Exhibit 4.1
EXECUTION COPY
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ADVANCED MEDICAL OPTICS, INC.,
To
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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INDENTURE
Dated as of
June 22, 2004
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2.50% Convertible Senior Subordinated Notes Due 2024
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01 . Definitions.......................................................................................1
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01 . Designation Amount and Issue of Notes............................................................11
Section 2.02 . Form of Notes....................................................................................11
Section 2.03 . Date and Denomination of Notes; Payments of Interest.............................................12
Section 2.04 . Execution of Notes...............................................................................14
Section 2.05 . Exchange and Registration of Transfer of Notes; Restrictions on Transfer.........................14
Section 2.06 . Mutilated, Destroyed, Lost or Stolen Notes.......................................................19
Section 2.07 . Temporary Notes..................................................................................19
Section 2.08 . Cancellation of Notes............................................................................20
Section 2.09 . CUSIP Numbers....................................................................................20
ARTICLE 3
REDEMPTION AND REPURCHASE OF NOTES
Section 3.01 . Optional Redemption of Notes.....................................................................20
Section 3.02 . Notice of Optional Redemption; Selection of Notes................................................21
Section 3.03 . Payment of Notes Called for Redemption by the Company............................................22
Section 3.04 . Conversion Arrangement on Call for Redemption....................................................23
Section 3.05 . Repurchase at Option of Holders Upon a Fundamental Change........................................24
Section 3.06 . Repurchase of Notes by the Company at Option of the Holder.......................................26
Section 3.07 . Company's Right to Elect Manner of Payment of Repurchase Price for Payment.......................27
Section 3.08 . Effect of Repurchase Notice; Withdrawal..........................................................31
Section 3.09 . Deposit of Repurchase Price......................................................................32
Section 3.10 . Notes Repurchased in Part........................................................................33
Section 3.11 . Repayment to the Company.........................................................................33
ARTICLE 4
SUBORDINATION OF NOTES
Section 4.01 . Notes Subordinated To Senior Indebtedness........................................................33
Section 4.02 . No Payment On Notes In Certain Circumstances.....................................................34
Section 4.03 . Payment Over Of Proceeds Upon Dissolution, Etc...................................................35
Section 4.04 . Subrogation......................................................................................36
Section 4.05 . Obligations Of Company Unconditional.............................................................36
Section 4.06 . Notice To Trustee................................................................................37
Section 4.07 . Trustee's Relation To Senior Indebtedness........................................................38
Section 4.08 . Subordination Rights Not Impaired By Acts Or Omissions Of The Company
Or Holders Of Senior Indebtedness............................................................38
Section 4.09 . Holders Authorize Trustee To Effectuate Subordination Of Notes...................................38
Section 4.10 . This Article Not To Prevent Events Of Default....................................................38
Section 4.11 . Trustee's Compensation And Rights To Indemnification Not Prejudiced..............................39
Section 4.12 . No Waiver Of Subordination Provisions............................................................39
Section 4.13 . Subordination Provisions Not Applicable To Money Held In Trust For Holders;
Payments May Be Paid Prior To Dissolution....................................................39
Section 4.14 . Acceleration Of Notes............................................................................39
Section 4.15 . Certain Conversions and Repurchases Not Deemed Payment...........................................39
ARTICLE 5
CONTINGENT INTEREST
Section 5.01 . Contingent Interest..............................................................................40
Section 5.02 . Payment of Contingent Interest...................................................................40
Section 5.03 . Contingent Interest Notification.................................................................40
ARTICLE 6
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01 . Payment of Principal, Premium and Interest.......................................................41
Section 6.02 . Maintenance of Office or Agency..................................................................41
Section 6.03 . Appointments to Fill Vacancies in Trustee's Office...............................................41
Section 6.04 . Provisions as to Paying Agent....................................................................41
Section 6.05 . Existence........................................................................................42
Section 6.06 . Payment of Taxes and Other Claims................................................................43
Section 6.07 . Rule 144A Information Requirement................................................................43
Section 6.08 . Stay, Extension and Usury Laws...................................................................43
Section 6.09 . Compliance Certificate...........................................................................43
Section 6.10 . Additional Interest Notice.......................................................................44
Section 6.11 . Tax Treatment....................................................................................44
Section 6.12 . Limitation on Layering...........................................................................45
ARTICLE 7
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 7.01 . Noteholders' Lists...............................................................................45
Section 7.02 . Preservation and Disclosure of Lists.............................................................45
Section 7.03 . Reports by Trustee...............................................................................46
Section 7.04 . Reports by Company...............................................................................46
ARTICLE 8
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
Section 8.01 . Events of Default................................................................................46
Section 8.02 . Payments of Notes on Default; Suit Therefor......................................................48
Section 8.03 . Application of Monies Collected by Trustee.......................................................50
Section 8.04 . Proceedings by Noteholder........................................................................50
Section 8.05 . Proceedings by Trustee...........................................................................51
Section 8.06 . Remedies Cumulative and Continuing...............................................................51
Section 8.07 . Direction of Proceedings and Waiver of Defaults by Majority of Noteholders.......................52
Section 8.08 . Notice of Defaults...............................................................................52
Section 8.09 . Undertaking to Pay Costs.........................................................................52
ARTICLE 9
THE TRUSTEE
Section 9.01 . Duties and Responsibilities of Trustee...........................................................53
Section 9.02 . Reliance on Documents, Opinions, etc.............................................................54
Section 9.03 . No Responsibility for Recitals, etc..............................................................55
Section 9.04 . Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes.............................56
Section 9.05 . Monies to be Held in Trust.......................................................................56
Section 9.06 . Compensation and Expenses of Trustee.............................................................56
Section 9.07 . Officers' Certificate as Evidence................................................................57
Section 9.08 . Conflicting Interests of Trustee.................................................................57
Section 9.09 . Eligibility of Trustee...........................................................................57
Section 9.10 . Resignation or Removal of Trustee................................................................57
Section 9.11 . Acceptance by Successor Trustee..................................................................58
Section 9.12 . Succession by Merger.............................................................................59
Section 9.13 . Preferential Collection of Claims................................................................59
ARTICLE 10
THE NOTEHOLDERS
Section 10.01 . Action by Noteholders...........................................................................60
Section 10.02 . Proof of Execution by Noteholders...............................................................60
Section 10.03 . Absolute Owners.................................................................................60
Section 10.04 . Company-Owned Notes Disregarded.................................................................60
Section 10.05 . Revocation of Consents; Future Holders Bound....................................................61
ARTICLE 11
SUPPLEMENTAL INDENTURES
Section 11.01 . Supplemental Indentures Without Consent of Noteholders..........................................61
Section 11.02 . Supplemental Indenture With Consent of Noteholders..............................................62
Section 11.03 . Effect of Supplemental Indenture................................................................64
Section 11.04 . Notation on Notes..............................................................................64
Section 11.05 . Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee.....................64
ARTICLE 12
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.01 . Company May Consolidate on Certain Terms........................................................65
Section 12.02 . Successor to be Substituted.....................................................................65
Section 12.03 . Opinion of Counsel to be Given Trustee..........................................................66
ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01 . Discharge of Indenture..........................................................................66
Section 13.02 . Deposited Monies to be Held in Trust by Trustee.................................................67
Section 13.03 . Paying Agent to Repay Monies Held...............................................................67
Section 13.04 . Return of Unclaimed Monies......................................................................67
Section 13.05 . Reinstatement...................................................................................67
ARTICLE 14
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 . Indenture and Notes Solely Corporate Obligations................................................68
ARTICLE 15
CONVERSION OF NOTES
Section 15.01 . Right to Convert................................................................................68
Section 15.02 . Exercise of Conversion Right; Issuance of Common Stock on Conversion;
No Adjustment for Interest or Dividends......................................................71
Section 15.03 . Cash Payments in Lieu of Fractional Shares......................................................73
Section 15.04 . Conversion Rate.................................................................................73
Section 15.05 . Adjustment of Conversion Rate...................................................................73
Section 15.06 . Effect of Reclassification, Consolidation, Merger or Sale.......................................81
Section 15.07 . Taxes on Shares Issued..........................................................................82
Section 15.08 . Reservation of Shares, Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock........................................................83
Section 15.09 . Responsibility of Trustee.......................................................................83
Section 15.10 . Notice to Holders Prior to Certain Actions......................................................84
Section 15.11 . Stockholder Rights Plans........................................................................85
Section 15.12 . Option to Satisfy Conversion Obligation with Cash, Common Stock or Combination Thereof..........85
ARTICLE 16
MAKE WHOLE PREMIUM
Section 16.01 . Make Whole Premium..............................................................................87
Section 16.02 . Adjustments Relating To Make Whole Premium......................................................89
ARTICLE 17
MISCELLANEOUS PROVISIONS
Section 17.01 . Provisions Binding on Company's Successors......................................................89
Section 17.02 . Official Acts by Successor Corporation..........................................................89
Section 17.03 . Addresses for Notices, etc......................................................................90
Section 17.04 . Governing Law...................................................................................90
Section 17.05 . Evidence of Compliance with Conditions Precedent, Certificates to Trustee.......................90
Section 17.06 . Legal Holidays..................................................................................91
Section 17.07 . Trust Indenture Act.............................................................................91
Section 17.08 . No Security Interest Created....................................................................91
Section 17.09 . Benefits of Indenture...........................................................................91
Section 17.10 . Table of Contents, Headings, etc................................................................91
Section 17.11 . Authenticating Agent............................................................................91
Section 17.12 . Execution in Counterparts.......................................................................92
Section 17.13 . Severability....................................................................................92
Exhibit A Form of Note A-1
Exhibit B Form of Restrictive Legend for Common Stock Issued Upon Conversion B-1
INDENTURE
INDENTURE dated as of June 22, 2004 between Advanced Medical Optics,
Inc., a Delaware corporation (hereinafter called the "Company"), having its
principal office at ▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
U.S. Bank National Association, a national banking association duly organized
and existing under the laws of the United States, as trustee hereunder
(hereinafter called the "Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its 2.50% Convertible Senior Subordinated Notes Due 2024
(hereinafter called the "Notes"), in an aggregate principal amount not to exceed
$350,000,000 and, to provide the terms and conditions upon which the Notes are
to be authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, the Notes, the certificate of authentication to be borne by
the Notes, a form of assignment, a form of option to elect repurchase upon a
Fundamental Change (as defined below), a form of repurchase notice and a form of
conversion notice to be borne by the Notes are to be substantially in the forms
hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes, when executed
by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute this Indenture a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized,
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises and of the purchase and acceptance of the Notes by the holders
thereof, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section 1.01 (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture that are defined in the Trust Indenture Act or
which are by reference therein defined in the Securities Act (except as herein
otherwise expressly provided or unless the context otherwise requires) shall
have the respective meanings assigned to such terms in the Trust Indenture Act
and in the Securities Act as in force at the date of the execution of this
Indenture. The words "herein", "hereof", "hereunder" and words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other Subdivision. The terms defined in this Article include the plural as well
as the singular.
"Additional Interest" has the meaning specified for Additional Interest
Amount in Section 2(e) of the Registration Rights Agreement.
"Additional Interest Notice" has the meaning specified in Section 6.10.
"Adjustment Event" has the meaning specified in Section 15.05(k).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent Members" has the meaning specified in Section 2.05(b).
"Applicable Stock" means in the event of a Fundamental Change, the
common stock, ordinary shares or American Depositary Shares of such surviving
corporation or its direct or indirect, as applicable, parent corporation.
"Applicable Stock Price" means, in respect of a Conversion Date, the
average of the Closing Sale Price of a share of Common Stock over the Cash
Settlement Averaging Period.
"Board of Directors" means the Board of Directors of the Company or a
committee of such Board duly authorized to act for it hereunder.
"Business Day" means any day except a Saturday, Sunday or legal holiday
on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to close.
"Calculation Agent" has the meaning specified in Section 16.01(e).
"Cash Amount" has the meaning specified in Section 15.12(a)(iii).
"Cash Settlement Averaging Period" means the twenty Trading-Day period
(a) ending on the second Trading Day immediately preceding the redemption date,
if the Company has called the Notes for redemption pursuant to Section 3.02, (b)
ending on the second Trading Day immediately preceding the Maturity Date, with
respect to a Conversion Notice received during the period beginning twenty-five
Trading Days immediately preceding the Maturity Date and ending one Trading Day
immediately preceding the Maturity Date (regardless of whether the Company has
irrevocably elected to make a cash payment of principal upon conversion pursuant
to Section 15.12(b)), (c) beginning on the Trading Day immediately following the
Company's receipt of a holder's Conversion Notice, if the Company has
irrevocably elected to make a cash payment of principal upon conversion pursuant
to Section 15.12(b); provided, however, that if the Company has irrevocably
elected to make a cash payment of principal upon conversion and the holder
submits a Conversion Notice during the period beginning twenty-five Trading Days
immediately preceding the Maturity Date and ending one Trading Day immediately
preceding the Maturity Date, the Cash Settlement Averaging Period shall end on
the second Trading Day immediately preceding the Maturity Date and (d) beginning
on the Trading Day immediately following the final Trading Day of the Conversion
Retraction Period, in all other cases.
"Closing Sale Price" of any share of Common Stock or Applicable Stock
or any other security on any Trading Date means the closing sale price of such
security (or, if no closing sale price is reported, the average of the closing
bid and ask prices or, if more than one in either case, the average of the
average closing bid and the average closing ask prices) on such date as reported
in composite transactions for the principal United States securities exchange on
which the shares of Common Stock are traded or, if the shares of Common Stock
are not listed on a United States national or regional securities exchange, as
reported by the Nasdaq System or by the National Quotation Bureau Incorporated.
In the absence of such a quotation, the Company shall be entitled to determine
the Closing Sale Price on the basis it considers appropriate. The Closing Sale
Price shall be determined without reference to extended or after hours trading.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"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 15.06, however, shares issuable on conversion of Notes shall include
only shares of the class designated as common stock of the Company at the date
of this Indenture (namely, the Common Stock, par value $.01) 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 on conversion
shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
"Company" means the corporation named as the "Company" in the first
paragraph of this Indenture, and, subject to the provisions of Article 12 and
Section 15.06, shall include its successors and assigns.
"Company Repurchase Notice" has the meaning specified in Section
3.07(d).
"Company Repurchase Notice Date" has the meaning specified in Section
3.07(b).
"contingent interest" means interest that accrues and is payable as
provided in Article 5.
"Conversion Date" has the meaning specified in Section 15.02.
"Conversion Notice" has the meaning specified in Section 15.02.
"Conversion Obligation" has the meaning specified in Section 15.12(a).
"Conversion Price" on any date of determination means $1,000 divided
by the Conversion Rate as of such date.
"Conversion Rate" has the meaning specified in Section 15.04.
"Conversion Retraction Period" has the meaning specified in Section
15.12(a).
"Corporate Trust Office" or other similar term, means the designated
office of the Trustee at which at any particular time its corporate trust
business as it relates to this Indenture shall be administered, which office is,
at the date as of which this Indenture is dated, located at U.S. Bank National
Association, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Office or at any other time at such other address as the Trustee
may designate from time to time by notice to the Company.
"Current Market Price" has the meaning specified in Section
15.05(g)(i).
"Custodian" means U.S. Bank National Association, as custodian with
respect to the Notes in global form, or any successor entity thereto.
"default" means any event that is, or after notice or passage of time,
or both, would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.03.
"Depositary" means the clearing agency registered under the Exchange
Act that is designated to act as the Depositary for the Global Notes. DTC shall
be the initial Depositary, until a successor shall have been appointed and
become such pursuant to the applicable provisions of this Indenture, and
thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Indebtedness" means Indebtedness outstanding under
the Senior Credit Facility and any other Senior Indebtedness of the Company that
at the date of determination has an aggregate principal amount outstanding of at
least $25.0 million if the instrument governing such Senior Indebtedness
expressly states that such Indebtedness is "Designated Senior Indebtedness" for
purposes of this Indenture.
"Determination Date" has the meaning specified in Section 15.05(k).
"DTC" means The Depository Trust Company.
"Effective Date" has the meaning specified in Section 16.01(c).
"Event of Default" means any event specified in Section 8.01 as an
Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"Ex-Dividend Time" has the meaning specified in Section 15.01(b).
"Expiration Time" has the meaning specified in Section 15.05(f).
"Fair Market Value" has the meaning specified in Section 15.05(g)(ii).
"Fiscal Quarter" means, with respect to the Company, the fiscal quarter
publicly disclosed by the Company. The Company shall confirm the ending dates of
its fiscal quarters for the current fiscal year to the Trustee upon the
Trustee's request.
"Fundamental Change" means any transaction or event (whether by means
of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) in connection with
which all or substantially all of the Common Stock is exchanged for, converted
into, acquired for or constitutes solely the right to receive, consideration
which is not all or substantially all common stock that is: (a) listed on, or
immediately after such transaction or event, will be listed on, a United States
national securities exchange or (b) approved, or immediately after such
transaction or event will be approved, for quotation on the Nasdaq National
Market or any similar United States system of automated dissemination of
quotations of securities prices.
"Fundamental Change Repurchase Date" has the meaning specified in
Section 3.05(a).
"Global Note" has the meaning specified in Section 2.02.
"Indebtedness" means, with respect to any Person, and without
duplication, whether recourse is to all or a portion of the assets of such
Person and whether or not contingent, (a) all indebtedness, obligations and
other liabilities of such Person for borrowed money (including obligations of
the Person in respect of overdrafts, foreign exchange contracts, currency
exchange agreements, interest rate protection agreements, and any loans or
advances from banks, whether or not evidenced by notes or similar instruments)
or evidenced by bonds, debentures, notes or similar instruments, other than any
account payable or other accrued current liability or obligation incurred in the
ordinary course of business in connection with the obtaining of materials or
services; (b) all reimbursement obligations and other liabilities of such Person
with respect to letters of credit, bank guarantees or bankers' acceptances; (c)
all obligations and liabilities in respect of leases of such Person required, in
conformity with generally accepted accounting principles, to be accounted for as
capitalized lease obligations on the balance sheet of such Person and all
obligations and other liabilities under any lease or related document (including
a purchase agreement) in connection with the lease of real property which
provides that such Person is contractually obligated to purchase or cause a
third party to purchase the leased property and thereby guarantee a minimum
residual value of the leased property to the lessor and the obligations of such
Person under such lease or related document to purchase or to cause a third
party to purchase such leased property; (d) all net obligations of such Person
with respect to an interest rate or other swap, cap or collar agreement or other
similar instrument or agreement or foreign currency hedge, exchange, purchase or
similar instrument or agreement; (e) all direct or indirect guaranties or
similar agreements by such Person in respect of, and obligations or liabilities
of such Person to purchase or otherwise acquire or otherwise assure a creditor
against loss in respect of, indebtedness, obligations or liabilities of another
Person of the kind described in clauses (a) through (d); (f) any indebtedness or
other obligations described in clauses (a) through (e) secured by any mortgage,
pledge, lien or other encumbrance existing on property which is owned or held by
such Person, regardless of whether the indebtedness or other obligation secured
thereby shall have been assumed by such Person; and (g) any and all deferrals,
renewals, extensions and refundings of, or amendments, modifications or
supplements to, any indebtedness, obligation or liability of the kind described
in clauses (a) through (f).
"Indenture" means this instrument as originally executed or, if amended
or supplemented as herein provided, as so amended or supplemented.
"Initial Purchasers" means each of ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated and Banc of America Securities LLC (each, an "Initial
Purchaser").
"interest" means, when used with reference to the Notes, any interest
payable under the terms of the Notes, including contingent interest, if any, and
Additional Interest, if any, payable under the terms of the Registration Rights
Agreement.
"Junior Securities" has the meaning specified in Section 4.15.
"Make Whole Percentage" has the meaning specified in Section
16.01(c)(iii).
"Make Whole Premium" has the meaning specified in Section 16.01(b).
"Make Whole Table" has the meaning specified in Section 16.01(c)(iii).
"Maturity Date" means July 15, 2024.
"Moody's" has the meaning specified in Section 15.01(a)(v).
"non-electing share" has the meaning specified in Section 15.06.
"Note" or "Notes" means any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
"Note Register" has the meaning specified in Section 2.05(a).
"Note Registrar" has the meaning specified in Section 2.05(a).
"Noteholder" or "holder" as applied to any Note, or other similar terms
(but excluding the term "beneficial holder"), means any Person in whose name at
the time a particular Note is registered on the Note Registrar's books.
"Obligations" means any principal, interest (including, in the case of
Senior Indebtedness, Post-Petition Interest), penalties, fees, indemnifications,
reimbursement obligations, damages and other liabilities payable under the
documentation governing any Indebtedness.
"Officer" means any person holding any of the following positions with
the Company: the Chairman of the Board, any Vice Chairman, the Chief Executive
Officer, the President, any Vice President (whether or not designated by a
number or numbers or word or words added before or after the title "Vice
President"), the Chief Financial Officer, the Treasurer and the Secretary.
"Officers' Certificate", when used with respect to the Company, means a
certificate signed by any two Officers or by one such Officer and any Assistant
Treasurer or Assistant Secretary of the Company.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or other counsel
reasonably acceptable to the Trustee.
"outstanding", when used with reference to Notes and subject to the
provisions of Section 10.04, means, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, (i) for the redemption or repurchase of
which monies in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Company) or (ii) which shall
have been otherwise discharged in accordance with Article 13;
(c) Notes in lieu of which, or in substitution for which, other Notes
shall have been authenticated and delivered pursuant to the terms of Section
2.06; and
(d) Notes converted into Common Stock pursuant to Article 15 and Notes
paid or redeemed or repurchased pursuant to Article 3.
"Paying Agent" has the meaning specified in Section 2.08.
"Payment Blockage Notice" has the meaning specified in Section 4.02(a).
"Payment Blockage Period" has the meaning specified in Section 4.02(a).
"Person" means a corporation, an association, a partnership, a limited
liability company, an individual, a joint venture, a joint stock company, a
trust, an unincorporated organization or a government or an agency or a
political subdivision thereof.
"PORTAL Market" means The PORTAL Market operated by the Nasdaq Stock
Market or any successor thereto.
"Post-Petition Interest" means, with respect to any Indebtedness of any
Person, all interest accrued or accruing on such Indebtedness after the
commencement of any insolvency or liquidation proceeding against such Person in
accordance with and at the contract rate (including, without limitation, any
rate applicable upon default), specified in the agreement or instrument
creating, evidencing or governing such Indebtedness, whether or not, pursuant to
applicable law or otherwise, the claim for such interest is allowed as a claim
in such insolvency or liquidation proceeding.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note, and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.06 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note that it replaces.
"premium" means any premium payable under the terms of the Notes.
"Purchased Shares" has the meaning specified in Section 15.05(f).
"record date" has the meaning specified in Section 15.05(g)(iii).
"Record Date" has the meaning specified in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of June 22, 2004, between the Company and the Initial
Purchasers, as amended from time to time in accordance with its terms.
"representative" means (a) the indenture trustee or other trustee,
agent or representative for holders of Senior Indebtedness or (b) with respect
to any Senior Indebtedness that does not have any such trustee, agent or other
representative, (i) in the case of such Senior Indebtedness issued pursuant to
an agreement providing for voting arrangements as among the holders or owners of
such Senior Indebtedness, any holder or owner of such Senior Indebtedness acting
with the consent of the required persons necessary to bind such holders or
owners of such Senior Indebtedness and (ii) in the case of all other such Senior
Indebtedness, the holder or owner of such Senior Indebtedness.
"Repurchase Date" has the meaning specified in Section 3.06(a).
"Repurchase Notice" has the meaning specified in Section 3.05(c).
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee with
direct responsibility for the administration of this Indenture and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of such person's knowledge of or familiarity
with the particular subject.
"Restricted Securities" has the meaning specified in Section 2.05(c).
"Rule 144A" means Rule 144A as promulgated under the Securities Act as
it may be amended from time to time hereafter.
"S&P" has the meaning specified in Section 15.01(a)(v).
"Securities" has the meaning specified in Section 15.05(d).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
"Senior Credit Facility" means the senior credit facility, under the
$100,000,000 Amended and Restated Credit Agreement dated as of June 17, 2003, as
amended, among Advanced Medical Optics, Inc., as Borrower, General Electric
Capital Corporation, as syndication agent, Bank One, N.A., as documentation
agent, and Bank of America, N.A., as administrative agent, foreign currency
fronting lender and L/C issuer and the other financial institutions from time to
time party thereto, together with the documents now or hereafter related thereto
(including, without limitation, any guarantee agreements and any security
documents executed in connection therewith), in each case as such agreements may
be amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any deferral thereof or any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including by way of increasing the amount of commitments
thereunder and adding the Company or any Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders (or other
institutions).
"Senior Indebtedness" means, with respect to any Person, whether
outstanding on the date of this Indenture or thereafter issued, all Obligations
of such Person under the Senior Credit Facility, hedging obligations of such
Person and any other Indebtedness of such Person unless the instrument creating
or evidencing such Indebtedness expressly provides that such Indebtedness is not
senior or superior in right of payment to the Notes, including other
obligations, such as fees, expenses, reimbursement obligations arising from
letters of credit, indemnities and other obligations specified in the documents
governing such Senior Indebtedness, all renewals, extensions, modifications,
amendments or refinancings thereof; provided, that in no event shall Senior
Indebtedness include (a) to the extent that it may constitute Indebtedness, any
Obligation for federal, state, local or other taxes; (b) any Indebtedness among
or between the Company and any Subsidiary, unless and for so long as such
Indebtedness has been pledged to secure Obligations to a third party; (c) to the
extent that it may constitute Indebtedness, any Obligation in respect of any
trade payable incurred for the purchase of goods or materials, or for services
obtained in the ordinary course of business; (d) Indebtedness evidenced by the
Notes; (e) Indebtedness that is expressly subordinate or junior in right of
payment to any other Indebtedness; provided that for the avoidance of doubt,
Indebtedness under the Senior Credit Facility shall not be deemed expressly
subordinate or junior to liens of Indebtedness permitted under the Senior Credit
Facility simply by reason of the fact that such liens or Indebtedness are
permitted under the Senior Credit Facility; (f) to the extent that it may
constitute Indebtedness, any Obligation owing under leases (other than capital
lease obligations) or management agreements; and (g) any Obligation that by
operation of law is subordinate to any general unsecured Obligations.
"Settlement Notice Period" has the meaning specified in Section
15.12(a).
"Significant Subsidiary" means, as of any date of determination, a
Subsidiary of the Company that would constitute a "significant subsidiary" as
such term is defined under Rule 1-02(w) of Regulation S-X of the Commission as
in effect on the date of this Indenture.
"Stock Price" has the meaning specified in Section 16.01(c).
"Stock Price Cap" has the meaning specified in Section 16.01(b)(iii).
"Stock Price Threshold" has the meaning specified in Section
16.01(b)(ii).
"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 or other equity interest 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).
"Tax Original Issue Discount" means the amount of ordinary interest
income on a Note that must be accrued as original issue discount for United
States Federal income tax purposes pursuant to U.S. Treasury Regulation section
1.1275-4.
"Trading Day" has the meaning specified in Section 15.05(g)(iv).
"Trading Price" means, with respect to a Note on any date of
determination, the average of the secondary market bid quotations per $1,000
principal amount of Notes obtained by the Trustee for $10,000,000 principal
amount of Notes at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities
dealers selected by the Company; provided that if three such bids cannot
reasonably be obtained by the Trustee, but two such bids are obtained, then the
average of the two bids shall be used, and if only one such bid can reasonably
be obtained by the Trustee, this one bid shall be used; and provided further
that, if the Trustee cannot reasonably obtain at least one bid for $10,000,000
principal amount of Notes from a nationally recognized securities dealer, then
the Trading Price per $1,000 principal amount of Notes shall be deemed to be
less than 95% of the product of (a) the Conversion Rate on such determination
date and (b) the Closing Sale Price of a share of Common Stock on such
determination date; provided, however, that for purposes of determining the
"Trading Price" as used in Article 5 only, if the Trustee cannot reasonably
obtain at least one bid for $10,000,000 principal amount of the Notes from a
nationally recognized securities dealer, then the Trading Price of a Note will
be deemed to equal the product of (1) the Conversion Rate on such determination
date and (2) the average Closing Sale Price of a share of Common Stock over the
five Trading- Day period ending on such determination date.
