation) that requires an adjustment to the Conversion
Price pursuant to Section 12.05(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, (1) when used with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the relevant
exchange or in the relevant market from which the Closing Price was
obtained without the right to receive such issuance or distribution, (2)
when used 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 (3) when used with
respect to any tender or exchange offer means the first date on which the
Common Stock trades regular way on such exchange or
67
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 12.05, such adjustments shall be made
to the Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 12.05 and to avoid unjust or
inequitable results as determined in good faith by the Board of Directors.
(3) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's length transaction.
(4) "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).
(5) "trading day" shall mean (x) if the applicable security
is listed or admitted for trading on the New York Stock Exchange or another
national securities exchange, a day on which the New York Stock Exchange or
another national securities exchange is open for business or (y) if the
applicable security is quoted on the Nasdaq National Market, a day on which
trades may be made thereon or (z) 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.
(h) The Company may make such reductions in the Conversion Price, in
addition to those required by Sections 12.05(a), (b), (c), (d), (e) and
(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.
The Company from time to time may, to the extent permitted by law,
reduce the Conversion Price by any amount for any period of at least 20
days, if the Board of Directors has made a determination that such
reduction would be in the Company's best interests, which determination
shall be conclusive and described in a resolution of the Board of
Directors. The reduction in Conversion Price shall be irrevocable during
this period. Whenever the Conversion Price is reduced pursuant to the
preceding sentence, the Company shall mail to the holders of Convertible
Subordinated Notes at his or her last address appearing on the Register of
holders maintained for that purpose a notice of the reduction at least 15
days prior to the date the reduced Conversion Price takes effect, and such
68
notice shall state the reduced Conversion Price and the period during which
it will be in effect.
(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 12.05(i) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Article XII 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) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent other
than the Trustee an Officers' Certificate setting forth the Conversion
Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the date
on which each adjustment becomes effective and shall mail such notice of
such adjustment of the Conversion Price to each holder of Convertible
Subordinated Notes at his or her last address appearing on the Register of
holders maintained for that purpose within 20 days of the effective date of
such adjustment. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.
(k) In any case in which this Section 12.05 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 issuing to
the holder of any Convertible Subordinated 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.
(l) For purposes of this Section 12.05, 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 shall not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(m) In lieu of making any adjustment to the Conversion Price pursuant
to Section 12.05(e), the Company may elect to reserve an amount of cash for
distribution to the holders of Convertible Subordinated Notes upon the
conversion
69
of the Convertible Subordinated Notes so that any such holder converting
Convertible Subordinated Notes will receive upon such conversion, in
addition to the shares of Common Stock and other items to which such holder
is entitled, the full amount of cash which such holder would have received
if such holder had, immediately prior to the Record Date for such
distribution of cash, converted its Convertible Subordinated Notes into
Common Stock, together with any interest accrued with respect to such
amount, in accordance with this Section 12.05(m). The Company may make such
election by providing an Officers' Certificate to the Trustee to such
effect on or prior to the payment date for any such distribution and
depositing with the Trustee on or prior to such date an amount of cash
equal to the aggregate amount that the holders of Convertible Subordinated
Notes would have received if such holders had, immediately prior to the
Record Date for such distribution, converted all of the Convertible
Subordinated Notes into Common Stock. Any such funds so deposited by the
Company with the Trustee shall be invested by the Trustee in U.S.
Government Obligations with a maturity not more than three (3) months from
the date of issuance. Upon conversion of Convertible Subordinated Notes by
a holder thereof, such holder shall be entitled to receive, in addition to
the Common Stock issuable upon conversion, an amount of cash equal to the
amount such holder would have received if such holder had, immediately
prior to the Record Date for such distribution, converted its Convertible
Subordinated Note into Common Stock, along with such holder's pro-rata
share of any accrued interest earned as a consequence of the investment of
such funds. Promptly after making an election pursuant to this Section
12.05(m), the Company shall give or shall cause to be given notice to all
holders of Convertible Subordinated Notes of such election, which notice
shall state the amount of cash per $1,000 principal amount of Convertible
Subordinated Notes such holders shall be entitled to receive (excluding
interest) upon conversion of the Convertible Subordinated Notes as a
consequence of the Company having made such election.
SECTION 12.06. Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur: (i) any reclassification or change of the
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination), (ii) any consolidation, merger 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 an
entirety 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, then 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 the Convertible
70
Subordinated Notes shall be convertible into the kind and amount of shares of
stock and other securities or property or assets (including cash) receivable
upon such reclassification, change, consolidation, merger, combination, sale or
conveyance by a holder of a number of shares of Common Stock issuable upon
conversion of the Convertible Subordinated Notes (assuming, for such purposes, a
sufficient number of authorized shares of Common Stock available to convert all
such Convertible Subordinated Notes) immediately prior to such reclassification,
change, consolidation, merger, combination, sale or conveyance (except that such
holder will not receive the Make Whole Premium (as defined in Section 12.12
below) if such holder does not convert its Convertible Subordinated Notes "in
connection with" the relevant Designated Event that constitutes to a Change of
Control; a conversion of the Convertible Subordinated Notes by a Holder will be
deemed for these purposes to be "in connection with" a Change of Control if the
notice of such conversion is provided in compliance with Article XII to the
Conversion Agent on or subsequent to the date 10 trading days prior to the date
announced by the Company as the anticipated Designated Event Date but before the
close of business on the Business Day immediately preceding the related
Designated Event Payment Date) assuming such holder of Common Stock did not
exercise his or her rights of election, if any, as to the kind or amount of
securities, cash or other property receivable upon such consolidation, merger,
statutory exchange, sale or conveyance (provided that, if the kind or amount of
securities, cash or other property receivable upon such consolidation, merger,
statutory exchange, sale or conveyance is not the same for each share of Common
Stock in respect of which such rights of election have not been exercised
("non-electing share"), then, for the purposes of this Section 12.06, the kind
and amount of securities, cash or other property receivable upon such
consolidation, merger, statutory 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). 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 XII. If, in the case
of any such reclassification, change, consolidation, merger, 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, consolidation, merger,
combination, sale or conveyance, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the holders of the Convertible Subordinated Notes as
the Board of Directors shall reasonably consider necessary by reason of the
foregoing.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Convertible Subordinated Notes at his
or her address appearing on the Register of holders for that purpose within 20
days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.
