Exhibit 4.6
EXECUTION COPY
________________________________________________________________________________
Zero Coupon Senior Convertible Notes due 2014
Dated as of October 20, 2004
____________________________________________________________
Between
▇▇▇▇▇▇ Interactive Entertainment Limited,
as Company,
and
The Bank of New York,
as Trustee
____________________________________________________________
INDENTURE
________________________________________________________________________________
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
Definitions
SECTION 1.01. Definitions................................................................ 1
ARTICLE 2
Issue, Description, Execution, Registration and Exchange of Notes
SECTION 2.01. Amount of Notes; Additional Securities.................................... 11
SECTION 2.02. Form and Dating........................................................... 12
SECTION 2.03. Execution and Authentication.............................................. 12
SECTION 2.04. Registrar and Paying Agent................................................ 12
SECTION 2.05. Paying Agent to Hold Money in Trust....................................... 14
SECTION 2.06. Holder Lists.............................................................. 14
SECTION 2.07. Transfer and Exchange..................................................... 14
SECTION 2.08. Replacement Notes......................................................... 15
SECTION 2.09. Outstanding Notes......................................................... 16
SECTION 2.10. Temporary Notes........................................................... 16
SECTION 2.11. Cancelation............................................................... 16
SECTION 2.12. Defaulted Interest........................................................ 16
SECTION 2.13. ▇▇▇▇▇ and ISIN Numbers.................................................... 16
SECTION 2.14. Additional Purchase Option................................................ 17
ARTICLE 3
Redemption and Repurchase of Notes
SECTION 3.01. Company's Right to Redeem................................................. 17
SECTION 3.02. Notice of Optional Redemption; Selection of Notes......................... 17
SECTION 3.03. Payment of Notes Called for Redemption by the Company..................... 19
SECTION 3.04. Repurchase of Notes by the Company at Option of Holders upon a
Fundamental Change........................................................ 20
SECTION 3.05. Repurchase of Notes by the Company at Option of Holders on Specified
Dates..................................................................... 22
SECTION 3.06. Company's Manner of Payment of Repurchase Price........................... 24
SECTION 3.07. Conditions and Procedures for Repurchase at Option of Holders............. 24
SECTION 3.08. Exchange in Lieu of Repurchase............................................ 26
ARTICLE 4
Covenants of the Company
SECTION 4.01. Payment of Principal and Interest......................................... 27
SECTION 4.02. Maintenance of Office or Agency........................................... 27
SECTION 4.03. Existence................................................................. 27
SECTION 4.04. Rule 144A Information Requirement......................................... 28
SECTION 4.05. Stay, Extension and Usury Laws............................................ 28
SECTION 4.06. Compliance Certificate.................................................... 28
SECTION 4.07. Liquidated Damages Notice................................................. 28
SECTION 4.08. Registration Rights Agreement............................................. 28
ARTICLE 5
Reports by the Company
SECTION 5.01. Reports by the Company.................................................... 29
ARTICLE 6
Remedies of the Trustee and Noteholders on an Event of Default
SECTION 6.01. Events of Default......................................................... 29
SECTION 6.02. Payments of Notes on Default; Suit Therefor............................... 32
SECTION 6.03. Application of Monies Collected by Trustee................................ 33
SECTION 6.04. Proceedings by Noteholder................................................. 34
SECTION 6.05. Proceedings by Trustee.................................................... 35
SECTION 6.06. Remedies Cumulative and Continuing........................................ 35
SECTION 6.07. Direction of Proceedings and ▇▇▇▇▇▇ of Defaults by Majority of
Noteholders............................................................... 35
SECTION 6.08. Notice of Defaults........................................................ 36
SECTION 6.09. Undertaking to Pay Costs.................................................. 36
ARTICLE 7
The Trustee
SECTION 7.01. Duties of Trustee......................................................... 36
SECTION 7.02. Rights of Trustee......................................................... 37
SECTION 7.03. Individual Rights of Trustee.............................................. 38
SECTION 7.04. Trustee's Disclaimer...................................................... 39
SECTION 7.05. Reports by Trustee to Holders............................................. 39
SECTION 7.06. Compensation and Indemnity................................................ 39
SECTION 7.07. Replacement of Trustee.................................................... 40
SECTION 7.08. Successor Trustee by Merger............................................... 41
ii
SECTION 7.09. Eligibility; Disqualification............................................. 41
SECTION 7.10. Preferential Collection of Claims Against Company......................... 41
ARTICLE 8
The Noteholders
SECTION 8.01. Action by Noteholders..................................................... 41
SECTION 8.02. Proof of Execution by Noteholders......................................... 42
SECTION 8.03. Who Are Deemed Absolute Owners............................................ 42
SECTION 8.04. Company-owned Notes Disregarded........................................... 42
SECTION 8.05. Revocation of Consents, Future Holders Bound.............................. 43
ARTICLE 9
Meetings of Noteholders
SECTION 9.01. Purpose of Meetings....................................................... 43
SECTION 9.02. Call of Meetings by Trustee............................................... 43
SECTION 9.03. Call of Meetings by Company or Noteholders................................ 44
SECTION 9.04. Qualifications for Voting................................................. 44
SECTION 9.05. Regulations............................................................... 44
SECTION 9.06. Voting.................................................................... 45
SECTION 9.07. No Delay of Rights by Meeting............................................. 45
ARTICLE 10
Amendment; Supplemental Indentures
SECTION 10.01. Supplemental Indentures Without Consent of Noteholders.................... 45
SECTION 10.02. Supplemental Indenture with Consent of Noteholders........................ 46
SECTION 10.03. Effect of Supplemental Indenture.......................................... 47
SECTION 10.04. Notation on Notes......................................................... 48
ARTICLE 11
Consolidation, Merger, Sale, Conveyance and Lease
SECTION 11.01. Company May Consolidate on Certain Terms.................................. 48
SECTION 11.02. Successor to Be Substituted............................................... 48
SECTION 11.03. Opinion of Counsel to Be Given Trustee.................................... 49
iii
ARTICLE 12
Satisfaction and Discharge of Indenture
SECTION 12.01. Discharge of Indenture.................................................... 49
SECTION 12.02. Paying Agent to Repay Monies Held......................................... 50
SECTION 12.03. Return of Unclaimed Monies................................................ 50
ARTICLE 13
Immunity of Incorporators, Shareholders, Officers and Directors
SECTION 13.01. Indenture and Notes Solely Corporate Obligations.......................... 50
ARTICLE 14
Conversion of Notes
SECTION 14.01. Right to Convert.......................................................... 51
SECTION 14.02. Conversion Procedures..................................................... 51
SECTION 14.03. Exchange in Lieu of Conversion............................................ 52
SECTION 14.04. Antidilution Adjustments.................................................. 53
ARTICLE 15
Adjustment to Conversion Rate upon a Fundamental Change
SECTION 15.01. Adjustment to Conversion Rate............................................. 58
SECTION 15.02. Adjustment to Ordinary Share Prices....................................... 58
SECTION 15.03. Public Acquirer Change of Control......................................... 59
ARTICLE 16
Miscellaneous Provisions
SECTION 16.01. Provisions Binding on Successors.......................................... 60
SECTION 16.02. Official Acts by Successor Corporation.................................... 60
SECTION 16.03. Addresses for Notices, Etc................................................ 60
SECTION 16.04. Governing Law............................................................. 60
SECTION 16.05. Jurisdiction.............................................................. 61
SECTION 16.06. Evidence of Compliance.................................................... 61
SECTION 16.07. Legal Holidays............................................................ 61
SECTION 16.08. Company Responsible for Making Calculations............................... 62
SECTION 16.09. Trust Indenture Act....................................................... 62
SECTION 16.10. No Security Interest Created.............................................. 62
SECTION 16.11. Benefits of Indenture..................................................... 62
iv
SECTION 16.12. Table of Contents, Headings, Etc.......................................... 62
SECTION 16.13. Authenticating Agent...................................................... 62
SECTION 16.14. Execution in Counterparts................................................. 63
SECTION 16.15. Severability.............................................................. 63
Appendix I Provisions Relating to Notes.............................................. I-1
Exhibit A Form of Note.............................................................. A-1
Schedule I Schedule of Increases or Decreases in Global Note......................... S-1
Exhibit B Form of Transferee Letter of Representation............................... B-1
v
INDENTURE
INDENTURE dated as of October 20, 2004, between ▇▇▇▇▇▇ INTERACTIVE
ENTERTAINMENT LIMITED, an exempted company incorporated in the Cayman Islands
(hereinafter called the "COMPANY"), having its principal office at ▇▇. ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, China and THE BANK OF NEW YORK, a New York banking
corporation duly organized and existing under the laws of the State of New York
(hereinafter called the "TRUSTEE").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its Zero Coupon Senior Convertible Notes (hereinafter
called the "NOTES"), in an aggregate principal amount initially limited to
$200,000,000, 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.
WHEREAS, the Notes, the certificate of authentication to be borne by
the Notes, a form of assignment, a form of Fundamental Change repurchase
election, a form of Company repurchase election and a form of Conversion Notice
to be borne by the Notes are to be substantially in the forms hereinafter
provided for.
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. In addition, all things necessary to duly
authorize the issuance of the Ordinary Shares and ADSs of the Company initially
issuable upon the conversion of the Notes, and to duly reserve for issuance the
number of Ordinary Shares and ADSs initially issuable upon such conversion, have
been done.
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 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 SECURITIES" means Notes issued from time to time after
the Original Issuance Date under the terms of this Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Sections 2.07, 2.08, 2.09, 2.10,
3.03, 14.02 or Appendix I).
"ADRs" means American depositary receipts of the Company issued from
time to time.
"ADSs" or "American Depositary Shares" means American depositary
shares evidenced by ADRs.
"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.
"APPLICABLE CONVERSION RATE" means the Conversion Rate in effect at
any given time.
"APPLICABLE CONVERSION REFERENCE PERIOD" means the five consecutive
Trading Days beginning on the third Trading Day following the Conversion Date.
"BANKRUPTCY LAW" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal or state law relating to
the bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or change
in any such law.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or
a committee of such Board duly authorized to act for it hereunder.
"BOARD RESOLUTION" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary to the Board of Directors
to be in full force and effect on the date of such certification, shall have
been delivered to the Trustee.
"BUSINESS DAY" means any day, other than a Saturday, Sunday, or
other day on which banking institutions are not required by law or regulation to
be open in the State of New York.
2
"CAPITAL STOCK" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any preferred
stock, but excluding any debt securities convertible into such equity.
"CASH" has the meaning specified in Section 3.06(a).
"COMMISSION" means the U.S. Securities and Exchange Commission, as
from time to time constituted 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.
"COMPANY" means the corporation named as the "Company" in the first
paragraph of this Indenture, and, subject to the provisions of Article 11, shall
include its successors and assigns.
"COMPANY NOTICE DATE" has the meaning specified in Section 3.05(b).
"COMPANY REPURCHASE DATE" has the meaning specified in Section
3.05(a).
"COMPANY REPURCHASE ELECTION" has the meaning specified in Section
3.05(c)(i).
"COMPANY REPURCHASE NOTICE" has the meaning specified in Section
3.05(b).
"COMPANY REPURCHASE PRICE" has the meaning specified in Section
3.05(a).
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Company's board of directors who (i) was a member of its board of
directors on the date of this Indenture or (ii) becomes a member of its board of
directors subsequent to that date and was appointed, nominated for election or
elected to its board of directors with the approval of a majority of the
continuing directors who were members of its board of directors at the time of
such appointment, nomination or election.
"CONVERSION AGENT" means the Trustee or such other office or agency
designated by the Company where Notes may be presented for conversion.
"CONVERSION CONSIDERATION" means (a) cash in an amount equal to the
lesser of (i) the principal amount of each Note or (ii) the Conversion Value;
and (b) a number of Ordinary Shares equal to the sum of the Daily Share Amounts
for the Applicable Conversion Reference Period; provided, however, that the
Company will pay cash in lieu of fractional shares otherwise issuable upon
conversion of the Notes.
"CONVERSION DATE" has the meaning specified in Section 14.02.
"CONVERSION NOTICE" means the notice, in substantially the form
attached hereto as Exhibit A, to be delivered to the Conversion Agent by a
converting Noteholder.
3
"CONVERSION PRICE" as of any day means US$1,000 divided by the
Conversion Rate as of such date and rounded to the nearest cent. The Conversion
Price shall initially be US$19.85 per ordinary share.
"CONVERSION RATE" has the meaning specified in Section 14.01.
"CONVERSION VALUE" is equal to (a) the applicable Conversion Rate,
multiplied by (b) the Reference Price of the Ordinary Shares on each of the five
consecutive Trading Days in the Applicable Conversion Reference Period.