"Trigger Event" has the meaning specified in Section 15.05(d).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as it was in force at the date of this Indenture, except as provided in
Section 12.03; provided that if the Trust Indenture Act of 1939 is amended after
the date hereof, the term "Trust Indenture Act" shall mean, to the extent
required by such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means U.S. Bank National Association and its successors and
any corporation resulting from or surviving any consolidation or merger to which
it or its successors may be a party and any successor trustee at the time
serving as successor trustee hereunder.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01 . Designation Amount and Issue of Notes. The Notes shall
be designated as "2.50% Convertible Senior Subordinated Notes Due 2024". Notes
not to exceed the aggregate principal amount of $350,000,000 (except pursuant to
Sections 2.05, 2.06, 3.03, 3.05, 3.06 and 15.02 hereof) upon the execution of
this Indenture, or from time to time thereafter, may be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver Notes upon a written order of the Company, such order
signed by an Officer or by any Assistant Treasurer of the Company or any
Assistant Secretary of the Company, without any further action by the Company
hereunder.
Section 2.02 . Form of Notes. The Notes and the Trustee's certificate
of authentication to be borne by such Notes shall be substantially in the form
set forth in Exhibit A hereto. The terms and provisions contained in the form of
Note attached as Exhibit A hereto shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends, endorsements or changes as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. in order for the Notes to be
tradable on The PORTAL Market or as may be required for the Notes to be tradable
on any other market developed for trading of securities pursuant to Rule 144A or
as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed, or to conform to usage, or to indicate any special limitations or
restrictions to which any particular Notes are subject.
So long as the Notes are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, or otherwise contemplated by
Section 2.05(b), all of the Notes will be represented by one or more Notes in
global form registered in the name of the Depositary or the nominee of the
Depositary (a "Global Note"). The transfer and exchange of beneficial interests
in any such Global Note shall be effected through the Depositary in accordance
with this Indenture and the applicable procedures of the Depositary. Except as
provided in Section 2.05(b), beneficial owners of a Global Note shall not be
entitled to have certificates registered in their names, will not receive or be
entitled to receive physical delivery of certificates in definitive form and
will not be considered holders of such Global Note.
Any Global Note shall represent such of the outstanding Notes as shall
be specified therein and shall provide that it shall represent the aggregate
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to time
be increased or reduced to reflect redemptions, repurchases, conversions,
transfers or exchanges permitted hereby. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in such manner and upon instructions given by the
holder of such Notes in accordance with this Indenture. Payment of principal of,
interest on and premium, if any, on any Global Note shall be made to the holder
of such Note.
Section 2.03 . Date and Denomination of Notes; Payments of Interest.
The Notes shall be issuable in registered form without coupons in denominations
of $1,000 principal amount and integral multiples thereof. Each Note shall be
dated the date of its authentication and shall bear interest from the date
specified on the face of the form of Note attached as Exhibit A hereto. Interest
on the Notes shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.
The Person in whose name any Note (or its Predecessor Note) is
registered on the Note Register at 5:00 p.m., New York City time, on any Record
Date with respect to any interest payment date shall be entitled to receive the
interest payable on such interest payment date, except that the interest payable
upon maturity, redemption or repurchase following a Fundamental Change will be
payable to the Person to whom principal is payable upon maturity or pursuant to
such redemption or repurchase following a Fundamental Change (unless the
redemption date or the Fundamental Change Repurchase Date, as the case may be,
is after a Record Date and on or prior to the corresponding interest payment
date, in which case the semi-annual payment of interest becoming due on such
interest payment date shall be payable to the holder of such Note registered as
such on the applicable Record Date). Notwithstanding the foregoing, any Note or
portion thereof surrendered for conversion during the period from 5:00 p.m., New
York City time, on the Record Date for any interest payment date to 5:00 p.m.,
New York City time, on the Business Day preceding the applicable interest
payment date shall be accompanied by payment, in immediately available funds or
other funds acceptable to the Company, of an amount equal to the interest
otherwise payable on such interest payment date on the principal amount being
converted; provided that no such payment need be made (1) if a holder converts
its Notes in connection with a redemption and the Company has specified a
redemption date that is after a Record Date and on or prior to the next interest
payment date, (2) if a holder converts its Notes in connection with a
Fundamental Change and the Company has specified a Fundamental Change Repurchase
Date that is after a Record Date and on or prior to the next interest payment
date or (3) to the extent of any overdue interest, if any exists at the time of
conversion with respect to such Note. Interest shall be payable at the office of
the Company maintained by the Company for such purposes in the Borough of
Manhattan, The City of New York, which shall initially be an office or agency of
the Trustee. The Company shall pay interest (i) on any Notes in certificated
form by check mailed to the address of the Person entitled thereto as it appears
in the Note Register or (ii) on any Global Note by wire transfer of immediately
available funds to the account of the Depositary or its nominee. If a payment
date is not a Business Day, payment shall be made on the next succeeding
Business Day, and no additional interest shall accrue thereon. The term "Record
Date" with respect to any interest payment date shall mean the January 1 or July
1 preceding the applicable January 15 or July 15 interest payment date,
respectively.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any January 15 or July 15 (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Noteholder registered as
such on the relevant Record Date, and such Defaulted Interest shall be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Notes (or their respective Predecessor Notes) are
registered at 5:00 p.m., New York City time, on a special record date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Note and the date of the proposed
payment (which shall be not less than twenty-five calendar days after the
receipt by the Trustee of such notice, unless the Trustee shall consent to an
earlier date), and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which shall be
not more than fifteen calendar days and not less than ten calendar days prior to
the date of the proposed payment, and not less than ten calendar days after the
receipt by the Trustee of the notice of the proposed payment (unless, the
Trustee shall consent to an earlier date). The Trustee shall promptly notify the
Company of such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the special record date therefor to be mailed, first-class postage prepaid,
to each holder at his address as it appears in the Note Register, not less than
ten calendar days prior to such special record date (unless, the Trustee shall
consent to an earlier date). Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Notes (or
their respective Predecessor Notes) are registered at 5:00 p.m., New York City
time, on such special record date and shall no longer be payable pursuant to the
following clause (2) of this Section 2.03.
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Notes may be listed or designated for
issuance, and upon such notice as may be required by such exchange or automated
quotation system, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Section 2.04 . Execution of Notes. The Notes shall be signed in the
name and on behalf of the Company by the manual or facsimile signature of an
Officer. Only such Notes as shall bear thereon a certificate of authentication
substantially in the form set forth on the form of Note attached as Exhibit A
hereto, manually executed by the Trustee (or an authenticating agent appointed
by the Trustee as provided by Section 17.11), shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee (or such an authenticating agent) upon any Note executed by the
Company shall be conclusive evidence that the Note so authenticated has been
duly authenticated and delivered hereunder and that the holder is entitled to
the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such officer of the
Company, and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
Section 2.05 . Exchange and Registration of Transfer of Notes;
Restrictions on Transfer. The Company shall cause to be kept at the Corporate
Trust Office a register (the register maintained in such office and in any other
office or agency of the Company designated pursuant to Section 6.02 being herein
sometimes collectively referred to as the "Note Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Notes and of transfers of Notes. The Note Register shall be
in written form or in any form capable of being converted into written form
within a reasonably prompt period of time. The Trustee is hereby appointed "Note
Registrar" for the purpose of registering Notes and transfers of Notes as herein
provided. The Company may appoint one or more co-registrars in accordance with
Section 6.02.
Upon surrender for registration of transfer of any Note to the Note
Registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.05, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denominations and of a
like aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture.
Notes may be exchanged for other Notes of any authorized denominations
and of a like aggregate principal amount, upon surrender of the Notes to be
exchanged at any such office or agency maintained by the Company pursuant to
Section 6.02. Whenever any Notes are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Notes which
the Noteholder making the exchange is entitled to receive bearing registration
numbers not contemporaneously outstanding.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
All Notes presented or surrendered for registration of transfer or for
exchange, redemption, repurchase or conversion shall (if so required by the
Company or the Note Registrar) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company, and
the Notes shall be duly executed by the Noteholder thereof or his attorney duly
authorized in writing.
No service charge shall be made to any holder for any registration of,
transfer or exchange of Notes, but the Company may require payment by the holder
of a sum sufficient to cover any tax, assessment or other governmental charge
that may be imposed in connection with any registration of transfer or exchange
of Notes.
Neither the Company nor the Trustee nor any Note Registrar shall be
required to exchange or register a transfer of (a) any Notes for a period of
fifteen calendar days next preceding any selection of Notes to be redeemed, (b)
any Notes or portions thereof called for redemption pursuant to Section 3.02,
(c) any Notes or portions thereof surrendered for conversion pursuant to Article
15, (d) any Notes or portions thereof tendered for repurchase (and not
withdrawn) pursuant to Section 3.05 or (e) any Notes or portions thereof
tendered for repurchase (and not withdrawn) pursuant to Section 3.06.
(b) The following provisions shall apply only to Global Notes:
(i) Each Global Note authenticated under this Indenture shall
be registered in the name of the Depositary or a nominee thereof and
delivered to such Depositary or a nominee thereof or Custodian
therefor, and each such Global Note shall constitute a single Note for
all purposes of this Indenture.
(ii) Notwithstanding any other provision in this Indenture, no
Global Note may be exchanged in whole or in part for Notes registered,
and no transfer of a Global Note in whole or in part may be registered,
in the name of any Person other than the Depositary or a nominee
thereof unless Error! Bookmark not defined. the Depositary (x) has
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Note or (y) has ceased to be a clearing
agency registered under the Exchange Act, and a successor depositary
has not been appointed by the Company within ninety calendar days,
Error! Bookmark not defined. an Event of Default has occurred and is
continuing or Error! Bookmark not defined. the Company, in its sole
discretion, notifies the Trustee in writing that it no longer wishes to
have all the Notes represented by Global Notes. Any Global Note
exchanged pursuant to clause (A) or (B) above shall be so exchanged in
whole and not in part and any Global Note exchanged pursuant to clause
(C) above may be exchanged in whole or from time to time in part as
directed by the Company. Any Note issued in exchange for a Global Note
or any portion thereof shall be a Global Note; provided that any such
Note so issued that is registered in the name of a Person other than
the Depositary or a nominee thereof shall not be a Global Note.
(iii) Securities issued in exchange for a Global Note or any
portion thereof pursuant to clause (ii) above shall be issued in
definitive, fully registered form, without interest coupons, shall have
an aggregate principal amount equal to that of such Global Note or
portion thereof to be so exchanged, shall be registered in such names
and be in such authorized denominations as the Depositary shall
designate and shall bear any legends required hereunder. Any Global
Note to be exchanged in whole shall be surrendered by the Depositary to
the Trustee, as Note Registrar. With regard to any Global Note to be
exchanged in part, either such Global Note shall be so surrendered for
exchange or, if the Trustee is acting as Custodian for the Depositary
or its nominee with respect to such Global Note, the principal amount
thereof shall be reduced, by an amount equal to the portion thereof to
be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the
Trustee shall authenticate and make available for delivery the Note
issuable on such exchange to or upon the written order of the
Depositary or an authorized representative thereof.
(iv) In the event of the occurrence of any of the events
specified in clause (ii) above, the Company will promptly make
available to the Trustee a reasonable supply of certificated Notes in
definitive, fully registered form, without interest coupons.
(v) Neither any members of, or participants in, the Depositary
("Agent Members") nor any other Persons on whose behalf Agent Members
may act shall have any rights under this Indenture with respect to any
Global Note registered in the name of the Depositary or any nominee
thereof, and the Depositary or such nominee, as the case may be, may be
treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner and holder of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or such nominee, as the
case may be, or impair, as between the Depositary, its Agent Members
and any other Person on whose behalf an Agent Member may act, the
operation of customary practices of such Persons governing the exercise
of the rights of a holder of any Note.
(vi) At such time as all interests in a Global Note have been
redeemed, repurchased, converted, canceled or exchanged for Notes in
certificated form, such Global Note shall, upon receipt thereof, be
canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian. At any
time prior to such cancellation, if any interest in a Global Note is
redeemed, repurchased, converted, canceled or exchanged for Notes in
certificated form, the principal amount of such Global Note shall, in
accordance with the standing procedures and instructions existing
between the Depositary and the Custodian, be appropriately reduced, and
an endorsement shall be made on such Global Note, by the Trustee or the
Custodian, at the direction of the Trustee, to reflect such reduction.
(c) Every Note (and all securities issued in exchange therefor or in
substitution thereof) that bears or is required under this Section 2.05(c) to
bear the legend set forth in this Section 2.05(c) (together with any Common
Stock issued upon conversion of the Notes and required to bear the legend set
forth in Exhibit B, collectively, the "Restricted Securities") shall be subject
to the restrictions on transfer set forth in this Section 2.05(c) (including
those set forth in the legend below and the legend set forth in Exhibit B)
unless such restrictions on transfer shall be waived by written consent of the
Company, and the holder of each such Restricted Security, by such Note holder's
acceptance thereof, agrees to be bound by all such restrictions on transfer. As
used in this Section 2.05(c), the term "transfer" means any sale, pledge, loan,
transfer or other disposition whatsoever of any Restricted Security or any
interest therein.
Until the expiration of the holding period applicable to sales of
Restricted Securities under Rule 144(k) under the Securities Act (or any
successor provision), any certificate evidencing Restricted Security shall bear
a legend in substantially the following form (or as set forth in Exhibit B, in
the case of Common Stock issued upon conversion of the Notes), unless such
Restricted Security has been sold pursuant to a registration statement that has
been declared effective under the Securities Act (and which continues to be
effective at the time of such transfer) or sold pursuant to Rule 144 under the
Securities Act or any similar provision then in force, or unless otherwise
agreed by the Company in writing, with written notice thereof to the Trustee:
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER: (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT AND IS PURCHASING IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER
THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF
SUCH SECURITY EXCEPT (A) TO ADVANCED MEDICAL OPTICS, INC. ("THE COMPANY") OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO
CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(D) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF
THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER MUST, PRIOR
TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY OR THE 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. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO
CLAUSE 2(C) OR 2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL
ISSUANCE OF THE SECURITY EVIDENCED HEREBY.
Any Notes that are Restricted Securities and as to which such
restrictions on transfer shall have expired in accordance with their terms or as
to conditions for removal of the foregoing legend set forth therein have been
satisfied may, upon surrender of such Note for exchange to the Note Registrar in
accordance with the provisions of this Section 2.05, be exchanged for a new Note
or Notes, of like tenor and aggregate principal amount, which shall not bear the
restrictive legend required by this Section 2.05(c). If such Restricted Security
surrendered for exchange is represented by a Global Note bearing the legend set
forth in this Section 2.05(c), the principal amount of the legended Global Note
shall be reduced by the appropriate principal amount and the principal amount of
a Global Note without the legend set forth in this Section 2.05(c) shall be
increased by an equal principal amount. If a Global Note without the legend set
forth in this Section 2.05(c) is not then outstanding, the Company shall execute
and the Trustee shall authenticate and deliver an unlegended Global Note to the
Depositary.
(d) Any Restricted Securities, prior to the expiration of the holding
period applicable to sales thereof under Rule 144(k) under the Securities Act
(or any successor provision), purchased or owned by the Company or any Affiliate
thereof may not be resold by the Company or such Affiliate unless registered
under the Securities Act or resold pursuant to an exemption from the
registration requirements of the Securities Act in a transaction which results
in such Notes or Common Stock, as the case may be, no longer being "restricted
securities" (as defined under Rule 144).
(e) The Trustee shall have no responsibility or obligation to any Agent
Members or any other Person with respect to the accuracy of the books or
records, or the acts or omissions, of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Notes or with respect to the delivery to any Agent Member or other Person (other
than the Depositary) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Notes. All notices and
communications to be given to the Noteholders and all payments to be made to
Noteholders under the Notes shall be given or made only to or upon the order of
the registered Noteholders (which shall be the Depositary or its nominee in the
case of a Global Note). The rights of beneficial owners in any Global Note shall
be exercised only through the Depositary subject to the customary procedures of
the Depository. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depositary with respect to its Agent Members.
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 Note (including any transfers between or among Agent Members in any
Global Indenture) other than to require delivery of such certificates and other
documentation or evidence as are 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 2.06 . Mutilated, Destroyed, Lost or Stolen Notes. In case any
Note shall become mutilated or be destroyed, lost or stolen, the Company in its
discretion may execute, and upon its written request the Trustee or an
authenticating agent appointed by the Trustee shall authenticate and make
available for delivery, a new Note, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note, or in lieu of
and in substitution for the Note so destroyed, lost or stolen. In every case,
the applicant for a substituted Note shall furnish to the Company, to the
Trustee and, if applicable, to such 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 every case of destruction, loss or theft, the applicant shall also furnish to
the Company, to the Trustee and, if applicable, to such authenticating agent
evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.
Following receipt by the Trustee or such authenticating agent, as the
case may be, of satisfactory security or indemnity and evidence, as described in
the preceding paragraph, the Trustee or such authenticating agent may
authenticate any such substituted Note and make available for delivery such
Note. Upon the issuance of any substituted Note, the Company may require the
payment by the holder of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note which has matured or is about to
mature or has been called for redemption or has been properly tendered for
repurchase on a Fundamental Change Repurchase Date (and not withdrawn) or has
been tendered for repurchase on a Repurchase Date (and not withdrawn), as the
case may be, or is to be converted into Common Stock, shall become mutilated or
be destroyed, lost or stolen, the Company may, instead of issuing a substitute
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 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 such 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 in connection
with such substitution, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company, the Trustee and, if applicable, any
Paying Agent or conversion agent evidence to their satisfaction of the
destruction, loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section
2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other
Notes duly issued hereunder. To the extent permitted by law, all Notes shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment or conversion or redemption
or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
or conversion or redemption or repurchase of negotiable instruments or other
securities without their surrender.
Section 2.07 . Temporary Notes. Pending the preparation of Notes in
certificated form, the Company may execute and the Trustee or an authenticating
agent appointed by the Trustee shall, upon the written request of the Company,
authenticate and deliver temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in the
form of the Notes in certificated form, but with such omissions, insertions and
variations as may be appropriate for temporary Notes, all as may be determined
by the Company. Every such temporary Note shall be executed by the Company and
authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the Notes in certificated form. Without unreasonable delay, the Company will
execute and deliver to the Trustee or such authenticating agent Notes in
certificated form and thereupon any or all temporary Notes may be surrendered in
exchange therefor, at each office or agency maintained by the Company pursuant
to Section 6.02 and the Trustee or such authenticating agent shall authenticate
and make available for delivery in exchange for such temporary Notes an equal
aggregate principal amount of Notes in certificated form. Such exchange shall be
made by the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits and subject to the same limitations under this Indenture as Notes in
certificated form authenticated and delivered hereunder.
Section 2.08 . Cancellation of Notes. All Notes surrendered for the
purpose of payment, redemption, repurchase, conversion, exchange or registration
of transfer shall, if surrendered to the Company or any paying agent to whom
Notes may be presented for payment (the "Paying Agent") or any conversion agent,
which shall initially be the Trustee, or any Note Registrar, be surrendered to
the Trustee and promptly canceled by it or, if surrendered to the Trustee, shall
be promptly canceled by it and no Notes shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Indenture. The Trustee
shall dispose of such canceled Notes in accordance with its customary
procedures. If the Company shall acquire any of the Notes, such acquisition
shall not operate as a redemption, repurchase or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
Section 2.09 . CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Noteholders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3
REDEMPTION AND REPURCHASE OF NOTES
Section 3.01 . Optional Redemption of Notes. At any time on or after
January 20, 2010 and prior to maturity, the Notes may be redeemed at the option
of the Company, in whole or in part, upon notice as set forth in Section 3.02,
in cash at a redemption price equal to the principal amount of the Notes, plus
accrued and unpaid interest to, but excluding, the date fixed for redemption.
Section 3.02 . Notice of Optional Redemption; Selection of Notes. In
case the Company shall desire to exercise the right to redeem all or, as the
case may be, any part of the Notes pursuant to Section 3.01, it shall fix a date
for redemption and it or, at its written request received by the Trustee not
fewer than five Business Days prior (or such shorter period of time as may be
acceptable to the Trustee) to the date the notice of redemption is to be mailed,
the Trustee in the name of and at the expense of the Company, shall mail or
cause to be mailed a notice of such redemption not fewer than thirty calendar
days nor more than sixty calendar days prior to the redemption date to each
holder of Notes so to be redeemed in whole or in part at its last address as the
same appears on the Note Register; provided that if the Company makes such
request of the Trustee, it shall, together with such request, also give written
notice of the redemption date to the Trustee, provided that the text of the
notice shall be prepared by the Company. Such mailing shall be by first class
mail. The notice, if mailed in the manner herein provided, shall be conclusively
presumed to have been duly 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 Note designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other
Note. Concurrently with the mailing of any such notice of redemption, the
Company shall issue a press release announcing such redemption, the form and
content of which press release shall be determined by the Company in its sole
discretion. The failure to issue any such press release or any defect therein
shall not affect the validity of the redemption notice or any of the proceedings
for the redemption of any Note called for redemption.
Each such notice of redemption shall specify: (i) the aggregate
principal amount of Notes to be redeemed, (ii) the CUSIP number or numbers of
the Notes being redeemed, (iii) the date fixed for redemption (which shall be a
Business Day), (iv) the redemption price at which Notes are to be redeemed, (v)
the place or places of payment and that payment will be made upon presentation
and surrender of such Notes, (iv) that interest accrued and unpaid to, but
excluding, the date fixed for redemption will be paid as specified in said
notice, and that on and after said date interest thereon or on the portion
thereof to be redeemed will cease to accrue, (vii) that the holder has a right
to convert the Notes called for redemption, (viii) the Conversion Rate on the
date of such notice, (ix) the time and date on which the right to convert such
Notes or portions thereof into Common Stock will expire, (x) whether the Company
has elected to pay upon such conversion cash or a combination of cash and shares
of Common Stock in lieu of delivery of shares of Common Stock only and, if so,
the portion of the Conversion Obligation to be so paid in cash (specified as a
percentage of the Conversion Obligation or a fixed dollar amount) and the date
on which the Cash Settlement Averaging Period will begin, (xi) the formula for
determining the number of shares and/or the amount of cash to be delivered to
the holder upon conversion pursuant to Section 15.12 and (xii) that the Company
will pay cash for fractional interests in shares of Common Stock, if any, as
provided in this Indenture. If fewer than all the Notes are to be redeemed, the
notice of redemption shall identify the Notes to be redeemed (including CUSIP
numbers, if any). In case any Note is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that, on and after the redemption date, upon surrender
of such Note, a new Note or Notes in principal amount equal to the unredeemed
portion thereof will be issued.
Whenever any Notes are to be redeemed, the Company will give the
Trustee written notice of the redemption date, together with an Officers'
Certificate as to the aggregate principal amount of Notes to be redeemed not
fewer than thirty calendar days (or such shorter period of time as may be
acceptable to the Trustee) prior to the redemption date.
On or prior to the redemption date specified in the notice of
redemption given as provided in this Section 3.02, the Company will deposit with
the Paying Agent (or, if the Company is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 6.04) an amount of
money in immediately available funds sufficient to redeem on the redemption date
all the Notes (or portions thereof) so called for redemption (other than those
theretofore surrendered for conversion into Common Stock) at the appropriate
redemption price, together with accrued interest to, but excluding, the
redemption date; provided that if such payment is made on the redemption date,
it must be received by the Paying Agent, by 11:00 a.m., New York City time, on
such date. The Company shall be entitled to retain any interest, yield or gain
on amounts deposited with the Paying Agent pursuant to this Section 3.02 in
excess of amounts required hereunder to pay the redemption price and accrued
interest to, but excluding, the redemption date. If any Note called for
redemption is converted pursuant hereto prior to such redemption date, any money
deposited with the Paying Agent or so segregated and held in trust for the
redemption of such Note shall be paid to the Company or, if then held by the
Company, shall be discharged from such trust.
If less than all of the outstanding Notes are to be redeemed, the
Trustee shall select the Notes or portions thereof of the Global Note or the
Notes in certificated form to be redeemed (in principal amounts of $1,000 or
multiples thereof) by lot, on a pro rata basis or by another method the Trustee
deems fair and appropriate. If any Note selected for redemption is submitted for
conversion in part after such selection, the portion of such Note submitted for
conversion shall be deemed (so far as may be possible) to be the portion to be
selected for redemption. The Notes (or portions thereof) so selected for
redemption shall be deemed duly selected for redemption for all purposes hereof,
notwithstanding that any such Note is submitted for conversion in part before
the mailing of the notice of redemption.
Upon any redemption of less than all of the outstanding Notes, the
Company and the Trustee may (but need not), solely for purposes of determining
the pro rata allocation among such Notes that are unconverted and outstanding at
the time of redemption, treat as outstanding any Notes surrendered for
conversion during the period of fifteen calendar days preceding the mailing of a
notice of redemption and may (but need not) treat as outstanding any Note
authenticated and delivered during such period in exchange for the unconverted
portion of any Note converted in part during such period.
Section 3.03 . Payment of Notes Called for Redemption by the Company.
If notice of redemption has been given as provided in Section 3.02, the Notes or
portion of Notes with respect to which such notice has been given shall, unless
converted into Common Stock pursuant to the terms hereof, become due and payable
on the date fixed for redemption and at the place or places stated in such
notice at the redemption price, plus interest accrued to, but excluding, the
redemption date, and unless the Company shall default in the payment of such
Notes at the redemption price, plus interest, if any, accrued to, but excluding,
such date, interest on the Notes or portion of Notes so called for redemption
shall cease to accrue on and after such date and, after 5:00 p.m., New York City
time, on the Trading Day immediately preceding the redemption date (unless the
Company shall default in the payment of such Notes at the redemption price,
together with interest accrued to such date) such Notes shall cease to be
convertible into Common Stock and, except as provided in Section 9.05 and
Section 13.02, to be entitled to any benefit or security under this Indenture,
and the holders thereof shall have no right in respect of such Notes except the
right to receive the redemption price thereof plus accrued and unpaid interest
to, but excluding, the redemption date. On presentation and surrender of such
Notes at a place of payment in said notice specified, the said Notes or the
specified portions thereof shall be paid and redeemed by the Company at the
redemption price, together with interest accrued thereon to, but excluding, the
redemption date; provided that if the applicable redemption date is after the
applicable Record Date and on or before an interest payment date, the interest
payable on such interest payment date shall be paid on such interest payment
date to the holders of record of such Notes on the applicable Record Date
instead of the holders surrendering such Notes for redemption on such date.
Upon presentation of any Note redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new Note or Notes, of
authorized denominations, in principal amount equal to the unredeemed portion of
the Notes so presented.
Notwithstanding the foregoing, the Trustee shall not redeem any Notes
or mail any notice of redemption during the continuance of a default in payment
of interest on the Notes. If any Note called for redemption shall not be so paid
upon surrender thereof for redemption on the redemption date, as provided in
this Section 3.03, the principal shall, until paid or duly provided for, bear
interest from and including the redemption date at a rate equal to 1% per annum
above the rate borne by the Notes and such Note shall remain convertible into
Common Stock until the redemption price and interest shall have been paid or
duly provided for.
Section 3.04 . Conversion Arrangement on Call for Redemption. In
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes by an agreement with one or more investment
banks or other purchasers to purchase such Notes by paying to the Trustee in
trust for the Noteholders, on or before the date fixed for redemption, an amount
not less than the applicable redemption price, together with interest accrued
to, but excluding, the date fixed for redemption, of such Notes. Notwithstanding
anything to the contrary contained in this Article 3, the obligation of the
Company to pay the redemption price of such Notes, together with interest
accrued to, but excluding, the date fixed for redemption, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, a copy of which will be filed
with the Trustee prior to the date fixed for redemption, any 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 15) surrendered by such purchasers for conversion, all as
of immediately prior to 5:00 p.m., New York City time, on the date fixed for
redemption (and the right to convert any such Notes shall be 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 Notes. Without the Trustee's prior written
consent, no arrangement between the Company and such purchasers for the purchase
and conversion of any Notes shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture.