71
The above provisions of this Section 12.06 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 12.06 applies to any event or occurrence, Section
12.05 shall not apply.
SECTION 12.07. Taxes on Shares Issued. The issue of stock certificates on
conversions of Convertible Subordinated Notes shall be made without charge to
the converting holder for any tax in respect of the issue thereof. The Company
shall not, however, be required to pay any tax which may be payable in respect
of any transfer involved in the issue and delivery of stock in any name other
than that of the holder of any Convertible Subordinated Note converted, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the Person or Persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have established to the
reasonable satisfaction of the Company that such tax has been paid.
SECTION 12.08. Reservation of Shares; Shares to Be Fully Paid; Listing of
Common Stock. The Company shall provide, free from preemptive rights, out of its
authorized but unissued shares or shares held in treasury, sufficient shares to
provide for the conversion of the Convertible Subordinated Notes from time to
time as such Convertible Subordinated Notes are presented for conversion.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the shares of Common Stock
issuable upon conversion of the Convertible Subordinated Notes, the Company
shall take all corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue shares of such
Common Stock at such adjusted Conversion Price; provided, however, that no
shares of Common Stock shall be required to be issued at a Conversion Price less
than the par value of such Common Stock.
The Company covenants that all shares of Common Stock issued upon
conversion of Convertible Subordinated Notes will be fully paid and
non-assessable by the Company and free from all taxes, liens and charges with
respect to the issue thereof.
The Company further covenants that as long as the Common Stock is
quoted on the Nasdaq National Market, or its successor, the Company shall cause
all Common Stock issuable upon conversion of the Convertible Subordinated Notes
to be eligible for such quotation in accordance with, and at the times required
under, the requirements of such market, and if at any time the Common Stock
becomes listed on the New York Stock Exchange or any other national securities
exchange, the Company shall cause all Common Stock issuable upon conversion of
the Convertible Subordinated Notes to be so listed and kept listed.
72
SECTION 12.09. Responsibility of Trustee. The Trustee shall not at any time
be under any duty of responsibility to any holders of Convertible Subordinated
Notes to determine whether any facts exist which may require any adjustment of
the Conversion Price, or with respect to the nature or extent or calculation of
any such adjustment when made, or with respect to the method employed, or herein
or in any supplemental indenture provided to be employed, in making the same.
The Trustee shall not be accountable with respect to the validity or value (or
the kind or amount) of any shares of Common Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Convertible Subordinated Note; and the Trustee makes no representations with
respect thereto. Subject to the provisions of Section 7.01, the Trustee shall
not be responsible for any failure of the Company to issue, transfer or deliver
any shares of Common Stock or stock certificates or other securities or property
or cash upon the surrender of any Convertible Subordinated Note for the purpose
of conversion or to comply with any of the duties, responsibilities or covenants
of the Company contained in this Article XII. Without limiting the generality of
the foregoing, the Trustee shall not have any responsibility to determine the
correctness of any provisions contained in any supplemental indenture entered
into pursuant to Section 12.06 relating either to the kind or amount of shares
of stock or securities or property (including cash) receivable by holders of
Convertible Subordinated Notes upon the conversion of their Convertible
Subordinated Notes after any event referred to in such Section 12.06 or to any
adjustment to be made with respect thereto, but, subject to the provisions of
Section 7.01, may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, the Officers' Certificate
and Opinion of Counsel (which the Company shall be obligated to file with the
Trustee prior to the execution of any such supplemental indenture) with respect
thereto.
SECTION 12.10. Notice to Holders Prior to Certain Actions. If
(a) the Company declares a dividend (or any other distribution) on its
Common Stock (other than in cash out of retained earnings or other than a
dividend that results in an adjustment in the Conversion Price pursuant to
Section 12.05 as to which the Company has made an election in accordance
with Section 12.05(m)); or
(b) the Company authorizes the granting to the holders of its Common
Stock of rights or warrants to subscribe for or purchase any share of any
class of Common Stock or any other rights or warrants; or
(c) there is any reclassification of the Common Stock (other than a
subdivision or combination of outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par
value), or of any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or
of the sale or transfer of all or substantially all of the assets of the
Company; or
73
(d) there is any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then the Company shall cause to be filed with the Trustee and to be mailed to
each holder of Convertible Subordinated Notes at his or her address appearing on
the Register maintained for that purpose as promptly as possible but in any
event at least 15 days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or occur,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
SECTION 12.11. Restriction on Common Stock Issuable Upon Conversion.
(a) Shares of Common Stock to be issued upon conversion of Convertible
Subordinated Notes prior to the effectiveness of a Shelf Registration Statement
shall be physically delivered in certificated form to the holders converting
such Securities and the certificate representing such shares of Common Stock
shall bear the Restricted Common Stock Legend unless removed in accordance with
section 12.11(c).
(b) If (i) shares of Common Stock to be issued upon conversion of a
Convertible Subordinated Note prior to the effectiveness of a Shelf Registration
Statement are to be registered in a name other than that of the holder of such
Convertible Subordinated Note or (ii) shares of Common Stock represented by a
certificate bearing the Restricted Common Stock Legend are transferred
subsequently by such holder, then, unless the Shelf Registration Statement has
become effective and such shares are being transferred pursuant to the Shelf
Registration Statement, the holder must deliver to the transfer agent for the
Common Stock a certificate in substantially the form of Exhibit C as to
compliance with the restrictions on transfer applicable to such shares of Common
Stock and neither the transfer agent nor the registrar for the Common Stock
shall be required to register any transfer of such Common Stock not so
accompanied by a properly completed certificate.