"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.
"CUSTODIAN" means The Bank of New York, a New York banking
corporation duly organized and existing under the laws of the State of New York,
as custodian with respect to the Notes in global form, or any successor entity
thereto.
"DAILY SHARE AMOUNT" for each of the five consecutive Trading Days
beginning on the third Trading Day following the Conversion Date is equal to the
greater of (i) zero; or (ii) a number of shares determined by the following
formula:
(Reference Price on that Trading Day x Applicable Conversion Rate) - US$1,000
--------------------------------------------------------------------------------
5 x Reference Price on that Trading Day
"DEFAULT" means any event that is, or after notice or passage of
time, or both, would be, an Event of Default.
"DEFAULTED INTEREST" means any interest on any Notes which is
payable, but is not punctually paid or duly provided for, on any April 15 or
October 15.
"DEFINITIVE NOTE" has the meaning specified in Appendix I.
"DEPOSIT AGREEMENT" means the Deposit Agreement dated May 17, 2004
by and among the Company, the Depositary and the holders and beneficial owners
from time to time of the ADSs.
"DEPOSITARY" means The Bank of New York, a New York banking
corporation duly organized and existing under the laws of the State of New York,
as the depositary under the Deposit Agreement or any successor to the
depositary.
"DTC" means The Depository Trust Company, a New York corporation.
4
"EVENT OF DEFAULT" has the meaning specified in Section 6.01.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as in effect from
time to time.
A "FUNDAMENTAL CHANGE" will be deemed to have occurred at the time
after the Notes are originally issued that any of the following occurs:
(a) ADSs representing Ordinary Shares are neither quoted on the
Nasdaq National Market or another established automated over-the-counter trading
market in the United States or traded on the New York Stock Exchange or another
United States national securities exchange;
(b) any person, including any syndicate or group deemed to be a
"person" under Section 13(d)(3) of the Exchange Act, acquires beneficial
ownership, directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions, of shares of the Company's
capital stock entitling the person to exercise 50% or more of the total voting
power of all shares of the Company's capital stock entitled to vote generally in
elections of directors, other than (i) an acquisition by the Company, any of its
Subsidiaries or any of its employee benefit plans, and (ii) any acquisition by a
person who, immediately prior thereto, held beneficial ownership, directly or
indirectly, of 50% or more of the total voting power of all shares of the
Company's capital stock entitled to vote generally in elections of directors; or
(c) the Company merges or consolidates with or into any other person
(other than a Subsidiary), another person merges with or into the Company, or
the Company conveys, sells, transfers or lease all or substantially all of its
assets to another person, other than any transaction:
(i) that does not result in a reclassification, conversion, exchange
or cancellation of the Company's outstanding Ordinary Shares, or
(ii) pursuant to which the holders of Ordinary Shares immediately
prior to the transaction have the entitlement to exercise, directly or
indirectly, 50% or more of the total voting power of all shares of capital
stock entitled to vote generally in the election of directors of the
continuing or surviving corporation immediately after the transaction, or
(iii) which is effected solely to change the Company's jurisdiction
of incorporation and results in a reclassification, conversion or exchange
of the Company's outstanding Ordinary Shares solely into shares of the
surviving entity; or
(d) at any time the Company's continuing directors do not constitute
a majority of the Company's board of directors (or, if applicable, a successor
person to the Company).
However, notwithstanding the foregoing and anything in this
Indenture to the contrary, holders of Notes will not have the right to require
the Company to repurchase any Notes in the event of a transaction described
under (b) or (c) above (and the Company will not be required to deliver the
notice incidental thereto), if either:
5
(i) the Reference Price of Ordinary Shares for any five Trading Days
within the period of 10 consecutive Trading Days ending immediately after
the later of such transaction or the public announcement of such
transaction, in the case of Fundamental Change relating to an acquisition
of capital stock under clause (b) above, or the period of ten consecutive
Trading Days ending immediately before the Fundamental Change, in the case
of a Fundamental Change relating to a merger, consolidation, asset sale or
otherwise under clause (c) above, equals or exceeds 105% of the Conversion
Price of the Notes in effect on each of those five Trading Days; or
(ii) at least 95% of the consideration, excluding cash payments for
fractional shares and cash payments made in respect of dissenters'
appraisal rights, in the transaction or transactions constituting the
Fundamental Change consists of shares of capital stock quoted on the
Nasdaq National Market or another established automated over-the-counter
trading market in the United States or traded on the New York Stock
Exchange or another United States national securities exchange (or will be
so traded or quoted immediately following the merger or consolidation) and
as a result of the merger or consolidation the Notes become convertible
into such capital stock.
For purposes of these provisions, whether a person is a "beneficial
owner" will be determined in accordance with Rule 13d-3 under the Exchange Act
and "person" includes any syndicate or group that would be deemed to be a
"person" under Section 13(d)(3) of the Exchange Act.
For purposes of this definition, the term "capital stock" of any
person means any and all shares, interest, participations or other equivalents
however designated of corporate stock or other equity participations, including
partnership interests, whether general or limited, of such person any rights
(other than debt securities convertible or exchangeable into an equity
interest), warrants or options to acquire an equity interest in such person.
"FUNDAMENTAL CHANGE NOTICE DATE" has the meaning specified in
Section 3.04(a).
"FUNDAMENTAL CHANGE REPURCHASE DATE" has the meaning specified in
Section 3.04(a).
"FUNDAMENTAL CHANGE REPURCHASE ELECTION" has the meaning specified
in Section 3.04(c)(i).
"FUNDAMENTAL CHANGE REPURCHASE NOTICE" has the meaning specified in
Section 3.04(b).
"FUNDAMENTAL CHANGE REPURCHASE PRICE" has the meaning provided in
Section 3.04(a).
"GLOBAL NOTE" means a Note in global form registered in the name of
the Depositary or the nominee of the Depositary.
6
"INDENTURE" means this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
"INITIAL PURCHASER" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C.
"INTEREST" means, when used with respect to the Notes, any interest
payable under the terms of the Notes and Liquidated Damages, if any, payable
under the terms of the Registration Rights Agreement.
"INTEREST PAYMENT DATE" means April 15 and October 15 of each year,
commencing April 15, 2005.
"LAST REPORTED SALE PRICE" of the Company's ADSs on any day means
the closing sale price per share (or, if no closing sale price is reported, the
average of the last reported bid and asked prices or, if more than one in either
case, the average of the average bid and the average asked prices) on such day
as reported in composite transactions for the principal United States securities
exchange on which such ADSs are traded or, if such ADSs are not listed on a
United States national or regional securities exchange, as reported by the
Nasdaq National Market. If such ADSs are not listed for trading on a United
States national or regional securities exchange and not reported by the Nasdaq
National Market on the relevant date, the "LAST REPORTED SALE PRICE" shall be
the last quoted bid price for such ADSs in the over-the-counter market on the
relevant date as reported by the National Quotation Bureau Incorporated or
similar organization. If such ADSs are not so quoted, the "LAST REPORTED SALE
PRICE" shall be determined by the Company on a basis it considers appropriate.
"LIQUIDATED DAMAGES" has the meaning specified in Section 7 of the
Registration Rights Agreement.
"LIQUIDATED DAMAGES NOTICE" has the meaning specified in Section
4.07(a).
"NOTE" or "NOTES" means any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
"NOTEHOLDER" or "HOLDER" as applied to any Note, or other similar
terms (but excluding the term "BENEFICIAL HOLDER"), means any Person in whose
name a particular Note is registered at the time on the Note Registrar's books.
"NOTE REGISTER" has the meaning specified in Section 2.04.
"NOTE REGISTRAR" has the meaning specified in Section 2.04.
"OFFICER" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial 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 General Counsel or the Secretary to the Board
of Directors of the Company.
"OFFICERS' CERTIFICATE", when used with respect to the Company,
means a certificate signed by two of the following: the Chairman of the Board,
the Chief Executive
7
Officer, the Chief Operating Officer, the President, the Chief Financial
Officer, 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 General
Counsel or the Secretary to the Board of Directors 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, and who shall be
acceptable to the Trustee.
"ORDINARY SHARES" means any shares 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. Ordinary shares
issuable on conversion of Notes shall include only shares of the class
designated as ordinary shares of the Company at the date of this Indenture
(namely, the Ordinary Shares, par value US$0.01 per share) 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.
"ORIGINAL ISSUANCE DATE" means the date on which Notes are first
authenticated and delivered under this Indenture.
"OUTSTANDING", when used with reference to Notes and subject to the
provisions of Section 8.04, means, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture (including Notes
held by the Company or an Affiliate), except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, (i) for the redemption 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 12;
(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 2.08 unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a protected purchaser; and
(d) Notes converted into Ordinary Shares pursuant to Article 14 and
Notes deemed not outstanding pursuant to Article 3.
"PAYING AGENT" has the meaning specified in Section 2.04.
8
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PROTECTED PURCHASER" has the meaning specified in Section 2.08.
"PUBLIC ACQUIRER CHANGE OF CONTROL" means any event constituting a
Fundamental Change that would otherwise give Noteholders the right to cause the
Company to repurchase the Notes where the acquirer has a class of Public
Acquirer Common Stock. If an acquirer does not itself have a class of Public
Acquirer Common Stock, it will be deemed to have Public Acquirer Common Stock if
either (1) a direct or indirect majority-owned Subsidiary of the acquirer or (2)
a corporation that directly or indirectly owns at least a majority of the
acquirer, has a class of Public Acquirer Common Stock. Majority-owned for these
purposes means having "beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act) of more than 50% of the total voting power of all shares of the
respective entity's capital stock that are entitled to vote generally in the
election of directors.
"PUBLIC ACQUIRER COMMON STOCK" means a class of Capital Stock of an
acquirer (or ADSs representing such Capital Stock) that is traded on a U.S.
national securities exchange or quoted on the Nasdaq National Market or which
will be so traded or quoted when issued or exchanged in connection with a
Fundamental Change.
"PURCHASE AGREEMENT" has the meaning specified in Appendix I.
"RECORD DATE" means the close of business on April 1 or October 1
immediately preceding a default interest or Liquidated Damages payment date.
"REDEMPTION DATE" has the meaning specified in Section 3.02(a).
"REDEMPTION NOTICE" has the meaning specified in Section 3.02(a).
"REDEMPTION PRICE" has the meaning specified in Section 3.01.
"REFERENCE PRICE" of Ordinary Shares on any date of determination
means a U.S. dollar amount derived by dividing the Last Reported Sale Price of
the ADSs on that date by the then applicable number of the Ordinary Shares
represented by one ADS. On the date of original issuance of the Notes, one ADS
represents two Ordinary Shares.
"REGISTRATION RIGHTS AGREEMENT" means (i) with respect to the
Securities issued on the Original Issuance Date, the Registration Rights
Agreement, dated as of October 20, 2004, among the Company and the Initial
Purchaser, as amended from time to time in accordance with its terms, and (ii)
with respect to each issuance of Additional Securities issued in a transaction
exempt from the registration requirements of the Securities Act, the
registration rights agreement, if any, among the Company and the Persons
purchasing such Additional Securities under the related Purchase Agreement.
"REPURCHASE DATE" means the Fundamental Change Repurchase Date or
the Company Repurchase Date, as the context requires.
9
"REPURCHASE ELECTION" means the Fundamental Change Repurchase
Election or the Company Repurchase Election, as the context requires.
"REPURCHASE NOTICE" means the Repurchase Notice or the Company
Repurchase Notice, as the context requires.
"REPURCHASE PRICE" means the Fundamental Change Repurchase Price or
the Company Repurchase Price, as the context requires.
"RESTRICTED SECURITIES" refers to every Note or Ordinary Share that
bears or is required under Section 2.07 to bear the legend set forth in Appendix
I.
"RULE 144A" means Rule 144A under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"SECURITIES" means the Notes.
"SECURITIES ACT" means the U. S. Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"SECURITIES CUSTODIAN" has the meaning specified in Appendix I.
"SIGNIFICANT SUBSIDIARY" means (a) a "significant subsidiary" under
Rule 1-02 of Regulation S-X under the Securities Act, and (b) two or more
subsidiaries that, if combined into a single entry, would constitute a
"significant subsidiary" under Rule 1-02 of Regulation S-X under the Securities
Act.
"STATED MATURITY" means October 15, 2014.
"SUBSIDIARY" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of Ordinary Shares or other interests (including partnership interests)
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:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
"TRADING DAY" means a day during which trading in securities
generally occurs on the Nasdaq National Market or, if the applicable security is
not listed on the Nasdaq National Market, on the principal other national or
regional securities exchange on which the applicable security is then listed or,
if the applicable security is not listed on a national or regional securities
exchange, on the National Association of Securities Dealers Automated Quotation
System or, if the applicable security is not quoted on the National Association
of Securities Dealers Automated Quotation System, on the principal other market
on which the applicable security is
10
then traded (provided that no day on which trading of the applicable security is
suspended on such exchange or other trading market will count as a Trading Day).