Section 3.05 . Repurchase at Option of Holders Upon a Fundamental
Change. If there shall occur a Fundamental Change at any time prior to maturity
of the Notes, then each Noteholder shall have the right, at such holder's
option, to require the Company to repurchase all of such holder's Notes, or any
portion thereof that is a multiple of $1,000 principal amount, on a date (the
"Fundamental Change Repurchase Date") specified by the Company, that is not less
than 20 Business Days nor more than 35 Business Days after the date of the
Company Repurchase Notice related to such Fundamental Change (or, if such day is
not a Business Day, the next succeeding Business Day) at a repurchase price
equal to 100% of the principal amount of the Notes being repurchased, plus
accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase
Date, subject to the provisions of Section 3.07, and a Make Whole Premium, if
any, subject to the provisions of Section 16.01, in each case, subject to the
satisfaction by the holder of the requirements set forth in Section 3.05(c);
provided that if such Fundamental Change Repurchase Date falls after a Record
Date and on or prior to the corresponding interest payment date, then the
interest payable on such interest payment date shall be paid to the holders of
record of the Notes on the applicable Record Date instead of the holders
surrendering the Notes for repurchase on such date.
(b) On or before the tenth Business Day after the occurrence of a
Fundamental Change, the Company shall mail or cause to be mailed to all holders
of record on the date of the Fundamental Change (and to beneficial owners as
required by applicable law) a Company Repurchase Notice as set forth in Section
3.07(d) with respect to such Fundamental Change. The Company shall also deliver
a copy of the Company Repurchase Notice to the Trustee and the Paying Agent at
such time as it is mailed to Noteholders. Concurrently with the mailing of such
Company Repurchase Notice, the Company shall issue a press release announcing
such Fundamental Change referred to in the Company Repurchase Notice, the form
and content of which press release shall be determined by the Company in its
sole discretion. The failure to issue any such press release or any defect
therein shall not affect the validity of the Company Repurchase Notice or any
proceedings for the repurchase of any Note which any Noteholder may elect to
have the Company redeem as provided in this Section 3.05.
No failure of the Company to give the foregoing notices and no defect
therein shall limit the Noteholders' repurchase rights or affect the validity of
the proceedings for the repurchase of the Notes pursuant to this Section 3.05.
(c) For a Note to be so repurchased at the option of the holder, the
holder must deliver to the Paying Agent, prior to 5:00 p.m., New York City time,
on the Business Day immediately preceding the Fundamental Change Repurchase
Date, (i) a written notice of repurchase (the "Repurchase Notice") in the form
set forth on the reverse of the Note duly completed (if the Note is
certificated) or stating the following (if the Note is represented by a Global
Note): (A) the certificate number of the Note which the holder will deliver to
be repurchased or the appropriate Depositary procedures, (B) the portion of the
principal amount of the Note which the holder will deliver to be repurchased,
which portion must be in principal amounts of $1,000 or an integral multiple of
$1,000, (C) that such Note shall be repurchased as of the Fundamental Change
Repurchase Date pursuant to the terms and conditions specified in the Note and
in this Indenture and (D) in the event the Company elects pursuant to Section
3.07 to pay the repurchase price, in whole or in part, in shares of Applicable
Stock but such portion of the Repurchase Price shall ultimately be paid to such
holder entirely in cash because any one of the conditions to payment of the
repurchase price in shares of Applicable Stock is not satisfied prior to the
Fundamental Change Repurchase Date, whether such holder elects to (x) withdraw
such Repurchase Notice as to some or all of the Notes to which such Repurchase
Notice relates (stating the principal amount and certificate numbers, if any, or
the appropriate Depositary procedures, if applicable, of the Notes as to which
such withdrawal shall relate) or (y) receive cash in respect of the entire
repurchase price for all Notes (or portions thereof) to which such Repurchase
Notice relates, together with (ii) such Notes duly endorsed for transfer (if the
Note is certificated) or book-entry transfer of such Note (if such Note is
represented by a Global Note). The delivery of such Note to the Paying Agent
with, or at any time after delivery of, the Repurchase Notice (together with all
necessary endorsements) at the office of the Paying Agent shall be a condition
to the receipt by the holder of the repurchase price therefore; provided,
however, that such repurchase price shall be so paid pursuant to this Section
3.05 only if the Notes so delivered to the Paying Agent shall conform in all
respects to the description thereof in the Repurchase Notice. All questions as
to the validity, eligibility (including time of receipt) and acceptance of any
Note for repurchase shall be determined by the Company, whose determination
shall be final and binding absent manifest error.
(d) The Company shall repurchase from the holder thereof, pursuant to
this Section 3.05, a portion of a Note, if the principal amount of such portion
is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to the repurchase of all of a Note also apply to the repurchase of such portion
of such Note.
(e) If the Company has elected to pay the repurchase price in whole or
in part in shares of Applicable Stock pursuant to Section 3.07, but the
repurchase price is ultimately paid to the holder entirely in cash because any
one of the conditions set forth in Section 3.07(c) is not satisfied prior to
5:00 p.m., New York City time, on the Business Day immediately proceeding the
applicable Fundamental Change Repurchase Date, a holder, in such holder's
Repurchase Notice and in any written notice of withdrawal delivered by such
holder pursuant to the terms of Section 3.08, may elect to withdraw the
Repurchase Notice as to some or all of the Notes to which it relates, or to
receive cash in respect of the entire repurchase price for all Notes or portions
of Notes subject to such Repurchase Notice. If a holder fails to indicate in its
Repurchase Notice its election to receive cash or withdraw, the holder shall be
deemed to have elected to receive cash in respect of the entire repurchase price
for all Notes subject to such Repurchase Notice.
(f) The Paying Agent shall promptly notify the Company of the receipt
by it of any Repurchase Notice or written notice of withdrawal thereof.
Any repurchase by the Company contemplated pursuant to the provisions
of this Section 3.05 shall be consummated by the delivery of the consideration
to be received by the holder promptly following the later of the Fundamental
Change Repurchase Date and the time of the book-entry transfer or delivery of
the Note. Payment of the repurchase price for a Note for which a Repurchase
Notice has been delivered and not withdrawn is conditioned upon book-entry
transfer or delivery of the Notes, together with necessary endorsements, to the
Paying Agent.
Section 3.06 . Repurchase of Notes by the Company at Option of the
Holder. (a) Each Noteholder shall have the right, at such holder's option, to
require the Company to repurchase all of such holder's Notes, or any portion
thereof that is a multiple of $1,000 principal amount, on January 15, 2010, July
15, 2014 and July 15, 2019 (each, a "Repurchase Date"), at a repurchase price of
100% of the principal amount of the Notes being repurchased, plus accrued and
unpaid interest to, but excluding, the Repurchase Date, subject to the
provisions of Section 3.07 and subject to the satisfaction by the holder of the
requirements set forth in Section 3.06(c). Payment of interest will be paid to
the holder of record as of 5:00 p.m., New York City time, on the applicable
Record Date.
(b) On or before the twentieth Business Day prior to each Repurchase
Date, the Company shall mail or cause to be mailed to all holders of record on
such date (and to beneficial owners as required by applicable law) a Company
Repurchase Notice as set forth in Section 3.07(d). The Company shall also
deliver a copy of the Company Repurchase Notice to the Trustee and the Paying
Agent at such time as it is mailed to Noteholders.
No failure of the Company to give the foregoing notices and no defect
therein shall limit the Noteholders' repurchase rights or affect the validity of
the proceedings for the repurchase of the Notes pursuant to this Section 3.06.
(c) For a Note to be so repurchased at the option of the holder, the
holder must deliver to the Paying Agent, during the period beginning at 9:00
a.m., New York City Time, on the date that is 20 Business Days prior to the
applicable Repurchase Date and ending at 5:00 p.m., New York City Time, on the
Business Day immediately preceding the applicable Repurchase Date, (i) a
Repurchase Notice in the form set forth on the reverse of the Note duly
completed (if the Note is certificated) or stating the following (if the Note is
represented by a Global Note): (A) the certificate number of the Note which the
holder will deliver to be repurchased or the appropriate Depositary procedures,
(B) the portion of the principal amount of the Note which the holder will
deliver to be repurchased, which portion must be in principal amounts of $1,000
or an integral multiple of $1,000, (C) that such Note shall be repurchased as of
the Repurchase Date pursuant to the terms and conditions specified in the Note
and in this Indenture and (D) in the event the Company elects pursuant to
Section 3.07 to pay the repurchase price, in whole or in part, in shares of
Common Stock but such portion of the Repurchase Price shall ultimately be paid
to such holder entirely in cash because any one of the conditions to payment of
the repurchase price in shares of Common Stock is not satisfied prior to the
Repurchase Date, whether such holder elects to (x) withdraw such Repurchase
Notice as to some or all of the Notes to which such Repurchase Notice relates
(stating the principal amount and certificate numbers, if any, or the
appropriate Depositary procedures, if applicable, of the Notes as to which such
withdrawal shall relate) or (y) receive cash in respect of the entire repurchase
price for all Notes (or portions thereof) to which such Repurchase Notice
relates, together with (ii) such Notes duly endorsed for transfer (if the Note
is certificated) or book-entry transfer of such Note (if such Note is
represented by a Global Note). The delivery of such Note to the Paying Agent
with, or at any time after delivery of, the Repurchase Notice (together with all
necessary endorsements) at the office of the Paying Agent shall be a condition
to the receipt by the holder of the repurchase price therefore; provided,
however, that such repurchase price shall be so paid pursuant to this Section
3.06 only if the Notes so delivered to the Paying Agent shall conform in all
respects to the description thereof in the Repurchase Notice. All questions as
to the validity, eligibility (including time of receipt) and acceptance of any
Note for repurchase shall be determined by the Company, whose determination
shall be final and binding absent manifest error.
(d) The Company shall repurchase from the holder thereof, pursuant to
this Section 3.06, a portion of a Note, if the principal amount of such portion
is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to the repurchase of all of a Note also apply to the repurchase of such portion
of such Note.
(e) If the Company has elected to pay the repurchase price in whole or
in part in shares of Common Stock pursuant to Section 3.07, but the repurchase
price is ultimately paid to the holder entirely in cash because any one of the
conditions set forth in Section 3.07(a) is not satisfied prior to 5:00 p.m., New
York City time, on the Business Day immediately proceeding the applicable
Repurchase Date, a holder, in such holder's Repurchase Notice and in any written
notice of withdrawal delivered by such holder pursuant to the terms of Section
3.08, may elect to withdraw the Repurchase Notice as to some or all of the Notes
to which it relates, or to receive cash in respect of the entire repurchase
price for all Notes or portions of Notes subject to such Repurchase Notice. If a
holder fails to indicate in its Repurchase Notice its election to receive cash
or withdraw, the holder shall be deemed to have elected to receive cash in
respect of the entire repurchase price for all Notes subject to such Repurchase
Notice.
(f) The Paying Agent shall promptly notify the Company of the receipt
by it of any Repurchase Notice or written notice of withdrawal thereof.
Any repurchase by the Company contemplated pursuant to the provisions
of this Section 3.06 shall be consummated by the delivery of the consideration
to be received by the holder promptly following the later of the Repurchase Date
and the time of the book-entry transfer or delivery of the Note. Payment of the
repurchase price for a Note for which a Repurchase Notice has been delivered and
not withdrawn is conditioned upon book-entry transfer or delivery of the Notes,
together with necessary endorsements, to the Paying Agent.
Section 3.07 . Company's Right to Elect Manner of Payment of Repurchase
Price for Payment.
(a) The Notes to be repurchased on any Fundamental Change Repurchase
Date pursuant to Section 3.05 or Repurchase Date pursuant to Section 3.06 may be
paid for, in whole or in part, at the election of the Company, (i) in cash or
shares of Applicable Stock, or a combination thereof, in the case of a
repurchase pursuant to Section 3.05 or (ii) in cash or shares of Common Stock,
or a combination thereof, in the case of a repurchase pursuant to Section 3.06,
in either case, subject to the conditions set forth in Section 3.07(c) and (d).
However, the Company may not make such an election pursuant to a repurchase
pursuant to Section 3.06 if the Company has irrevocably elected to make a cash
payment of principal upon conversion pursuant to Section 15.12(b); in such
event, the Company must pay the repurchase price in cash. The Company may not
change its election with respect to the consideration (or components or
percentages of components thereof) to be paid once the Company has given its
Company Repurchase Notice to holders; except pursuant to Section 3.07(c) in the
event of a failure to satisfy, prior to 5:00 p.m., New York City time, on the
Business Day immediately preceding the Fundamental Change Repurchase Date or the
Repurchase Date, as applicable, any condition to the payment of the repurchase
price, in whole or in part, in shares of Applicable Stock or Common Stock, as
the case may be.
At least three Business Days (or such shorter period of time as may be
acceptable to the Trustee) before each Company Repurchase Notice Date, the
Company shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.07(d) in the
Company Repurchase Notice,
(iii) if the Company elects to pay the repurchase price, or a
specified percentage thereof, in shares of Applicable Stock or Common
Stock, as the case may be, that the conditions to such manner of
payment set forth in clauses (i) through (iv) of Section 3.07(c) have
been or will be complied with,
(iv) whether the Company desires the Trustee to give the
Company Repurchase Notice required by Section 3.07(d) and
(v) the other information required by Section 3.07(c) to be
included in the Officers' Certificate.
(b) The Company Repurchase Notice, as provided in Section 3.07(d),
shall be given to holders in the event of a Fundamental Change, on or before the
tenth Business Day after the occurrence of such a Fundamental Change or not less
than 20 Business Days prior to the Repurchase Date (in either case, the "Company
Repurchase Notice Date").
(c) If the Company elects, pursuant to Section 3.07(a), to pay the
repurchase price of Notes in respect of which a Repurchase Notice pursuant to
Section 3.05 or Section 3.06 has been given, or a specified percentage thereof,
by the delivery of a number of shares of Applicable Stock, in the case of a
repurchase pursuant to Section 3.05, or Common Stock, in the case of a
repurchase pursuant to Section 3.06, the number of shares of Applicable Stock or
Common Stock, as the case may be, to be delivered shall equal the quotient
obtained by dividing (i) the portion of the repurchase price to be paid in
shares of Applicable Stock or Common Stock, as the case may be, by (ii) 98.0% of
the average of the Closing Sale Price of one share of Applicable Stock or Common
Stock, as the case may be, for the five Trading-Day period ending on the third
Trading Day immediately preceding the applicable Fundamental Change Repurchase
Date or the Repurchase Date (in each case appropriately adjusted to take into
account the occurrence, during the period commencing on the first Trading Day of
the five Trading-Day period and ending on the Fundamental Change Repurchase Date
or the Repurchase Date, as applicable, of any event described in Section 15.06),
subject to the next succeeding paragraph.
The Company will not issue fractional shares of Applicable Stock or
Common Stock, as the case may be, in payment of the repurchase price. Instead,
the Company will pay cash based on the Closing Sale Price of a share of
Applicable Stock or Common Stock, as the case may be, on the applicable
Fundamental Change Repurchase Date or Repurchase Date for all fractional shares.
It is understood that if a holder elects to have more than one Note repurchased,
the number of shares of Applicable Stock or Common Stock, as the case may be,
shall be based on the aggregate amount of Notes to be repurchased.
For purposes of determining the existence of potential fractional
interests, all Notes subject to repurchase by the Company held by a holder shall
be considered together (no matter how many separate certificates are to be
presented). Each holder whose Notes are repurchased pursuant to Section 3.05 or
Section 3.06 shall receive the same percentage of cash or shares of Common Stock
or Applicable Stock, as the case may be, in payment of the repurchase price for
such Notes, except with regard to the payment of cash in lieu of fractional
shares of Common Stock or Applicable Stock, as the case may be.
The Company's right to exercise its election to repurchase Notes
through the issuance of shares of Applicable Stock or Common Stock, as the case
may be, shall be conditioned upon:
(i) the Company's giving a timely Company Repurchase Notice
containing an election to repurchase all or a specified percentage of
the Notes with shares of Applicable Stock or Common Stock, as the case
may be, as provided herein;
(ii) the registration of such shares of Applicable Stock or
Common Stock, as the case may be, under the Securities Act and the
Exchange Act, if required;
(iii) the listing of such shares of Applicable Stock or Common
Stock, as the case may be, on a United States national securities
exchange or the quotation of such shares of Applicable Stock or Common
Stock, as the case may be, in an inter-dealer quotation system of any
registered United States national securities association;
(iv) any necessary qualification or registration of such
shares of Applicable Stock or Common Stock, as the case may be, under
applicable state securities laws or the availability of an exemption
from such qualification and registration; and
(v) the receipt by the Trustee of (a) the Officers'
Certificate described in Section 3.07(a) and stating that the terms of
the issuance of the shares of Applicable Stock or Common Stock, as the
case may be, are in conformity with this Indenture and that the
conditions to the issuance of the shares of Applicable Stock or Common
Stock, as the case may be, have been satisfied and (b) upon the
Trustee's written request, an Opinion of Counsel to the effect that the
shares of Applicable Stock or Common Stock, as the case may be, to be
issued in payment of the repurchase price in respect of the Notes have
been duly authorized and, when issued and delivered pursuant to the
terms of this Indenture in payment of the repurchase price in respect
of the Notes, will be validly issued, fully paid and non-assessable.
Such Officers' Certificate shall also set forth the number of shares of
Applicable Stock or Common Stock, as the case may be, to be issued for each
$1,000 principal amount of Notes and the Closing Sale Price of a share of
Applicable Stock or Common Stock, as the case may be, on each Trading Day during
the five Trading-Day period ending on the third Trading Day prior to the
applicable Fundamental Change Repurchase Date or Repurchase Date. If the
foregoing conditions are not satisfied prior to 5:00 p.m., New York City time,
on the Business Day immediately preceding the applicable Fundamental Change
Repurchase Date or Repurchase Date, as applicable, and the Company has elected
to repurchase the Notes through the issuance of shares of Applicable Stock or
Common Stock, as the case may be, the Company shall pay the entire repurchase
price of the Notes in cash.
Promptly after determination of the actual number of shares of
Applicable Stock or Common Stock, as the case may be, to be issued upon
repurchase of Notes, the Company shall be required to disseminate a press
release through Dow ▇▇▇▇▇ & Company, Inc. or Bloomberg Business News containing
this information or publish the information on the Company's web site or through
such other public medium as the Company may use at that time.
(d) In connection with any repurchase of Notes, the Company shall, in
the case of a Fundamental Change, on or before the tenth Business Day after the
Effective Date of such Fundamental Change or no less than 20 Business Days prior
to each Repurchase Date, give notice to holders (with a copy to the Trustee)
setting forth information specified in this Section 3.07(d) (in either case, the
"Company Repurchase Notice").
Each Company Repurchase Notice shall:
(1) state the repurchase price and the Fundamental Change
Repurchase Date or the Repurchase Date to which the Company Repurchase
Notice relates;
(2) state, if applicable, the circumstances constituting the
Fundamental Change;
(3) state whether the repurchase price will be paid in cash,
shares of Applicable Stock or Common Stock, as the case may be, or a
combination thereof, specifying the percentages of each;
(4) state that holders must exercise their right to elect
repurchase prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Fundamental Change Repurchase Date or
Repurchase Date, as the case may be;
(5) if shares of Applicable Stock or Common Stock, as the case
may be, will be used to pay all or part of the repurchase price, state:
(a) the method for calculating the number of shares
of Applicable Stock or Common Stock, as the case may be, to be
delivered in connection with the repurchase; and
(b) that holders of the Notes will bear the market
risk with respect to the value of the shares of Applicable
Stock or Common Stock, as the case may be, to be delivered
from the date the number of shares is determined;
(6) include a form of Repurchase Notice;
(7) state the name and address of the Paying Agent;
(8) state that Notes must be surrendered to the Paying Agent
to collect the repurchase price;
(9) state that a holder may withdraw its Repurchase Notice at
any time prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Fundamental Change Repurchase Date or the
Repurchase Date, as the case may be, by delivering a valid written
notice of withdrawal in accordance with Section 3.08;
(10) if the Notes are then convertible, state that Notes as to
which a Repurchase Notice has been given may be converted only if the
Repurchase Notice is withdrawn in accordance with the terms of this
Indenture;
(11) state the amount of interest accrued and unpaid per
$1,000 principal amount of Notes to, but excluding, the Fundamental
Change Repurchase Date and Repurchase Date, as the case may be; and
(12) state the CUSIP number of the Notes.
A Company Repurchase Notice may be given by the Company or, at the Company's
request, the Trustee shall give such Company Repurchase Notice in the Company's
name and at the Company's expense; provided, that the text of the Company
Repurchase Notice shall be prepared by the Company.
(e) All shares of Applicable Stock or Common Stock, as the case may be,
delivered upon repurchase of the Notes shall be duly authorized, validly issued,
fully paid and nonassessable.
(f) If a holder of a repurchased Note is paid in shares of Applicable
Stock or Common Stock, as the case may be, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on such issue of
Applicable Stock or Common Stock, as the case may be. However, the holder shall
pay any such tax which is due because the holder requests the Applicable Stock
or Common Stock, as the case may be, to be issued in a name other than the
holder's name. The Paying Agent may refuse to deliver the certificates
representing the shares of Common Stock being issued in a name other than the
holder's name until the Paying Agent receives a sum sufficient to pay any tax
which will be due because the shares of Applicable Stock or Common Stock, as the
case may be, are to be issued in a name other than the holder's name. Nothing
herein shall preclude any income tax withholding required by law or regulations.
(g) The Company will, to the extent applicable, comply with the
provisions of Rule 13e-4 and Rule 14e-1 (or any successor provision) under the
Exchange Act that may be applicable at the time of the repurchase of the Notes,
file the related Schedule TO (or any successor schedule, form or report) under
the Exchange Act and comply with all other federal and state securities laws in
connection with the repurchase of the Notes.
Section 3.08 . Effect of Repurchase Notice; Withdrawal. Upon receipt by
the Paying Agent of the Repurchase Notice specified in Section 3.05 or Section
3.06, the holder of the Note in respect of which such Repurchase Notice was
given shall (unless such Repurchase Notice is validly withdrawn in accordance
with the following paragraph) thereafter be entitled to receive solely the
repurchase price with respect to such Note. Such repurchase price shall be paid
to such holder, subject to receipt of funds and/or Notes by the Paying Agent,
promptly following the later of (x) the Fundamental Change Repurchase Date or
the Repurchase Date with respect to such Note (provided the holder has satisfied
the conditions in Section 3.05 or Section 3.06) and (y) the time of book-entry
transfer or delivery of such Note to the Paying Agent by the holder thereof in
the manner required by Section 3.05 or Section 3.06. Notes in respect of which a
Repurchase Notice has been given by the holder thereof may not be converted
pursuant to Article 15 hereof on or after the date of the delivery of such
Repurchase Notice unless such Repurchase Notice has first been validly
withdrawn.
A Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the
Repurchase Notice at any time prior to 5:00 p.m., New York City time, on the
Business Day immediately preceding the Fundamental Change Repurchase Date or
Repurchase Date, as the case may be, specifying:
(a) the certificate number, if any, of the Note in respect of which
such notice of withdrawal is being submitted, or the appropriate Depositary
information, in accordance with appropriate Depositary procedures, if the Note
in respect of which such notice of withdrawal is being submitted is represented
by a Global Note,
(b) the principal amount of the Note with respect to which such notice
of withdrawal is being submitted, and
(c) the principal amount, if any, of such Note which remains subject to
the original Repurchase Notice and which has been or will be delivered for
repurchase by the Company.
If a Repuchase Notice is properly withdrawn, the Company shall not be
obligated to repurchase the Notes listed in such Repurchase Notice.
Section 3.09 . Deposit of Repurchase Price. (a) Prior to 11:00 a.m.,
New York City Time, on the Fundamental Change Repurchase Date or the Repurchase
Date, the Company shall deposit with the Paying Agent or, if the Company is
acting as the Paying Agent, shall segregate and hold in trust as provided in
Section 6.04) an amount of cash (in immediately available funds if deposited on
the Fundamental Change Repurchase Date or the Repurchase Date, as the case may
be), sufficient to pay the aggregate repurchase price of all the Notes or
portions thereof that are to be repurchased for cash as of the Fundamental
Change Repurchase Date or the Repurchase Date, as the case may be.
As soon as practicable after the Fundamental Change Repurchase Date or
the Repurchase Date, as the case may be, the Company shall deliver to each
holder entitled to receive shares of Applicable Stock or Common Stock, as the
case may be, through the Paying Agent, a certificate for the number of full
shares of Applicable Stock or Common Stock, as the case may be, issuable in
payment of the repurchase price and cash in lieu of any fractional interests.
The person in whose name the certificate for the shares of Applicable Stock or
Common Stock, as the case may be, is registered shall be treated as a holder of
record of Applicable Stock or Common Stock, as the case may be, on the Business
Day following the applicable Fundamental Change Repurchase Date or the
Repurchase Date. No payment or adjustment in the repurchase price will be made
for dividends on the shares of Applicable Stock or Common Stock, as the case may
be, the Record Date for which occurred on or prior to the Fundamental Change
Repurchase Date or the Repurchase Date, as applicable.
If on the Fundamental Change Repurchase Date or the Repurchase Date the
Paying Agent holds money or shares of Applicable Stock or Common Stock, as the
case may be, sufficient to pay the repurchase price of the Notes that holders
have elected to require the Company to repurchase in accordance with Section
3.05 or 3.06, as the case may be, then, on the Fundamental Change Repurchase
Date or the Repurchase Date, as the case may be, such Notes will cease to be
outstanding, interest will cease to accrue and all other rights of the holders
of such Notes will terminate, other than the right to receive the repurchase
price upon delivery or book-entry transfer of the Note. This will be the case
whether or not book-entry transfer of the Note has been made or the Note has
been delivered to the Paying Agent.
Section 3.10 . Notes Repurchased in Part. Upon presentation of any Note
repurchased only in part, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the holder thereof, at the
expense of the Company, a new Note or Notes, of any authorized denomination, in
aggregate principal amount equal to the unrepurchased portion of the Notes
presented.
Section 3.11 . Repayment to the Company. The Paying Agent shall return
to the Company any cash or shares of Applicable Stock or Common Stock, as the
case may be, that remain unclaimed, together with interest or dividends, if any,
thereon, held by them for the payment of the repurchase price; provided that to
the extent that the aggregate amount of cash or shares of Applicable Stock or
Common Stock, as the case may be, by the Company pursuant to Section 3.09
exceeds the aggregate repurchase price of the Notes or portions thereof which
the Company is obligated to repurchase as of the Fundamental Change Repurchase
Date or the Repurchase Date, as the case may be, then, unless otherwise agreed
in writing with the Company, promptly after the Business Day following the
Fundamental Change Repurchase Date or the Repurchase Date, as the case may be,
the Trustee shall return any such excess to the Company together with interest
or dividends, if any, thereon.
ARTICLE 4
SUBORDINATION OF NOTES
Section 4.01 . Notes Subordinated To Senior Indebtedness. The Company
covenants and agrees, and the Trustee and each holder of the Notes by the
acceptance thereof likewise covenant and agree, that all Notes shall be issued
subject to the provisions of this Article 4; and each person holding any Note,
whether upon original issue or upon transfer, assignment or exchange thereof,
accepts and agrees that all payments of the principal of, premium, if any, and
interest on (and other obligations, if any, with respect to) the Notes by the
Company shall, to the extent and in the manner set forth in this Article 4, be
subordinated and junior in right of payment to the prior payment in full in cash
of all obligations arising under Senior Indebtedness. The Notes will be
contractually equal in right of payment to the Company's other existing and
future senior subordinated indebtedness, including the Company's 9 1/4% Senior
Subordinated Notes due 2010 and the Company's 3 1/2% Convertible Senior
Subordinated Notes due April 15, 2023.