(c) Except in connection with a Shelf Registration Statement, if
certificates representing shares of Common Stock are issued upon the
registration of transfer, exchange or replacement of any other certificate
representing shares of Common Stock bearing the Restricted Common Stock Legend,
or if a request is made to remove such Restricted Common Stock Legend from
certificates representing shares of Common Stock, the certificates so issued
shall bear the Restricted Common Stock Legend, or the
74
Restricted Common Stock Legend shall not be removed, as the case may be, unless
there is delivered to the Company such satisfactory evidence, which, in the case
of a transfer made pursuant to Rule 144 under the Securities Act, may include an
opinion of counsel pursuant to the laws in the State of New York, as may be
reasonably required by the Company, that neither the legend nor the restrictions
on transfer set forth therein are required to ensure that transfers thereof
comply with the provisions of Rule 144A, Rule 144 or Regulation S under the
Securities Act or that such shares of Common Stock are securities that are not
"restricted" within the meaning of Rule 144 under the Securities Act. Upon
provision to the Company of such reasonably satisfactory evidence, the Company
shall cause the transfer agent for the Common Stock to countersign and deliver
certificates representing shares of Common Stock that do not bear the legend.
SECTION 12.12. Make Whole Premium Upon a Change of Control.
If there shall have occurred a Designated Event that constitutes a
Change of Control, the Company shall pay a "Make Whole Premium" to the Holders
of the Convertible Subordinated Notes who convert their Convertible Subordinated
Notes during the period beginning 10 trading days before the anticipated
Designated Event Date and ending at the close of business on the business day
immediately preceding the Designated Event Payment Date by increasing the
Conversion Rate for such Convertible Subordinated Notes. The number of
additional shares of Common Stock per $1,000 principal amount of Convertible
Subordinated Notes constituting the Make Whole Premium shall be determined by
reference to the table below, based on the Designated Event Date and the Stock
Price on such Designated Event Date; provided that if the Stock Price or
Designated Event Date are not set forth on the table: (i) if the actual Stock
Price on the Designated Event Date is between two Stock Prices on the table or
the actual Designated Event Date is between two Designated Event Dates on the
table, the Make Whole Premium will be determined by a straight-line
interpolation between the Make Whole Premiums set forth for the two Stock Prices
and the two Designated Event Dates on the table based on a 365-day year, as
applicable, (ii) if the Stock Price on the Designated Event Date exceeds $17.28
per share, subject to adjustment as set forth herein, no Make Whole Premium will
be paid, and (iii) if the Stock Price on the Designated Event Date is less than
$5.76 per share, subject to adjustment as set forth herein, no Make Whole
Premium will be paid. If Holders of the Common Stock receive only cash in the
Designated Event, the Stock Price shall be the cash amount paid per share of the
Common Stock in connection with the Designated Event. Otherwise, the Stock Price
shall be equal to the average Closing Prices of the Common Stock for each of the
10 trading days immediately preceding, but not including, the applicable
Designated Event Date.
MAKE WHOLE PREMIUM UPON A DESIGNATED EVENT DATE (NUMBER OF ADDITIONAL
SHARES)
75
STOCK PRICES
----------------------------------------------------------------------------------------------------
EFFECTIVE DATE $5.76 $6.91 $8.06 $9.22 $10.37 $11.52 $12.67 $13.82 $14.98 $16.13 $17.28
-------------- ------- ------- ------- ------- ------ ------ ------ ------ ------ ------ ------
12/01/05 40.0641 26.7762 18.2390 12.5378 8.6034 5.8263 3.8383 2.4050 1.3747 0.6528 0.1952
12/01/06 39.1834 25.6286 17.1427 11.5743 7.7956 5.1717 3.3227 2.0101 1.0825 0.4536 0.0890
12/01/07 37.8639 24.0356 15.6240 10.2565 6.7285 4.3455 2.7128 1.5834 0.8025 0.2881 0.0243
12/01/08 35.7676 21.4579 13.0813 8.0686 4.9558 2.9740 1.6911 0.8479 0.3057 0.0247 0.0000
12/01/09 32.5264 17.0598 8.7939 4.4605 2.2112 1.0336 0.3925 0.0515 0.0000 0.0000 0.0000
12/01/10 30.0488 9.5172 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
12/01/11 31.9061 9.4916 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
12/01/12 34.8167 9.9951 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
12/01/13 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
The Stock Prices set forth in the first column of the table above will
be adjusted as of any date on which the Conversion Rate of the Securities is
adjusted. The adjusted Stock Prices will equal the Stock Prices applicable
immediately prior to such adjustment multiplied by a fraction, the numerator of
which is the Conversion Rate immediately prior to the adjustment giving rise to
the Stock Price adjustment and the denominator of which is the Conversion Rate
as so adjusted. The number of additional shares set forth in the table above
will be adjusted in the same manner as the Conversion Rate as set forth in
Section 12.05 hereof, other than as a result of an adjustment of the Conversion
Rate by adding the Make Whole Premium as described above.
For purposes of giving effect to the Make Whole Premium, the
Conversion Price of the Convertible Subordinated Notes following payment of the
Make Whole Premium shall be equal to the product of (a) the Conversion Price
immediately prior to payment of the Make Whole Premium and (b) the fraction
obtained by dividing (i) the Conversion Rate immediately prior to payment of the
Make Whole Premium by (ii) the Conversion Rate immediately after payment of the
Make Whole Premium.
Notwithstanding the foregoing paragraphs, in no event will the total
number of shares of Common Stock issuable upon conversion of a Convertible
Subordinated Note exceed 173.6111 per $1,000 principal amount of Convertible
Subordinated Notes, subject to proportional adjustment in the same manner as the
Conversion Price as set forth in clauses (a) through (d) of Section 12.05
hereof.
By delivering the amount of cash and/or the number of shares of Common
Stock issuable on conversion to the Trustee, the Company will be deemed to have
satisfied its obligation to pay the principal amount of the Convertible
Subordinated Notes so converted and its obligation to pay accrued and unpaid
interest attributable to the period from the most recent Interest Payment Date
through the date of conversion (which amount will be deemed paid in full rather
than cancelled, extinguished or forfeited).
76
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed and attested, all as of the date first above written, signifying their
agreements contained in this Indenture.
AMKOR TECHNOLOGY, INC.