"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 10.03; 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.
"TRUST OFFICER" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant treasurer, trust officer or any
other officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"TRUSTEE" means The Bank of New York, a New York banking corporation
duly organized and existing under the laws of the State of New York, and any
co-trustee, agent or successor, as the case may be, 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.
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary of the Company all of
the Ordinary Shares of which (other than directors' qualifying shares) are owned
by the Company or another Wholly Owned Subsidiary.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. Amount of Notes; Additional Securities. (a) The
aggregate principal amount of Notes which may be authenticated and delivered
under this Indenture shall initially be limited to US$200,000,000 (except as
provided in Section 2.14 and except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Sections 2.07, 2.08, 2.09, 2.10, 3.03 or Appendix I).
(b) So long as no Event of Default, and no event which, after notice
or lapse or time or both, would become an Event of Default, shall have occurred
and be continuing, the Company shall be entitled to issue Additional Securities
under this Indenture which shall have the same terms and conditions as the
Securities issued on the Original Issuance Date, other than with respect to any
differences in the date of issuance, the issue price and the interest accrued
prior to the issue date of the Additional Securities. The Securities issued on
the Original Issuance Date and any Additional Securities shall have the same
CUSIP numbers and shall be treated as a single class for all purposes under this
Indenture, including with respect to waivers, amendments, redemptions and offers
to purchase.
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With respect to any Additional Securities, the Company shall set
forth in a Board Resolution and an Officers' Certificate, a copy of each which
shall be delivered to the Trustee, the following information:
(i) the aggregate principal amount of such Additional Securities to
be authenticated and delivered pursuant to this Indenture;
(ii) the issue price, the issue date and the CUSIP numbers of such
Additional Securities; provided, however, that no Additional Securities
may be issued unless such Additional Securities are fungible in all
respects for U.S. Federal income tax purposes with the Securities then
outstanding; and
(iii) that the Company has complied with this Section 2.01(b).
SECTION 2.02. Form and Dating. Provisions relating to the Notes are
set forth in Appendix I, which is hereby incorporated in and expressly made a
part of this Indenture. The Notes and the Trustee's certificate of
authentication shall each be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this Indenture. The
Notes may have notations, legends or endorsements required by law, stock
exchange rules, agreements to which the Company is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). Each Note shall be dated the date of its authentication. The
Notes shall be issuable only in registered form without interest coupons and
only in denominations of $1,000 and integral multiples thereof.
SECTION 2.03. Execution and Authentication. One Officer shall sign
the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery Notes
as set forth in Appendix I.
As further described in Section 16.13 hereof, the Trustee may
appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Notes. Any such appointment shall be evidenced by an instrument
signed by a Trust Officer, a copy of which shall be furnished to the Company.
Unless limited by the terms of such appointment, an authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Note Registrar, Paying
Agent or agent for service of notices and demands.
SECTION 2.04. Registrar and Paying Agent. (a) The Company shall
maintain an office or agency where Notes may be presented for registration of
transfer or for exchange
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(the "NOTE REGISTRAR") and an office or agency where Notes may be presented for
payment (the "PAYING AGENT"). The Note Registrar shall keep a register of the
Notes and of their transfer and exchange (the "NOTE REGISTER"). The Company may
have one or more co-Note Registrars and one or more additional paying agents.
The term "Paying Agent" includes any additional paying agent, and the term "Note
Registrar" includes any co-Note Registrars. The Company initially appoints the
Trustee as (i) Note Registrar and Paying Agent in connection with the Notes and
(ii) the Securities Custodian with respect to the Global Notes.
(b) The Company shall enter into an agency agreement with any Note
Registrar not a party to this Indenture, which shall incorporate the terms of
the Trust Indenture Act. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of the
name and address of any such agent. If the Company fails to maintain a Note
Registrar, the Trustee shall act as such and shall be entitled to compensation
therefor pursuant to Section 7.06. The Company may change the Note Registrar
without prior notice to the holders of the Notes. The Company or any of its
domestically organized Wholly Owned Subsidiaries may act as Note Registrar.
(c) 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
which shall incorporate the terms of the Trust Indenture Act, which shall
implement the provisions of this Indenture that relate to such agent and in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 2.04:
(i) that it will hold all sums held by it as such agent for the
payment of the principal of 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;
(ii) 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 or interest on the Notes when the same shall be due and
payable; and
(iii) 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 notify the Trustee of the name and address of any
such agent. If the Company fails to maintain a Paying Agent, the Trustee shall
act as such and shall be entitled to compensation therefor pursuant to Section
7.06. The Company may change the Paying Agent without prior notice to the
holders of the Notes. The Company or any of its Wholly Owned Subsidiaries may
act as Paying Agent.
(d) 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.
(e) The Company may remove any Note Registrar or Paying Agent upon
written notice to such Note Registrar or Paying Agent and to the Trustee;
provided, however, that no
13
such removal shall become effective until (i) acceptance of an appointment by a
successor as evidenced by an appropriate agreement entered into by the Company
and such successor Note Registrar or Paying Agent, as the case may be, and
delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as Note Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above. The Note Registrar or Paying
Agent may resign at any time upon written notice to the Company and the Trustee.
SECTION 2.05. Paying Agent to Hold Money in Trust. (a) Prior to
10:00a.m., New York City time, on the Business Day prior to each due date of the
principal of and interest on any Note, the Company shall deposit with the Paying
Agent (or if the Company or a Wholly Owned Subsidiary is acting as Paying Agent,
segregate and hold in trust for the benefit of the Persons entitled thereto) a
sum (in funds which are immediately available on the due date for such payment)
sufficient to pay such principal and interest when so becoming due. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing
that the Paying Agent (i) shall hold in trust for the benefit of holders or the
Trustee all money held by the Paying Agent for the payment of principal of and
interest on the Notes and (ii) shall notify the Trustee of any default by the
Company in making any such payment. If the Company or a Wholly Owned Subsidiary
of the Company acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund.
(b) Anything in this Section 2.05 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 2.05, such sums to be held by the Trustee under 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.
(c) Anything in this Section 2.05 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 2.05 is subject
to Sections 12.02 and 12.03.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of holders. If the Trustee is not the Note Registrar, the
Company shall furnish, or cause the Note Registrar to furnish, to the Trustee,
in writing at least five Business Days before each Interest Payment Date on
which any payment hereunder shall be due and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of holders.
SECTION 2.07. Transfer and Exchange. The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note for
registration of transfer and in compliance with Appendix I. When a Note is
presented to the Note Registrar with a request to register a transfer, the Note
Registrar shall register the transfer as requested if its requirements therefor
are met. When Notes are presented to the Note Registrar with a request to
exchange them for an equal principal amount of Notes of other denominations, the
Note Registrar shall make the exchange as requested if the same requirements are
met. To permit registration of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Notes at
14
the Note Registrar's request. The Company may require payment of a sum
sufficient to pay all taxes, assessments or other governmental charges in
connection with any transfer or exchange pursuant to this Section. The Company
shall not be required to make and the Note Registrar need not register transfers
or exchanges of Notes selected for redemption (except, in the case of Notes to
be redeemed in part, the portion thereof not to be redeemed) or any Notes for a
period of 15 days before a selection of Notes to be redeemed.
Prior to the due presentation for registration of transfer of any
Note, the Company, the Trustee, the Paying Agent and the Note Registrar may deem
and treat the Person in whose name a Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and none of the Company, the Trustee, the Paying Agent, or the
Note Registrar shall be affected by notice to the contrary.
Any holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interest in such Global Note may be
effected only through a book-entry system maintained by (a) the holder of such
Global Note (or its agent) or (b) any holder of a beneficial interest in such
Global Note, and that ownership of a beneficial interest in such Global Note
shall be required to be reflected in a book entry.
All Notes issued upon any transfer or exchange pursuant to the terms
of this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION 2.08. Replacement Notes. If a mutilated Note is surrendered
to the Note Registrar or if the holder of a Note claims that the Note has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Note if the requirements of Section 8-405 of
the Uniform Commercial Code are met, such that the holder (a) notifies the
Company or the Trustee within a reasonable time after such holder has notice of
such loss, destruction or wrongful taking and the Note Registrar does not
register a transfer prior to receiving such notification, (b) makes such request
to the Company or the Trustee prior to the Note being acquired by a protected
purchaser as defined in Section 8-303 of the Uniform Commercial Code (a
"PROTECTED PURCHASER") and (c) satisfies any other reasonable requirements of
the Trustee. If required by the Trustee or the Company, such holder shall
furnish an indemnity bond sufficient in the judgment of the Trustee to protect
the Company, the Trustee, the Paying Agent and the Note Registrar from any loss
that any of them may suffer if a Note is replaced. The Company and the Trustee
may charge the holder for their expenses in replacing a Note. In the event any
such mutilated, lost, destroyed or wrongfully taken Note has become or is about
to become due and payable, the Company in its discretion may pay such Note
instead of issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of the Company.
The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.
15
SECTION 2.09. Outstanding Notes. Notes outstanding at any time are
all Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancelation and those described in this Section as not
outstanding. Subject to Section 8.04, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal and interest payable on that date with respect to the Notes
(or portions thereof) to be redeemed or maturing, as the case may be, then on
and after that date such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.10. Temporary Notes. In the event that Definitive Notes
are to be issued under the terms of this Indenture, until such Definitive Notes
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form
of Definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Definitive Notes and deliver them in
exchange for temporary Notes upon surrender of such temporary Notes at the
office or agency of the Company, without charge to the holder.
SECTION 2.11. Cancelation. The Company at any time may deliver Notes
to the Trustee for cancelation. The Note Registrar and the Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment or cancelation
and shall dispose of canceled Notes in accordance with its customary procedures
or deliver canceled Notes to the Company pursuant to written direction by an
Officer. The Company may not issue new Notes to replace Notes it has redeemed,
repaid or delivered to the Trustee for cancelation. The Trustee shall not
authenticate Notes in place of canceled Notes other than pursuant to the terms
of this Indenture. All canceled Notes shall be destroyed by the Trustee unless
otherwise directed by the Company.
SECTION 2.12. Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, the Company shall pay the Defaulted Interest
(plus interest payable on such Defaulted Interest to the extent lawful) in any
lawful manner. The Company may pay the Defaulted Interest to the Persons who are
holders on a subsequent special record date. The Company shall fix or cause to
be fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail or cause to be mailed to
each holder a notice that states the special record date, the payment date and
the amount of Defaulted Interest to be paid.
SECTION 2.13. CUSIP and ISIN Numbers. The Company in issuing the
Notes may use "CUSIP" and ISIN numbers (if then generally in use) and, if so,
the Trustee shall use "CUSIP" and ISIN numbers in notices of redemption as a
convenience to holders; provided,
16
however, 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 shall
promptly notify the Trustee of any change in the "CUSIP" numbers.
SECTION 2.14. Additional Purchase Option. Notwithstanding Section
2.01, the Company may deliver an Officers' Certificate to the Trustee directing
the Trustee to authenticate and deliver any Additional Securities in an
aggregate principal amount not to exceed US$75,000,000 (in addition to the
principal amounts of Notes issued as provided in Section 2.02) at the option of
the initial purchaser (the "Additional Purchase Option"), and the Trustee in
accordance with such Officers' Certificate shall authenticate and deliver such
Additional Securities. The Additional Securities will be represented by an
increase in the aggregate principal amount of the Global Note.
ARTICLE 3
REDEMPTION AND REPURCHASE OF NOTES
SECTION 3.01. Company's Right to Redeem. Prior to October 15, 2007,
the Notes will not be redeemable at the Company's option. At any time on or
after October 15, 2007 and prior to Stated Maturity, the Company, at its option,
may redeem the Notes in accordance with the provisions of Sections 3.02 and 3.03
on the Redemption Date for cash, in whole or in part, at any time or from time
to time, at the redemption price (the "REDEMPTION PRICE"), equal to 100% of the
principal amount of the Notes plus accrued and unpaid interest and Liquidated
Damages, if any, on the Notes redeemed to (but excluding) the Redemption Date.
In the case of a Note redeemed at the Company's option upon the occurrence of a
Fundamental Change during the period from the applicable Record Date to, but
excluding, the next succeeding Liquidated Damages payment date, Liquidated
Damages will be payable on the Redemption Date to the holder of the note
redeemed as of the relevant Record Date, and no Liquidated Damages will be paid
on such Liquidated Damages payment date in respect of any such Note (or portion
thereof).