Section 4.02 . No Payment On Notes In Certain Circumstances.
(a) No direct or indirect payment (other than in Junior Securities) by
or on behalf of the Company of principal of, premium, if any, or interest on
(and other obligations, if any, with respect to) the Notes, whether pursuant to
the terms of the Notes, upon acceleration, pursuant to an offer to repurchase,
redemption or otherwise, will be made, if, at the time of such payment, there
exists a default in the payment of all or any portion of the obligations on any
Designated Senior Indebtedness, whether at maturity, on account of mandatory
redemption or prepayment, acceleration or otherwise, and such default shall not
have been cured or waived in writing or the benefits of this sentence waived in
writing by or on behalf of the holders of such Designated Senior Indebtedness.
In addition, during the continuance of any non-payment event of default with
respect to any Designated Senior Indebtedness pursuant to which the maturity
thereof may be immediately accelerated by the holder or holders of such
Designated Senior Indebtedness or may be accelerated by the holder or holders of
such Designated Senior Indebtedness with the giving of notice or the passage of
time or both, and upon receipt by the Trustee of written notice (a "Payment
Blockage Notice") from the holder or holders of such Designated Senior
Indebtedness or the trustee or agent acting on behalf of the holders of such
Designated Senior Indebtedness, then, unless and until such event of default has
been cured or waived in writing or has ceased to exist or such Designated Senior
Indebtedness has been discharged or repaid in full in cash (or such payment
shall be duly provided for in a manner satisfactory to holders of Senior
Indebtedness) or otherwise to the extent holders of Senior Indebtedness in their
sole discretion accept satisfaction of amounts due by settlement in other than
cash or the benefits of these provisions have been waived in writing by the
holders of such Designated Senior Indebtedness, no direct or indirect payment
(other than in Junior Securities) will be made by or on behalf of the Company of
principal of, premium, if any, or interest on (and other obligations, if any,
with respect to) the Notes, whether pursuant to the terms of the Notes, upon
acceleration, pursuant to an offer to repurchase, redemption or otherwise to
such holders during a period (a "Payment Blockage Period") commencing on the
date of receipt of the Payment Blockage Notice by the Trustee and ending 179
days thereafter. The Trustee shall deliver a copy of the Payment Blockage Notice
to the Company promptly upon receipt thereof.
Notwithstanding anything in the subordination provisions of this
Indenture or the Notes to the contrary, (1) in no event will a Payment Blockage
Period extend beyond 179 days from the date the Payment Blockage Notice in
respect thereof was given and (2) not more than one Payment Blockage Period may
exist with respect to the Notes during any period of 360 consecutive calendar
days. No default that existed or was continuing on the date of delivery of any
Payment Blockage Notice (whether or not such event is with respect to the same
issue of Designated Senior Indebtedness) may be, or be made, the basis for a
subsequent Payment Blockage Notice, unless such default has been cured or waived
for a period of not less than 90 consecutive calendar days.
(b) In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any holder at a time when such payment is
prohibited by Section 4.02(a), such payment shall be received and held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Designated Senior Indebtedness or their respective representatives, or to the
trustee or trustees or agent or agents under any indenture or agreement pursuant
to which any of such Designated Senior Indebtedness may have been issued or
incurred, as their respective interests may appear, but only to the extent that,
upon notice from the Trustee to the holders of Designated Senior Indebtedness
that such prohibited payment has been made, the holders of the Designated Senior
Indebtedness (or their representative or representatives or a trustee or
trustees) notify the Trustee in writing of the amounts then due and owing on the
Designated Senior Indebtedness, if any, and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Designated Senior
Indebtedness.
Section 4.03. Payment Over Of Proceeds Upon Dissolution, Etc.
(a) Upon any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities, to
the creditors of the Company upon any dissolution or winding-up or total
liquidation or reorganization of the Company, whether voluntary or involuntary,
or in bankruptcy, insolvency, receivership or other similar proceedings relating
to the Company, any assignment for the benefit of creditors or any marshalling
of the Company's assets and liabilities, the holders of Senior Indebtedness
shall be entitled to receive payment in full in cash of all obligations due in
respect of such Senior Indebtedness (including interest accruing after, or which
would accrue but for, the commencement of any proceeding at the rate specified
in the applicable Senior Indebtedness, whether or not a claim for such interest
would be allowed), or have provision made for such payment in a manner
acceptable to holders of such Senior Indebtedness, before the holders of the
Notes or the Trustee on behalf of such holders shall be entitled to receive any
payment by the Company of the principal of, premium, if any, or interest on (and
other obligations, if any, with respect to) the Notes, or any payment by the
Company to acquire any of the Notes for cash, property or securities, or any
distribution by the Company with respect to the Notes of any cash, property or
securities (in each case, other than payments in Junior Securities).
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities (in each case, other than Junior Securities), shall be received by
the Trustee or any Paying Agent or any holder of Notes at a time when such
payment or distribution is prohibited by Section 4.03(a) and before all
obligations in respect of Senior Indebtedness are paid in full in cash (or such
payment shall be duly provided for in a manner satisfactory to the holders of
Senior Indebtedness) or otherwise to the extent holders of Senior Indebtedness
in their sole discretion accept satisfaction of amounts due by settlement in
other than cash, such payment or distribution shall be received and held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders) or their respective
representatives, or to the trustee or trustees or agent or agents under any
indenture or agreement pursuant to which any of such Senior Indebtedness may
have been issued or incurred, as their respective interests may appear, for
application to the payment of Senior Indebtedness remaining unpaid until all
such Senior Indebtedness has been paid in full in cash (or such payment shall be
duly provided for in a manner satisfactory to the holders of Senior
Indebtedness) or otherwise to the extent holders of Senior Indebtedness in their
sole discretion accept satisfaction of amounts due by settlement in other than
cash after giving effect to any prior or concurrent payment, distribution or
provision therefor to or for the holders of such Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another corporation or limited liability company or the
liquidation or dissolution of the Company following the sale, conveyance,
transfer or lease of the Company's and its subsidiaries' property as an
entirety, or substantially as an entirety, to another corporation upon the terms
and conditions provided in Article 12 shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Article 4 if
such other corporation shall, as a part of such consolidation, merger, sale,
conveyance, transfer or lease, comply with the conditions stated in Article 12.
Section 4.04 . Subrogation. Upon the payment in full in cash (or such
payment shall be duly provided for in a manner satisfactory to the holders of
Senior Indebtedness) or otherwise to the extent holders of Senior Indebtedness
in their sole discretion accept satisfaction of amounts due by settlement in
other than cash of all Senior Indebtedness, the holders of the Notes shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, cash equivalents, property or securities of
the Company made on such Senior Indebtedness until the principal of, premium, if
any, and interest on the Notes shall be paid in full in cash or the Notes are no
longer outstanding; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, cash
equivalents, property or securities to which the holders of the Notes or the
Trustee on their behalf would be entitled except for the provisions of this
Article 4, and no payment over pursuant to the provisions of this Article 4 to
the holders of Senior Indebtedness by holders of the Notes or the Trustee on
their behalf shall, as between the Company, its creditors other than holders of
Senior Indebtedness, and the holders of the Notes, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness. It is understood that
the provisions of this Article 4 are and are intended solely for the purpose of
defining the relative rights of the holders of the Notes, on the one hand, and
the holders of the Senior Indebtedness, on the other hand.
If any payment or distribution to which the holders of the Notes would
otherwise have been entitled but for the provisions of this Article 4 shall have
been applied, pursuant to the provisions of this Article 4, to the payment of
all amounts payable under Senior Indebtedness, then and in such case, the
holders of the Notes shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount required to make payment in full in
cash of such Senior Indebtedness (or to duly provide for such payment in a
manner satisfactory to the holders of Senior Indebtedness) or otherwise to the
extent holders of Senior Indebtedness in their sole discretion accept
satisfaction of amounts due by settlement in other than cash.
Section 4.05 . Obligations Of Company Unconditional. Nothing contained
in this Article 4 or elsewhere in this Indenture or in the Notes is intended to
or shall impair, as among the Company and the holders of the Notes, the
obligation of the Company, which is absolute and unconditional, to pay to the
holders of the Notes the principal of, premium on and interest on the Notes as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the holders of the
Notes and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the holder of any
Note or the Trustee on their behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 4 of the holders of the Senior Indebtedness
in respect of cash, cash equivalents, property or securities of the Company
received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article 4 shall restrict the right of the Trustee or the holders of Notes
to take any action to declare the Notes to be due and payable prior to their
stated maturity pursuant to Section 8.01 or to pursue any rights or remedies
hereunder; provided, however, that all Senior Indebtedness then due and payable
shall first be paid in full in cash (including Post-Petition Interest), or have
provision made for such payment in a manner satisfactory to the holders of such
Senior Indebtedness, before the holders of the Notes or the Trustee are entitled
to receive any direct or indirect payment from the Company of principal of,
premium and interest on (and other obligations, if any, with respect to) the
Notes.
Section 4.06 . Notice To Trustee. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Notes pursuant to
the provisions of this Article 4. Unless the Trustee has failed to give notice
of its change of address pursuant to Section 17.03 hereof, the Trustee shall not
be charged with knowledge of the existence of any event of default with respect
to any Senior Indebtedness or of any other facts which would prohibit the making
of any payment to or by the Trustee unless and until the Trustee shall have
received notice in writing at its Corporate Trust Office to that effect signed
by an Officer of the Company, or by a holder of Senior Indebtedness or trustee
or agent therefor; and prior to the receipt of any such written notice, the
Trustee subject to the provisions of Article 9 shall, be entitled to assume that
no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 4.06 at least one Business Day
prior to the date upon which by the terms of this Indenture any moneys shall
become payable for any purpose (including, without limitation, the payment of
the principal of, premium, if any, or interest on any Note), then, regardless of
anything herein to the contrary, the Trustee shall have full power and authority
to receive any moneys from the Company and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 4.06 shall limit the right of the holders of Senior
Indebtedness to recover payments as contemplated by Section 4.03 or from any
holder under Section 4.02(b). The Trustee shall be entitled to conclusively rely
on the delivery to it of a written notice by a Person representing himself or
itself to be a holder of any Senior Indebtedness (or a trustee on behalf of, or
agent or other representative of, such holder) to establish that such notice has
been given by a holder of such Senior Indebtedness or a trustee or agent or
representative on behalf of any such holder. A holder of Senior Indebtedness and
any trustee, agent or other representative on behalf of such holder shall be
entitled to deliver all notices required by this Section 4.06 or otherwise
pursuant to this Article 4 to the address of the Trustee set forth herein unless
such holder or the trustee, agent or representative of such holder shall have
received actual written notice of a change of address of the Trustee.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 4, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article 4, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 4.07 . Trustee's Relation To Senior Indebtedness. The Trustee
and any Paying Agent shall be entitled to all the rights set forth in this
Article 4 with respect to any Senior Indebtedness which may at any time be held
by it in its individual or any other capacity to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee or any Paying Agent of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 4, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness 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 Indebtedness (except as provided in
Section 4.02(b) and 4.03(b)). The Trustee shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to
holders of Notes or to the Company or to any other person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article 4 or otherwise.
Section 4.08 . Subordination Rights Not Impaired By Acts Or Omissions
Of The Company Or Holders Of Senior Indebtedness. No right of any present or
future holders of any Senior Indebtedness to enforce subordination as provided
herein shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms of this Indenture, regardless of any knowledge thereof which any such
holder may have or otherwise be charged with. The provisions of this Article 4
are intended to be for the benefit of, and shall be enforceable directly by, the
holders of Senior Indebtedness.
Section 4.09 . Holders Authorize Trustee To Effectuate Subordination Of
Notes. Each holder of Notes by his acceptance of such Notes authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article 4, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, total liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, the filing of a claim for the unpaid balance of its or his Notes
in the form required in those proceedings.
Section 4.10 . This Article Not To Prevent Events Of Default. The
failure to make a payment on account of principal of, or premium, if any, or
interest on the Notes by reason of any provision of this Article 4 shall not be
construed as preventing the occurrence of an Event of Default specified in
clauses (a) or (b) of Section 8.01.
Section 4.11 . Trustee's Compensation And Rights To Indemnification Not
Prejudiced. Nothing in this Article 4 shall apply to amounts due to the Trustee,
or its rights to indemnification, pursuant to other sections in this Indenture.
Section 4.12 . No Waiver Of Subordination Provisions. Without in any
way limiting the generality of Section 4.08, the holders of Senior Indebtedness
may, at any time and from time to time, without the consent of or notice to the
Trustee or the holders of the Notes, without incurring responsibility to the
holders of the Notes and without impairing or releasing the subordination
provided in this Article 4 or the obligations hereunder of the holders of the
Notes to the holders of Senior Indebtedness, do any one or more of the
following: (a) change the manner, place or terms of payment or extend the time
of payment of, or renew, alter or amend, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding or secured; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness; (c)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against the
Company and any other Person.
Section 4.13 . Subordination Provisions Not Applicable To Money Held In
Trust For Holders; Payments May Be Paid Prior To Dissolution. All funds
deposited in trust with the Paying Agent pursuant to and in accordance with
Article 13 when permitted pursuant to Article 4 shall be for the sole benefit of
the holders and shall not be subject to this Article 4.
Nothing contained in this Article 4 or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in this
Article 4, from making payments of principal of, premium, if any, and interest
on the Notes or from depositing with the Paying Agent any moneys for such
payments or from effecting a termination of the Company's obligations under the
Notes and this Indenture as provided in Article 13, or (ii) the application by
the Trustee of any moneys deposited with it or any Paying Agent for the purpose
of making such payments of principal of, premium, if any, and interest on the
Notes, to the holders entitled thereto unless at least one Business Day prior to
the date upon which such payment becomes due and payable, the Trustee shall have
received the written notice provided for in Section 4.02(b) or in Section 4.06.
The Company shall give prompt written notice to the Trustee of any dissolution,
winding-up, liquidation or reorganization of the Company.
Section 4.14 . Acceleration Of Notes. If payment of the Notes is
accelerated because of an Event of Default, the Company shall promptly notify
holders of the Senior Indebtedness of the acceleration.
Section 4.15 . Certain Conversions and Repurchases Not Deemed Payment.
For the purposes of this Article 4 only, (1) (x) the issuance and delivery of
Junior Securities upon conversion of Notes in accordance with, and (y) the
payment, issuance or delivery of cash, property or securities upon conversion of
a Note as a result of any transaction pursuant to, Section 15.01 or (2) the
issuance and delivery of Junior Securities made in connection with repurchases
of Notes in accordance with Sections 3.05 and 3.06, shall not be deemed to
constitute a payment or distribution on account of the principal of, premium, if
any, or interest on Notes or on account of the purchase or other acquisition of
Notes. For the purposes of this Article 4, the term "Junior Securities" means
(a) Common Stock of the Company or Applicable Stock, as the case may be, or (b)
securities of the Company that are subordinated in right of payment to all
Senior Indebtedness that may be outstanding at the time of issuance or delivery
of such securities to at least the same extent as, or to a greater extent than,
the Notes are so subordinated as provided in this Article 4. Nothing contained
in this Article 4 or elsewhere in this Indenture or in the Notes is intended to
or shall impair, as among the Company, its creditors (other than holders of
Senior Indebtedness) and the Noteholders, the right, which is absolute and
unconditional, of the holder of any Note to convert such Note in accordance with
Section 15.01.
ARTICLE 5
CONTINGENT INTEREST
Section 5.01 . Contingent Interest. Beginning with the six-month
interest period commencing January 15, 2010, the Company will pay contingent
interest during any six-month interest period if the Trading Price of the Notes
for each of the five Trading Days ending on the second Trading Day immediately
preceding the first day of the applicable six-month interest period equals or
exceeds 120% of the principal amount of the Notes. During any six-month interest
period when contingent interest is payable, the contingent interest payable on
each $1,000 principal amount of Notes shall equal 0.25% of the average Trading
Price of $1,000 principal amount of Notes during the five Trading Days
immediately preceding the first day of the applicable six-month interest period
used to determine whether contingent interest must be paid.
The Trustee's sole responsibility pursuant to Section 5.01 hereof shall
be to obtain the Trading Price of the Notes for each of the five Trading Days
immediately preceding the first day of the applicable six-month interest period
and to provide such information to the Company. The Company shall determine
whether holders are entitled to receive contingent interest, and if so, provide
notice pursuant to Section 5.03. Notwithstanding any term contained in this
Indenture or any other document to the contrary, the Trustee shall have no
responsibilities, duties or obligations for or with respect to (i) determining
whether the Company must pay contingent interest or (ii) determining the amount
of contingent interest, if any, payable by the Company.
Section 5.02 . Payment of Contingent Interest. Contingent interest for
any six-month interest period shall be paid on the applicable interest payment
date to the Person in whose name any Note (or its Predecessor Note) is
registered on the Note Register at the corresponding Record Date. Contingent
interest due under this Article 5 shall be treated for all purposes of this
Indenture like any other interest accruing on the Notes.
Section 5.03 . Contingent Interest Notification. On or before the first
Business Day of a six-month interest period during which contingent interest
will be paid, the Company will disseminate a press release through Dow ▇▇▇▇▇ &
Company, Inc. or Bloomberg Business News stating that contingent interest will
be paid on the Notes and identifying the six-month interest period.
ARTICLE 6
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01 . Payment of Principal, Premium and Interest. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
when due the principal of (including the redemption price upon redemption or the
repurchase price upon repurchase, in each case pursuant to Article 3), and
premium, if any, and interest on each of the Notes at the places, at the
respective times and in the manner provided herein and in the Notes.
Section 6.02 . Maintenance of Office or Agency. The Company will
maintain an office or agency in the Borough of Manhattan, The City of New York,
where the Notes may be surrendered for registration of transfer or exchange or
for presentation for payment or for conversion, redemption or repurchase and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. As of the date of this Indenture, such office is
located at U.S. Bank National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Office and, at any other time, at such other address
as the Trustee may designate from time to time by notice to the Company. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency not designated or appointed 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,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office.
The Company may also from time to time designate co-registrars and one
or more offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby initially designates the Trustee as Paying Agent,
Note Registrar, Custodian and conversion agent and the Corporate Trust Office
shall be considered as one such office or agency of the Company for each of the
aforesaid purposes.
So long as the Trustee is the Note Registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 9.10(a) and the
third paragraph of Section 9.11. If co-registrars have been appointed in
accordance with this Section, the Trustee shall mail such notices only to the
Company and the holders of Notes it can identify from its records.
Section 6.03 . 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, upon the terms and conditions and otherwise as provided in Section
9.10, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 6.04 . Provisions as to Paying Agent. (a) If the Company shall
appoint a Paying Agent other than the Trustee, or if the Trustee shall appoint
such a Paying Agent, the Company will cause such Paying Agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 6.04:
(1) that it will hold all sums held by it as such agent for
the payment of the principal of and premium, if any, or interest on the
Notes (whether such sums have been paid to it by the Company or by any
other obligor on the Notes) in trust for the benefit of the holders of
the Notes;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Notes) to make any payment of
the principal of and premium, if any, or interest on the Notes when the
same shall be due and payable; and
(3) that at any time during the continuance of an Event of
Default, upon request of the Trustee, it will forthwith pay to the
Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal of,
premium, if any, or interest on the Notes, deposit with the Paying Agent a sum
(in funds which are immediately available on the due date for such payment)
sufficient to pay such principal, premium, if any, or interest and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of any
failure to take such action; provided that if such deposit is made on the due
date, such deposit shall be received by the Paying Agent by 11:00 a.m. New York
City time, on such date.
(b) If the Company shall act as its own Paying Agent, it will, on or
before each due date of the principal of, premium, if any, or interest on the
Notes, set aside, segregate and hold in trust for the benefit of the holders of
the Notes a sum sufficient to pay such principal, premium, if any, and interest
so becoming due and will promptly notify the Trustee of any failure to take such
action and of any failure by the Company (or any other obligor under the Notes)
to make any payment of the principal of, premium, if any, or interest on the
Notes when the same shall become due and payable.
(c) Anything in this Section 6.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any Paying Agent hereunder
as required by this Section 6.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any Paying Agent
to the Trustee, the Company or such Paying Agent shall be released from all
further liability with respect to such sums.
(d) Anything in this Section 6.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 6.04 is subject to
Section 13.02 and Section 13.03.
The Trustee shall not be responsible for the actions of any other
Paying Agents (including the Company if acting as its own Paying Agent) and
shall have no control of any funds held by such other Paying Agents.
Section 6.05 . Existence. Subject to Article 12, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence and rights (charter and statutory); provided that the
Company shall not be required to preserve any such right if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Noteholders.
Section 6.06 . Payment of Taxes and Other Claims. The Company will pay
or discharge, or cause to be paid or discharged, before the same may become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Significant Subsidiary or upon the income,
profits or property of the Company or any Significant Subsidiary, (ii) all
claims for labor, materials and supplies which, if unpaid, might by law become a
lien or charge upon the property of the Company or any Significant Subsidiary
and (iii) all stamp taxes and other duties, if any, which may be imposed by the
United States or any political subdivision thereof or therein in connection with
the issuance, transfer, exchange, conversion, redemption or repurchase of any
Notes or with respect to this Indenture; provided that, in the case of clauses
(i) and (ii), the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim (A) if the
failure to do so will not, in the aggregate, have a material adverse impact on
the Company, or (B) if the amount, applicability or validity is being contested
in good faith by appropriate proceedings.
Section 6.07 . Rule 144A Information Requirement. Within the period
prior to the expiration of the holding period applicable to sales thereof under
Rule 144(k) under the Securities Act (or any successor provision), the Company
covenants and agrees that it shall, during any period in which it is not subject
to Section 13 or 15(d) under the Exchange Act, make available to any holder or
beneficial holder of Notes or any Common Stock issued upon conversion thereof
which continue to be Restricted Securities in connection with any sale thereof
and any prospective purchaser of Notes or such Common Stock designated by such
holder or beneficial holder, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any holder or beneficial
holder of the Notes or such Common Stock, all to the extent required to enable
such holder or beneficial holder to sell its Notes or Common Stock without
registration under the Securities Act within the limitation of the exemption
provided by Rule 144A.
Section 6.08 . 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 or other law which would prohibit or
forgive the Company from paying all or any portion of the principal, premium, if
any, or interest on the Notes as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture and the Company (to the extent it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
Section 6.09 . Compliance Certificate. The Company shall deliver to the
Trustee, within one hundred twenty calendar days after the end of each fiscal
year of the Company, a certificate signed by either the principal executive
officer, principal financial officer or principal accounting officer of the
Company, stating whether or not to the knowledge of the signer thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and the status thereof
of which the signer may have knowledge.
The Company will deliver to the Trustee, promptly upon becoming aware
of (i) any default in the performance or observance of any covenant, agreement
or condition contained in this Indenture, or (ii) any Event of Default, an
Officers' Certificate specifying with particularity such default or Event of
Default and further stating what action the Company has taken, is taking or
proposes to take with respect thereto.
Any notice required to be given under this Section 6.09 shall be
delivered to a Responsible Officer of the Trustee at its Corporate Trust Office.
Section 6.10 Additional Interest Notice. In the event that the Company
is required to pay Additional Interest to holders of Notes pursuant to the
Registration Rights Agreement, the Company will provide written notice
("Additional Interest Notice") to the Trustee of its obligation to pay
Additional Interest no later than fifteen calendar days prior to the proposed
payment date for Additional Interest, and the Additional Interest Notice shall
set forth the amount of Additional Interest to be paid by the Company on such
payment date. The Trustee shall not at any time be under any duty or
responsibility to any holder of Notes to determine the Additional Interest, or
with respect to the nature, extent or calculation of the amount of Additional
Interest when made, or with respect to the method employed in such calculation
of the Additional Interest.
Section 6.11 . Tax Treatment.
(a) The parties hereto hereby agree, and each holder and any beneficial
holder of a Note by its purchase of a Note hereby agrees (in the absence of
administrative pronouncement or judicial ruling to the contrary):
(i) to treat the Notes as indebtedness of the Company for all
United States federal income tax purposes;
(ii) to treat the Notes as debt instruments that are subject
to Treasury Regulation section 1.1275-4(b); and
(iii) to treat the delivery of Common Stock or cash (including
cash delivered in lieu of a fractional share) to a holder of a Notes
upon conversion of such Notes, or upon a repurchase or redemption, as a
contingent payment (in an amount equal to the sum of the Fair Market
Value of such Common Stock and any cash received) under Treasury
Regulation section 1.1275-4(b).
(b) Solely for purposes of applying Treasury Regulation section
1.1275-4 to the Notes:
(i) for United States federal income tax purposes, the Company
shall accrue interest with respect to outstanding Notes as original
issue discount according to the "noncontingent bond method," as set
forth in Treasury Regulation section 1.1275-4(b) using a comparable
yield of 7.79% compounded semi-annually and a projected payment
schedule, which a holder may obtain by telephoning Advanced Medical
Optics, Inc., Investor Relations Department at (▇▇▇) ▇▇▇-▇▇▇▇ or
submitting a written request for it to the Company at the following
address: Advanced Medical Optics, Inc., ▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and
(ii) the Company acknowledges and agrees, and each holder and
any beneficial holder of a Note, by its purchase of a Note shall be
deemed to acknowledge and agree, that (A) the comparable yield and the
projected payment schedule are determined on the basis of an assumption
of linear growth of stock price, (B) the comparable yield and the
projected payment schedule are not determined for any purpose other
than for the purpose of applying Treasury Regulation section
1.1275-4(b)(4) to the Note, (C) the comparable yield and the projected
payment schedule do not constitute a projection or representation
regarding the actual amounts payable on the Notes, and (D) the
Company's application of Treasury Regulation section 1.1275-4(b) shall
be binding on each holder and any beneficial holder of a Note,
including the Company's determination of the comparable yield and the
projected payment schedule.
Section 6.12 . Limitation on Layering. The Company shall not incur any
Indebtedness that is contractually senior in right of payment to the Notes and
contractually subordinate in right of payment to any other Indebtedness of the
Company.
ARTICLE 7
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 7.01 . Noteholders' Lists. The Company covenants and agrees
that it will furnish or cause to be furnished to the Trustee, semi-annually, not
more than fifteen calendar days after each January 1 and July 1 in each year
beginning with January 1, 2005, and at such other times as the Trustee may
reasonably request in writing, within thirty calendar 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 as the Trustee may reasonably require of the
names and addresses of the holders of Notes as of a date not more than fifteen
calendar days (or such other date as the Trustee may reasonably request in order
to so provide any such notices) prior to the time such information is furnished,
except that no such list need be furnished by the Company to the Trustee so long
as the Trustee is acting as the sole Note Registrar.
Section 7.02 . Preservation and Disclosure of Lists. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Notes contained in
the most recent list furnished to it as provided in Section 7.01 or maintained
by the Trustee in its capacity as Note Registrar or co-registrar in respect of
the Notes, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Noteholders to communicate with other holders of
Notes with respect to their rights under this Indenture or under the Notes, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Noteholder agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to names and
addresses of holders of Notes made pursuant to the Trust Indenture Act.
Section 7.03 . Reports by Trustee. (a) Within sixty calendar days after
May 15 of each year commencing with the year 2005, the Trustee shall transmit to
holders of Notes such reports dated as of May 15 of the year in which such
reports are made concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. In the event that no events have occurred
under the applicable sections of the Trust Indenture Act the Trustee shall be
under no duty or obligation to provide such reports.
(b) A copy of such report shall, at the time of such transmission to
holders of Notes, be filed by the Trustee with each stock exchange and automated
quotation system, if any, upon which the Notes are listed and with the Company.
The Company will promptly notify the Trustee in writing if the Notes are listed
on any stock exchange or automated quotation system or delisted therefrom.