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Exec. VP and CFO
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
77
EXHIBIT A
(Face of Security)
[Global Securities Legend]
[The following legend shall appear on the face of each Global
Security:
THIS CONVERTIBLE SUBORDINATED NOTE IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE
COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
CONVERTIBLE SUBORDINATED NOTE FOR ALL PURPOSES.]
[The following legend shall appear on the face of each Global Security
for which The Depository Trust Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY THE AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OR DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED
CONVERTIBLE SUBORDINATED NOTES IN DEFINITIVE REGISTERED FORM IN THE LIMITED
CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OR SUCH SUCCESSOR DEPOSITARY.]
A-1
[Affiliate Securities Legend]
IN NO EVENT MAY THIS SECURITY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED PRIOR TO NOVEMBER 18, 2006; PROVIDED, HOWEVER, THAT A HOLDER MAY
TRANSFER A SECURITY TO AN AFFILIATED ENTITY, PROVIDED THAT SUCH AFFILIATED
ENTITY AGREES TO BE BOUND BY THE TRANSFER PROVISIONS OF THE INDENTURE AND THE
INVESTOR RIGHT AGREEMENT. THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES THAT IT
WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EVIDENCED HEREBY OR THE
COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY OTHER THAN (1) TO THE
COMPANY, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, OR (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT. THIS LEGEND SHALL BE REMOVED UPON THE TRANSFER OF THIS
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY PURSUANT TO THE IMMEDIATELY PRECEDING SENTENCE. IF THE PROPOSED
TRANSFER IS PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY OR TRUSTEE 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. IN ANY CASE THE HOLDER HEREOF
WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD
TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
EXCEPT AS PERMITTED BY THE SECURITIES ACT.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT. THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES THAT IT WILL NOT PRIOR TO THE
DATE THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS SECURITY
EVIDENCED HEREBY AND THE LAST DATE ON WHICH THE COMPANY OR ANY "AFFILIATE" (AS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF
THE SECURITY (THE "RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE TRANSFER
THIS SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF
SUCH SECURITY OTHER THAN (1) TO THE COMPANY, (2)
A-2
SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION
S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (5) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT IS A QUALIFIED INSTITUTIONAL BUYER OR (2)
NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN
ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER)
REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS
SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT AS
PERMITTED BY THE SECURITIES ACT.
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No. ____ $________
CUSIP ________
AMKOR TECHNOLOGY, INC.
6 1/4% CONVERTIBLE SUBORDINATED NOTE DUE 2013
promises to pay to _____________________________ or registered assigns, the
principal sum of _______________ on December 1, 2013.
Interest Payment Dates: June 1 and December 1, commencing June 1, 2006
Regular Record Dates: May 15 and November 15
Dated:
---------------
AMKOR TECHNOLOGY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
This is one of the Convertible Subordinated Notes described in the
within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------------
Authorized Signatory
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(Back of Security)
AMKOR TECHNOLOGY, INC.
6 1/4% CONVERTIBLE SUBORDINATED NOTE DUE 2013
1. INTEREST. Amkor Technology, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Convertible
Subordinated Note at the rate per annum shown above. The Company will pay
interest semi-annually in arrears on June 1 and December 1 of each year,
beginning June 1, 2006. Interest on the Convertible Subordinated Notes will
accrue from the most recent Interest Payment Date to which interest has been
paid or, if no interest has been paid, from November 18, 2005. Interest
(including any Liquidated Damages) will be computed on the basis of a 360-day
year composed of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest (and Liquidated
Damages, if any) on the Convertible Subordinated Notes (except defaulted
interest) to the Person in whose name each Convertible Subordinated Note is
registered at the close of business on the May 15 or November 15 immediately
preceding the relevant Interest Payment Date (each a "Regular Record Date")
(other than with respect to a Convertible Subordinated Note or portion thereof
called for redemption on a Redemption Date, or repurchased in connection with a
Designated Event on a repurchase date, during the period from the close of
business on a Regular Record Date to (but excluding) the next succeeding
Interest Payment Date, in which case accrued interest (and Liquidated Damages,
if any) shall be payable (unless such Convertible Subordinated Note or portion
thereof is converted) to the holder of the Convertible Subordinated Note or
portion thereof redeemed or repurchased in accordance with the applicable
redemption or repurchase provisions of the Indenture). Holder must surrender
Convertible Subordinated Notes to a Paying Agent to collect principal payments.
The Company will pay the principal of, premium, if any, and interest (including
Liquidated Damages, if any) on the Convertible Subordinated Notes at the office
or agency of the Company maintained for such purpose, in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. Until otherwise designated by the Company, the Company's office
or agency maintained for such purpose will be the principal Corporate Trust
Office of the Trustee (as defined below). However, the Company may pay
principal, premium, if any, and interest (including Liquidated Damages, if any)
by check payable in such money, and may mail such check to the holders of the
Convertible Subordinated Notes at their respective addresses as set forth in the
Register of holders of Convertible Subordinated Notes.
3. PAYING AGENT AND REGISTRAR. U.S. Bank National Association
(together with any successor Trustee under the Indenture referred to below, the
"Trustee"), will act as Paying Agent and Registrar. The Company may change the
Paying Agent, Registrar or co-registrar without prior notice. Subject to certain
limitations in the Indenture, the Company or any of its subsidiaries may act in
any such capacity.
A-5
4. INDENTURE. The Company issued the Convertible Subordinated Notes
under an Indenture dated as of November 18, 2005 (the "Indenture") between the
Company and the Trustee. The terms of the Convertible Subordinated Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA") as in effect on the Issue Date. The Convertible Subordinated Notes are
subject to, and qualified by, all such terms, certain of which are summarized
hereon, and holders are referred to the Indenture and the TIA for a statement of
such terms. However, to the extent any provision of any Convertible Subordinated
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling. The Convertible Subordinated
Notes are unsecured general obligations of the Company limited to (except as
otherwise provided in the Indenture) up to $100,000,000 in aggregate principal
amount. Capitalized terms not defined below have the same meaning as is given to
them in the Indenture.