In the event of any redemption in part, the Company will not be
required to (a) issue, register the transfer of or exchange any Note during a
period beginning at the opening of business 15 days before any selection of
Notes for redemption and ending at the close of business on the earliest date on
which the relevant notice of redemption is deemed to have been given to all
Noteholders to be so redeemed, or (b) register the transfer or exchange of any
Note so selected for redemption, in whole or in part, except the unredeemed
portion of any Note being redeemed in part.
SECTION 3.02. Notice of Optional Redemption; Selection of Notes. (a)
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 (the "REDEMPTION DATE") and it or, at its written request
received by the Trustee not fewer than thirty-five (35) days prior (or such
shorter period of time as may be acceptable to the Trustee) to the Redemption
Date, 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 (a "REDEMPTION NOTICE") not
fewer than thirty (30) nor more than
17
sixty (60) days prior to the Redemption Date to each holder of Notes so to be
redeemed at its last address as the same appears on the Note Register; provided
that if the Company shall give such notice, it shall also give written notice of
the Redemption Date to the Trustee. 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 shall not affect the
validity of the proceedings for the redemption of any other Note. Concurrently
with the mailing of any such Redemption Notice, the Company shall issue a press
release announcing such redemption and publish the information through a public
medium customary for such press releases, 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.
(b) Each such Redemption Notice shall specify the aggregate
principal amount of Notes to be redeemed, the CUSIP number or numbers of the
Notes being redeemed, the Redemption Date (which shall be a Business Day), the
Redemption Price at which Notes are to be redeemed, the place or places of
payment, that payment will be made upon presentation and surrender of such
Notes, that interest accrued to the Redemption Date 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. Such notice shall also state the
current Conversion Rate and the date on which the right to convert such Notes or
portions thereof into Ordinary Shares or ADSs will expire (which date shall not
be later than the close of business on the second Business Day prior to the
Redemption Date). In case any Note is to be redeemed in part only pursuant to
Section 3.01, the Redemption Notice 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.
(c) Prior to 10:00 a.m., New York City time on the Business Day
prior to the Redemption Date specified in the Redemption Notice given as
provided in this Section 3.02, the Company will deposit with the Trustee or with
one or more Paying Agents (or, if the Company is acting as its own Paying Agent,
set aside, segregate and hold in trust as provided in Section 2.05) an amount of
money in immediately available funds sufficient to redeem on the Redemption Date
all the Notes (or portions thereof in the case of a redemption pursuant to
Section 3.01) so called for redemption (other than those theretofore surrendered
for conversion into Ordinary Shares) at the appropriate Redemption Price. If any
Note called for redemption is converted pursuant hereto prior to such Redemption
Date, any money deposited with the Trustee or any Paying Agent or so segregated
and held in trust for the redemption of such Note shall be paid to the Company
upon its written request, or, if then held by the Company, shall be discharged
from such trust. Whenever any Notes are to be redeemed, the Company will give
the Trustee written notice in the form of an Officers' Certificate not fewer
than thirty-five (35) days (or such shorter period of time as may be reasonably
acceptable to the Trustee) prior to the Redemption Date as to the aggregate
principal amount of Notes to be redeemed.
(d) If less than all of the outstanding Notes are to be redeemed
(pursuant to Section 3.01), 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)
18
by lot, on a pro rata basis or by another method the Trustee deems fair and
appropriate. If any Note selected for partial 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 from the portion
selected for redemption. The Notes (or portions thereof) so selected 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
Redemption Notice.
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 as are unconverted and outstanding at
the time of redemption, treat as outstanding any Notes surrendered for
conversion during the period of fifteen (15) days next preceding the mailing of
a Redemption Notice 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 Ordinary Shares or ADSs pursuant to the terms hereof, become due
and payable on the Redemption Date and at the place or places stated in such
notice at the applicable Redemption Price, and on and after the Redemption Date
(unless the Company shall default in the payment of such Notes at the Redemption
Price) interest on the Notes or portion of Notes so called for redemption shall
cease to accrue and, after the close of business on the second Business Day
immediately preceding the Redemption Date (unless the Company shall default in
the payment of such Notes at the Redemption Price), such Notes shall cease to be
convertible into Ordinary Shares or ADSs and 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.
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 applicable Redemption Price; provided that if the
applicable Redemption Date is 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 Redemption Notice 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, the principal shall, until paid
or duly provided for, continue to bear interest at the rate borne by the Note,
compounded semiannually, and such Note shall remain convertible into Ordinary
Shares or ADSs until the principal and interest shall have been paid or duly
provided for.
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SECTION 3.04. Repurchase of Notes by the Company at Option of
Holders upon a Fundamental Change. (a) If a Fundamental Change shall occur at
any time prior to Stated Maturity, each holder 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 equal to US$1,000 or an integral multiple
of $1,000 principal amount, for cash on the date specified in the Fundamental
Change Repurchase Notice (the "FUNDAMENTAL CHANGE REPURCHASE DATE"), which date
shall be no fewer than twenty (20) days nor more than thirty-five (35) days
after the Fundamental Change Notice Date (as defined in paragraph (b) below),
subject to extension to comply with applicable law. The Company shall repurchase
such Notes at a price (the "FUNDAMENTAL CHANGE REPURCHASE PRICE") equal to 100%
of the principal amount thereof plus any accrued and unpaid interest and
Liquidated Damages, if any, to (but not including) the Fundamental Change
Repurchase Date; provided however, that in the case of Note repurchased upon the
occurrence of a Fundamental Change during the period from the applicable Record
Date to, but excluding, the next succeeding Liquidated Damages payment date,
Liquidated Damages will be payable on the date of repurchase to the holder of
the Note repurchased as of the relevant Record Date, and no Liquidated Damages
will be paid on such Liquidated Damages payment date in respect of any such Note
(or portion thereof).
The Company's obligation to repurchase all or a portion of a
holder's Notes under this Section 3.04 shall be satisfied if a third party makes
the offer to repurchase the Notes at the Fundamental Change Repurchase Price in
the manner and at the times and otherwise in compliance in all material respects
with the requirements set out in this Section 3.04, such third party purchases
all Notes properly tendered and not withdrawn and such third party complies with
the obligations of the Company in connection herewith.
(b) On or before the thirtieth (30th) day after the occurrence of a
Fundamental Change, the Company, or at its written request the Trustee in the
name of and at the expense of the Company (which request must be received by the
Trustee at least three (3) Business Days prior to the date the Trustee is
requested to give notice as described below, unless the Trustee shall agree to a
shorter period), shall mail or cause to be mailed (the date of such mailing,
"FUNDAMENTAL CHANGE NOTICE DATE"), by first class mail, a notice (the
"FUNDAMENTAL CHANGE REPURCHASE NOTICE") to each holder of record of Notes on
such date at its last address as the same appears on the Note Register of the
occurrence of such Fundamental Change and of the repurchase right at the option
of the holders arising as a result thereof to each holder of Notes at its last
address as the same appears on the Note Register; provided that if the Company
shall give such notice, it shall also give written notice of the Fundamental
Change to the Trustee and the Paying Agent at such time as it is mailed to
Noteholders. Such 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. Each Fundamental Change Repurchase Notice shall state:
(i) the Fundamental Change Repurchase Price, excluding accrued and
unpaid interest, the Applicable Conversion Rate at the time of such notice
(and any applicable adjustments to the Conversion Rate) and, to the extent
known at the time of such notice, the amount of interest that will be
payable with respect to the Notes on the Fundamental Change Repurchase
Date;
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(ii) the events causing the Fundamental Change and the date of the
Fundamental Change;
(iii) the Fundamental Change Repurchase Date;
(iv) the last date on which a holder may exercise the repurchase
right;
(v) the name and address of the Paying Agent and the Conversion
Agent;
(vi) that Notes as to which a Fundamental Change Repurchase Election
has been given by the holder may be converted only if the election has
been withdrawn by the holder in accordance with the terms of this
Indenture; provided that the Notes are otherwise convertible in accordance
with Section 14.01;
(vii) that the holder shall have the right to withdraw any
repurchase election (in whole or part) and any Notes surrendered prior to
the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date (or any such later time as may be
required by applicable law);
(viii) that Notes must be surrendered to the Paying Agent for
cancelation to collect payment;
(ix) a description of the procedure which a Noteholder must follow
to exercise such repurchase right or to withdraw any surrendered Notes;
(x) the CUSIP number or numbers of the Notes (if then generally in
use); and
(xi) the Conversion Price and any adjustments thereto and briefly,
the conversion rights of the Notes and whether, at the time of such
notice, the Notes are eligible for conversion.
Simultaneously with providing the Fundamental Change Repurchase
Notice, the Company will issue a press release and publish the information
through a public medium customary for such press releases.
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 3.04.
(c) Notes shall be repurchased pursuant to this Section 3.04 upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the
Company) by a holder of a duly completed notice (a "FUNDAMENTAL CHANGE
REPURCHASE ELECTION") in the form set forth on the reverse of the Note at
any time prior to the close of business on the fifth Business Day
immediately preceding the Fundamental Change Repurchase Date (subject to
extension by applicable law) stating:
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(a) if certificated, the certificate numbers of the Notes
which the holder shall deliver to be repurchased;
(b) the portion of the principal amount of the Notes that the
holder shall deliver to be repurchased, which portion must be $1,000
or an integral multiple thereof; and
(c) that such Notes shall be repurchased as of the Fundamental
Change Repurchase Date pursuant to the terms and conditions
specified in the Notes and in the Indenture; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or
other Paying Agent appointed by the Company) simultaneously with or at any
time after delivery of the Fundamental Change Repurchase Election
(together with all necessary endorsements) at the office of the Trustee
(or other Paying Agent appointed by the Company) in the Borough of
Manhattan, such delivery or transfer being a condition to receipt by the
holder of the Fundamental Change Repurchase Price; provided that such
Fundamental Change Repurchase Price shall be so paid pursuant to this
Section 3.04 only if the Notes so delivered or transferred to the Trustee
(or other Paying Agent appointed by the Company) shall conform in all
respects to the description thereof in the related Fundamental Change
Repurchase Election. 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.
SECTION 3.05. Repurchase of Notes by the Company at Option of
Holders on Specified Dates. (a) On October 15, 2007 (the "COMPANY REPURCHASE
DATE"), each holder 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. The Company shall repurchase such
Notes at a price (the "COMPANY REPURCHASE PRICE") equal to 100% of the principal
amount thereof plus any accrued and unpaid interest to but excluding the Company
Repurchase Date; provided that if such Company Repurchase Date falls on an
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 thirtieth (30th) Business Day prior to the
Company Repurchase Date (the "COMPANY NOTICE DATE"), the Company, or at its
written request the Trustee in the name of and at the expense of the Company
(which request must be received by the Trustee at least three (3) Business Days
prior to the date the Trustee is requested to give notice as described below),
unless the Trustee shall agree to a shorter period), shall mail or cause to be
mailed, by first class mail, a notice (the "COMPANY REPURCHASE NOTICE") to each
holder of record of Notes on such date at its last address as the same appears
on the Note Register; provided that if the Company shall give such notice, it
shall also give written notice to the Trustee and the Paying Agent at such time
as it is mailed to Noteholders. Such 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. The Company Repurchase Notice shall state:
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(i) the Company Repurchase Price, excluding accrued and unpaid
interest, the Applicable Conversion Rate at the time of such notice (and
any applicable adjustments to the Conversion Rate) and, to the extent
known at the time of such notice, the amount of interest that will be
payable with respect to the Notes on the Company Repurchase Date;
(ii) the Company Repurchase Date;
(iii) the last date on which a holder may exercise the repurchase
right;
(iv) the name and address of the Paying Agent and the Conversion
Agent;
(v) that Notes as to which a Company Repurchase Election has been
given by the holder may be converted only if the election has been
withdrawn by the holder in accordance with the terms of this Indenture;
provided that the Notes are otherwise convertible in accordance with
Section 14.01;
(vi) that the holder shall have the right to withdraw any Notes
surrendered prior to the close of business on the Business Day immediately
preceding the Company Repurchase Date (or any such later time as may be
required by applicable law);
(vii) that Notes must be surrendered to the Paying Agent for
cancellation to collect payment;
(viii) that the Company Repurchase Price for any Note as to which a
Company Repurchase Notice has been given and not withdrawn will be paid
promptly following the later of the Company Repurchase Date and the time
of surrender of such Note as described in clause (v) above;
(ix) a description of the procedure which a Noteholder must follow
to exercise such repurchase right or to withdraw any surrendered Notes;
and
(x) the CUSIP number or numbers of the Notes (if then generally in
use).