Section 7.04 . Reports by Company. The Company shall deliver to the
Trustee (and the Commission if at any time after the Indenture becomes qualified
under the Trust Indenture Act), and the Trustee shall deliver to holders of
Notes, such information, documents and other reports and such summaries thereof,
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to the Trust Indenture Act, whether or not the Notes
are governed by such Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act shall be delivered to the Trustee within fifteen calendar
days after the same is so required to be filed with the Commission. Delivery of
such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on an Officers' Certificates).
ARTICLE 8
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
Section 8.01 . Events of Default. In case one or more of the following
Events of Default (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body) shall have occurred and be
continuing:
(a) default in the payment of any installment of interest upon any of
the Notes as and when the same shall be due and payable, and continuance of such
default for a period of thirty calendar days, whether or not the payment is
prohibited by Article 4; or
(b) default in the payment of the principal of any of the Notes as and
when the same shall be due and payable at maturity, by acceleration or
otherwise, or default in the payment of the redemption price or the repurchase
price in connection with any redemption or repurchase pursuant to Article 3, or
default in the payment of the Make Whole Premium, if any, upon repurchase
pursuant to Section 3.05 or conversion pursuant to Section 15.01(a)(vi), in each
case, whether or not the payment is prohibited by Article 4; or
(c) the Company fails to provide on a timely basis a Company Repurchase
Notice after the occurrence of a Fundamental Change as provided in Section
3.07(d); or
(d) failure on the part of the Company to observe or perform any other
of the covenants or agreements on the part of the Company in the Notes or in
this Indenture (other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section 8.01 specifically dealt
with) and such failure continues for a period of sixty calendar days after the
date on which written notice of such failure, requiring the Company to remedy
the same, shall have been given to the Company by the Trustee, or to the Company
and a Responsible Officer of the Trustee by the holders of at least twenty-five
percent (25%) in aggregate principal amount of the Notes at the time
outstanding; or
(e) the Company shall default in the payment of principal when due upon
acceleration of other Indebtedness of the Company for borrowed money where the
aggregate principal amount with respect to which the acceleration has occurred
exceeds $25.0 million and such other Indebtedness has not been discharged, or
such acceleration has not been rescinded, stayed or annulled within a period of
30 calendar days after written notice of such failure, requiring the Company to
remedy the same, shall have been given to the Company by the Trustee, or to the
Company and a Responsible Officer of the Trustee by the holders of at least
twenty-five percent (25%) in aggregate principal amount of the Notes at the time
outstanding;
(f) the Company shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to the Company
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, or shall consent to any such
relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against the Company, or shall
make a general assignment for the benefit of creditors, or shall fail generally
to pay its debts as they become due; or
(g) an involuntary case or other proceeding shall be commenced against
the Company seeking liquidation, reorganization or other relief with respect to
the Company or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of sixty
consecutive calendar days;
then, and in each and every such case (other than an Event of Default specified
in Section 8.01 (f) and (g)), unless the principal of all of the Notes shall
have already become due and payable, either the Trustee or the holders of at
least than twenty-five percent (25%) in aggregate principal amount of the Notes
then outstanding, by notice in writing to the Company (and to the Trustee if
given by Noteholders), may declare the principal of and premium, if any, and
interest accrued and unpaid on all the Notes to be due and payable, and upon any
such declaration the same shall be due and payable (i) immediately if there
shall no longer be a Senior Credit Facility or, (ii) if the Senior Credit
Facility is in effect, immediately upon the earlier to occur of (A) the date
Indebtedness under the Senior Credit Facility is declared accelerated and (B)
the fifth Business Day after written notice of the declaration of such
acceleration has been given to the agents under the Senior Credit Facility,
anything in this Indenture or in the Notes contained to the contrary
notwithstanding. If an Event of Default specified in Section 8.01(f) or Section
8.01(g) occurs, the principal of and premium, if any, and interest accrued and
unpaid on all the Notes shall be immediately and automatically due and payable
without necessity of further action. If, at any time after the principal of and
premium, if any, and interest on the Notes shall have been so declared due and
payable, and before any judgment or decree for the payment of the monies due
shall have been obtained or entered as hereinafter provided, (a) the Company
shall pay or shall deposit with the Trustee a sum sufficient to pay (i) all
matured installments of interest upon all the Notes, (ii) the principal of and
premium, if any, on all the Notes which shall have become due otherwise than by
acceleration, (iii) interest on overdue installments of accrued and unpaid
interest (to the extent that payment of such interest is enforceable under
applicable law) and on such principal of and premium, if any, as provided in
Section 8.02, to the date of such payment or deposit and (iv) amounts due to the
Trustee pursuant to Section 9.06, and (b) any and all defaults under this
Indenture, other than the nonpayment of principal of and premium, if any, and
accrued and unpaid interest on the Notes which shall have become due by such
declaration of acceleration, shall have been cured or waived pursuant to Section
8.07, then and in every such case the holders of a majority in aggregate
principal amount of the Notes then outstanding on behalf of the holders of all
of the Notes then outstanding, by written notice to the Company and to the
Trustee, may waive all defaults or Events of Default and rescind and annul such
declaration and its consequences subject to Section 8.07; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or Event of Default, or shall impair any right consequent thereon. The Company
shall notify in writing a Responsible Officer of the Trustee, promptly upon
becoming aware thereof, of any Event of Default, as provided in Section 6.09.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such waiver or rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company, the holders of Notes, and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the holders of Notes, and the Trustee shall
continue as though no such proceeding had been taken.
Section 8.02 . Payments of Notes on Default; Suit Therefor. The Company
covenants that in the case of an Event of Default pursuant to Section 8.01(a) or
8.01(b), upon demand of the Trustee, the Company will pay to the Trustee, for
the benefit of the holders of the Notes, (i) the whole amount that then shall be
due and payable on all such Notes for principal and premium, if any, or
interest, as the case may be, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest is enforceable
under applicable law) upon the overdue installments of accrued and unpaid
interest at the rate borne by the Notes, plus 1%, from the required payment date
and, (ii) in addition thereto, any amounts due the Trustee under Section 9.06.
Until such demand by the Trustee, the Company may pay the principal of and
premium, if any, and interest on the Notes to the registered holders, whether or
not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes
and collect in the manner provided by law out of the property of the Company or
any other obligor on the Notes wherever situated the monies adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Notes under Title
11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of the Company or
such other obligor, or in the case of any other judicial proceedings relative to
the Company or such other obligor upon the Notes, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section 8.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of
principal, premium, if any, accrued and unpaid interest in respect of the Notes,
and, in case of any judicial proceedings, to 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 of the Noteholders allowed in such judicial proceedings
relative to the Company or any other obligor on the Notes, its or their
creditors, or its or their property, and to collect and receive any monies or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of any amounts due the Trustee under Section 9.06, and
to take any other action with respect to such claims, including participating as
a member of any official committee of creditors, as it reasonably deems
necessary or advisable, unless prohibited by law or applicable regulations, and
any receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
custodian or similar official is hereby authorized by each of the Noteholders to
make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to the Noteholders, to pay to
the Trustee any amount due it for reasonable compensation, expenses, advances
and disbursements, including counsel fees and expenses incurred by it up to the
date of such distribution. To the extent that such payment of reasonable
compensation, expenses, advances and disbursements out of the estate in any such
proceedings shall be denied for any reason, payment of the same shall be secured
by a lien on, and shall be paid out of, any and all distributions, dividends,
monies, securities and other property which the holders of the Notes may be
entitled to receive in such proceedings, whether in liquidation or under any
plan of reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Trustee without the possession of
any of the Notes, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the holders of the Notes.
In any proceedings brought by the Trustee (and in any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Notes, and it shall not be necessary to make any holders of the Notes
parties to any such proceedings.
Section 8.03 . Application of Monies Collected by Trustee. Any monies
collected by the Trustee pursuant to this Article 8, shall be applied, subject
to Article 4, in the following order, at the date or dates fixed by the Trustee
for the distribution of such monies, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
9.06;
SECOND: In case the principal of the outstanding Notes shall not have
become due and be unpaid, to the payment of accrued and unpaid interest, if any,
on the Notes in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been collected by
the Trustee) as provided in Section 8.02 upon the overdue installments of
interest at the annual rate of 1% above the then applicable interest rate, such
payments to be made ratably to the Persons entitled thereto;
THIRD: In case the principal of the outstanding Notes shall have become
due, by declaration or otherwise, and be unpaid to the payment of the whole
amount then owing and unpaid upon the Notes for principal and premium, if any,
and interest, with interest on the overdue principal and premium, if any, and
(to the extent that such interest has been collected by the Trustee) upon
overdue installments of accrued and unpaid interest, as provided in Section
8.02, and in case such monies shall be insufficient to pay in full the whole
amounts so due and unpaid upon the Notes, then to the payment of such principal
and premium, if any, and interest without preference or priority of principal
and premium, if any, over interest, or of interest over principal and premium,
if any, or of any installment of interest over any other installment of
interest, or of any Note over any other Note, ratably to the aggregate of such
principal and premium, if any, and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
Section 8.04 . Proceedings by Noteholder. No holder of any Note shall
have any right by virtue of or by reference to any provision of this Indenture
to institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other remedy
hereunder, except in the case of a default in the payment of principal, premium,
if any, or interest on the Notes, unless (a) such holder previously shall have
given to the Trustee written notice of an Event of Default and of the
continuance thereof, as hereinbefore provided, (b) the holders of at least
twenty-five percent (25%) in aggregate principal amount of the Notes then
outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable security or indemnity as it may require
against the costs, liabilities or expenses to be incurred therein or thereby,
(c) the Trustee for sixty calendar days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding and (d) no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 8.07;
it being understood and intended, and being expressly covenanted by the taker
and holder of every Note with every other taker and holder and the Trustee, that
no one or more holders of Notes shall have any right in any manner whatever by
virtue of or by reference to any provision of this Indenture to affect, disturb
or prejudice the rights of any other holder of Notes, or to obtain or seek to
obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Notes (except as otherwise
provided herein). For the protection and enforcement of this Section 8.04, each
and every Noteholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision
of any Note, the right of any holder of any Note to receive payment of the
principal of (including the redemption price or repurchase price upon redemption
or repurchase pursuant to Article 3) and premium, if any, and accrued interest
on such Note, on or after the respective due dates expressed in such Note or in
the event of redemption or repurchase, or to institute suit for the enforcement
of any such payment on or after such respective dates against the Company shall
not be impaired or affected without the consent of such holder.
Anything contained in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, in its own behalf and for its own
benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of conversion as provided herein.
Section 8.05 . Proceedings by Trustee. In case of an Event of Default,
the Trustee may, in its discretion, proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial proceedings as are
necessary to protect and enforce any of such rights, either by suit in equity or
by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
Section 8.06 . Remedies Cumulative and Continuing. Except as provided
in Section 2.06, all powers and remedies given by this Article 8 to the Trustee
or to the Noteholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the holders of the Notes, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any holder of any of the Notes to exercise any right or power accruing
upon any default or Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such
default or any acquiescence therein, and, subject to the provisions of Section
8.04, every power and remedy given by this Article 8 or by law to the Trustee or
to the Noteholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Noteholders.
Section 8.07 . Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders. The holders of a majority in aggregate principal amount
of the Notes at the time outstanding shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee; provided that
(a) such direction shall not be in conflict with any rule of law or with this
Indenture, (b) the Trustee may take any other action which is not inconsistent
with such direction, (c) the Trustee may decline to take any action that would
benefit some Noteholder to the detriment of other Noteholders and (d) the
Trustee may decline to take any action that would involve the Trustee in
personal liability. The holders of a majority in aggregate principal amount of
the Notes at the time outstanding may, on behalf of the holders of all of the
Notes, waive any past default or Event of Default hereunder and its consequences
except (i) a default in the payment of the principal of, premium, if any, or
interest on the Notes, (ii) a failure by the Company to convert any Notes into
Common Stock (or cash or a combination of Common Stock and cash, if the Company
so elects) as required by this Indenture, (iii) a default in the payment of the
redemption price on the redemption date pursuant to Article 3, (iv) a default in
the payment of the repurchase price on the Fundamental Change Repurchase Date or
the Repurchase Date pursuant to Article 3 or (v) a default in respect of a
covenant or provisions hereof which under Article 11 cannot be modified or
amended without the consent of the holders of all Notes then outstanding or each
Note affected thereby. Upon any such waiver, the Company, the Trustee and the
holders of the Notes shall be restored to their former positions and rights
hereunder; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon. Whenever any default or
Event of Default hereunder shall have been waived as permitted by this Section
8.07, said default or Event of Default shall for all purposes of the Notes and
this Indenture be deemed to have been cured and to be not continuing; but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
Section 8.08 . Notice of Defaults. The Trustee shall, within ninety
calendar days after a Responsible Officer of the Trustee has knowledge of the
occurrence of a default, mail to all Noteholders, as the names and addresses of
such holders appear upon the Note Register, notice of all defaults known to a
Responsible Officer, unless such defaults shall have been cured or waived before
the giving of such notice; provided that except in the case of default in the
payment of the principal of, or premium, if any, or interest on any of the
Notes, the Trustee shall be protected in withholding such notice if and so long
as a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interests of
the Noteholders.
Section 8.09 . Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Note by his acceptance thereof shall be deemed to
have agreed, that any court may, in its discretion, require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided that the provisions of this Section 8.09
(to the extent permitted by law) shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than ten percent in principal amount of the Notes
at the time outstanding determined in accordance with Section 10.04, or to any
suit instituted by any Noteholder for the enforcement of the payment of the
principal of, or premium, if any, or interest on any Note on or after the due
date expressed in such Note or to any suit for the enforcement of the right to
convert any Note in accordance with the provisions of Article 15.
ARTICLE 9
THE TRUSTEE
Section 9.01 . Duties and Responsibilities of Trustee. The Trustee,
prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived), 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 own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the curing
or waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture and the
Trust Indenture Act, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Indenture and no implied covenants or obligations shall
be read into this Indenture and the Trust Indenture Act against the
Trustee; and
(ii) in the absence of bad faith and willful misconduct on the
part of the Trustee, the Trustee may conclusively rely as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the written direction
of the holders of not less than a majority in principal amount of the Notes at
the time outstanding determined as provided in Section 10.04 relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture;
(d) whether or not therein provided, every provision of this Indenture
relating to the conduct or affecting the liability of, or affording protection
to, the Trustee shall be subject to the provisions of this Section;
(e) the Trustee shall not be liable in respect of any payment (as to
the correctness of amount, entitlement to receive or any other matters relating
to payment) or notice effected by the Company or any Paying Agent (other than
the Trustee) or any records maintained by any co-registrar (other than the
Trustee) with respect to the Notes;
(f) if any party fails to deliver a notice relating to an event the
fact of which, pursuant to this Indenture, requires notice to be sent to the
Trustee, the Trustee may conclusively rely on its failure to receive such notice
as reason to act as if no such event occurred unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless the Trustee has otherwise
received written notice thereof; and
(g) the Trustee shall not be deemed to have knowledge of any Event of
Default hereunder unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless the Trustee shall have been notified in writing of
such Event of Default by the Company or a holder of Notes.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 9.02 . Reliance on Documents, Opinions, etc. Except as
otherwise provided in Section 9.01:
(a) the Trustee may conclusively rely and shall be protected in acting
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon or other paper or
document (whether in its original or facsimile form) believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties;
(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 be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its own selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in reliance on and in accordance with such advice or Opinion of
Counsel;
(d) 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
direction of any of the Noteholders pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee reasonable
security or indemnity reasonably satisfactory to it against the costs, expenses
and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney; (f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed by it with due care
hereunder;
(g) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(h) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder;
(i) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and
(j) any permissive right or authority granted to the Trustee shall not
be construed as a mandatory duty.
Section 9.03 . No Responsibility for Recitals, etc. The recitals
contained herein and in the Notes (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with the provisions of this Indenture.
Section 9.04 . Trustee, Paying Agents, Conversion Agents or Registrar
May Own Notes. The Trustee, any Paying Agent, any conversion agent or Note
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Notes with the same rights it would have if it were not Trustee,
Paying Agent, conversion agent or Note Registrar.
Section 9.05 . Monies to be Held in Trust. Subject to the provisions of
Section 13.02, all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. Except as otherwise
provided herein, the Trustee shall be under no liability for interest on any
money received by it hereunder except as may be agreed in writing from time to
time by the Company and the Trustee.
Section 9.06 . Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) as mutually agreed
to from time to time in writing between the Company and the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements of its
counsel and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence, willful misconduct,
recklessness or bad faith. The Company also covenants to indemnify the Trustee
and any predecessor Trustee (or any officer, director or employee of the
Trustee), in any capacity under this Indenture and any authenticating agent for,
and to hold them harmless against, any and all loss, liability, damage, claim or
reasonable expense including taxes (other than taxes based on the income of the
Trustee) incurred without negligence, willful misconduct, recklessness or bad
faith on the part of the Trustee or such officers, directors, employees or
authenticating agent, as the case may be, and arising out of or in connection
with the acceptance or administration of this trust or in any other capacity
hereunder, including the reasonable costs and expenses of defending themselves
against any claim (whether asserted by the Company, any holder or any other
Person) of liability in the premises. The obligations of the Company under this
Section 9.06 to compensate or indemnify the Trustee and to pay or reimburse the
Trustee for reasonable expenses, disbursements and advances shall be secured by
a lien prior to that of the Notes upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the
holders of particular Notes. The obligation of the Company under this Section
shall survive the satisfaction and discharge of this Indenture.
When the Trustee and its agents and any authenticating agent incur
expenses or render services after an Event of Default specified in Section
8.01(d) or (e) with respect to the Company occurs, the expenses and the
compensation for the services are intended to constitute reasonable expenses of
administration under any bankruptcy, insolvency or similar laws.
Section 9.07 . Officers' Certificate as Evidence. Except as otherwise
provided in Section 9.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence, bad faith, recklessness or
willful misconduct on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee.
Section 9.08 . Conflicting Interests of Trustee. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
Section 9.09 . Eligibility of Trustee. There shall at all times be a
Trustee hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000 (or if such Person is a member of a bank holding company system, its
bank holding company shall have a combined capital and surplus of at least
$50,000,000). If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 9.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 9.10 . Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written notice of such
resignation to the Company and to the holders of Notes. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment sixty calendar days after the mailing of
such notice of resignation to the Noteholders, the resigning Trustee may, upon
ten Business Days' notice to the Company and the Noteholders, appoint a
successor identified in such notice or may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
trustee, or, if any Noteholder who has been a bona fide holder of a Note or
Notes for at least six months may, subject to the provisions of Section 8.09, on
behalf of itself and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with Section 9.08 after
written request therefor by the Company or by any Noteholder who has
been a bona fide holder of a Note or Notes for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 9.09 and shall fail to resign after written
request therefor by the Company or by any such Noteholder; or
(iii) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 8.09, any Noteholder who has been a bona fide holder of a
Note or Notes for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee; provided that if no
successor Trustee shall have been appointed and have accepted appointment sixty
calendar days after either the Company or the Noteholders has removed the
Trustee, or the Trustee resigns, the Trustee so removed may petition, at the
expense of the Company, any court of competent jurisdiction for an appointment
of a successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount of the
Notes at the time outstanding may at any time remove the Trustee and nominate a
successor trustee which shall be deemed appointed as successor trustee unless,
within ten calendar days after notice to the Company of such nomination, the
Company objects thereto, in which case the Trustee so removed or any Noteholder,
or if such Trustee so removed or any Noteholder fails to act, the Company, upon
the terms and conditions and otherwise as in Section 9.10(a) provided, may
petition any court of competent jurisdiction for an appointment of a successor
trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 9.11.
(e) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 9.06 shall continue for the
benefit of the retiring Trustee.
Section 9.11 . Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 9.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amount then due it pursuant to the provisions of Section
9.06, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by
such trustee as such, except for funds held in trust for the benefit of holders
of particular Notes, to secure any amounts then due it pursuant to the
provisions of Section 9.06.
No successor trustee shall accept appointment as provided in this
Section 9.11 unless, at the time of such acceptance, such successor trustee
shall be qualified under the provisions of Section 9.08 and be eligible under
the provisions of Section 9.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 9.11, the Company (or the former trustee, at the written direction
of the Company) shall mail or cause to be mailed notice of the succession of
such trustee hereunder to the holders of Notes at their addresses as they shall
appear on the Note Register. If the Company fails to mail such notice within ten
(10) calendar days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.
Section 9.12 . Succession by Merger. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee (including any trust created
by this Indenture), shall be the successor to the Trustee hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that in the case of any corporation succeeding to all
or substantially all of the corporate trust business of the Trustee, such
corporation shall be qualified under the provisions of Section 9.08 and eligible
under the provisions of Section 9.09.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee or authenticating agent appointed
by such predecessor trustee, and deliver such Notes so authenticated; and in
case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or any authenticating agent appointed by such successor
trustee may authenticate such Notes in the name of the successor trustee; and in
all such cases such certificates shall have the full force that is provided in
the Notes or in this Indenture; provided that the right to adopt the certificate
of authentication of any predecessor Trustee or authenticate Notes in the name
of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 9.13 . Preferential Collection of Claims. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Notes), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company (or any
such other obligor).
ARTICLE 10
THE NOTEHOLDERS
Section 10.01 . Action by Noteholders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Noteholders
in person or by agent or proxy appointed in writing, or (b) by the record of the
holders of Notes voting in favor thereof at any meeting of Noteholders, or (c)
by a combination of such instrument or instruments and any such record of such a
meeting of Noteholders. Whenever the Company or the Trustee solicits the taking
of any action by the holders of the Notes, the Company or the Trustee may fix in
advance of such solicitation a date as the record date for determining holders
entitled to take such action. The record date shall be not more than fifteen
calendar days prior to the date of commencement of solicitation of such action.
Section 10.02 . Proof of Execution by Noteholders. Subject to the
provisions of Sections 9.01 and 9.02, proof of the execution of any instrument
by a Noteholder or its agent or proxy shall be sufficient if made in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding of Notes
shall be proved by the registry of such Notes or by a certificate of the Note
Registrar.
Section 10.03 . Absolute Owners. The Company, the Trustee, any Paying
Agent, any conversion agent and any Note Registrar may deem the Person in whose
name such Note shall be registered upon the Note Register to be, and may treat
it as, the absolute owner of such Note (whether or not such Note shall be
overdue and notwithstanding any notation of ownership or other writing thereon
made by any Person other than the Company or any Note Registrar) for the purpose
of receiving payment of or on account of the principal of, premium, if any, and
interest on such Note, for conversion of such Note and for all other purposes;
and neither the Company nor the Trustee nor any Paying Agent nor any conversion
agent nor any Note Registrar shall be affected by any notice to the contrary.
All such payments so made to any holder for the time being, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for monies payable upon any such Note.
Section 10.04 . Company-Owned Notes Disregarded. In determining whether
the holders of the requisite aggregate principal amount of Notes have concurred
in any direction, consent, waiver or other action under this Indenture, Notes
which are owned by the Company or any other obligor on the Notes or any
Affiliate of the Company or any other obligor on the Notes shall be disregarded
and deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, consent, waiver or other action,
only Notes which a Responsible Officer knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 10.04 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Notes and that the pledgee is not the Company, any other obligor on the
Notes or any Affiliate of the Company or any such other obligor. In the case of
a dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying all Notes, if any, known by the Company to be owned or
held by or for the account of any of the above described Persons, and, subject
to Section 9.01, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are outstanding for the purpose of any
such determination.
Section 10.05 . Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 10.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the evidence
to be included in the Notes the holders of which have consented to such action
may, by filing written notice with the Trustee at its Corporate Trust Office and
upon proof of holding as provided in Section 10.02, revoke such action so far as
concerns such Note. Except as aforesaid, any such action taken by the holder of
any Note shall be conclusive and binding upon such holder and upon all future
holders and owners of such Note and of any Notes issued in exchange or
substitution therefor, irrespective of whether any notation in regard thereto is
made upon such Note or any Note issued in exchange or substitution therefor.
ARTICLE 11
SUPPLEMENTAL INDENTURES
Section 11.01 . Supplemental Indentures Without Consent of Noteholders.
The Company, when authorized by the resolutions of the Board of Directors, and
the Trustee may, from time to time, and at any time enter into an indenture or
indentures supplemental without the consent of the holders of the Notes hereto
for one or more of the following purposes:
(a) make provision with respect to the conversion rights of the holders
of Notes and the repurchase obligations of the Company in connection with a
Fundamental Change pursuant to the requirements of Section 15.06;
(b) to convey, transfer, assign, mortgage or pledge to the Trustee, as
security for the Notes, any property or assets;
(c) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company pursuant to Article 12;
(d) to add to the covenants of the Company such further covenants,
restrictions or conditions as the Board of Directors and the Trustee shall
consider to be for the benefit of the holders of Notes, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided that in respect of any
such additional covenant, restriction or condition, such supplemental indenture
may provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(e) surrender any right or power herein conferred upon the Company;
(f) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture that may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture provided that such action does not adversely affect the interests of
the holders of the Notes in any material respect;
(g) add or modify any provisions herein with respect to matters or
questions arising hereunder which the Company may deem necessary or desirable
and that shall not be inconsistent with the provisions of this Indenture;
provided, that such change or modification pursuant to this clause (g) does not,
in the good faith determination of the Board of Directors (as evidenced by a
resolution of the Board of Directors), adversely affect the interests of the
holders of the Notes in any material respect;
(h) increase the Conversion Rate; provided, however, that such increase
in the Conversion Rate shall not adversely affect the interests of the holders
of the Notes (after taking into account tax and other consequences of such
increase);
(i) make any changes or modifications necessary in connection with the
registration of the Notes under the Securities Act as contemplated in the
Registration Rights Agreement; provided that such change or modification
pursuant to this clause (i) does not adversely affect the interests of the
holders of the Notes in any material respect;
(j) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Notes; or
(k) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect or maintain the qualification of
this Indenture under the Trust Indenture Act, or under any similar federal
statute hereafter enacted.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture, the Trustee
is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and
stipulations that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Notes at the time outstanding, notwithstanding any of the
provisions of Section 11.02.
Section 11.02 . Supplemental Indenture With Consent of Noteholders.
With the consent (evidenced as provided in Article 10) of the holders of a
majority in aggregate principal amount of the Notes at the time outstanding, the
Company, when authorized by the resolutions of the Board of Directors, and the
Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
any supplemental indenture or modifying in any manner the rights of the holders
of the Notes; provided that no such supplemental indenture shall, without the
consent of the holder of each Note so affected:
(i) extend the fixed maturity of any Note;
(ii) reduce the rate or extend the time for payment of
interest on any Note;
(iii) reduce the principal amount of any Note or premium, if
any, on any Note;
(iv) reduce any amount payable on redemption or repurchase of
any Note;
(v) impair the right of any holder to institute suit for the
payment of any Note;
(vi) make the principal of any Note, premium, if any, on any
Note or interest on any Note payable in any coin or currency other than
that provided in the Notes;
(vii) change the obligation of the Company to redeem any Note
called for redemption on a redemption date in a manner adverse to the
holders of Notes;
(viii) change the obligation of the Company to repurchase any
Note upon a Fundamental Change in a manner adverse to the holders of
Notes;
(ix) change the obligation of the Company to repurchase any
Note at the option of a holder on a Repurchase Date in a manner adverse
to the holders of Notes;
(x) affect the right of a holder to convert any Notes into
Common Stock (or, if the Company so elects, cash or a combination of
cash and Common Stock) or to reduce the number of shares of Common
Stock or any other property receivable upon conversion pursuant to the
terms set forth herein, including Section 15.06;
(xi) modify any of the provisions of this Section 11.02 or
Section 8.07, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the holder of each Note so affected;
(xii) change any obligation of the Company to maintain an
office or agency in New York City as set forth in Section 6.02;
(xiii) modify in any material respect the subordination
provisions in Article 4 in a manner adverse to the holders; or
(xiv) reduce the aforesaid percentage of Notes, the holders of
which are required to consent to any such supplemental indenture,
without the consent of each holder of Notes so affected.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by the Company's Secretary or
Assistant Secretary authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Noteholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Noteholders under this
Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 11.03 . Effect of Supplemental Indenture. Any supplemental
indenture executed pursuant to the provisions of this Article 11 shall comply
with the Trust Indenture Act, as then in effect, provided that this Section
11.03 shall not require such supplemental indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time, if ever, such
qualification is in fact required under the terms of the Trust Indenture Act or
the Indenture has been qualified under the Trust Indenture Act, nor shall it
constitute any admission or acknowledgment by any party to such supplemental
indenture that any such qualification is required prior to the time, if ever,
such qualification is in fact required under the terms of the Trust Indenture
Act or the Indenture has been qualified under the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article 11, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Notes shall thereafter be determined, exercised and
enforced hereunder, subject in all respects to such modifications and amendments
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 11.04 . Notation on Notes. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article 11 may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may, at the Company's expense, be
prepared and executed by the Company, authenticated by the Trustee (or an
authenticating agent duly appointed by the Trustee pursuant to Section 17.11)
and delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.