5. OPTIONAL REDEMPTION. On or after December 5, 2010, the Company
shall have the option to redeem the Convertible Subordinated Notes, in whole or
from time to time in part, at the following Redemption Prices (expressed as
percentages of principal amount), if redeemed during the twelve month period
beginning December 1 of each year indicated (December 5, 2010 through November
30, 2010, in the case of the first such year) plus accrued and unpaid interest
(and Liquidated Damages, if any) to, but excluding, the Redemption Date:
YEAR REDEMPTION PRICE
---- ----------------
2010... 102.344%
2011... 101.563%
2012... 100.781%
and 100% at December 1, 2013.
Notice of redemption will be mailed by first class mail at least 15
days but not more than 60 days before the Redemption Date to each holder of
Convertible Subordinated Notes to be redeemed at his or her registered address.
Convertible Subordinated Notes in denominations larger than $1,000 may be
redeemed in part but only in integral multiples of $1,000. If less than all the
Convertible Subordinated Notes are to be redeemed, the Trustee shall select the
Convertible Subordinated Notes to be redeemed by a method that complies with the
requirements of the principal national securities exchange, if any, on which the
Convertible Subordinated Notes are listed or quoted, or, if the Convertible
Subordinated Notes are not so listed, on a pro rata basis by lot or by any other
method that the Trustee considers fair and appropriate. On and after the
Redemption Date, interest (and Liquidated Damages, if any) ceases to accrue on
Convertible Subordinated Notes or portions thereof called for redemption (unless
the Company defaults in the payment of the Redemption Price). If this
Convertible Subordinated Note is redeemed on a date which is also an Interest
Payment Date, the interest payment (and Liquidated Damages, if any) due on such
Interest Payment Date
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will be paid to the Person in whose name this Convertible Subordinated Note is
registered at the close of business on such Regular Record Date.
6. DESIGNATED EVENT. Upon a Designated Event, the Company shall make a
Designated Event Offer to repurchase all outstanding Convertible Subordinated
Notes at a price equal to 100% of the aggregate principal amount of the
Convertible Subordinated Notes, plus accrued and unpaid interest (and Liquidated
Damages, if any) to, but excluding, the date of repurchase, such offer to be
made as provided in the Indenture. To accept the Designated Event Offer, the
holder hereof must comply with the terms thereof, including surrendering this
Convertible Subordinated Note, with the "Option of Holder to Elect Repurchase"
portion hereof completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent, at the address specified in the notice of the
Designated Event Offer mailed to holders as provided in the Indenture, prior to
termination of the Designated Event Offer.
If there shall occur a Designated Event that constitutes a Change of
Control, the Company shall pay a "Make Whole Premium" in certain circumstances
as described in the Indenture.
7. SUBORDINATION. The Company's payment of the principal of, premium,
if any, and interest (including Liquidated Damages, if any) on the Convertible
Subordinated Notes is subordinated to the prior payment in full of the Company's
Senior Debt as set forth in the Indenture. Each holder of Convertible
Subordinated Notes by his or her acceptance hereof covenants and agrees that all
payments of the principal of, premium, if any, and interest (including
Liquidated Damages, if any) on the Convertible Subordinated Notes by the Company
shall be subordinated in accordance with the provisions of Article XI of the
Indenture, and each holder of Convertible Subordinated Notes accepts and agrees
to be bound by such provisions. The Company agrees, and each holder of
Convertible Subordinated Notes by accepting a Convertible Subordinated Note
agrees, that the indebtedness evidenced by the Convertible Subordinated Note is
pari passu in right of payment to the Existing Convertible Subordinated Notes.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Convertible Subordinated
Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Convertible Subordinated Notes may
be registered and Convertible Subordinated Notes may be exchanged as provided in
the Indenture. As a condition of transfer, the Registrar and the Trustee may
require a holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company or the Registrar
need not exchange or register the transfer of any Convertible Subordinated Note
or portion of a Convertible Subordinated Note selected for redemption or
submitted for repurchase. Also, the Company or the Registrar need not exchange
or register the transfer of any Convertible Subordinated Note for a period of 15
days before a selection of Convertible Subordinated Notes to be redeemed.
A-7
9. PERSONS DEEMED OWNERS. The registered holder of a Convertible
Subordinated Note may be treated as its owner for all purposes.
10. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Company
and the Trustee may amend the Indenture or the Convertible Subordinated Notes
with the written consent of the holders of at least a majority in principal
amount of the then outstanding Convertible Subordinated Notes (including
consents obtained in connection with tender offer or exchange offer for
Convertible Subordinated Notes) and any existing default may be waived with the
consent of the holders of a majority in principal amount of the then outstanding
Convertible Subordinated Notes.
Without the consent of any holder of a Convertible Subordinated Note,
the Indenture or the Convertible Subordinated Notes may be amended by the
Company and the Trustee to: (a) cure any ambiguity or correct or supplement any
defective or inconsistent provision contained in the Indenture, or make any
other changes in the provisions of the Indenture which the Company and the
Trustee may deem necessary or desirable provided such amendment does not
materially and adversely affect the legal rights under the Indenture of the
holders of Convertible Subordinated Notes; (b) provide for uncertificated
Convertible Subordinated Notes in addition to or in place of certificated
Convertible Subordinated Notes; (c) evidence the succession of another Person to
the Company and providing for the assumption by such successor of the covenants
and obligations of the Company thereunder and in the Convertible Subordinated
Notes as permitted by Section 5.01 of the Indenture; (d) provide for conversion
rights and/or repurchase rights of holders of Convertible Subordinated Notes in
the event of consolidation, merger or sale of all or substantially all of the
assets of the Company as required to comply with Sections 5.01 and/or 12.06 of
the Indenture; (e) reduce the Conversion Price; (f) make any change that would
provide any additional rights or benefits to the holders of Convertible
Subordinated Notes or that does not adversely affect the legal rights under the
Indenture of any such holder; or (g) comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the TIA.