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) Notes shall be repurchased pursuant to this Section 3.05 upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the
Company) by a holder of a duly completed notice (a "COMPANY REPURCHASE
ELECTION") in the form set forth on the reverse of the Note at any time
from the opening of business on the twentieth (20th) Business Day
preceding the Company Repurchase Date until the close of business on the
fifth Business Day immediately preceding the Company Repurchase Date
stating:
(1) if certificated, the certificate numbers of the Notes
which the holder shall deliver to be repurchased;
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(2) the portion of the principal amount of the Notes that the
holder shall deliver to be repurchased, which portion must be $1,000
or an integral multiple thereof; and
(3) that such Notes shall be repurchased as of the Company
Repurchase Date pursuant to the terms and conditions specified in
the Notes and in this Indenture; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or
other Paying Agent appointed by the Company) simultaneously with or at any
time after delivery of the Company Repurchase Election (together with all
necessary endorsements) at the office of the Trustee (or other Paying
Agent appointed by the Company) in the Borough of Manhattan, such delivery
or transfer being a condition to receipt by the holder of the Company
Repurchase Price therefore; provided that such Company Repurchase Price
shall be so paid pursuant to this Section 3.05 only if the Notes so
delivered or transferred to the Trustee (or other Paying Agent appointed
by the Company) shall conform in all respects to the description thereof
in the related Company Repurchase Election. 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.
SECTION 3.06. Company's Manner of Payment of Repurchase Price. (a)
The Notes to be repurchased by the Company on any Repurchase Date pursuant to
Section 3.04 or Section 3.05, must be paid for in U.S. legal tender ("cash").
(b) At least three (3) Business Days before the date of any
Repurchase Notice, the Company shall deliver an Officers' Certificate to the
Trustee specifying:
(i) the information required to be included in the Repurchase
Notice; and
(ii) whether the Company desires the Trustee to give the Repurchase
Notice required.
SECTION 3.07. Conditions and Procedures for Repurchase at Option of
Holders. (a) The Company shall repurchase from the holder thereof, pursuant to
Section 3.04 or 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. Upon presentation of any Note
repurchased 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 any authorized denomination, in
aggregate principal amount equal to the portion of the Notes presented that is
not repurchased.
(b) Prior to 10:00 a.m., New York City time, on the Business Day
before a Repurchase Date, the Company will deposit with the Trustee or with one
or more Paying Agents (or, if the Company is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 2.05) an amount of
cash sufficient to repurchase on the Repurchase Date all the Notes or portions
thereof to be repurchased on such date at the Repurchase Price.
24
If the Trustee or other Paying Agent appointed by the Company, or
the Company or an Affiliate of the Company, if it or such Affiliate is acting as
the Paying Agent, holds cash sufficient to pay the aggregate Repurchase Price of
all the Notes or portions thereof that are to be repurchased as of the
Repurchase Date, on the Business Day following the Repurchase Date, (i) such
Notes will cease to be outstanding, (ii) interest on such Notes will cease to
accrue and (iii) all other rights of the holders of such Notes will terminate,
whether or not book-entry transfer of the Notes has been made or the Notes have
been delivered to the Trustee or Paying Agent, other than the right to receive
the Repurchase Price upon delivery of the Notes.
(c) Upon receipt by the Trustee (or other Paying Agent appointed by
the Company) of a Repurchase Election, the holder of the Note in respect of
which such Repurchase Election was given shall (unless such notice is validly
withdrawn) 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 Trustee (or other Paying Agent
appointed by the Company), promptly (but in no event more than five (5) Business
Days) following the later of (x) the Repurchase Date with respect to such Note
(provided that the holder has satisfied the conditions in Section 3.04(c) or
Section 3.05, applicable) and (y) the time of delivery of such Note to the
Trustee (or other Paying Agent appointed by the Company) by the holder thereof
in the manner required by Section 3.04(c) or Section 3.05(c), as applicable.
Notes in respect of which a Repurchase Election has been given by the holder
thereof may not be converted pursuant to Article 14 hereof on or after the date
of the delivery of such Repurchase Election unless such notice has first been
validly withdrawn.
(d) Notwithstanding anything herein to the contrary, any holder
delivering to the office of the Trustee (or other Paying Agent appointed by the
Company) a Repurchase Election shall have the right to withdraw such election at
any time prior to the close of business on the second Business Day preceding the
Repurchase Date (or any such later time as may be required by applicable law) by
delivery of a written notice of withdrawal to the Trustee (or other Paying Agent
appointed by the Company) specifying:
(i) the certificate number, if any, of the Note in respect of which
such notice of withdrawal is being submitted, or the appropriate
Depositary information if the Note in respect of which such notice of
withdrawal is being submitted is represented by a Global Note,
(ii) the principal amount of the Note with respect to which such
notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note which remains
subject to the original Repurchase Election and which has been or will be
delivered for repurchase by the Company.
If the Notes are not in certificated form, the withdrawal notice
must comply with appropriate DTC procedures.
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The Trustee (or other Paying Agent appointed by the Company) shall
promptly notify the Company of the receipt by it of any Repurchase Election or
written notice of withdrawal thereof.
(e) The Company will comply with the provisions of Rule 13e-4 and
any other tender offer rules under the Exchange Act to the extent then
applicable in connection with the repurchase rights of the holders of Notes in
the event of a Fundamental Change or on any Company Repurchase Date. If then
required by applicable law, the Company will file a Schedule TO or any other
schedule required in connection with such repurchase.
(f) There shall be no repurchase of any Notes pursuant to Section
3.04 or Section 3.05 if there has occurred at any time prior to, and is
continuing on, the Repurchase Date an Event of Default (other than an Event of
Default that is cured by the payment of the Repurchase Price with respect to
such Notes). The Paying Agent will promptly return to the respective holders
thereof any Notes (x) with respect to which a Repurchase Election has been
withdrawn in compliance with this Indenture or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Repurchase Price with respect to such Notes) in which case, upon such return,
the Repurchase Election with respect thereto shall be deemed to have been
withdrawn.
(g) The Trustee (or other Paying Agent appointed by the Company)
shall return to the Company any cash that remains unclaimed as provided in
Section 12.03, for the payment of the Repurchase Price; provided that, to the
extent that the aggregate amount of cash deposited by the Company pursuant to
Section 3.07(b) exceeds the aggregate Repurchase Price of the Notes or portions
thereof which the Company is obligated to purchase as of the Repurchase Date,
then, unless otherwise agreed in writing with the Company, promptly after the
Business Day following the Repurchase Date, the Trustee shall return any such
excess to the Company.
SECTION 3.08. Exchange in Lieu of Repurchase. If Noteholders
exercise their right to require the Company to repurchase their Notes, the
Company may cause the Notes first to be offered to a financial institution
chosen by it for exchange in lieu of repurchase. In order to accept any Notes
surrendered for repurchase, the designated institution must agree to deliver, in
exchange for such Notes, an amount of cash in U.S. dollars equal to the
Repurchase Price for such Notes holders otherwise would receive upon repurchase
by the Company. If the designated institution accepts any such Notes for
repurchase, it will deliver the Repurchase Price to holders. Any notes purchased
by the designated institution will remain outstanding. If the designated
institution agrees to accept any Notes for repurchase but does not timely
deliver the related Repurchase Price payment, the Company will, as promptly as
practical thereafter, but not later than one Business Day following the
repurchase date, cause the Repurchase Price for the Notes to be paid.
The Company's designation of an institution to which the Notes may
be submitted for repurchase does not require the institution to accept any
Notes. If the designated institution declines to accept any Notes surrendered
for repurchase, the Company will repurchase the Notes on the terms provided in
this Indenture.
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ARTICLE 4
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal and Interest. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid at
least one Business Day prior to each due date the principal of (including any
Redemption Price or Repurchase Price pursuant to Article 3) and any premium and
interest on each of the Notes at the places, at the respective times and in the
manner provided herein and in the Notes. Principal of (including any Redemption
Price or Repurchase Price) and the premium (if any) and interest on each Note
shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Wholly Owned Subsidiary, holds as of 10:00 a.m., New York City
time, on one Business Day prior to the due date money deposited by or on behalf
of the Company in immediately available funds and designated for and sufficient
to pay all such principal and interest. The Company shall pay interest on
overdue principal at the rate specified in the Notes, and shall pay interest on
overdue installments of interest at the same rate, to the extent lawful.
SECTION 4.02. 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. 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 office of the Trustee in the
Borough of Manhattan, The City of New York, which office shall be located at the
office of The Depository Trust Company.
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 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 each of the Corporate Trust
Office and the office or agency of the Trustee in the Borough of Manhattan 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 7.07(a) and in
Section 7.07(c). 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 4.03. Existence. Subject to Article 11, the Company will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and rights (charter and statutory); provided that
the Company shall not be required to
27
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 adverse in any material respect to the Noteholders.
SECTION 4.04. Rule 144A Information Requirement. So long as the
Notes or Ordinary Shares deliverable upon conversion of the Notes remain
outstanding and are "restricted securities" within the meaning of Rule 144(a)(3)
of the Securities Act, the Company furnish, upon request of any holder of a
beneficial interest in a Note, such information as is specified in paragraph
(d)(4) of Rule 144A, to such holder or beneficial owner or to a prospective
purchaser of the Note or interest therein who is a qualified institutional buyer
within the meaning of Rule 144A, in order to permit compliance by such holder or
beneficial owner with Rule 144A in connection with the resale of the Note or
beneficial interest herein in reliance on Rule 144A unless, at the time of such
request, the Company subject to the reporting requirements of Section 13 or 15
(d) of the Exchange Act.
SECTION 4.05. 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 of 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 4.06. Compliance Certificate. The Company shall deliver to
the Trustee, within one hundred twenty (120) days after the end of each fiscal
year of the Company (which fiscal year of the Company is presently the 12
calendar months ending December 31), an Officers' Certificate, stating whether
or not, to the best knowledge of the signers 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 signers 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 4.06 shall be
delivered to a Trust Officer of the Trustee at its Corporate Trust Office.
SECTION 4.07. Liquidated Damages Notice. (a) In the event that the
Company is required to pay Liquidated Damages to holders of Notes pursuant to
the Registration Rights Agreement, the Company will provide written notice
("LIQUIDATED DAMAGES NOTICE") to the
28
Trustee of its obligation to pay Liquidated Damages no later than fifteen (15)
days prior to the next scheduled payment date for the Liquidated Damages, and
the Liquidated Damages Notice shall set forth the amount of Liquidated Damages
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
Liquidated Damages, or with respect to the nature, extent or calculation of the
amount of Liquidated Damages when made, or with respect to the method employed
in such calculation of the Liquidated Damages.
SECTION 4.08. Registration Rights Agreement. Noteholders shall have
the benefit of the Registration Rights Agreement and, in the event of a
Registration Default or an Effective Failure (as defined therein), the Company
shall (subject to the terms and conditions of the Registration Rights Agreement)
pay Liquidated Damages (as defined and set forth therein) to the Noteholders.
ARTICLE 5
REPORTS BY THE COMPANY
SECTION 5.01. Reports by the Company. The Company shall file with
the Trustee (and the Commission if at any time after the Indenture becomes
qualified under the Trust Indenture Act), and transmit 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 such 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 filed with the Trustee within fifteen (15) 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'
Certificate).