Section 11.05 . Evidence of Compliance of Supplemental Indenture to be
Furnished to Trustee. Prior to entering into any supplemental indenture pursuant
to this Article 11, the Trustee shall be provided with an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 11 and
is otherwise authorized or permitted by this Indenture.
ARTICLE 12
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.01 . Company May Consolidate on Certain Terms. Subject to
the provisions of Section 12.02, the Company shall not, in a single transaction
or a series of related transactions, consolidate or merge with or into any other
Person or Persons (whether or not affiliated with the Company), nor shall the
Company sell, convey, transfer or lease the property and assets of the Company
substantially as an entirety, to any other Person (whether or not affiliated
with the Company), unless: (i) the Company is the continuing corporation, or the
resulting, surviving or transferee Person (if other than the Company) is a
corporation or limited liability company organized and existing under the laws
of the United States of America, any state thereof or the District of Columbia;
(ii) upon any such consolidation, merger, sale, conveyance, transfer or lease,
the due and punctual payment of the principal of, and premium, if any, and
interest on all of the Notes, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or satisfied by the Company, shall be expressly assumed by a
supplemental indenture reasonably satisfactory in form to the Trustee and all of
the obligations of the Company under the Registration Rights Agreement shall be
expressly assumed by a supplemental agreement, in each case, executed and
delivered to the Trustee by the Person (if other than the Company) formed by
such consolidation, or into which the Company shall have been merged, or by the
Person that shall have acquired or leased such property, and such supplemental
indenture shall provide for the applicable conversion rights set forth in
Section 15.06; (iii) immediately after giving effect to the transaction
described above, no default or Event of Default, has occurred and is continuing;
and (iv) the Company has delivered to the Trustee the Officers' Certificate and
Opinion of Counsel, if any, requested pursuant to Section 12.03.
Section 12.02 . Successor to be Substituted. In case of any such
consolidation, merger, sale, conveyance, transfer or lease in which the Company
is not the continuing corporation and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the Trustee and
reasonably satisfactory in form to the Trustee, of the due and punctual payment
of the principal of, and premium, if any, and interest on all of the Notes, and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or satisfied by the Company, and by
supplemental agreement, executed and delivered to the Trustee and reasonably
satisfactory in form to the Trustee, of all of the obligations of the Company
under the Registration Rights Agreement, such successor Person shall succeed to
and be substituted for the Company, with the same effect as if it had been named
herein as the party of this first part, and Advanced Medical Optics, Inc. shall
be discharged from its obligations under the Notes, this Indenture and the
Registration Rights Agreement. Such successor Person thereupon may cause to be
signed, and may issue either in its own name or in the name of Advanced Medical
Optics, Inc. any or all of the Notes, issuable hereunder that theretofore shall
not have been signed by the Company and delivered to the Trustee; and, upon the
order of such successor Person instead of the Company and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver, or cause to be authenticated and
delivered, any Notes that previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Notes that
such successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Notes so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Notes theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Notes had been issued at the date of the execution hereof. In the event
of any such consolidation, merger, sale, conveyance, transfer or lease, upon
compliance with this Article 12 the Person named as the "Company" in the first
paragraph of this Indenture or any successor that shall thereafter have become
such in the manner prescribed in this Article 12 may be dissolved, wound up and
liquidated at any time thereafter and such Person shall be discharged from its
liabilities as obligor and maker of the Notes and from its obligations under
this Indenture.
In case of any such consolidation, merger, sale, conveyance, transfer
or lease, such changes in phraseology and form (but not in substance) may be
made in the Notes thereafter to be issued as may be appropriate.
Section 12.03 . Opinion of Counsel to be Given Trustee. Prior to
execution of any supplemental indenture pursuant to this Article 12, if so
requested by the Trustee, the Trustee shall receive an Officers' Certificate and
an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or lease and any such assumption complies
with the provisions of this Article 12.
ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01 . Discharge of Indenture. When (a) the Company shall
deliver to the Trustee for cancellation all Notes theretofore authenticated
(other than any Notes that have been destroyed, lost or stolen and in lieu of or
in substitution for which other Notes shall have been authenticated and
delivered) and not theretofore canceled, or (b) all the Notes not theretofore
canceled or delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
deposit with the Trustee, in trust, funds sufficient to pay at maturity or upon
redemption all of the Notes (other than any Notes that shall have been
mutilated, destroyed, lost or stolen and in lieu of or in substitution for which
other Notes shall have been authenticated and delivered) not theretofore
canceled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due to such date of maturity or
redemption date, as the case may be, accompanied by a verification report, as to
the sufficiency of the deposited amount, from an independent certified
accountant or other financial professional satisfactory to the Trustee, and if
the Company shall also pay or cause to be paid all other sums payable hereunder
by the Company, then this Indenture shall cease to be of further effect (except
as to Error! Bookmark not defined. remaining rights of registration of transfer,
substitution and exchange and conversion of Notes, Error! Bookmark not defined.
rights hereunder of Noteholders to receive payments of principal of and premium,
if any, and interest on the Notes and the other rights, duties and obligations
of Noteholders, as beneficiaries hereof with respect to the amounts, if any, so
deposited with the Trustee and (iii) the rights, obligations and immunities of
the Trustee hereunder), and the Trustee, on written demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel as required by
Section 17.05 and at the cost and expense of the Company, 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 Notes.
Section 13.02 . Deposited Monies to be Held in Trust by Trustee.
Subject to Section 13.04, all monies deposited with the Trustee pursuant to
Section 9.05, shall be held in trust for the sole benefit of the Noteholders,
and such monies shall be applied by the Trustee to the payment, either directly
or through any Paying Agent (including the Company if acting as its own Paying
Agent), to the holders of the particular Notes for the payment or redemption of
which such monies have been deposited with the Trustee, of all sums due and to
become due thereon for principal, premium, if any, and interest. Moneys so held
in trust shall not be subject to the provisions of Article 4. All moneys
deposited with the Trustee pursuant to Section 9.05 (and held by it or any
Paying Agent) for the payment of Notes subsequently converted shall be returned
to the Company upon request. The Trustee is not responsible to anyone for
interest on any deposited funds except as agreed in writing.
Section 13.03 . 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 written request of the Company, 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 13.04 . 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 on Notes and not applied but
remaining unclaimed by the holders of Notes for two years after the date upon
which the principal of, premium, if any, or interest on such Notes, as the case
may be, shall have become due and payable, shall be repaid to the Company by the
Trustee on demand and all liability of the Trustee shall thereupon cease with
respect to such monies; and the holder of any of the Notes shall thereafter look
only to the Company for any payment that such holder may be entitled to collect
unless an applicable abandoned property law designates another Person.
Section 13.05 . Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money in accordance with Section 13.02 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 Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 13.01 until such time as the Trustee or the Paying
Agent is permitted to apply all such money in accordance with Section 13.02;
provided that if the Company makes any payment of principal of or premium, if
any, or interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 14
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 . Indenture and Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or, premium, if any, or interest on
any Note, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company in
this Indenture or in any supplemental indenture or in any Note, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, member, manager, employee, agent, officer, director
or subsidiary, as such, past, present or future, of the Company or any of the
Company's subsidiaries or of any successor thereto, either directly or through
the Company or any of the Company's subsidiaries or any successor thereto,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Notes.
ARTICLE 15
CONVERSION OF NOTES
Section 15.01 . Right to Convert. Subject to and upon compliance with
the provisions of this Indenture, on or prior to the Trading Day immediately
preceding July 15, 2024, the holder of any Note not previously redeemed or
repurchased shall have the right, at such holder's option, to convert the
principal amount of the Note, or any portion of such principal amount which is a
multiple of $1,000, into fully paid and non-assessable shares of Common Stock
(as such shares shall then be constituted) (or cash or a combination of cash and
Common Stock, if the Company so elects) at the Conversion Rate in effect at such
time, by surrender of the Note so to be converted in whole or in part, together
with any required funds, under the circumstances described in this Section 15.01
and in the manner provided in Section 15.02. The Notes shall be convertible only
upon the occurrence of one of the following events:
(i) during any Fiscal Quarter commencing after September 24,
2004, if the Closing Sale Price of a share of Common Stock for at least
20 Trading Days in the 30 consecutive Trading-Day period ending on the
last Trading Day of the immediately preceding Fiscal Quarter exceeds
130% of the Conversion Price in effect on that 30th Trading Day;
(ii) during the five Business Days immediately following any
five consecutive Trading-Day period in which the Trading Price per
$1,000 principal amount of the Notes for each day of such five
Trading-Day period was less than 95% of the product of the Closing Sale
Price of a share of Common Stock and the Conversion Rate in effect on
each such Trading Day; provided that a holder may not convert Notes in
reliance on this Section 15.01(a)(ii) after July 15, 2019, if, on any
Trading Day during such five Trading-Day period, the Closing Sale Price
of a share of Common Stock is between 100% and 130% of the Conversion
Price in effect on each such Trading Day;
(iii) if such Note has been called for redemption, at any time
on or after the date the Company Repurchase Notice has been given until
5:00 p.m., New York City time, on the Trading Day immediately preceding
the redemption date;
(iv) as provided in Section (b) of this Section 15.01;
(v) after the earlier of (x) the date the Notes are rated by
both Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., and its successors ("S&P") and ▇▇▇▇▇'▇ Investor
Services and its successors ("Moody's") and (y) 30 Business Days from
the date the Notes are issued, during any period in which the credit
rating assigned to the Notes by S&P or ▇▇▇▇▇'▇ is below CCC+ or Caa2,
respectively, or if either or both of S&P or Moody's does not rate or
no longer rates the Notes, or if either S&P or Moody's suspends or
withdraws the rating assigned to the Notes; or
(vi) if a Fundamental Change occurs, at any time beginning 15
calendar days prior to the date announced by the Company as the
anticipated effective date of the Fundamental Change and until and
including the date which is 15 calendar days after the date that is the
Effective Date.
The Trustee (or other conversion agent appointed by the Company) shall,
on behalf of the Company, determine on a daily basis during the time period
specified in Section 15.01(a)(i) whether the Notes shall be convertible as a
result of the occurrence of an event specified in clause (i) above and, if the
Notes shall be so convertible, the Trustee (or other conversion agent appointed
by the Company) shall promptly deliver to the Company and the Trustee (if the
Trustee is not the conversion agent) written notice thereof.
The Trustee (or other conversion agent appointed by the Company) shall
have no obligation to determine the Trading Price under this Section
15.01(a)(ii) unless the Company has requested that the Trustee make such a
determination; and the Company shall have no obligation to make such request
unless so requested in writing by a holder. If a holder submits such a request,
the Company shall instruct the Trustee (or other conversion agent) to determine
the Trading Price of the Notes beginning on the next Trading Day and on each
successive Trading Day until the Trading Price per $1,000 principal amount of
Notes is greater than or equal to 95% of the product of the Closing Sale Price
of a share of Common Stock and the Conversion Rate then in effect for five
consecutive Trading Days; provided that the Trustee shall be under no duty or
obligation to make the calculations described in Section 15.01(a)(ii) hereof or
to determine whether the Notes are convertible pursuant to such section. For the
avoidance of doubt, the Company shall make the calculations described in Section
15.01(a)(ii) using the Trading Price provided by the Trustee.
The Trustee shall be entitled at its sole discretion to consult with
the Company and to request the assistance of the Company in connection with the
Trustee's duties and obligations pursuant to Section 15.01(a)(i) and Section
15.01(a)(ii) hereof (including without limitation the calculation or
determination of the Conversion Price, the Closing Sale Price and the Trading
Price), and the Company agrees, if requested by the Trustee, to cooperate with,
and provide assistance to, the Trustee in carrying out its duties under this
Section 15.01; provided, however, that nothing contained herein shall be
construed to relieve the Trustee of its duties pursuant to Section 15.01(a)(i)
and Section 15.01(a)(ii) hereof.
(b) In addition, if:
(i) Error! Bookmark not defined. the Company distributes to
all holders of Common Stock rights or warrants entitling them (for a
period expiring within 45 calendar days of the record date for the
determination of the stockholders entitled to receive such
distribution) to subscribe for or purchase shares of Common Stock, at a
price per share less than the average of the Closing Sale Price of a
share of Common Stock for the ten Trading Days immediately preceding,
but not including, the declaration date for such distribution, or (B)
the Company distributes to all holders of Common Stock, cash or other
assets, debt securities or rights to purchase its securities, where the
Fair Market Value of such distribution per share of Common Stock
exceeds 5% of the Closing Sale Price of a share of Common Stock on the
Trading Day immediately preceding the declaration date for such
distribution, then, in either case, the holders shall have the right to
convert Notes at any time on and after the date that the Company gives
notice to the holders of such distribution, which shall be not less
than 20 calendar days prior to the Ex-Dividend Time for such
distribution, until the earlier of 5:00 p.m., New York City time, on
the Business Day immediately preceding, but not including, the
Ex-Dividend Time or the date the Company publicly announces that such
distribution will not take place; provided that a holder of a Note may
not convert its Notes pursuant to this Section 15.01(b)(i) if the
holder will otherwise participate in such distribution without
conversion as a result of holding the Notes; or
(ii) the Company consolidates with or merges with or into
another Person or is a party to a binding share exchange or conveys,
transfers, sells, leases or otherwise disposes of all or substantially
all of its properties and assets in each case pursuant to which the
Common Stock would be converted into cash, securities and/or other
property, then the holders shall have the right to convert Notes at any
time beginning fifteen calendar days prior to the date announced by the
Company as the anticipated effective date of the transaction and until
and including the date that is fifteen calendar days after the date
that is the actual effective date of such transaction. The Board of
Directors shall determine the anticipated effective date of the
transaction, and such determination shall be conclusive and binding on
the holders and shall be publicly announced by the Company and posted
on its web site not later than two Business Day prior to such 15th day.
"Ex-Dividend Time" means, with respect to any distribution on shares of
Common Stock, the first date on which the shares of Common Stock trade regular
way on the principal securities market on which the shares of Common Stock are
then traded without the right to receive such distribution.
(c) Whenever the Notes shall become convertible pursuant to this
Section 15.01, the Company or, at the Company's request, the Trustee in the name
and at the expense of the Company, shall notify the holders of the event
triggering such convertibility in the manner provided in Section 17.03, and the
Company shall also publicly announce such information and publish it on the
Company's web site. Any notice so given shall be conclusively presumed to have
been duly given, whether or not the holder receives such notice.
(d) A Note in respect of which a holder has delivered a Repurchase
Notice exercising such holder's right to require the Company to repurchase such
Note pursuant to Section 3.05 or 3.06 may be converted only if such Repurchase
Notice is withdrawn in accordance with Section 3.08 prior to 5:00 p.m., New York
City time, on the Business Day immediately preceding the Repurchase Date or the
Fundamental Change Repurchase Date, as applicable.
(e) A holder of Notes is not entitled to any rights of a holder of
Common Stock until such holder has converted his Notes to Common Stock, and only
to the extent such Notes are deemed to have been converted to Common Stock under
this Article 15.
Section 15.02 . Exercise of Conversion Right; Issuance of Common Stock
on Conversion; No Adjustment for Interest or Dividends. In order to exercise the
conversion right with respect to any Note in certificated form, the Company must
receive at the office or agency of the Company maintained for that purpose in
the City of New York or, at the option of such holder, the Corporate Trust
Office, such Note with the original or facsimile of the form entitled
"Conversion Notice" on the reverse thereof, duly completed and manually signed,
together with such Notes duly endorsed for transfer, accompanied by the funds,
if any, required by this Section 15.02. 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 shall be issuable on such conversion shall be
issued, and shall be accompanied by transfer or similar taxes, if required
pursuant to Section 15.07.
In order to exercise the conversion right with respect to any interest
in a Global Note, the beneficial holder must complete, or cause to be completed,
the appropriate instruction form for conversion pursuant to the Depositary's
book-entry conversion program; deliver, or cause to be delivered, by book-entry
delivery an interest in such Global Note; furnish appropriate endorsements and
transfer documents if required by the Company or the Trustee or conversion
agent; and pay the funds, if any, required by this Section 15.02 and any
transfer taxes if required pursuant to Section 15.07.
If the Company elects to settle in Common Stock only, as promptly as
practicable after satisfaction of the requirements for conversion set forth
above, subject to compliance with any restrictions on transfer if shares
issuable on conversion are to be issued in a name other than that of the
Noteholder (as if such transfer were a transfer of the Note or Notes (or portion
thereof) so converted), the Company shall issue and shall deliver to such
Noteholder at the office or agency maintained by the Company for such purpose
pursuant to Section 6.02, (i) a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of such Note or portion
thereof as determined by the Company in accordance with the provisions of
Section 15.12 (or in the case of Notes submitted for conversion in connection
with a Fundamental Change pursuant to Section 15.01(a)(vi) on or after the
record date for receiving distributions in connection with the Fundamental
Change, or if earlier, the Effective Date, the kind and amount of cash,
securities and other assets or property which the holder would have received if
it had held the number of shares of Common Stock issuable upon conversion of
such Note or portion thereof prior to such record date or the Effective Date;
provided that if the determination date is the record date, the holder shall
receive the cash, securities or other assets or property on the Effective Date),
(ii) in the case of Notes submitted for conversion in connection with a
Fundamental Change pursuant to Section 15.01(a)(vi), if the Make Whole Premium
is greater than zero, cash in respect of any accrued but unpaid interest to, but
excluding, the Conversion Date, payable on the date the shares of Common Stock
or other consideration, as the case may be, are delivered and (iii) cash or a
check or cash in respect of any fractional interest in respect of a share of
Common Stock arising upon such conversion, calculated by the Company as provided
in Section 15.03. If the Company elects to settle in cash or a combination of
cash and Common Stock, the cash and, if applicable, a certificate or
certificates for the number of full shares of Common Stock into which the Notes
are converted (and cash in lieu of fractional shares) will be delivered to such
holder after satisfaction of the requirements for conversion set forth above, in
accordance with Section 15.12. In case any Note of a denomination greater than
$1,000 shall be surrendered for partial conversion, and subject to Section 2.03,
the Company shall execute and the Trustee shall authenticate and deliver to the
holder of the Note so surrendered, without charge to the holder, a new Note or
Notes in authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected as to any such
Note (or portion thereof) on the date on which the requirements set forth above
in this Section 15.02 have been satisfied as to such Note (or portion thereof)
(the "Conversion Date"), and the Person in whose name any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become on said date the holder of record of the shares
represented thereby; provided that any such surrender on any date when the stock
transfer books of the Company shall be 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 Rate in effect on the
Conversion Date.
Any Note or portion thereof surrendered for conversion during the
period from 5:00 p.m., New York City time, on the Record Date for any interest
payment date to 5:00 p.m., New York City time, on the Business Day preceding the
applicable interest payment date shall be accompanied by payment, in immediately
available funds or other funds acceptable to the Company, of an amount equal to
the interest otherwise payable on such interest payment date on the principal
amount being converted; provided that no such payment need be made (1) if a
holder converts its Notes in connection with a redemption and the Company has
specified a redemption date that is after a Record Date and on or prior to the
corresponding interest payment date, (2) if a holder converts its Notes in
connection with a Fundamental Change and the Company has specified a Fundamental
Change Repurchase Date that is after a Record Date and on or prior to the
corresponding interest payment date or (3) to the extent of any overdue
interest, if any overdue interest exists at the time of conversion with respect
to such Note. Except as provided above in this Section 15.02 and Section 16.01,
no payment or other adjustment shall be made for interest accrued on any Note
converted or for dividends on any shares issued upon the conversion of such Note
as provided in this Article 15. If a holder exercises its conversion right
pursuant to Section 15.01(a)(vi) and the Make Whole Premium is greater than
zero, such holder shall be entitled to accrued and unpaid interest on the
converted Notes to, but excluding, the Conversion Date, which interest shall be
payable in cash. In addition, notwithstanding the foregoing, in the case of
Notes submitted for conversion in connection with a Fundamental Change, such
Notes shall continue to represent the right to receive the Make Whole Premium,
if any, payable pursuant to Article 16 until such Make Whole Premium is so paid.
Upon the conversion of an interest in a Global Note, the Trustee (or
other conversion agent appointed by the Company), or the Custodian at the
direction of the Trustee (or other conversion agent appointed by the Company),
shall make a notation on such Global Note as to the reduction in the principal
amount represented thereby. The Company shall notify the Trustee in writing of
any conversions of Notes effected through any conversion agent other than the
Trustee.
Except with respect to a conversion of a Note in connection with a
Fundamental Change pursuant to which a Make Whole Premium will be payable, upon
the conversion of a Note, the accrued but unpaid interest and accrued Tax
Original Issue Discount attributable to the period from the issue date of the
Note to the Conversion Date, with respect to the converted Note, shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the holder thereof through delivery of the Common Stock (together with
the cash payment, if any in lieu of fractional shares) in exchange for the Note
being converted pursuant to the provisions hereof; and the Fair Market Value of
such shares of Common Stock (together with any such cash payment in lieu of
fractional shares) shall be treated as issued, to the extent thereof, first in
exchange for and in satisfaction of our obligation to pay the principal amount
of the converted Note, the accrued but unpaid interest, and accrued Tax Original
Issue Discount through the Conversion Date from the issue date, and the balance,
if any, of such fair market value of such Common Stock (and any such cash
payment) shall be treated as issued in exchange for and in satisfaction of the
right to convert the Note being converted pursuant to the provisions hereof.
Section 15.03 . Cash Payments in Lieu of Fractional Shares. No
fractional shares of Common Stock or scrip certificates representing fractional
shares shall be issued upon conversion of Notes. If more than one Note shall be
surrendered for conversion at one time by the same holder, the number of full
shares that shall be issuable upon conversion shall be computed on the basis of
the aggregate principal amount of the Notes (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional share of stock
would be issuable upon the conversion of any Note or Notes, the Company shall
make an adjustment and payment therefor in cash to the holder of Notes at a
price equal to the Closing Sale Price on the last Trading Day immediately
preceding the Conversion Date.
Section 15.04 . Conversion Rate. Each $1,000 principal amount of the
Notes shall be convertible into the number of shares of Common Stock specified
in the form of Note (herein called the "Conversion Rate") attached as Exhibit A
hereto, subject to adjustment as provided in this Section 15.05.
Section 15.05 . Adjustment of Conversion Rate. The Conversion Rate
shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution by a
fraction,
(i) the numerator of which shall be the sum of the number of
shares of Common Stock outstanding at the close of business on the date
fixed for the determination of stockholders entitled to receive such
dividend or other distribution plus the total number of shares of
Common Stock constituting such dividend or other distribution; and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for
such determination,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purpose of this
paragraph (a), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company. The Company will
not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company. If any dividend or distribution of the type
described in this Section 15.05(a) is declared but not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights or warrants to all holders
of its outstanding shares of Common Stock entitling them (for a period expiring
within forty-five calendar days after the date fixed for determination of
stockholders entitled to receive such rights or warrants) to subscribe for or
purchase shares of Common Stock at a price per share less than the Closing Sale
Price on the Business Day immediately preceding the date of announcement of such
issuance of such rights or warrants, the Conversion Rate shall be increased so
that the same shall equal the rate determined by multiplying the Conversion Rate
in effect immediately prior to the date fixed for determination of stockholders
entitled to receive such rights or warrants by a fraction,
(i) the numerator of which shall be the number of shares of
Common Stock outstanding on the date fixed for determination of
stockholders entitled to receive such rights or warrants plus the total
number of additional shares of Common Stock offered for subscription or
purchase, and
(ii) the denominator of which shall be the sum of the number
of shares of Common Stock outstanding at the close of business on the
date fixed for determination of stockholders entitled to receive such
rights or warrants plus the number of shares that the aggregate
offering price of the total number of shares so offered would purchase
at such Current Market Price.
Such adjustment shall be successively made whenever any such rights or
warrants are issued, and shall become effective immediately after the opening of
business on the day following the date fixed for determination of stockholders
entitled to receive such rights or warrants; provided, that no adjustment to the
Conversion Rate shall be made if the holder will otherwise participate in such
distribution without conversion as a result of holding the Notes. To the extent
that shares of Common Stock are not delivered after the expiration of such
rights or warrants, the Conversion Rate shall be readjusted to the Conversion
Rate that 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 Rate shall again be adjusted to be the Conversion Rate
that would then be in effect if such date fixed for the determination of
stockholders entitled to receive such rights or warrants had not been fixed. In
determining whether any rights or warrants 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 by the Company for
such rights or warrants and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined
by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into
a greater number of shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Rate in effect at the opening of business
on the day following the day upon which such combination becomes effective shall
be proportionately reduced, such increase or reduction, 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.
(d) In case the Company shall, by dividend or otherwise, distribute to
all holders of Common Stock shares of any class of capital stock of the Company
or evidences of its indebtedness or assets (including securities, but excluding
(i) any rights or warrants referred to in Section 15.05(b), (ii) any dividends
or distributions paid exclusively in cash, (iii) any dividends or distributions
referred to in Section 15.05(a) or (iv) any dividends or distributions in
connection with a reclassification, consolidation, merger, binding share
exchange or sale to which Section 15.06 applies (any of the foregoing
hereinafter in this Section 15.05(d)) called the "Securities")), then, in each
such case (unless the Company elects to reserve such Securities for distribution
to the Noteholders upon the conversion of the Notes so that any such holder
converting Notes will receive upon such conversion, in addition to the shares of
Common Stock to which such holder is entitled, the amount and kind of such
Securities which such holder would have received if such holder had converted
its Notes into Common Stock immediately prior to the record date) the Conversion
Rate shall be increased so that the same shall be equal to the rate determined
by multiplying the Conversion Rate in effect on the record date with respect to
such distribution by a fraction,
(i) the numerator of which shall be the Current Market Price
on such Record Date; and
(ii) the denominator of which shall be the Current Market
Price on such record date less the Fair Market Value (as determined by
the Board of Directors, whose determination shall be conclusive, and
described in a resolution of the Board of Directors) on the record date
of the portion of the Securities so distributed applicable to one share
of Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following such record date; provided that if 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 Noteholder shall have the right to receive
upon conversion the amount of Securities such holder would have received had
such holder converted each Note on the record date. If such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared. If the Board of Directors determines the
Fair Market Value of any distribution for purposes of this Section 15.05(d) by
reference to the actual or when issued trading market for any securities, it
must in doing so consider the prices in such market over the same period used in
computing the Current Market Price on the applicable record date.
If the dividend or distribution requiring an adjustment pursuant to
this clause (d) consists of capital stock of any class or series, or similar
equity interests, of a Subsidiary or other business unit of the Company, for
purposes of making such adjustment, (i) the Current Market Price shall be based
on the average of the Closing Sale Prices of such securities for the ten Trading
Days commencing on and including the fifth Trading Day after the date on which
"ex-dividend trading" commences for such distribution on The New York Stock
Exchange or such other national or regional exchange or market on which such
securities are then listed or quoted, and (ii) the Fair Market Value of such
securities shall be determined as provided herein, measured for the same period.