Without the consent of each holder affected, an amendment or waiver
may not (with respect to any Convertible Subordinated Notes held by a
non-consenting holder): (a) reduce the principal amount of Convertible
Subordinated Notes whose holders must consent to an amendment, supplement or
waiver; (b) reduce the principal of, or premium on, or change the fixed maturity
of any Convertible Subordinated Note or, except as permitted pursuant to clause
(a) of the immediately preceding paragraph, alter the provisions with respect to
the redemption of the Convertible Subordinated Notes; (c) reduce the rate of or
change the time for payment of interest, including defaulted interest or
Liquidated Damages on any Convertible Subordinated Notes; (d) waive a Default or
Event of Default in the payment of principal of or premium, if any, or interest
or Liquidated Damages on the Convertible Subordinated Notes (except a rescission
of acceleration of the Convertible Subordinated Notes by the holders of at least
a majority in aggregate principal amount of the Convertible Subordinated Notes
and a waiver of the payment default that resulted from such acceleration); (e)
make the principal of, or
A-8
premium, if any, or interest or Liquidated Damages on, any Convertible
Subordinated Note payable in money other than as provided for in the Indenture
and in the Convertible Subordinated Notes; (f) make any change in the provisions
of the Indenture relating to waivers of past Defaults or the rights of holders
of Convertible Subordinated Notes to receive payments of principal of, premium,
if any, or interest or Liquidated Damages on the Convertible Subordinated Notes;
(g) waive a redemption payment with respect to any Convertible Subordinated
Note; (h) make any change in the foregoing amendment and waiver provisions, or
(i) except as permitted by the Indenture (including Section 9.01(a)), increase
the Conversion Price or modify the provisions of the Indenture relating to
conversion of the Convertible Subordinated Notes in a manner adverse to the
holders thereof. In addition, any amendment to the provisions of Article XI of
the Indenture (which relate to subordination) will require the consent of the
holders of at least 75% in aggregate principal amount of the Convertible
Subordinated Notes then outstanding if such amendment would adversely affect the
rights of holders of Convertible Subordinated Notes.
11. DEFAULTS AND REMEDIES. An Event of Default is: (a) default in
payment of the principal of, or premium, if any, on the Convertible Subordinated
Notes, when due at maturity, upon repurchase, upon acceleration or otherwise,
whether or not such payment is prohibited by the subordination provisions of the
Indenture; (b) default for 30 days or more in payment of any installment of
interest or Liquidated Damages on the Convertible Subordinated Notes, whether or
not such payment is prohibited by the subordination provisions of the Indenture;
(c) default by the Company for 60 days or more after notice in the observance or
performance of any other covenants in the Indenture; (d) default in the payment
of the Designated Event Payment in respect of the Convertible Subordinated Notes
on the date therefore, whether or not such payment is prohibited by the
subordination provisions of the Indenture; (e) failure to provide timely notice
of a Designated Event; (f) failure of the Company or any Material Subsidiary to
make any payment at maturity, including any applicable grace period, in respect
of indebtedness for borrowed money of, or guaranteed or assumed by, the Company
or any Material Subsidiary which payment is in an amount in excess of
$20,000,000 and continuance of such failure for 30 days after notice; (g)
default by the Company or any Material Subsidiary with respect to any such
indebtedness, which default results in the acceleration of such indebtedness of
an amount in excess of $20,000,000 without such indebtedness having been paid or
discharged or such acceleration having been cured, waived, rescinded, or
annulled for 30 days after notice; or (h) certain events involving bankruptcy,
insolvency or reorganization of the Company or any Material Subsidiary. If an
Event of Default occurs and is continuing, the Trustee or the holders of at
least 25% in principal amount of the then outstanding Convertible Subordinated
Notes may declare the unpaid principal of, premium, if any, and accrued and
unpaid interest and Liquidated Damages, if any, on all Convertible Subordinated
Notes then outstanding to be due and payable immediately, except that in the
case of an Event of Default arising from certain events of bankruptcy,
insolvency, or reorganization with respect to the Company all outstanding
Convertible Subordinated Notes become due and payable without further action or
notice. Holders of Convertible Subordinated Notes may not enforce the
A-9
Indenture or the Convertible Subordinated Notes except as provided in the
Indenture. The Trustee may require an indemnity satisfactory to it before it
enforces the Indenture or the Convertible Subordinated Notes. Subject to certain
limitations, holders of a majority in principal amount of the then outstanding
Convertible Subordinated Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from holders notice of any continuing
default (except a default in payment of principal, premium, if any, or interest
or Liquidated Damages, if applicable) if it determines that withholding notice
is in their interests. The Company must furnish annual compliance certificates
to the Trustee.
12. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee or any of its
Affiliates, in their individual or any other capacities, may make or continue
loans to or guaranteed by, accept deposits from and perform services for the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates as if it were not Trustee.
13. NO RECOURSE AGAINST OTHERS. No director, officer, employee or
stockholder, as such, of the Company shall have any liability for any
obligations of the Company under the Convertible Subordinated Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each holder by accepting a Convertible
Subordinated Note waives and releases all such liability. The waiver and release
are part of the consideration for the Convertible Subordinated Notes.
14. AUTHENTICATION. This Convertible Subordinated Note shall not be
valid until authenticated by the manual signature of the Trustee or an
authenticating agent.
15. ABBREVIATIONS. Customary abbreviations may be used in the name of
a holder or an assignee, such as: TEN CO = tenants in common, TEN ENT = tenants
by the entireties, JT TEN = joint tenants with right of survivorship and not as
tenants in common, CUST = Custodian and U/G/M/A = Uniform Gifts to Minors Act.