ARTICLE 6
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
SECTION 6.01. Events of Default. In case one or more of the
following events (each, an "EVENT 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 become due and payable, and continuance
of such default for a period of thirty (30) days; or
(b) default in the payment of the principal of, or premium (if any)
on, any of the Notes as and when the same shall become due and payable either at
maturity or in connection
29
with any redemption or repurchase or following a Fundamental Change, in each
case pursuant to Article 3, by acceleration or otherwise; or
(c) default in the Company's obligation to convert the Notes upon
the exercise of a holder's rights pursuant to Article 14 and that default
continues for 10 days or more; or
(d) failure to provide notice of the right to require the Company to
repurchase the Notes following the occurrence of a Fundamental Change within the
time required by Section 3.04 to give such notice; or
(e) failure on the part of the Company to comply with or observe any
other material covenant or agreement on the part of the Company in the Notes or
in this Indenture (other than a covenant, warrant or agreement a default in
whose performance or whose breach is elsewhere in this Section 6.01 specifically
dealt with) continued for a period of sixty (60) 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 Trust
Officer of the Trustee by the holders of at least 25% in aggregate principal
amount of the Notes at the time outstanding determined in accordance with
Section 8.04; or
(f) failure by the Company or any Subsidiary to pay any indebtedness
(other than indebtedness owing to the Company or a Subsidiary) within any
applicable grace period after final maturity or the acceleration of any such
indebtedness by the holders thereof because of a default if the total amount of
such indebtedness unpaid or accelerated exceeds $15 million or its foreign
currency equivalent, and continues in effect after the expiration of any grace
period or extension of time for payment applicable thereto; or
(g) failure by the Company or any Subsidiary under any instrument or
instruments evidencing indebtedness (other than the Notes) having an aggregate
outstanding principal amount of US$15 million (or its equivalent in any other
currency or currencies) or more that results in the acceleration of maturity of
such indebtedness unless such acceleration has been rescinded or annulled or the
amount accelerated has been discharged within 20 days after written notice of
such acceleration has been received by the Company or such Subsidiary; or
(h) the Company or any of its Significant Subsidiaries shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Company or any of its
Significant Subsidiaries 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
of its Significant Subsidiaries or any substantial part of the property of the
Company or any of its Significant Subsidiaries, 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 any of its
Significant Subsidiaries, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due; or
(i) an involuntary case or other proceeding shall be commenced
against the Company or any of its Significant Subsidiaries seeking liquidation,
reorganization or other relief
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with respect to the Company or any of its Significant Subsidiaries 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 of its Significant Subsidiaries, or
any substantial part of the property of the Company, and such involuntary case
or other proceeding remains undismissed or unstayed and in effect for a period
of sixty (60) consecutive days;
then, and in each and every such case (other than an Event of Default specified
in Section 6.01(h) or 6.01(i)), unless the principal of all of the Notes shall
have already become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of the Notes then outstanding
(subject to the Trustee's right under this Indenture to be indemnified or
secured to its satisfaction) hereunder determined in accordance with Section
8.04, by notice in writing to the Company (and to the Trustee if given by
Noteholders), may declare the principal of all the Notes and the interest
accrued thereon to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in this
Indenture or in the Notes contained to the contrary notwithstanding. If an Event
of Default specified in Section 6.01(h) or 6.01(i) occurs, the principal amount
plus accrued and unpaid interest and Liquidated Damages, if any, on all the
Notes shall be immediately and automatically due and payable without necessity
of further action. This provision, however, is subject to the conditions that
if, at any time after the principal of the Notes and the interest accrued
thereon 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, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all Notes and
the principal of any and all Notes which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest (to the extent
that payment of such interest is enforceable under applicable law) and on such
principal at the rate borne by the Notes plus 1%, to the date of such payment or
deposit) and amounts due to the Trustee pursuant to Section 7.06, and if any and
all defaults under this Indenture, other than the nonpayment of principal of and
accrued interest on Notes which shall have become due by acceleration, shall
have been cured or waived pursuant to Section 6.07, then and in every such case
the holders of a majority in aggregate principal amount of the Notes then
outstanding hereunder determined in accordance with Section 8.04, 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; 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 Trust Officer of the Trustee,
promptly upon becoming aware thereof, of any Event of Default.
An Event of Default under Section 6.01(f) or Section 6.01(g) will
not constitute an Event of Default until the Trustee notifies the Company or the
holders of not less than 25% in aggregate principal amount of the Notes then
outstanding hereunder notify the Company and the Trustee of the Event of Default
and the Company does not cure such default within the time specified in Section
6.01(f) or Section 6.01(g) after receipt of such notice.
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
31
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 6.02. Payments of Notes on Default; Suit Therefor. The
Company covenants that (a) in case default shall be made in the payment of any
installment of interest upon any of the Notes as and when the same shall become
due and payable, and such default shall have continued for a period of thirty
(30) days, or (b) in case default shall be made in the payment of the principal
of any of the Notes as and when the same shall have become due and payable,
whether at maturity of the Notes or in connection with any redemption,
repurchase, acceleration, declaration or otherwise, then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the holders of
the Notes, the whole amount that then shall have become due and payable on all
such Notes for principal or interest, as the case may be, with interest upon the
overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest at
the rate borne by the Notes, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
compensation to the Trustee, its agents, attorneys and counsel, and all other
amounts due the Trustee under Section 7.06. Until such demand by the Trustee,
the Company may pay the principal of 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 6.02,
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
and interest owing and unpaid 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
32
deduction of any amounts due the Trustee under Section 7.06, 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, and, 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 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 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 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 6.03. Application of Monies Collected by Trustee. Any monies
and property collected by the Trustee pursuant to this Article 6 shall be
applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such monies and property, 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 to the Trustee under
Section 7.06;
SECOND: In case the principal of the outstanding Notes shall not
have become due and be unpaid, to the payment of interest 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) upon the overdue installments of interest at the rate borne by
the Notes, 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,
interest with interest on the overdue principal and (to the extent that
such interest has been collected by the Trustee) upon
33
overdue installments of interest at the rate borne by the Notes, 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,
interest without preference or priority of principal over interest, or of
interest over principal, 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 accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Company or as a court of competent jurisdiction shall direct in writing.
SECTION 6.04. 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, unless such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as hereinbefore
provided, and unless also the holders of not less than 25% in aggregate
principal amount of the Notes then outstanding hereunder determined in
accordance with Section 8.04 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 security or indemnity satisfactory to
the Trustee as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for sixty (60) 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 no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 6.07; 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 6.04, 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 any Redemption Price or Repurchase Price pursuant to
Article 3) and accrued interest on such Note on or after the respective due
dates expressed in such Note, 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 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, on 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.
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SECTION 6.05. 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 6.06. Remedies Cumulative and Continuing. Except as provided
in Section 2.08, all powers and remedies given by this Article 6 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
6.04, every power and remedy given by this Article 6 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 6.07. Direction of Proceedings and ▇▇▇▇▇▇ of Defaults by
Majority of Noteholders. The holders of a majority in aggregate principal amount
of the Notes at the time outstanding determined in accordance with Section 8.04
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 the Trustee may refuse to follow
any such direction that (a) conflicts with law or the indenture, (b) is unduly
prejudicial to the rights of other holders of the Notes, or (c) would involve
the Trustee in personal liability. The holders of a majority in aggregate
principal amount of the Notes at the time outstanding determined in accordance
with Section 8.04 may, on behalf of the holders of all of the Notes, waive any
existing or past default or Event of Default hereunder and its consequences,
except (i) a default in the payment of interest or premium (if any) on, or the
principal of, the Notes, (ii) a failure by the Company to convert any Notes into
Ordinary Shares, (iii) a default in the payment of the Redemption Price pursuant
to Section 3.03, (iv) a default in the payment of the Fundamental Change
Repurchase Price pursuant to Section 3.04 or Company Repurchase Price pursuant
to Section 3.05 or (v) a default in respect of a covenant or provisions hereof
which under Article 10 cannot be modified or amended without the consent of the
holders of each or all Notes then outstanding or 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 6.07, 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.
35
SECTION 6.08. Notice of Defaults. The Trustee shall, within the
earlier of ninety (90) days after a Default occurs or thirty (30) days after a
Trust 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 Trust 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 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 Trust
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Noteholders.
SECTION 6.09. Undertaking to Pay Costs. All parties to this
Indenture agree, and each holder of any Note by its 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 6.09 (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 8.04,
or to any suit instituted by any Noteholder for the enforcement of the payment
of the principal of 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 14.
ARTICLE 7
THE TRUSTEE
SECTION 7.01. Duties of Trustee, (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, in the case of certificates or opinions specifically required by
any provision hereof to be furnished to it, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture
36
(but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
grossly negligent action, its own grossly negligent failure to act or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.07; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) 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 and to the provisions of the Trust
Indenture Act.
SECTION 7.02. Rights of Trustee, (a) The Trustee may conclusively
rely and shall be protected in acting or refraining from acting on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in any such
document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
37
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or gross negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the holders of not less than a majority in principal amount of the Notes at
the time outstanding, but the Trustee, in its discretion, 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 at the sole cost of the Company and shall
incur no liability or additional liability of any kind by reason of such inquiry
or investigation.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the holders pursuant to this Indenture, unless such holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(h) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Notes and this Indenture.
(i) 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.
(j) 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.
(k) The Trustee shall not be required to give any bond or surety in
respect of the execution of its trusts and power or in respect of this
Indenture.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the
38
Company or its Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent or Registrar may do the same with like rights.
However, the Trustee must comply with Sections 7.09 and 7.10.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
SECTION 7.05. Reports by Trustee to Holders. If required by Section
313(a) of the Trust Indenture Act, within 60 days after each May 15 beginning
with the May 15 following the date of this Indenture, the Trustee shall mail to
each holder a brief report dated as of such May 15 that complies with Section
313(a) of the Trust Indenture Act to the extent required thereby. The Trustee
shall also comply with Section 313(b) of the Trust Indenture Act.
A copy of each report at the time of its mailing to holders shall be
filed with the SEC, each automated quotation system and each stock exchange (if
any) on which the Notes are listed. The Company agrees to notify promptly the
Trustee whenever the Notes become listed on any stock exchange or automated
quotation system and of any delisting thereof.
SECTION 7.06. Compensation and Indemnity. The Company shall pay to
the Trustee from time to time such compensation for its services hereunder as
the Company and the Trustee shall from time to time agree in writing. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all out-of-pocket expenses incurred or made by it, including costs
of collection, in addition to the compensation for its services as the Company
and the Trustee shall, from time to time, agree in writing. Such expenses shall
include the compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Company shall indemnify
the Trustee or any predecessor Trustee and their agents against any and all
loss, liability or expense (including attorneys' fees) incurred by or in
connection with the administration of this trust and the performance of its
duties hereunder. The Trustee shall notify the Company of any claim for which it
may seek indemnity promptly upon obtaining actual knowledge thereof; provided,
however, that any failure so to notify the Company shall not relieve the Company
of its indemnity obligations hereunder. The Company shall defend the claim and
the indemnified party shall provide reasonable cooperation at the Company's
expense in the defense. Such indemnified parties may have separate counsel and
the Company shall pay the fees and expenses of such counsel; provided, however,
that the Company shall not be required to pay such fees and expenses if it
assumes such indemnified parties' defense and, in such indemnified parties'
reasonable judgment, there is no conflict of interest between the Company and
such parties in connection with such defense. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by an
indemnified party through such party's own wilful misconduct, gross negligence
or bad faith. The Company need not pay for any settlement made without its
written consent, which consent shall not be unreasonably withheld.
39
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of or interest on particular Notes.
The Company's payment obligations pursuant to this Section shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01 (h) or (i) with respect to the
Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.07. Replacement of Trustee, (a) The Trustee may resign at
any time by so notifying the Company. The holders of a majority in principal
amount of the Notes then outstanding hereunder determined in accordance with
Section 8.04 may remove the Trustee by so notifying the Trustee and may appoint
a successor Trustee. The Company shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.09;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Trustee
or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company or by the
holders of a majority in principal amount of the Notes then outstanding
hereunder determined in accordance with Section 8.04 and such holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee so that there shall at all times be a Trustee hereunder.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.06.
(d) If a successor ▇▇▇▇▇▇▇ does not take office within thirty (30)
days after the retiring Trustee resigns or is removed, the retiring Trustee, at
the Company's expense, or the holders of 10% in principal amount of the Notes
then outstanding hereunder determined in accordance with Section 8.04 may
petition at the expense of the Company any court of competent jurisdiction for
the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.09, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the Trust
Indenture Act, any holder who has
40
been a bona fide holder of a Note for at least six months may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.06 shall continue for the
benefit of the retiring Trustee.
SECTION 7.08. Successor Trustee by ▇▇▇▇▇▇. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation 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, 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 may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have.
SECTION 7.09. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of Section 310(a) of the Trust Indenture Act.
The Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall comply with Section 310(b) of the Trust Indenture Act, subject to its
right to apply for a stay of its duty to resign under the penultimate paragraph
of Section 310(b) of the Trust Indenture Act; provided, however, that there
shall be excluded from the operation of Section 310(b)(1) of the Trust Indenture
Act any indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Company are outstanding if
the requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met.
SECTION 7.10. Preferential Collection of Claims Against Company. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated.
ARTICLE 8
THE NOTEHOLDERS
SECTION 8.01. 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
41
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 duly called and held
in accordance with the provisions of Article 9, 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 (15) days prior to
the date of commencement of solicitation of such action.
SECTION 8.02. Proof of Execution by Noteholders. Subject to the
provisions of Section 7.01, 7.02 and 9.05, 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.
The record of any Noteholders' meeting shall be proved in the manner
provided in Section 9.06.
SECTION 8.03. Who Are Deemed 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 8.04. 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 Trust 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 8.04 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 fully protect 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
42
Persons, and, subject to Section 7.01, 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 listed therein are outstanding for the purpose of
any such determination.
SECTION 8.05. Revocation of Consents, Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, 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 8.02, 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 9
MEETINGS OF NOTEHOLDERS
SECTION 9.01.Purpose of Meetings.