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 15.05 (and no adjustment to the Conversion Rate under
this Section 15.05 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion
Rate shall be made under this Section 15.05(d). If any such right or warrant,
including any such existing rights or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of which such rights
or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with
respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 15.05 was made, (1) in the case of any such
rights or warrants that shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder 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 that shall have expired or been terminated without exercise by any
holders thereof, the Conversion Rate shall be readjusted as if such rights and
warrants had not been issued.
No adjustment of the Conversion Rate shall be made pursuant to this
Section 15.05(d) in respect of rights or warrants distributed or deemed
distributed on any Trigger Event to the extent that such rights or warrants are
actually distributed, or reserved by the Company for distribution to holders of
Notes upon conversion by such holders of Notes to Common Stock.
For purposes of this Section 15.05(d) and Section 15.05(a) and (b), any
dividend or distribution to which this Section 15.05(d) is applicable that also
includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets or shares of
capital stock other than such shares of Common Stock or rights or warrants (and
any Conversion Rate adjustment required by this Section 15.05(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 Rate adjustment required by Sections
15.05(a) and 15.05(b) with respect to such dividend or distribution shall then
be made), except (A) the record date of such dividend or distribution shall be
substituted as "the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution", "the date fixed for the
determination of stockholders entitled to receive such rights or warrants" and
"the date fixed for such determination" within the meaning of Section 15.05(a)
and 15.05(b) and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of Section 15.05(a).
(e) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (including any quarterly cash dividend, but
excluding (x) any quarterly cash dividend distributed on or after January 20,
2010 on the Common Stock to the extent the aggregate cash dividend per share of
Common Stock in any Fiscal Quarter does not exceed the greater of (A) the amount
per share of Common Stock of the next preceding quarterly cash dividend on the
Common Stock to the extent that such preceding quarterly dividend did not
require any adjustment of the Conversion Rate pursuant to this Section 15.05(e)
(as adjusted to reflect subdivisions or combinations of the Common Stock), and
(B) 1.25% of the average of the Closing Sale Price of a share of Common Stock
over the ten consecutive Trading Days immediately preceding the date of
declaration of such dividend calculated at the time of the declaration of each
distribution during such quarter, (y) any dividend or distribution in connection
with the liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, and (z) any dividend or distribution in connection
with a reclassification, consolidation, merger, binding share exchange or sale
to which Section 15.06 applies), then, in such case, the Conversion Rate shall
be increased so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect on the applicable record date by a fraction,
(i) the numerator of which shall be the Current Market Price
on such record date; and
(ii) the denominator of which shall be the Current Market
Price on such record date less (x) the amount of the excess
distribution in the case of a quarterly dividend on or after January
20, 2010 or (y) the full amount of cash so distributed (and not
excluded as provided above) in all other cases, in each of (x) and (y),
as applicable to one share of Common Stock,
such adjustment to be effective immediately prior to the opening of business on
the day following the record date; provided 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 on the record date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder shall have
the right to receive upon conversion the amount of cash such holder would have
received had such holder converted each Note on the record date. If such
dividend or distribution is not so paid or made, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared. If any adjustment is required to
be made as set forth in this Section 15.05(e) as a result of a distribution that
is a quarterly dividend, such adjustment shall be based upon the amount by which
such distribution exceeds the amount of the quarterly cash dividend permitted to
be excluded pursuant hereto. If an adjustment is required to be made as set
forth in this Section 15.05(e) above as a result of a distribution that is not a
quarterly dividend, such adjustment shall be based upon the full amount of the
distribution.
Notwithstanding the foregoing, adjustments to the Conversion Rate
resulting from any quarterly cash dividends may not cause the Conversion Rate
(as adjusted for any other adjustment in this Section 15.05) to exceed the
quotient obtained by dividing the principal amount of a Note by $37.49.
(f) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to stockholders of consideration per share of Common Stock having a
Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors)
that as of the last time (the "Expiration Time") tenders or exchanges may be
made pursuant to such tender or exchange offer (as it may be amended) exceeds
the Closing Sale Price of a share of Common Stock on the Trading Day next
succeeding the Expiration Time, the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the Expiration Time by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair
Market Value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the Closing Sale Price of a share of
Common Stock on the Trading Day next succeeding the Expiration Time,
and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares)
at the Expiration Time multiplied by the Closing Sale Price of a share
of Common Stock on the Trading Day next succeeding the Expiration Time,
such adjustment 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 or exchange offer, but the Company
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted to
be the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made.
(g) For purposes of this Section 15.05, the following terms shall have
the meaning indicated:
(i) "Current Market Price" shall mean the average of the daily
Closing Sale Prices per share of Common Stock over the ten consecutive
Trading Days ending on the earlier of such date of determination and
the day before the "ex" date with respect to the issuance,
distribution, subdivision or combination requiring such computation.
For purpose 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 Sale Price was obtained
without the right to receive such issuance or distribution, and (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.
If another issuance, distribution, subdivision or combination
to which Section 15.05 applies occurs during the period applicable for
calculating "Current Market Price" pursuant to the definition in the
preceding paragraph, "Current Market Price" shall be calculated for
such period in a manner determined by the Board of Directors to reflect
the impact of such issuance, distribution, subdivision or combination
on the Closing Sale Price of the Common Stock during such period.
(ii) "Fair Market Value" shall mean the amount which a willing
buyer would pay a willing seller in an arm's-length transaction.
(iii) "record date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of
Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is
exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property (whether
such date is fixed by the Board of Directors or by statute, contract or
otherwise).
(iv) "Trading Day" shall mean (x) if the applicable security
is quoted on the Nasdaq National Market, a day on which trades may be
made thereon or (y) 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 (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 increases in the Conversion Rate, in
addition to those required by Section 15.05(a)-(f) as the Board of Directors
considers to be advisable to avoid or diminish any income tax to holders of
Common Stock or rights to purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes.
To the extent permitted by applicable law, the Company from time to
time may increase the Conversion Rate by any amount for any period of time if
the period is at least twenty (20) Business Days, the increase is irrevocable
during the period and the Board of Directors shall have made a determination
that such increase would be in the best interests of the Company, which
determination shall be conclusive. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to holders of record
of the Notes a notice of the increase, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.
(i) No adjustment in the Conversion Rate shall be required
unless such adjustment would require an increase or decrease of at
least one percent (1%) in such rate; provided that any adjustments that
by reason of this Section 15.05(i) are not required to be made shall be
carried forward and the Company shall make such carry forward
adjustments, regardless of whether the aggregate adjustment is less
than 1%, within one year of the first such adjustment carry forward,
upon redemption, upon a Fundamental Change or at maturity. All
calculations under this Article 15 shall be made by the Company and
shall be made to the nearest cent or to the nearest one-ten thousandth
(1/10,000) of a share, as the case may be. No adjustment need be made
for rights to purchase Common Stock pursuant to a Company plan for
reinvestment of dividends or interest or for any issuance of Common
Stock or convertible or exchangeable securities or rights to purchase
Common Stock or convertible or exchangeable securities. To the extent
the Notes become convertible into cash, assets, property or securities
(other than capital stock of the Company), no adjustment need be made
thereafter as to the cash, assets, property or such securities.
Interest will not accrue on any cash into which the Notes are
convertible.
(j) Whenever the Conversion Rate 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 Rate after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officers' Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Conversion Rate and may assume that the last
Conversion Rate of which it has knowledge is still in effect. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and
the date on which each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Rate to the holder of each Note at his last
address appearing on the Note Register provided for in Section 2.05 of this
Indenture, within twenty (20) calendar days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of any such
adjustment.
(k) In any case in which this Section 15.05 provides that an adjustment
shall become effective immediately after (1) a record date for an event, (2) the
date fixed for the determination of stockholders entitled to receive a dividend
or distribution pursuant to Section 15.05(a), (3) a date fixed for the
determination of stockholders entitled to receive rights or warrants pursuant to
Section 15.05(b), or (4) the Expiration Time for any tender or exchange offer
pursuant to Section 15.05(f), (each a "Determination Date"), the Company may
elect to defer until the occurrence of the applicable Adjustment Event (as
hereinafter defined) (x) issuing to the holder of any Note converted after such
Determination Date and before the occurrence of such Adjustment Event, the
additional shares of Common Stock or other securities issuable upon such
conversion by reason of the adjustment required by such Adjustment Event over
and above the Common Stock issuable upon such conversion before giving effect to
such adjustment and (y) paying to such holder any amount in cash in lieu of any
fraction pursuant to Section 15.03. For purposes of this Section 15.05(k), the
term "Adjustment Event" shall mean:
(i) in any case referred to in clause (1) hereof, the
occurrence of such event,
(ii) in any case referred to in clause (2) hereof, the date
any such dividend or distribution is paid or made,
(iii) in any case referred to in clause (3) hereof, the date
of expiration of such rights or warrants, and
(iv) in any case referred to in clause (4) hereof, the date a
sale or exchange of Common Stock pursuant to such tender or exchange
offer is consummated and becomes irrevocable.
(l) For purposes of this Section 15.05, 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 will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
(m) No adjustment to the Conversion Rate shall be made pursuant to this
Section 15.05 if the holders of the Notes may participate in the transaction
that would otherwise give rise to adjustment pursuant to this Section 15.05.
Section 15.06. Effect of Reclassification, Consolidation, Merger or
Sale. If any of the following events occur, namely (i) any reclassification or
change of the outstanding shares of Common Stock (other than a subdivision or
combination to which Section 15.05(c) applies), (ii) any consolidation, merger,
binding share exchange or combination of the Company with another Person as a
result of which holders of Common Stock shall be entitled to receive capital
stock, other 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 all or substantially all of the properties and assets of the Company to any
other Person as a result of which holders of Common Stock shall be entitled to
receive capital stock, other securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock, then the Company or
the successor or purchasing Person, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture)
providing that each Note shall be convertible into the kind and amount of shares
of capital stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger, binding
share exchange, combination, sale or conveyance by a holder of a number of
shares of Common Stock issuable upon conversion of such Notes (assuming, for
such purposes, a sufficient number of authorized shares of Common Stock are
available to convert all such Notes) immediately prior to such reclassification,
change, consolidation, merger, binding share exchange, combination, sale or
conveyance assuming such holder of Common Stock did not exercise his rights of
election, if any, as to the kind or amount of capital stock, other securities or
other property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, binding share exchange, combination, sale or
conveyance (provided that, if the kind or amount of capital stock, other
securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, binding share exchange,
combination, sale or conveyance is not the same for each share of Common Stock
in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purposes of this Section 15.06 the kind and
amount of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance for each non-electing share shall be deemed to
be the kind and amount so receivable per share by a plurality of the
non-electing shares). Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 15.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes, at its address appearing on the
Note Register provided for in Section 2.05 of this Indenture, within twenty (20)
calendar days after execution thereof. Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 15.06 applies to any event or occurrence, Section 15.05
shall not apply.
Section 15.07 . Taxes on Shares Issued. The issue of stock certificates
on conversions of Notes shall be made without charge to the converting
Noteholder for any documentary, stamp or similar issue or transfer tax in
respect of the issue thereof. The Company shall not, however, be required to pay
any such tax which may be payable in respect of any transfer involved in the
issue and delivery of stock in any name other than that of the holder of any
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 satisfaction of the Company that such tax has been paid.
Section 15.08 . Reservation of Shares, Shares to be Fully Paid;
Compliance with Governmental Requirements; Listing of Common Stock. The Company
shall provide, free from preemptive rights, out of its authorized but unissued
shares or shares held in treasury, sufficient shares of Common Stock to provide
for the conversion of the Notes from time to time as such Notes are presented
for conversion.
Before taking any action which would cause an adjustment increasing the
Conversion Rate to an amount that would cause the Conversion Price to be reduced
below the then par value, if any, of the shares of Common Stock issuable upon
conversion of the Notes, the Company will take all corporate action which may,
in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue shares of such Common Stock at such adjusted
Conversion Rate.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Notes will upon issue 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 covenants that, if any shares of Common Stock to be
provided for the purpose of conversion of Notes hereunder require registration
with or approval of any governmental authority under any federal or state law
before such shares may be validly issued upon conversion, the Company will in
good faith and as expeditiously as possible, to the extent then permitted by the
rules and interpretations of the Commission (or any successor thereto), endeavor
to secure such registration or approval, as the case may be.
The Company further covenants that, if at any time the Common Stock
shall be listed on The New York Stock Exchange or any other national securities
exchange or automated quotation system, the Company will, if permitted by the
rules of such exchange or automated quotation system, list and keep listed, so
long as the Common Stock shall be so listed on such exchange or automated
quotation system, all Common Stock issuable upon conversion of the Note;
provided that if the rules of such exchange or automated quotation system permit
the Company to defer the listing of such Common Stock until the first conversion
of the Notes into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Notes in accordance with the requirements of such exchange or
automated quotation system at such time.
Section 15.09. Responsibility of Trustee. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any holder of Notes to determine the Conversion Rate or whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee and any other
conversion agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock, or of any capital stock,
other securities or other assets or property, which may at any time be issued or
delivered upon the conversion of any Note; and the Trustee and any other
conversion agent make no representations with respect thereto. Neither the
Trustee nor any conversion agent shall be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or cash upon the surrender of any
Note for the purpose of conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article 15.
Without limiting the generality of the foregoing, neither the Trustee nor any
conversion agent shall be under any responsibility to determine the correctness
of any provisions contained in any supplemental indenture entered into pursuant
to Section 15.06 relating either to the kind or amount of shares of capital
stock or other securities or other assets or property (including cash)
receivable by Noteholders upon the conversion of their Notes after any event
referred to in such Section 15.06 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 9.01, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers' Certificate (which the Company shall be
obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
Section 15.10. Notice to Holders Prior to Certain Actions. In case:
(a) the Company shall declare a dividend (or any other distribution) on
its Common Stock that would require an adjustment in the Conversion Rate
pursuant to Section 15.05; or
(b) the Company shall authorize the granting to the holders of all or
substantially all of its Common Stock of rights or warrants to subscribe for or
purchase any share of any class or any other rights or warrants; or
(c) of any reclassification or reorganization of the Common Stock of
the Company (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially all of the assets
of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or winding
up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note Register provided for in
Section 2.05 of this Indenture, as promptly as possible but in any event at
least ten calendar 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 15.11. Stockholder Rights Plans. If the rights provided for in
the Company's stockholder rights agreement dated June 24, 2002 or in any future
rights plan adopted by the Company have separated from the shares of Common
Stock in accordance with the provisions of the applicable stockholder rights
agreement so that the holders of the Notes would not be entitled to receive any
rights in respect of Common Stock issuable upon conversion of the Notes, the
Conversion Rate will be adjusted as provided in Section 15.05(d).
Section 15.12. Option to Satisfy Conversion Obligation with Cash,
Common Stock or Combination Thereof.
(a) Except to the extent that the Company has irrevocably elected to
make a cash payment of principal upon conversion pursuant to Section 15.12(b),
in lieu of delivery of shares of Common Stock in satisfaction of the Company's
obligation upon conversion of the Notes, the Company may elect to deliver cash
or a combination of cash and shares of Common Stock. The Company shall notify
the holder or holders, as the case may be, through the Trustee of the method the
Company chooses to satisfy its obligation upon conversion (the "Conversion
Obligation"), (i) in the Company's notice of redemption, if the Company has
called the Notes for redemption, (ii) twenty-six Trading Days immediately
preceding the Maturity Date in respect of Notes to be converted during the
period beginning twenty-five Trading Days immediately preceding the Maturity
Date and ending one Trading Day immediately preceding the Maturity Date, and
(iii) no later than two Trading Days immediately following the Conversion Date
in all other cases (such period, the "Settlement Notice Period"). If the Company
elects to satisfy any portion of its Conversion Obligation in cash, the Company
shall specify in such notice the amount to be satisfied in cash as a percentage
of the Conversion Obligation or a fixed dollar amount. The Company shall treat
all holders converting on the same Trading Day in the same manner. The Company
shall not have any obligation to satisfy Conversion Obligations arising on
different Trading Days in the same manner.
If the Company elects to satisfy any portion of the Conversion
Obligation in cash (other than cash in lieu of fractional shares), a holder may
retract its Conversion Notice at any time during the two Trading-Day period
beginning on the Trading Day after the last Trading Day of the Settlement Notice
Period (the "Conversion Retraction Period"); provided, that no such retraction
can be made (and a Conversion Notice shall be irrevocable) (x) if the holder
delivers the Conversion Notice in connection with a redemption pursuant to
Section 15.01(a)(iii); (y) if the holder delivers the Conversion Notice during
the period beginning twenty-five Trading Days immediately preceding the Maturity
Date and ending one Trading Day immediately preceding the Maturity Date; or (z)
if the Company has irrevocably elected pursuant to Section 15.12(b) to make a
cash payment of principal upon conversion before such holder delivers its
Conversion Notice. No retraction can be made and a Conversion Notice shall be
irrevocable if the Company does not elect to deliver cash in lieu of shares of
Common Stock.
With respect to each holder that exercises its conversion right in
accordance with this Indenture, if such holder's Conversion Notice has not been
retracted, assuming all of the other requirements have been satisfied by such
holder, then settlement (a) in Common Stock only shall occur as soon as
practicable after the Company notifies the holder or holders that settlement
shall be in Common Stock only, and (b) in cash or in a combination of cash and
Common Stock shall occur on the second Trading Day following the final Trading
Day of the Cash Settlement Averaging Period.
Settlement amounts will be computed as follows:
(i) if the Company elects to satisfy the entire Conversion
Obligation in Common Stock, the Company will deliver to such holder a
number of shares of Common Stock equal to (1) the aggregate principal
amount of the Notes to be converted divided by 1,000, multiplied by (2)
the Conversion Rate in effect on the Conversion Date (plus cash in lieu
of fractional shares calculated as provided in Section 15.03);
(ii) if the Company elects to satisfy the entire Conversion
Obligation in cash, the Company will deliver to such holder cash in an
amount equal to the product of:
(1) a number equal to (x) the aggregate
principal amount of the Notes to be
converted divided by 1,000 and multiplied by
(y) the Conversion Rate in effect on the
Conversion Date, and
(2) the Applicable Stock Price; and
(iii) if the Company elects to satisfy the Conversion
Obligation in a combination of cash (the "Cash Amount") (excluding any
cash paid for fractional shares) and Common Stock, the Company will
deliver to such holder:
(1) a Cash Amount equal to (x) the fixed dollar
amount per $1,000 principal amount of Notes
specified in the notice regarding the
Company's chosen method of settlement
multiplied by the quotient of the aggregate
principal amount of Notes to be converted
divided by 1,000 or (y) the percentage of
the Conversion Obligation specified in the
notice regarding the Company's chosen method
of settlement, multiplied by the amount of
cash that would be paid pursuant to the
clause (ii) above, as the case may be; and
(2) a number of shares of Common Stock equal to
(x) the aggregate principal amount of Notes
to be converted divided by 1,000 and
multiplied by (y) (a) the Conversion Rate in
effect on the Conversion Date minus (b) the
Cash Amount per $1,000 principal amount of
Notes divided by the Applicable Stock Price
(plus cash in lieu of fractional shares
calculated as provided in Section 15.03).
(b) Notwithstanding anything to the contrary in this Indenture, at any
time prior to the twenty-sixth Trading Day preceding the Maturity Date, the
Company may irrevocably elect, in its sole discretion without the consent of the
holders of the Notes, by written notice to the Trustee and the holders of the
Notes to satisfy in cash the Conversion Obligation with respect to the principal
amount of Notes to be converted after the date of such election, with any
remaining amount of the Conversion Obligation to be satisfied in shares of
Common Stock. The settlement amount will be computed as follows: (i) a cash
amount equal to the aggregate principal amount of Notes to be converted and (ii)
a number of shares equal to (x) the aggregate principal amount of Notes to be
converted divided by 1,000 and multiplied by (y) (1) the Conversion Rate minus
(2) $1,000 divided by the Applicable Stock Price (plus cash in lieu of
fractional shares calculated as provided in Section 15.03).
ARTICLE 16
MAKE WHOLE PREMIUM
Section 16.01. Make Whole Premium.
(a) On or prior to January 15, 2010, upon the occurrence of a
Fundamental Change, the Company will pay, on the Fundamental Change Repurchase
Date, the Make Whole Premium, if any, to holders of the Notes who surrender
their Notes for repurchase in connection with such Fundamental Change pursuant
to Section 3.05 or convert their Notes pursuant to Section 15.01(a)(vi).
(b) The "Make Whole Premium" will be determined as follows:
(i) if the Effective Date is after January 15, 2010, no Make
Whole Premium shall be paid;
(ii) if the Stock Price is less than $37.49 (subject to
adjustment pursuant to Section 16.02) (the "Stock Price Threshold"), no
Make Whole Premium shall be paid;
(iii) if the Stock Price is more than $100.00 per share
(subject to adjustment pursuant to Section 16.02) (the "Stock Price
Cap"), no Make Whole Premium shall be paid; and
(iv) in all other cases, the Make Whole Premium shall equal
the applicable Make Whole Percentage multiplied by $1,000.
(c) For purposes of this Section 16.01(c), the following terms shall
have the respective meanings indicated:
(i) "Effective Date" means the date that a Fundamental Change
becomes effective.
(ii) "Stock Price" means the price paid per share of Common
Stock in the transaction constituting the Fundamental Change,
determined as follows:
(A) if holders of Common Stock receive only cash in
the transaction constituting the Fundamental Change, the Stock
Price shall equal the cash amount paid per share of Common
Stock;
(B) in all other cases, the Stock Price shall equal
the average Closing Sale Price of a share of Common Stock over
the ten Trading-Day period ending on the Trading Day
immediately preceding the Effective Date; and
(iii) "Make Whole Percentage" means the percentage set forth
on the table below (the "Make Whole Table") for the Stock Price and the
Effective Date:
Effective Date Stock Price
-------------------- ---------------------------------------------------------------------------------------------------
$37.49 $40.99 $44.49 $47.99 $50.24 $55.00 $60.00 $70.00 $80.00 $90.00 $100.00
------ ------ ------ ------ ------ ------ ------ ------ ------ ------ -------
6/22/2004............ 0.00 4.54 9.60 14.97 18.41 16.73 15.08 12.62 10.78 9.28 8.07
1/15/2005............ 0.00 3.70 8.69 14.01 17.42 15.71 14.05 11.55 9.80 8.37 7.23
7/15/2005............ 0.00 3.08 7.99 13.26 16.68 14.87 13.17 10.67 8.96 7.59 6.51
7/15/2006............ 0.00 2.20 6.81 11.91 15.30 13.24 11.51 8.97 7.30 6.03 5.09
7/15/2007............ 0.00 1.36 5.63 10.36 13.67 11.33 9.57 6.99 5.38 4.30 3.57
7/15/2008............ 0.00 0.56 4.28 8.31 11.43 8.73 6.96 4.47 3.13 2.39 1.97
7/15/2009............ 0.00 0.13 1.57 4.71 7.24 4.58 2.55 0.99 0.61 0.53 0.48
1/15/2010............ 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
If the Stock Price is between two "Stock Price" amounts on the Make
Whole Table or the Effective Date is between two Effective Dates on the
Make Whole Table, the Make Whole Percentage will be determined by
straight-line interpolation between Make Whole Percentage amounts set
forth for the higher and lower Stock Price amounts and the two
Effective Dates, as applicable, based on a 365 day year.
(d) The Company will pay the Make Whole Premium in the same form of
consideration into which all or substantially all of the Common Stock has been
converted or exchanged in connection with the transaction constituting the
Fundamental Change. If holders of the Common Stock have the right to elect the
form of consideration received in the transaction constituting a Fundamental
Change, then for purposes of determining the form of consideration to be
delivered in respect of the Make Whole Premium, the consideration into which a
share of Common Stock has been converted or exchanged shall be deemed to equal
(x) the aggregate consideration distributed in respect of all shares of Common
Stock divided by (y) the total number of shares of Common Stock participating in
the distribution.
(e) For purposes of determining the value of the consideration to be
delivered in respect of the Make Whole Premium, the value will be calculated as
follows:
(i) securities that are traded on a United States national
securities exchange or approved for quotation on the Nasdaq National
Market or any similar system of automated dissemination of quotations
of securities prices will be valued based on the average Closing Sale
Price or last sale price, as applicable, over the ten Trading- Day
period ending on the Trading Day immediately preceding the Fundamental
Change Repurchase Date,
(ii) other securities, assets or property (other than cash)
will be valued based on 98% of the average of the fair market value of
such securities, assets or property (other than cash) as determined by
two independent nationally recognized investment banks selected by the
Trustee, and
(iii) 100% of any cash.
A calculation agent (the "Calculation Agent") appointed from time to
time by the Company shall, on behalf of and on request by the Company or the
Trustee, calculate (A) the Stock Price and (B) the Make Whole Premium with
respect to such Stock Price, based on the Effective Date specified by the
Company or the Trustee, and shall deliver its calculation of the Stock Price and
Make Whole Premium to the Company and the Trustee within three Business Days of
the request by the Company or the Trustee. In addition, the Calculation Agent
shall, on behalf of and upon request by the Company or the Trustee made no less
than three Business Days prior to a Fundamental Change Repurchase Date, make the
determinations described in Section 16.01(e)(i) above and deliver its
calculations to the Company or the Trustee by 9:00 p.m., New York City time, on
the Trading Day preceding the Fundamental Change Repurchase Date. The Company,
or at the Company's request, the Trustee in the name and at the expense of the
Company, (X) shall notify the holders of the Stock Price and Make Whole Premium
per $1,000 principal amount of Notes with respect to a Fundamental Change as
part of the Company Repurchase Notice in connection with the Fundamental Change
and (Y) shall notify the holders prior to 9:00 a.m., New York City time, on the
Fundamental Change Repurchase Date of the number or amount of such securities,
assets or property to be paid in respect of the Make Whole Premium in connection
with such Fundamental Change, in the manner provided in Section 17.03, and the
Company shall also publicly announce such information and publish it on the
Company's web site. Any notice so given shall be conclusively presumed to have
been duly given, whether or not the holder receives such notice.
(f) On or prior to the Fundamental Change Repurchase Date, the Company
shall deposit with the Paying Agent a number or an amount of securities, assets
or property sufficient to pay the Make Whole Premium with respect to all the
Notes to be repurchased on such date and all the Notes converted in connection
with such Fundamental Change; provided that if such payment is made on the
Fundamental Change Repurchase Date, it must be received by the Paying Agent by
11:00 a.m., New York City time, on such date.
Section 16.02. Adjustments Relating To Make Whole Premium. Whenever
the Conversion Rate shall be adjusted from time to time by the Company pursuant
to Section 15.05, the Stock Price Threshold and the Stock Price Cap shall be
adjusted and each of the Stock Prices set forth in the Make Whole Table will be
adjusted by multiplying each such amount by a fraction, the numerator of which
is the Conversion Rate immediately prior to such adjustment and the denominator
of which is the Conversation Rate as so adjusted.
ARTICLE 17
MISCELLANEOUS PROVISIONS
Section 17.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements by the Company contained in
this Indenture shall bind their respective successors and assigns whether so
expressed or not.
Section 17.02. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any Person that shall at the time be the lawful sole successor of the
Company.
Section 17.03. Addresses for Notices, etc. Any notice or demand which
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Notes on the Company shall be in
writing and shall be deemed to have been sufficiently given or made, for all
purposes, if given or served by being deposited postage prepaid by registered or
certified mail in a post office letter box, or sent by overnight courier, or
sent by telecopier transmission addressed as follows: to Advanced Medical
Optics, Inc., ▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇, Telecopier No.:
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. Any notice, direction, request
or demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being
deposited, postage prepaid, by registered or certified mail in a post office
letter box, or sent by overnight courier, or sent by telecopier transmission
addressed as follows: U.S. Bank National Association, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Corporate
Trust Department.