16. CONVERSION. Subject to and upon compliance with the provisions of
the Indenture, the registered holder of this Convertible Subordinated Note has
the right at any time on or before the close of business on the last trading day
prior to the Maturity Date (or in case this Convertible Subordinated Note or any
portion hereof is (a) called for redemption prior to such date, before the close
of business on the last trading day preceding the Redemption Date (unless the
Company defaults in payment of the Redemption Price in which case the conversion
right will terminate at the close of business on the trading day preceding the
date such default is cured) or (b) subject to a duly completed election for
repurchase, on or before the close of business on the Designated Event Offer
Termination Date (unless the Company defaults in payment due upon repurchase or
such holder elects to withdraw the submission of such election to repurchase))
to convert the principal amount hereof, or any portion of such principal amount
which is $1,000 or an integral multiple thereof, into that number of fully paid
and
A-10
non-assessable shares of common stock of the Company ("Common Stock") obtained
by dividing the principal amount of the Convertible Subordinated Note or portion
thereof to be converted by the conversion price of $7.49 per share, as adjusted
from time to time as provided in the Indenture, including with respect to the
Make Whole Premium (the "Conversion Price"), upon surrender of this Convertible
Subordinated Note to the Company at the office or agency maintained for such
purpose (and at such other offices or agencies designated for such purpose by
the Company), accompanied by written notice of conversion duly executed (and if
the shares of Common Stock to be issued on conversion are to be issued in any
name other than that of the registered holder of this Convertible Subordinated
Note by instruments of transfer, in form satisfactory to the Company, duly
executed by the registered holder or its duly authorized attorney) and, in case
such surrender shall be made during the period from the close of business on the
Regular Record Date immediately preceding any Interest Payment Date through the
close of business on the last trading day immediately preceding such Interest
Payment Date (unless this Convertible Subordinated Note or the portion thereof
being converted has been called for redemption on a date in such period), also
accompanied by payment, in funds acceptable to the Company, of an amount equal
to the interest and Liquidated Damages, if any, otherwise payable on such
Interest Payment Date on the principal amount of this Convertible Subordinated
Note then being converted. Subject to the aforesaid requirement for a payment in
the event of conversion after the close of business on a Regular Record Date
immediately preceding an Interest Payment Date, no adjustment shall be made on
conversion for interest or Liquidated Damages accrued hereon or for dividends on
Common Stock delivered on conversion. The right to convert this Convertible
Subordinated Note is subject to the provisions of the Indenture relating to
conversion rights in the case of certain consolidations, mergers, or sales or
transfers of substantially all the Company's assets.
The Company shall not issue fractional shares or scrip representing
fractions of shares of Common Stock upon any such conversion, but shall make an
adjustment therefore in cash based upon the current market price of the Common
Stock on the last trading day prior to the date of conversion.
17. INVESTORS RIGHTS AGREEMENT. The holder of this Convertible
Subordinated Note is entitled to the benefits of a Investors Rights Agreement,
dated November 18, 2005, between the Company and the investors named therein
(the "Investors Rights Agreement").
The Company will furnish to any holder upon written request and
without charge a copy of the Indenture and the Investors Rights Agreement.
Requests may be made to: Corporate Secretary, Amkor Technology, Inc., 0000 Xxxxx
Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000.
A-11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been made:
Signature of
Amount of Increase Principal Amount of Authorized
Amount of Decrease in Principal this Global Note Signatory of
in Principal Amount Amount of this following such Trustee or
Date of Transfer of this Global Note Global Note increase or decrease Registrar
---------------- ------------------- ------------------ -------------------- ------------
A-12
FORM OF CONVERSION NOTICE
To: AMKOR TECHNOLOGY, INC.
The undersigned registered owner of the Convertible Subordinated Note
hereby irrevocably exercises the option to convert this Convertible Subordinated
Note, or portion hereof (which is $1,000 or an integral multiple thereof) below
designated, into shares of Common Stock of Amkor Technology, Inc. in accordance
with the terms of the Indenture referred to in this Convertible Subordinated
Note, and directs that the shares issuable and deliverable upon the conversion,
together with any check in payment for fractional shares and Convertible
Subordinated Notes representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a different name has
been indicated below. If shares or any portion of this Convertible Subordinated
Note not converted are to be issued in the name of a Person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid by the undersigned on account of
interest, Liquidated Damages and taxes accompanies this Convertible Subordinated
Note.
Dated:
---------------
Fill in for registration of shares if to be delivered, and
Convertible Subordinated Notes if to be issued, other than
to and in the name of the registered holder
(Please Print):
--------------------------------------------------------
(Name)
--------------------------------------------------------
(Street Address)
--------------------------------------------------------
(City, State and Zip Code)
Signature Guarantee:
-----------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
Signature(s)
Principal amount to be converted (if less than all):
$___,000
A-13
-------------------------------------------------------
Social Security or other Taxpayer Identification Number
[Signatures must be guaranteed by an eligible Guarantor Institution (banks,
brokers, dealers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15 if shares are to be issued, or
Convertible Subordinated Notes are to be delivered, other than to and in the
name of the registered holder(s).]
A-14
ASSIGNMENT FORM
To assign this Convertible Subordinated Note, fill in the form below:
(I) or (we) assign and transfer this Convertible Subordinated Note to
-----------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________ agent to transfer
this Convertible Subordinated Note on the books of the Company. The agent may
substitute another to act for him.
Your Signature:
------------------------------------------------
(Sign exactly as your name appears on the
other side of this Convertible Subordinated Note)
Date:
--------------
Medallion Signature Guarantee:
---------------------------------
[FOR INCLUSION ONLY IF THIS CONVERTIBLE SUBORDINATED NOTE BEARS AN AFFILIATE
SECURITIES LEGEND --] Other than pursuant to the sale or transfer of the
Security under an effective Shelf Registration Statement filed in connection
with the Investors Rights Agreement, dated as of November 18, 2005, between the
Company and the investors named therin, in connection with any transfer of any
of the Convertible Subordinated Notes evidenced by this certificate which are
"restricted securities" (as defined in Rule 144 (or any successor thereto) under
the Securities Act), the undersigned confirms that the Convertible Subordinated
Notes are being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
Unless one of the boxes is checked, the Registrar will refuse to
register any of the Convertible Subordinated Notes evidenced by this
certificate in the name of any Person other than the registered holder
thereof; provided, however, that if box (2) is checked, the Trustee
may require, prior to registering any such transfer of the Convertible
Subordinated Notes, such certifications and other information,
including legal opinions, as the Company has reasonably requested in
writing, by delivery to the Trustee
A-15
of a standing letter of instruction, to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of
1933.