A meeting of Noteholders may be called at any time and from time to
time pursuant to the provisions of this Article 9 for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee or to give
any directions to the Trustee permitted under this Indenture, or to
consent to the waiving of any default or Event of Default hereunder and
its consequences, or to take any other action authorized to be taken by
Noteholders pursuant to any of the provisions of Article 6;
(b) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article 7;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(d) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of the Notes
under any other provision of this Indenture or under applicable law.
SECTION 9.02. Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Noteholders to take any action specified in Section 9.01,
to be held at such time and at such place as the Trustee shall determine. Notice
of every meeting of the Noteholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting and the establishment of any record date pursuant to Section 8.01, shall
be mailed to holders of Notes at their addresses as they shall appear on the
Note Register. Such notice shall also be mailed to the Company. Such notices
shall be mailed not less than twenty (20) nor more than ninety (90) days prior
to the date fixed for the meeting.
43
Any meeting of Noteholders shall be valid without notice if the
holders of all Notes then outstanding are present in person or by proxy or if
notice is waived before or after the meeting by the holders of all Notes
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
SECTION 9.03. Call of Meetings by Company or Noteholders. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Notes then
outstanding hereunder determined in accordance with Section 8.04, shall have
requested the Trustee to call a meeting of Noteholders, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting within
twenty (20) days after receipt of such request, then the Company or such
Noteholders may determine the time and the place for such meeting and may call
such meeting to take any action authorized in Section 9.01, by mailing notice
thereof as provided in Section 9.02.
SECTION 9.04. Qualifications for Voting. To be entitled to vote at
any meeting of Noteholders a person shall (a) be a holder of one or more Notes
on the record date pertaining to such meeting or (b) be a person appointed by an
instrument in writing as proxy by a holder of one or more Notes on the record
date pertaining to such meeting. The only persons who shall be entitled to be
present or to speak at any meeting of Noteholders shall be the persons entitled
to vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 9.05. Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 9.03, in which case the Company
or the Noteholders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the holders of a majority in principal
amount of the Notes represented at the meeting and entitled to vote at the
meeting.
Subject to the provisions of Section 8.04, at any meeting each
Noteholder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him; provided that no vote
shall be cast or counted at any meeting in respect of any Note challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Notes held by him or instruments in writing as aforesaid duly designating him as
the proxy to vote on behalf of other Noteholders. Any meeting of Noteholders
duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned
from time to time by the holders of a majority of the aggregate principal amount
of Notes represented at the meeting, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
44
SECTION 9.06. Voting. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballot on which shall be subscribed
the signatures of the holders of Notes or of their representatives by proxy and
the outstanding principal amount of the Notes held or represented by them. The
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 9.02. The record shall show the principal amount of the Notes voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 9.07. No Delay of Rights by Meeting. Nothing contained in
this Article 9 shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Noteholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the
Noteholders under any of the provisions of this Indenture or of the Notes.
ARTICLE 10
AMENDMENT; SUPPLEMENTAL INDENTURES
SECTION 10.01. 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 hereto for one or more of the following
purposes:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to provide for the assumption of the Company's obligations under
this Indenture by a successor upon any merger, consolidation or asset
transfer permitted under this Indenture;
(c) to provide for exchange rights of Noteholders in certain events
such as consolidation or merger of the Company or the sale of all or
substantially all of the Company's assets;
(d) to provide for uncertificated Notes in addition to or in place
of certificated notes;
45
(e) to secure the Notes or to provide guarantees of the Notes;
(f) to comply with any requirement to effect or maintain the
qualification of this Indenture under the Trust Indenture Act of 1939, as
amended;
(g) to evidence and provide for the acceptance of the appointment
under the Indenture of a successor trustee;
(h) to add covenants that would benefit Noteholders or to surrender
any rights the Company has under this Indenture;
(i) to add Events of Default with respect to the Notes; or
(j) to make any change that does not adversely affect any
outstanding Notes in any material respect.
Upon the written request of the Company, accompanied by a copy of
the resolutions of the Board of Directors certified by the Company's General
Counsel or Secretary to the Board of Directors authorizing the execution of any
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02, 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 10.01 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 10.02.
SECTION 10.02. Supplemental Indenture with Consent of Noteholders.
With the consent (evidenced as provided in Article 8) of the holders of at least
a majority in aggregate principal amount of the Notes at the time outstanding
hereunder determined in accordance with Section 8.04, 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 of modifying in any manner the rights of the holders
of the Notes; provided that no such supplemental indenture shall:
(a) reduce the amount of Notes whose holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate of accrual of interest or Liquidated Damages or
modify the method for calculating interest or Liquidated Damages or change
the time for payment of interest or Liquidated Damages on the Notes;
46
(c) modify the provisions with respect to Noteholders' rights upon a
Fundamental Change in a manner adverse to Noteholders, including the
Company's obligations to repurchase the Notes following a Fundamental
Change;
(d) reduce the principal amount of the Notes or change the final
stated maturity of the Notes;
(e) reduce the redemption or repurchase price of the Notes or change
the time at which the Notes may or must be redeemed or repurchased;
(f) make payments on the Notes payable in currency other than as
originally stated in the Notes;
(g) impair the rights of Noteholders to institute suit for the
enforcement of any payment on the Notes;
(h) make any change in the percentage of principal amount of Notes
necessary to waive compliance with provisions of this Indenture or to make
any change in this provision for modification;
(i) waive a continuing default or Event of Default regarding any
payment on the Notes; or
(j) modify the conversion or repurchase provisions of the Notes in a
manner adverse to the Noteholders.
Upon (a) the written request of the Company, accompanied by a copy
of the resolutions of the Board of Directors certified by its Secretary to the
Board of Directors authorizing the execution of any such supplemental indenture,
(b) receipt by the Trustee of the documents described in Section 7.02 and (c)
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 10.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 10.03. Effect of Supplemental Indenture. Any supplemental
indenture executed pursuant to the provisions of this Article 10 shall comply
with the Trust Indenture Act, as then in effect, provided that this Section
10.03 shall not require such supplemental 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 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 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
47
pursuant to the provisions of Article 10, this Indenture shall be and shall 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 shall be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 10.04. Notation on Notes. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article 10 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 16.13)
and delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.
ARTICLE 11
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 11.01. Company May Consolidate on Certain Terms. Subject to
the provisions of Section 11.02, the Company shall not consolidate or merge with
or into any other Person or Persons (whether or not affiliated with the
Company), nor shall the Company or its successor or successors be a party or
parties to successive consolidations or mergers, nor shall the Company sell,
convey, transfer or lease or otherwise dispose of all or substantially all of
the property and assets of the Company to any other Person (whether or not
affiliated with the Company), unless: (i) in the case of a merger or
consolidation, the Company is the surviving Person, or the resulting, surviving
or transferee Person is a corporation, a limited liability company, limited
partnership or trust and executes and delivers to the Trustee a supplemental
indenture expressly assuming the payment when due of the principal of and
interest, including Liquidated Damages, if any, on the Notes and the performance
of each of the Company's other covenants under the Notes, the Indenture and the
Registration Rights Agreement; (ii) in either case, immediately after giving
effect to such transaction, no default or Event of Default has occurred and is
continuing; (iii) the Company delivers to the Trustee an Officers' Certificate
and Opinion of Counsel to the effect that the transaction and the supplemental
indenture comply with this Indenture and that all conditions precedent in this
Indenture related to the transaction have been satisfied; and (iv) in the case
of a merger or consolidation pursuant to which all or substantially all of the
Company's Ordinary Shares would be converted into cash, securities or other
property, the right to convert a note into Ordinary Shares is changed into a
right to convert the notes into the kind and amount of cash, securities or other
property that Noteholders would have received if they had converted their notes
immediately prior to the transaction.
SECTION 11.02. Successor to Be Substituted. In case of any such
consolidation, merger, sale, conveyance, transfer or lease and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the
48
Trustee, of the due and punctual payment of the principal of, and interest on
all of the Notes and the due and punctual performance of all of the covenants
and conditions of this Indenture to be performed by the Company, as described in
Section 11.01, 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. Such successor Person thereupon may cause to be signed, and may
issue either in its own name or in the name of ▇▇▇▇▇▇ Interactive Entertainment
Limited 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, 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 11 may be dissolved, wound up and liquidated at any time thereafter
and such Person shall be released 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 11.03. Opinion of Counsel to Be Given 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 11.
ARTICLE 12
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 12.01. 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 and the Company shall deposit with the Trustee, in trust, cash or, if
expressly permitted by the terms of the Notes or the Indenture, Ordinary Shares
sufficient to pay all amounts due and owing on 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, and if in
either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to (i) remaining rights
49
of registration of transfer, substitution and exchange and conversion of Notes,
(ii) rights hereunder of Noteholders to receive payments of principal of,
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, powers, duties,
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 16.05 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 incurred by the Trustee and to
compensate the Trustee for any services thereafter rendered by the Trustee in
connection with this Indenture or the Notes.
SECTION 12.02. Paying Agent to Repay Monies Held. Upon the
satisfaction and discharge of this Indenture, all monies then held by any Paying
Agent of the Notes (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 12.03. 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 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 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.
ARTICLE 13
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or interest on any Note or any
other amount due with respect thereto, 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, shareholder,
employee, agent, officer, director or Subsidiary, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; 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.
50
ARTICLE 14
CONVERSION OF NOTES
SECTION 14.01. Right to Convert. (a) Subject to and upon compliance
with the provisions of this Indenture, prior to the close of business on the
date of Stated Maturity, the holder of any Note 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 the Conversion
Consideration at the initial Conversion Rate of 50.3816 Ordinary Shares per
US$1,000 principal amount of Notes (as adjusted from time to time pursuant to
Section 14.04 and Article 15 below, the "Conversion Rate"). Subjection to
compliance with Section 14.02 of this Indenture, if Noteholders elect to receive
ADSs in lieu of Ordinary Shares (by delivering a Conversion Notice substantially
in the form attached hereto as Exhibit A hereto), the Company will deposit as
soon as practicable the Ordinary Shares deliverable upon conversion, subject to
applicable laws and in accordance with the Indenture, with the Depositary for
the Issuance of ADSs in accordance with the applicable terms and conditions of
the Deposit Agreement.
SECTION 14.02. Conversion Procedures. Holders wishing to exercise
their conversion right must deliver an irrevocable Conversion Notice, together,
if the Notes are in certificated form, with the certificated security to the
Conversion Agent. The Business Day following the day the Noteholder deposits a
duly completed Conversion Notice and all other required certificates is the
"Conversion Date". Within two Business Days of the Conversion Date, the
Conversion Agent will deliver the Conversion Notice to the Company, and the
Company will convert the Notes in accordance with this Indenture. Noteholders
may obtain copies of the required form of the Conversion Notice from the
Conversion Agent. Upon conversion, the Company will have satisfied its
conversion obligation.
The Conversion Notice must, among other things, state whether the
converting holder wishes to receive Ordinary Shares or (subject to compliance
with the procedures described in this Indenture) ADSs in respect of his or her
conversion right.
The Company will not issue fractional shares of its Ordinary Shares
upon conversion of the Notes. In lieu of fractional shares otherwise issuable
(calculated on an aggregate basis in respect of all the Notes surrendered for
conversion), Noteholders will be entitled to receive cash in an amount equal to
the value of such fractional shares, based on the applicable share price. The
Company will deliver the Conversion Consideration to Noteholders no later than
the fifth Business Day following the Conversion Date.
Upon conversion of Notes, Noteholders generally will not receive any
cash payment of interest. By delivering to the holder the cash payment and the
number of Ordinary Shares or ADSs issuable upon conversion (if any), the Company
will have satisfied its obligation with respect to the Notes. That is, accrued
but unpaid interest, if any, will be deemed to be paid in full rather than
canceled, extinguished or forfeited. The Company will not adjust the Conversion
Rate to account for accrued interest.
Notwithstanding the foregoing, if Noteholders convert after a record
date for an interest payment but prior to the corresponding Interest Payment
Date, they will receive on that Interest Payment Date accrued interest on those
Notes, notwithstanding the conversion of those
51
notes prior to that Interest Payment Date, because they will have been the
holder of record on the corresponding record date. However, at the time they
surrender any notes for conversion, Noteholders must pay to the Company an
amount equal to the interest that has accrued and that will be paid with respect
to the Notes being converted on the related Interest Payment Date. The preceding
sentence does not apply, however, to notes that are converted after the Company
has specified a redemption date that is after a record date for an interest
payment but on or prior to the corresponding Interest Payment Date. Accordingly,
if the Company elects to redeem Notes on a date that is after a record date for
an interest payment but on or prior to the corresponding Interest Payment Date,
and holders choose to convert their notes, they will not be required to pay the
Company, at the time they surrender their notes for conversion, the amount of
interest they will receive on the date that has been fixed for redemption, if
any.