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed by
first class mail, postage prepaid, at such Noteholder's address as it appears on
the Note Register and shall be sufficiently given to such Noteholder if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect
in it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Section 17.04. Governing Law. This Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 17.05 . Evidence of Compliance with Conditions Precedent,
Certificates to Trustee. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been complied
with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture 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 statement or opinion contained in such certificate or opinion is
based; (3) a statement that, in the opinion of such person, such person has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may rely on
an Officers' Certificate or certificates of public officials.
Section 17.06. Legal Holidays. In any case in which the date of
maturity of interest on or principal or premium, if any, of the Notes or the
redemption date or repurchase date of any Note will not be a Business Day, then
payment of such interest on or principal or premium, if any, of the Notes need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date of maturity or the
redemption or repurchase date, and no interest shall accrue for the period from
and after such date.
Section 17.07. Trust Indenture Act. This Indenture is hereby made
subject to, and shall be governed by, the provisions of the Trust Indenture Act
required to be part of and to govern indentures qualified under the Trust
Indenture Act; provided that unless otherwise required by law, notwithstanding
the foregoing, this Indenture and the Notes issued hereunder shall not be
subject to the provisions of subsections (a)(1), (a)(2), and (a)(3) of Section
314 of the Trust Indenture Act as now in effect or as hereafter amended or
modified; provided further that this Section 17.07 shall not require this
Indenture or the Trustee to be qualified under the Trust Indenture Act prior to
the time such qualification is in fact required under the terms of the Trust
Indenture Act, nor shall it constitute any admission or acknowledgment by any
party to the Indenture that any such qualification is required prior to the time
such qualification is in fact required under the terms of the Trust Indenture
Act. If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in an indenture qualified
under the Trust Indenture Act, such required provision shall control.
Section 17.08. No Security Interest Created. Nothing in this Indenture
or in the Notes, expressed or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar legislation, as
now or hereafter enacted and in effect, in any jurisdiction in which property of
the Company or its subsidiaries is located.
Section 17.09. Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto, any Paying Agent, any authenticating agent, any Note Registrar and their
successors hereunder and the holders of Notes any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 17.10. Table of Contents, Headings, etc. The table of contents
and the titles 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.
Section 17.11. Authenticating Agent. The Trustee may appoint an
authenticating agent that shall be authorized to act on its behalf, and subject
to its direction, in the authentication and delivery of Notes in connection with
the original issuance thereof and transfers and exchanges of Notes hereunder,
including under Sections 2.04, 2.05, 2.06, 2.07, 3.03, 3.05 and 3.06, as fully
to all intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to authenticate and
deliver Notes. For all purposes of this Indenture, the authentication and
delivery of Notes by the authenticating agent shall be deemed to be
authentication and delivery of such Notes "by the Trustee" and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent
shall be deemed to satisfy any requirement hereunder or in the Notes for the
Trustee's certificate of authentication. Such authenticating agent shall at all
times be a Person eligible to serve as trustee hereunder pursuant to Section
9.09.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 17.11, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any authenticating agent by giving written notice
of termination to such authenticating agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any authenticating agent shall cease to be eligible under this Section, the
Trustee shall either promptly appoint a successor authenticating agent or itself
assume the duties and obligations of the former authenticating agent under this
Indenture and, upon such appointment of a successor authenticating agent, if
made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of
a successor authenticating agent to all holders of Notes as the names and
addresses of such holders appear on the Note Register.
The Company agrees to pay to the authenticating agent from time to time
such reasonable compensation for its services as shall be agreed upon in writing
between the Company and the authenticating agent.
The provisions of Sections 9.02, 9.03, 9.04 and 10.03 and this Section
17.11 shall be applicable to any authenticating agent.
Section 17.12. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
Section 17.13. Severability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, then (to the extent
permitted by law) the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
U.S. Bank National Association hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions herein above set
forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed.
ADVANCED MEDICAL OPTICS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Corporate Vice President,
General Counsel, Secretary
and Chief Ethics Officer
U.S. BANK NATIONAL
ASSOCIATION, as Trustee By:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ III
Title: Vice President
EXHIBIT A
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF SECTIONS
1272, 1273, AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. UPON THE
REQUEST OF THE HOLDER OF THIS NOTE, THE COMPANY WILL PROMPTLY MAKE AVAILABLE TO
THE HOLDER OF THIS NOTE, (1) THE ISSUE PRICE OF THE NOTE, (II) THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT IN RESPECT THEREOF, (III) THE ISSUE DATE OF THE NOTE,
(IV) THE COMPARABLE YIELD OF THE NOTE, AND (V) THE PROJECTED PAYMENT SCHEDULE OF
THE NOTE, IN EACH CASE AS DETERMINED UNDER THE ORIGINAL ISSUE DISCOUNT RULES OF
THE U.S. INTERNAL REVENUE CODE. PLEASE CONTACT: ADVANCED MEDICAL OPTICS, INC.,
ATTN: INVESTOR RELATIONS DEPARTMENT, ▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇
▇▇▇▇▇.
[Include only for Global Notes]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (THE
"DEPOSITARY", WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE CERTIFICATES)
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 REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]
[Include only for Notes that are Restricted Securities]
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER: (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT AND IS PURCHASING IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER
THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF
SUCH SECURITY EXCEPT (A) TO ADVANCED MEDICAL OPTICS, INC. ("THE COMPANY") OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO
CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(D) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF
THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER MUST, PRIOR
TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY OR THE 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. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO
CLAUSE 2(C) OR 2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL
ISSUANCE OF THE SECURITY EVIDENCED HEREBY.
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS
AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH
THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.
ADVANCED MEDICAL OPTICS, INC.
2.50% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2024
CUSIP:
No. $_____________
Advanced Medical Optics, Inc., a Delaware corporation (herein called
the "Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received hereby promises to pay to
_________ or its registered assigns, [the principal sum of _____________
DOLLARS] [or, such amount as is indicated in the records of the Trustee and the
Depositary](1) on July 15, 2024 at the office or agency of the Company
maintained for that purpose in accordance with the terms of the Indenture, in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest, semi-annually on January 15 and July 15 of each year, commencing
January 15, 2005, on said principal sum at said office or agency, in like coin
or currency, at the rate per annum of 2.50%, from the January 15 or July 15, as
the case may be, next preceding the date of this Note to which interest has been
paid or duly provided for, unless the date hereof is a date to which interest
has been paid or duly provided for, in which case from the date of this Note, or
unless no interest has been paid or duly provided for on the Notes, in which
case from June 22, 2004 until payment of said principal sum has been made or
duly provided for. Notwithstanding the foregoing, if the date hereof is after
any January 1 or July 1, as the case may be, and before the following January 15
or July 15, this Note shall bear interest from such January 15 or July 15;
provided that if the Company shall default in the payment of interest due on
such January 15 or July 15, then this Note shall bear interest from the next
preceding January 15 or July 15 to which interest has been paid or duly provided
for or, if no interest has been paid or duly provided for on such Note, from
June 22, 2004. Beginning with the six-month interest period commencing January
15, 2010, the Notes may accrue contingent interest. Contingent interest, if any,
for any six-month interest period will be payable on the applicable January 15
or July 15 interest payment date. Except as otherwise provided in the Indenture,
the interest payable on the Note pursuant to the Indenture on any January 15 or
July 15 will be paid to the Person entitled thereto as it appears in the Note
Register at 5:00 p.m., New York City time, on the applicable record date, which
shall be the January 1 or July 1 (whether or not a Business Day) next preceding
such January 15 or July 15, as provided in the Indenture; provided that any such
interest not punctually paid or duly provided for shall be payable as provided
in the Indenture. The Company shall pay interest on any Notes in certificated
form by check mailed to the address of the Person entitled thereto as it appears
in the Note Register. Payments to The Depository Trust Company will be made by
wire transfer in immediately available funds to the account of the DTC or its
nominee.
-------------------------------
1 For Global Notes only.
The Company promises to pay interest on overdue principal, premium, if
any, and (to the extent that payment of such interest is enforceable under
applicable law) interest at the rate of 1% per annum above the rate borne by the
Notes.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, including, without limitation, provisions giving the holder
of this Note the right to convert this Note into Common Stock on the terms and
subject to the limitations referred to on the reverse hereof and as more fully
specified in the Indenture. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
IN THE CASE OF ANY CONFLICT BETWEEN THE PROVISIONS OF THIS NOTE AND THE
INDENTURE, THE PROVISIONS OF THE INDENTURE SHALL CONTROL. THE INDENTURE AND THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
ADVANCED MEDICAL OPTICS, INC.
By:
--------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Signatory
FORM OF REVERSE OF NOTE
ADVANCED MEDICAL OPTICS, INC.
2.50% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2024
This note is one of a duly authorized issue of notes of the Company,
designated as its 2.50% Convertible Senior Subordinated Notes Due 2024 (herein
called the "Notes"), limited in aggregate principal amount to $350,000,000,
issued and to be issued under and pursuant to an Indenture dated as of June 22,
2004 (herein called the "Indenture"), between the Company and U.S. Bank National
Association, as trustee (herein called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Notes. Defined
terms used but not otherwise defined in this Note shall have the respective
meanings ascribed thereto in the Indenture.
If an Event of Default occurs and is continuing, the principal of,
premium, if any, and accrued and unpaid interest on all Notes may be declared to
be due and payable by either the Trustee or the holders of at least 25% in
aggregate principal amount of the Notes then outstanding, and, upon said
declaration the same shall be due and payable, (a) immediately if there shall no
longer be a Senior Credit Facility or (b) if the Senior Credit Facility is in
effect, immediately upon the earlier to occur of (i) the date indebtedness under
the Senior Credit Facility is declared accelerated and (ii) the fifth Business
Day after written notice of the declaration of such acceleration has been given
to the agents under the Senior Credit Facility, in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the Notes at the time outstanding, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in any
manner the rights of the holders of the Notes, subject to exceptions set forth
in Section 11.02 of the Indenture. Subject to the provisions of the Indenture,
the holders of a majority in aggregate principal amount of the Notes at the time
outstanding may, on behalf of the holders of all of the Notes, waive any past
default or Event of Default, subject to exceptions set forth in the Indenture.
Upon any such waiver, said default shall for all purposes of this Note and the
Indenture be deemed to have been cured and to be not continuing, but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, contractually subordinated in right of payment
or satisfaction to the prior payment or satisfaction in full in cash of all
Senior Indebtedness of the Company, whether outstanding at the date of the
Indenture or thereafter incurred, and this Note is issued subject to the
provisions of the Indenture with respect to such subordination. Each holder of
this Note, by accepting the same, agrees to and shall be bound by such
provisions and authorizes the Trustee on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee his attorney-in-fact for such purpose.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall impair, as among the Company and the holder of the Notes,
the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, on and interest on this Note at the place, at the
respective times, at the rate and in the coin or currency herein and in the
Indenture prescribed.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
The Notes are issuable in fully registered form, without coupons, in
denominations of $1,000 principal amount and any multiple of $1,000. At the
office or agency of the Company referred to on the face hereof, and in the
manner and subject to the limitations provided in the Indenture, without payment
of any service charge but with payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with
any registration or exchange of Notes, Notes may be exchanged for a like
aggregate principal amount of Notes of any other authorized denominations.
At any time on or after January 20, 2010 and prior to maturity, the
Notes may be redeemed at the option of the Company, in whole or in part, upon
mailing a notice of such redemption not less than 30 calendar days but not more
than 60 calendar days before the redemption date to each holder of Notes, all as
provided in the Indenture, in cash at a redemption price equal to 100% of the
principal amount of Notes being redeemed and accrued and unpaid interest to, but
excluding, the redemption date; provided that if the redemption date is after a
record date and on or prior to the corresponding interest payment date, the
accrued and unpaid interest shall be payable to the holder of record of this
Note on the preceding January 1 or July 1, as the case may be. The Company may
not redeem any Notes if a default in the payment of interest on the Notes has
occurred and is continuing.
The Notes are not subject to redemption through the operation of any
sinking fund.
If a Fundamental Change occurs at any time prior to maturity of the
Notes, this Note will be subject to a repurchase, at the option of the holder,
on a Fundamental Change Repurchase Date, specified by the Company, that is not
less than 20 Business Days nor more than 35 Business Days after notice thereof,
at a repurchase price equal to 100% of the principal amount hereof, together
with accrued and unpaid interest on this Note to, but excluding, the Fundamental
Change Repurchase Date, plus the applicable Make Whole Premium, if any; provided
that if such Fundamental Change Repurchase Date falls after a record date and on
or prior the corresponding interest payment date, the accrued and unpaid
interest shall be payable to the holder of record of this Note on the preceding
January 1 or July 1, as the case may be. The Notes submitted for repurchase must
be $1,000 in principal amount or whole multiples thereof. The Company shall mail
to all holders of record of the Notes (and to beneficial owners as required by
applicable law) a notice of the occurrence of a Fundamental Change and of the
repurchase right arising as a result thereof on or before the 10th Business Day
after the occurrence of such Fundamental Change. For a Note to be so redeemed at
the option of the holder, the holder must deliver to the Paying Agent in
accordance with the terms of the Indenture, the Repurchase Notice containing the
information specified by the Indenture, together with such Note, duly endorsed
for transfer, or (if the Notes are Global Notes) book-entry transfer of the
Note, prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Fundamental Change Repurchase Date. The repurchase price may be
paid, at the option of the Company, in cash or by the issuance and delivery of
shares of Applicable Stock, or in any combination thereof, subject to the terms
and conditions of the Indenture.
Subject to the terms and conditions of the Indenture, each holder shall
have the right, at such holder's option, to require the Company to repurchase
all or any portion of the Notes held by such holder, on January 15, 2010, July
15, 2014 and July 15, 2019 at a repurchase price equal to 100% of the principal
amount of this Note, together with any accrued and unpaid interest on this Note
to, but excluding, the Repurchase Date. The accrued and unpaid interest shall be
payable to the holder of record of this Note on the preceding January 1 or July
1, as the case may be. To exercise such right, a holder shall deliver to the
Paying Agent the Repurchase Notice containing the information specified by the
Indenture, together with the Note, duly endorsed for transfer, or (if the Notes
are Global Notes) book-entry transfer of the Note, at any time from 9:00 a.m.,
New York City time, on the date that is 20 Business Days prior to the applicable
Repurchase Date to 5:00 p.m., New York City time, on the Business Day
immediately preceding the applicable Repurchase Date. Except if the Company has
irrevocably elected to make a cash payment of principal upon conversion pursuant
to Section 15.12(b) of the Indenture, the Company may elect to pay the
repurchase price in cash or by the issuance and delivery of shares of Common
Stock, or in any combination thereof, subject to the terms and conditions of the
Indenture. If the Company has irrevocably elected to make a cash payment of
principal upon conversion pursuant to Section 15.12(b) of the Indenture, then
the repurchase price must be paid in cash.
Holders have the right to withdraw any Repurchase Notice by delivering
to the Paying Agent a written notice of withdrawal at any time prior to 5:00
p.m., New York City time, on the Business Day immediately preceding the
Fundamental Change Repurchase Date or the Repurchase Date, as applicable, all as
provided in the Indenture.
If cash, shares of Applicable Stock or Common Stock, as the case may
be, or any combination thereof, as permitted under the Indenture, sufficient to
pay the repurchase price of and accrued and unpaid interest and in the case of a
Fundamental Change, the applicable Make Whole Premium, if any, on all Notes or
portions thereof to be repurchased as of the Fundamental Change Repurchase Date
or Repurchase Date, as the case may be, is deposited with the Paying Agent, on
the Fundamental Change Repurchase Date or on the Repurchase Date, as the case
may be, then such Notes will cease to be outstanding and interest will cease to
accrue on such Notes immediately thereafter, and the holder thereof shall have
no other rights as such other than the right to receive the repurchase price
upon surrender of such Note.
Subject to the occurrence of certain events specified in the Indenture
and in compliance with the provisions of the Indenture, on or prior to the
Trading Day immediately preceding the Maturity Date of this Note, the holder
hereof has the right, at its option, to convert each $1,000 principal amount of
this Note into 19.9045 shares of Common Stock (a conversion price of
approximately $50.24 per share), as such shares shall be constituted at the date
of conversion and subject to adjustment from time to time as provided in the
Indenture, upon surrender of this Note (if in certificated form) with the form
entitled "Conversion Notice" on the reverse hereof duly completed and manually
signed, to the Company at the office or agency of the Company maintained for
that purpose in the City of New York in accordance with the terms of the
Indenture, or at the option of such holder, the Corporate Trust Office, together
with any funds required pursuant to the terms of the Indenture, and, unless the
shares issuable on conversion are to be issued in the same name as this Note,
duly endorsed by, or accompanied by instruments of transfer in form satisfactory
to the Company duly executed by, the holder or by such holder's duly authorized
attorney. The Company will notify the holder thereof of any event triggering the
right to convert the Notes as specified above in accordance with the Indenture.
In order to exercise the conversion right with respect to any interest in a
Global Note, the holder must complete the appropriate instruction form pursuant
to the Depositary's book-entry conversion program, deliver by book-entry
delivery an interest in such Global Note, furnish appropriate endorsements and
transfer documents if required by the Company or the Trustee or conversion
agent, and pay the funds, if any, required pursuant to the terms of the
Indenture. The Company may elect to deliver, in lieu of shares of Common Stock,
cash or a combination of cash and shares of Common Stock to satisfy its
Conversion Obligation. At any time on or prior to the twenty-sixth Trading Day
preceding the Maturity Date, the Company may irrevocably elect to satisfy its
Conversion Obligation with respect to the principal amount of the Notes to be
converted in cash, with any remaining amount to be satisfied in shares of Common
Stock, subject to the terms and conditions of the Indenture.
On or prior to January 15, 2010, upon the occurrence of a Fundamental
Change, the Company will pay, on the Fundamental Change Repurchase Date, the
applicable Make Whole Premium, if any, to the holder hereof who surrenders this
Note for conversion, or who tenders this Note for repurchase, in connection with
such Fundamental Change. In the event the holder surrenders this Note for
conversion in connection with such Fundamental Change and the applicable Make
Whole Premium is greater than zero, accrued and unpaid interest on this Note to,
but excluding, the Conversion Date will also be paid in cash to such holder on
the date the shares of Common Stock or other consideration are delivered.
No adjustment in respect of interest on any Note converted or dividends
on any shares issued upon conversion of such Note will be made upon any
conversion except as set forth in the next sentence. If this Note (or portion
hereof) is surrendered for conversion during the period from the 5:00 p.m., New
York City time, on any applicable Record Date for the payment of interest to
5:00 p.m., New York City time, on the Business Day preceding the corresponding
interest payment date, this Note (or portion hereof being converted) must be
accompanied by payment, in immediately available funds or other funds acceptable
to the Company, of an amount equal to the interest otherwise payable on such
interest payment date on the principal amount being converted; provided that no
such payment shall be required (1) if the holder surrenders this Note for
conversion in connection with a redemption and the Company has specified a
redemption date that is after a Record Date and on or prior to the corresponding
interest payment date, (2) if the holder surrenders this Note in connection with
a Fundamental Change and the Company has specified a Fundamental Change
Repurchase Date that is after a Record Date and on or prior to the corresponding
interest payment date or (3) to the extent of any overdue interest, if any
exists at the time of conversion with respect to this Note. Notwithstanding the
foregoing, in the case of Notes submitted for conversion or exchange in
connection with a Fundamental Change as set forth in the Indenture, such Notes
shall continue to represent the right to receive the Make Whole Premium, if any,
payable pursuant to the Indenture until such Make Whole Premium is so paid.
No fractional shares will be issued upon any conversion, but an
adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Note or Notes for conversion.
A Note in respect of which a holder is exercising its right to require
repurchase may be converted only if such holder validly withdraws its election
to exercise such right to require repurchase in accordance with the terms of the
Indenture.
Any Notes called for redemption, unless surrendered for conversion by
the holders thereof on or before 5:00 p.m., New York City time, on the Trading
Day preceding the redemption date, may be deemed, to the fullest extent required
by law, to be redeemed from the holders of such Notes for an amount equal to the
applicable redemption price, together with accrued but unpaid interest to, but
excluding, the date fixed for redemption, by one or more investment banks or
other purchasers who may agree with the Company (i) to purchase such Notes from
the holders thereof and convert them into shares of the Common Stock and (ii) to
make payment for such Notes as aforesaid to the Trustee in trust for the
holders.
Upon surrender for registration of transfer of any Note to the Note
Registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in the Indenture, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denominations and of a like
aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture. No service charge shall be made to any holder for
any registration of, transfer or exchange of Notes, but the Company may require
payment by the holder of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes.
The Company, the Trustee, any Paying Agent, any conversion agent and
any Note Registrar may deem the Person in whose name this Note shall be
registered upon the Note Register to be, and may treat it as, the absolute owner
of this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing thereon made by any Person other than the
Company or any Note Registrar) for the purpose of receiving payment of or on
account of the principal of, premium, if any, and interest on this Note, for
conversion of this Note and for all other purposes; and neither the Company nor
the Trustee nor any Paying Agent nor any conversion agent nor any Note Registrar
shall be affected by any notice to the contrary. All such payments so made to
any holder for the time being, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any this Note.
No recourse for the payment of the principal of or any premium or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any supplemental indenture or in any Note, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, member, manager, employee, agent,
officer, director or subsidiary, as such, past, present or future, of the
Company or of any successor thereto, either directly or through the Company or
any of the Company's subsidiaries or of any successor thereto, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as
consideration for, the execution of the Indenture and the issue of this Note.
In addition to the rights provided to holders of Notes under the
Indenture, holders shall have all the rights set forth in the Registration
Rights Agreement dated as of June 22, 2004 between the Company and the Initial
Purchasers named therein (the "Registration Rights Agreement").
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT -___ Custodian ___
TEN ENT - as tenant by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors Act
survivorship and not as tenants in common ____________________________
(State)
Additional abbreviations may also be used though not in the above list.
CONVERSION NOTICE
TO: ADVANCED MEDICAL OPTICS, INC.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
The undersigned registered owner of this Note hereby irrevocably
exercises the option to convert this Note, or the portion thereof (which is
$1,000 or a multiple thereof) below designated, into shares of Common Stock of
Advanced Medical Optics, Inc. (or cash or a combination of cash and shares of
Common Stock, as Advanced Medical Optics, Inc. may so elect) in accordance with
the terms of the Indenture referred to in this Note, and directs that the
shares, if any, issuable and deliverable upon such conversion, together with any
check in payment for cash, if any, payable upon conversion or for fractional
shares and any Notes representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a different name has
been indicated below. Capitalized terms used herein but not defined shall have
the meanings ascribed to such terms in the Indenture. If shares or any portion
of this Note not converted are to be issued in the name of a person other than
the undersigned, the undersigned will provide the appropriate information below
and pay all transfer taxes payable with respect thereto. Any amount required to
be paid by the undersigned on account of interest accompanies this Note.
Dated: ______________________
______________________________
______________________________
Signature(s)
Signature(s) must be
guaranteed by an "eligible
guarantor institution"
meeting the requirements of
the Note Registrar, which
requirements include
membership or participation
in the Security Transfer
Agent Medallion Program
("STAMP") or such other
"signature guarantee
program" as may be
determined by the Note
Registrar in addition to,
or in substitution for,
STAMP, all in accordance
with the Securities
Exchange Act of 1934, as
amended.
_______________________________
Signature Guarantee
Fill in the registration of shares of Common Stock, if any, if to be
issued, and Notes if to be delivered, and the person to whom cash, if any, and
payment for fractional shares is to be made, if to be made, other than to and in
the name of the registered holder:
Please print name and address
------------------------------
(Name)
------------------------------
(Street Address)
------------------------------
(City, State and Zip Code)
Principal amount to be converted
(if less than all):
$-----------------------------
Social Security or Other Taxpayer
Identification Number:
------------------------------
NOTICE: The signature on this Conversion Notice must correspond with the name as
written upon the face of the Note in every particular without alteration or
enlargement or any change whatever.
REPURCHASE NOTICE
TO: ADVANCED MEDICAL OPTICS, INC.
U.S. BANK NATIONAL ASSOCIATION
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Advanced Medical Optics, Inc. (the
"Company") regarding the right of holders to elect to require the Company to
repurchase the Notes and requests and instructs the Company to repay the entire
principal amount of this Note, or the portion thereof (which is $1,000 or an
integral multiple thereof) below designated, in accordance with the terms of the
Indenture at the price of 100% of such entire principal amount or portion
thereof, together with accrued and unpaid interest to, but excluding, the
Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
to the registered holder hereof. Capitalized terms used herein but not defined
shall have the meanings ascribed to such terms in the Indenture. The Notes shall
be repurchased by the Company as of the Repurchase Date or the Fundamental
Change Repurchase Date, as the case may be, pursuant to the terms and conditions
specified in the Indenture. If the Company elects to pay the repurchase price,
in whole or in part, in shares of Common Stock or Applicable Stock, as the case
may be, but is unable to deliver the shares prior to 5:00 p.m., New York City
time, on the applicable Repurchase Date or the Fundamental Change Repurchase
Date, as the case may be, the undersigned registered owner elects:
[ ] to withdraw this Repurchase Notice as to $[ ] principal amount of the
Notes to which this Repurchase Notice relates (Certificate Numbers: ), or
[ ] to receive cash in respect of $[ ] principal amount of the Notes to
which this Repurchase Notice relates.
Dated: ______________________
Signature(s): ______________________
______________________
If no choice is indicated, the holder will be deemed to have elected to receive
cash in respect of the entire repurchase price for all Notes subject to this
repurchase notice.
NOTICE: The above signatures of the holder(s) hereof must correspond
with the name as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
Note Certificate Number (if applicable): ___________________________
Principal amount to be repurchased (if less than all, must be $1,000 or
whole multiples thereof):
Social Security or Other Taxpayer Identification Number _____________
ASSIGNMENT
For value received ________________________________________ hereby
sell(s) assign(s) and transfer(s) unto ___________________________________
(Please insert social security or other Taxpayer Identification Number of
assignee) the within Note, and hereby irrevocably constitutes and appoints
______________________________________ attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
In connection with any transfer of the Note prior to the expiration of
the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) (other than any transfer pursuant to
a registration statement that has been declared effective under the Securities
Act), the undersigned confirms that such Note is being transferred:
[ ] To Advanced Medical Optics, Inc. or a subsidiary thereof; or
[ ] To a "qualified institutional buyer" in compliance with Rule
144A under the Securities Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended; or
[ ] Pursuant to a Registration Statement which has been declared
effective under the Securities Act of 1933, as amended, and
which continues to be effective at the time of transfer;
and unless the Note has been transferred to Advanced Medical Optics, Inc. or a
subsidiary thereof, the undersigned confirms that such Note is not being
transferred to an "affiliate" of the Company as defined in Rule 144 under the
Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered holder thereof.
Dated: ______________________
___________________________
___________________________
Signature(s)
Signature(s) must be
guaranteed by an "eligible
guarantor institution"
meeting the requirements of
the Note Registrar, which
requirements include
membership or participation
in the Security Transfer
Agent Medallion Program
("STAMP") or such other
"signature guarantee
program" as may be
determined by the Note
Registrar in addition to,
or in substitution for,
STAMP, all in accordance
with the Securities
Exchange Act of 1934, as
amended.
___________________________
Signature Guarantee
NOTICE: The signature on this Assignment must correspond with the name as
written upon the face of the Note in every particular without alteration or
enlargement or any change whatever.
EXHIBIT B
FORM OF RESTRICTIVE LEGEND FOR
COMMON STOCK ISSUED UPON CONVERSION2
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF
1933"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE BY ACQUISITION HEREOF. THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933; AND
(2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER
THE ORIGINAL ISSUANCE OF THE SECURITY UPON THE CONVERSION OF WHICH THE
COMMON STOCK EVIDENCED HEREBY WAS ISSUED, RESELL OR OTHERWISE TRANSFER
THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO ADVANCED MEDICAL OPTICS,
INC. (THE "COMPANY") OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO THE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE),
(C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER.
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A
REGISTRATION RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY
AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.
----------------------------
2 This legend should be included only if the Security is a Transfer Restricted
Security.