Your Signature:
------------------------------------------------
(Sign exactly as your name appears on the
other side of this Convertible Subordinated Note)
Date:
--------------
Medallion Signature Guarantee:
---------------------------------
[FOR INCLUSION ONLY IF THIS CONVERTIBLE SUBORDINATED NOTE BEARS A
RESTRICTED SECURITIES LEGEND --] Other than pursuant to the sale or transfer of
the Security under an effective Shelf Registration Statement filed in connection
with the Investors Rights Agreement, dated as of November 18, 2005, between the
Company and the investors named therein, in connection with any transfer of any
of the Convertible Subordinated Notes evidenced by this certificate which are
"restricted securities" (as defined in Rule 144 (or any successor thereto) under
the Securities Act), the undersigned confirms that the Convertible Subordinated
Notes are being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) [ ] pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(4) [ ] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
Unless one of the boxes is checked, the Registrar will refuse to
register any of the Convertible Subordinated Notes evidenced by this
certificate in the name of any Person other than the registered holder
thereof; provided, however, that if box (3) or (4) is checked, the
Trustee may require, prior to registering any such transfer of the
Convertible Subordinated Notes, such certifications and other
information, and if box (4) is checked such legal opinions, as the
Company has reasonably requested in writing, by delivery to the
Trustee of a standing letter of instruction, to confirm that such
transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act of 1933;
A-16
provided that this paragraph shall not be applicable to any
Convertible Subordinated Notes which are not "restricted securities"
(as defined in Rule 144 (or any successor thereto) under the
Securities Act).
Your Signature:
------------------------------------------------
(Sign exactly as your name appears on the
other side of this Convertible Subordinated Note)
Date:
--------------
Medallion Signature Guarantee:
---------------------------------
A-17
OPTION OF HOLDER TO ELECT REPURCHASE
If you wish to have this Convertible Subordinated Note repurchased by
the Company pursuant to Section 4.06 of the Indenture, as the case may be, check
the Box:
If you wish to have a portion of this Convertible Subordinated Note
purchased by the Company pursuant to Section 4.06 of the Indenture, state the
amount (in multiples of $1,000): $_____.
Date: Your Signature:
-------------- ------------------------------------
(Sign exactly as your name appears on the other side
of this Convertible Subordinated Note)
Medallion Signature Guarantee:
--------------------------------------
A-18
EXHIBIT B
FORM OF RESTRICTED COMMON STOCK LEGEND
[Affiliate Securities Legend]
IN NO EVENT MAY THIS SECURITY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED PRIOR TO NOVEMBER 18, 2006. THIS SECURITY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EVIDENCED HEREBY OR
THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY OTHER THAN (1) TO THE
COMPANY, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, OR (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT. THIS LEGEND SHALL BE REMOVED UPON THE TRANSFER OF THIS
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY PURSUANT TO THE IMMEDIATELY PRECEDING SENTENCE. IF THE PROPOSED
TRANSFER IS PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY OR TRUSTEE 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. IN ANY CASE THE HOLDER HEREOF
WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD
TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
EXCEPT AS PERMITTED BY THE SECURITIES ACT.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT. THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, AGREES THAT IT WILL NOT PRIOR TO THE DATE
THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS SECURITY
EVIDENCED HEREBY AND THE LAST DATE ON WHICH THE COMPANY OR ANY "AFFILIATE" (AS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF
THE SECURITY (THE "RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE TRANSFER
THIS SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF
SUCH SECURITY OTHER THAN (1) TO THE COMPANY, (2)
B-1
IN AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT)
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
APPLICABLE) UNDER THE SECURITIES ACT OR (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF
THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF
RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER
HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH
REGARD TO THIS SECURITY EXCEPT AS PERMITTED BY THE SECURITIES ACT.
B-2
EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
OF RESTRICTED COMMON STOCK
(Transfers pursuant to ss. 12.11(c) of the Indenture)
[NAME AND ADDRESS OF COMMON STOCK TRANSFER AGENT]
Re: Amkor Technology, Inc. 6 1/4% Convertible Subordinated Notes
due 2013 (the "Convertible Subordinated Notes")
Reference is hereby made to the Indenture dated as of November 18,
2005 (the "Indenture") between Amkor Technology, Inc. and U.S. Bank National
Association, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given them in the Indenture.
This letter relates to _________ shares of Common Stock represented by
the accompanying certificate(s) that were issued upon conversion of Convertible
Subordinated Notes and which are held in the name of [name of transferor] (the
"Transferor") to effect the transfer of such Common Stock.
[FOR TRANSFERS BEARING THE AFFILIATE SECURITIES LEGEND --] Other than
pursuant to a Shelf Registration Statement filed in connection with the
Investors Rights Agreement, dated as of November 18, 2005, between the Company
and the investors named therein that has been declared effective under the
Securities Act of 1933, in connection with the transfer of such shares of Common
Stock, such shares of Common Stock are only being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
Unless one of the boxes is checked, the transfer agent will refuse to
register any of the Common Stock evidenced by this certificate in the name of
any Person other than the registered holder thereof; provided, however, that if
box (2) is checked, the transfer agent may require, prior to registering any
such transfer of the Common Stock such certifications and other information, and
including such legal opinions, as the Company has reasonably requested in
writing, by delivery to the transfer agent of a standing letter of instruction,
to confirm that such transfer is being made pursuant to an exemption from, or in
a transaction not subject to, the registration requirements of the Securities
Act of 1933.
C-1
[FOR TRANSFERS BEARING THE RESTRICTED SECURITIES LEGEND --] Other than
pursuant to a Shelf Registration Statement filed in connection with the
Investors Rights Agreement, dated as of November 18, 2005, between the Company
and the investors named therein that has been declared effective under the
Securities Act of 1933, in connection with the transfer of such shares of Common
Stock, such shares of Common Stock are only being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) [ ] pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(4) [ ] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
Unless one of the boxes is checked, the transfer agent will refuse to
register any of the Common Stock evidenced by this certificate in the name of
any Person other than the registered holder thereof; provided, however, that if
box (2), (3) or (4) is checked, the transfer agent may require, prior to
registering any such transfer of the Common Stock such certifications and other
information, and if box (4) is checked such legal opinions, as the Company has
reasonably requested in writing, by delivery to the transfer agent of a standing
letter of instruction, to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.]
[Name of Transferor],
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
---------------
C-2
EXHIBIT C
FORM OF INVESTORS RIGHTS AGREEMENT