Upon exercise of a conversion right, the holder will be required to
make the representations and agreements set forth in the Conversion Notice in
substantially the form attached to this Indenture. If a Note is converted prior
to the time that a shelf registration statement in respect of the Ordinary
Shares has been filed and declared effective, the Ordinary Shares issuable upon
conversion will not be issued or delivered in a name other than that of the
holder of the Note, and will bear a restrictive legend and may not be deposited
pursuant to the Deposit Agreement against the issuance of ADSs except as set
forth in the form of Conversion Notice.
If Noteholders convert notes, the Company will pay any documentary
stamp or similar issue or transfer tax due on the issuance of Ordinary Shares
upon the conversion, unless the tax is due because holders request the shares to
be issued or delivered in a name other than their own, in which case they will
pay the tax. Certificates representing Ordinary Shares will be issued or
delivered only after all applicable taxes and duties payable by Noteholders, if
any, have been paid.
The Ordinary Shares delivered upon exercise of conversion rights
will be deemed to be delivered as of the relevant conversion time and the
Depositary (or its nominee), the holder or such person named in the Conversion
Notice, as the case may be, will as of the relevant conversion time, be deemed
and treated by the Company for all purposes as the holder of record of the
number of Ordinary Shares represented by the ADSs, or the number of Ordinary
Shares to be delivered upon conversion of the relevant Notes. Immediately after
each Conversion Date, the Company will ensure that all necessary steps are taken
for the due issuance and delivery of any Ordinary Shares issuable on conversion
of the relevant notes or ADSs representing such Ordinary Shares. The Company
will be required, prior to the issuance of the ADSs, to pay applicable deposit
fees set forth in the Deposit Agreement.
SECTION 14.03. Exchange in Lieu of Conversion. When Noteholders
surrender Notes for conversion, the Conversion Agent may direct them to
surrender their notes to a financial institution designated by the Company for
exchange in lieu of conversion. In order to accept any notes surrendered for
conversion, the designated institution must agree to deliver, in exchange for
Notes, the cash payment in U.S. dollars and the number of Ordinary Shares
issuable upon conversion. If the designated institution accepts any such Notes,
it will deliver the appropriate consideration to Noteholders. Any notes
exchanged by the designated institution will remain outstanding. If the
designated institution agrees to accept any notes for exchange but
52
does not timely deliver the related consideration, the Company will, as promptly
as practical thereafter, but not later than the third Business Day following the
Conversion Date, convert the Notes and deliver to Noteholders the cash payment
and the number of Ordinary Shares issuable upon conversion (if any).
The Company's designation of an institution to which the Notes may
be submitted for exchange does not require the institution to accept any Notes.
If the designated institution declines to accept any notes surrendered for
exchange, the Company will convert those Notes into the cash payment and the
number of Ordinary Shares issuable upon conversion (if any).
SECTION 14.04. Antidilution Adjustments The Conversion Rate will be
subject to adjustment, without duplication, upon the occurrence of any of the
following events:
(a) Stock dividends in Ordinary Shares. The Company pays a dividend
or makes a distribution on Ordinary Shares, payable exclusively in Ordinary
Shares or other capital stock, in which event the Conversion Rate will be
adjusted by multiplying:
(i) the Conversion Rate then in effect by
(ii) a fraction, the numerator of which is the sum of (a) the number
of Ordinary Shares outstanding on the record date fixed for the dividend
or distribution plus (b) the total number of Ordinary Shares constituting
the dividend or distribution and the denominator of which is the number of
Ordinary Shares outstanding on the record date fixed for the dividend or
distribution.;
(b) Issuance of rights or warrants. The Company issues to all or
substantially all holders of Ordinary Shares rights or warrants that allow the
holders to purchase Ordinary Shares for a period expiring within 60 days from
the date of issuance of the rights or warrants at less than the current market
price, in which event the Conversion Rate will be adjusted by multiplying:
(i) the Conversion Rate then in effect by
(ii) a fraction, the numerator of which is the sum of (a) the number
of Ordinary Shares outstanding on the record date fixed for the
distribution plus (b) the total number of additional Ordinary Shares
offered for subscription or purchase (or into which such convertible
securities could be converted) and the denominator of which is the sum of
(x) the number of Ordinary Shares outstanding on the record date fixed for
the distribution plus (y) the total number of Ordinary Shares that the
aggregate offering price of the total number of Ordinary Shares offered
for subscription or purchase (or the aggregate Conversion Price of such
convertible securities) would purchase at the current market price.
For purposes of this subsection (b) (unless otherwise stated), the
current market price of the Ordinary Shares means the average of the Reference
Prices of such Ordinary Shares for the five consecutive Trading Days ending on
the record date fixed for determination of the shareholders entitled to receive
such distribution (if such record date is a Trading Day or, if not, then on the
last Trading Day prior to such record date).;
53
(c) Stock splits and combinations. The Company:
(i) subdivides or splits its outstanding Ordinary Shares into a
greater number of
(ii) combines or reclassifies its outstanding Ordinary Shares into a
smaller number of shares; or
(iii) issue by reclassification of the Ordinary Shares any shares of
the Company's capital stock.
The Applicable Conversion Rate will be adjusted so that the holder of any
Note thereafter surrendered for conversion shall be entitled to receive the
Conversion Consideration that such holder would have received had such Note been
converted immediately prior to the occurrence of any of (i), (ii) or (iii)
above.
(d) Distribution of indebtedness, securities or assets. The Company
distributes to all or substantially all holders of Ordinary Shares evidences of
indebtedness, securities or assets or certain rights to purchase its securities,
but excluding:
(i) dividends or distributions described in paragraph (a) above;
(ii) rights or warrants described in paragraph (b) above;
(iii) dividends or distributions paid exclusively in cash described
in paragraph (e), (f) or (g) below,
(the "distributed assets"), in which event (other than in the case of a
"spin-off" as described below), the Conversion Rate in effect immediately before
the close of business on the record date fixed for determination of shareholders
entitled to receive that distribution will be increased by multiplying:
(i) the Conversion Rate by
(ii) a fraction, the numerator of which is the current market price
of Ordinary Shares and the denominator of which is the current market
price of Ordinary Shares minus the fair market value, as determined by the
board of directors, whose determination in good faith will be conclusive,
of the portion of those distributed assets applicable to one Ordinary
Share.
For purposes of this subsection (d) (unless otherwise stated), the
"CURRENT MARKET PRICE" of the Ordinary Shares means the average of the reference
prices of such Ordinary Shares for the five consecutive Trading Days ending on
the day before the ex-dividend Trading Day for such distribution (if such date
is a Trading Day or, if not, then on the last Trading Day prior to such record
date).
Notwithstanding the foregoing, in cases where (a) the fair market
value per share of the distributed assets equals or exceeds the current market
price of the Ordinary Shares, or (b)
54
the current market price of the Ordinary Shares exceeds the fair market value
per share of the distributed assets by less than US$1.00, in lieu of the
foregoing adjustment, Noteholders will have the right to receive upon
conversion, in addition to Ordinary Shares, the amount and type of distributed
assets they would have received if they had converted their Notes immediately
prior to the record date.
Notwithstanding the foregoing, in respect of a dividend or other
distribution of shares of capital stock of any class or series, or similar
equity interests, of or relating to a Subsidiary or other business unit,
(referred to herein as a "spin-off,") the Conversion Rate in effect immediately
before the close of business on the record date fixed for determination of
shareholders entitled to receive that distribution will be increased by
multiplying:
(i) the Conversion Rate by
(ii) a fraction, the numerator of which is the current market price
of the Ordinary Shares plus the fair market value, determined as described
below, of the portion of those shares of capital stock or similar equity
interests so distributed applicable to one Ordinary Share, and the
denominator of which is the current market price of the Ordinary Shares.
earlier of:
The adjustment to the Conversion Rate in the event of a spin-off
will occur at the
(i) the tenth Trading Day after the effective date of the spin-off,
and
(ii) the first Trading Day of the securities being distributed in
the spin-off following the initial public offering of such securities, if
that initial public offering is effected simultaneously with the spin-off.
For purposes of this Section 14.04, "initial public offering" means
the first time securities of the same class or type as the securities being
distributed in the spin-off are bona fide offered to the public for cash.
In the event of a spin-off that is not effected simultaneously with
an initial public offering of the securities being distributed in the spin-off,
the "fair market value" of the securities to be distributed to holders of the
Ordinary Shares means the average of the closing sale prices of those securities
over the ten consecutive Trading Days following the effective date of the
spinoff. Also, for this purpose, the "current market price" of the Ordinary
Shares means the average of the Reference Prices of the Ordinary Shares over the
ten consecutive Trading Days following the effective date of the spin-off.
If, however, an initial public offering of the securities being
distributed in the spin-off is to be effected simultaneously with the spin-off,
the fair market value of the securities being distributed in the spin-off means
the initial public offering price, while the current market price of the
Ordinary Shares means the closing sale price of the Ordinary Shares on the first
Trading Day of the securities being distributed in the spin-off following the
initial public offering of such securities.
55
(e) Cash dividends or distributions. The Company makes a dividend or
distribution consisting exclusively of cash to all or substantially all holders
of outstanding shares, in which event the Conversion Rate will be adjusted by
multiplying:
(i) the Conversion Rate by
(ii) a fraction, the numerator of which is the current market price
of Ordinary Shares, and the denominator of which is the current market
price of Ordinary Shares, minus the amount per share of such dividend or
distribution.
Notwithstanding the foregoing, in cases where (a) the per share
amount of such dividend or distribution equals or exceeds the current market
price of the Ordinary Shares or (b) the current market price of the Ordinary
Shares exceeds the per share amount of such dividend or distribution by less
than US$1.00, in lieu of the foregoing adjustment, Noteholders will have the
right to receive upon conversion, in addition to Ordinary Shares, such dividend
or distribution they would have received if they had converted their Notes
immediately prior to the record date. For purposes of this clause (e), the
"current market price" of the Ordinary Shares means the average of the Reference
Prices of the Ordinary Shares for the five consecutive Trading Days ending on
the Trading Day prior to the ex-dividend Trading Day for such cash distribution,
and the new Conversion Rate shall take effect immediately after the record date
fixed for determination of the shareholders entitled to receive such
distribution.
(f) Tender offers. The Company (or one of its Sbsidiaries) makes a
payment in respect of a tender offer or exchange offer for its Ordinary Shares,
in which event, to the extent the cash and value of any other consideration
included in the payment per ordinary share exceeds the Reference Price of the
Ordinary Shares on the Trading Day next succeeding the last date on which
tenders or exchanges may be made pursuant to such tender offer or exchange
offer, as the case may be, the Conversion Rate will be adjusted by multiplying:
(i) the Conversion Rate by
(ii) a fraction, the numerator of which will be the sum of (a) the
fair market value, as determined by the board of directors, of the
aggregate consideration payable for all of the Ordinary Shares purchased
by the Company in the tender offer and (b) the product of (i) the number
of Ordinary Shares outstanding less any such purchased shares and (ii) the
Reference Price of the Ordinary Shares on the Trading Day next succeeding
the date of the expiration of the tender or exchange offer, and the
denominator of which will be the product of (a) the number of Ordinary
Shares outstanding, including any such purchased shares, and (b) the
Reference Price of the Ordinary Shares on the Trading Day next succeeding
the date of expiration of the tender or exchange offer.
(g) Repurchases. The Company (or one of its subsidiaries) makes a
payment in respect of a repurchase of Ordinary Shares the consideration for
which exceeded the then-prevailing market price of the Ordinary Shares (such
amount, the "repurchase premium"), and that repurchase, together with any other
repurchases of the Ordinary Shares by the Company (or one of its subsidiaries)
involving a repurchase premium concluded within the preceding 12 months,
resulted in the payment by the Company of an aggregate consideration exceeding
an
56
amount equal to 10% of its market capitalization, the Conversion Rate will be
adjusted by multiplying:
(i) the Conversion Rate by
(ii) a fraction, the numerator of which is the current market price
the Ordinary Shares and the denominator of which is (A) the current market
price of the Ordinary Shares, minus (B) the quotient of (i) the aggregate
amount of all of the repurchase premiums paid in connection with such
repurchases and (ii) the number of Ordinary Shares outstanding on the day
next succeeding the date of the repurchase triggering the adjustment, as
determined by the board of directors;
provided that no adjustment to the Conversion Rate shall be made to the extent
the Conversion Rate is not increased as a result of the above calculation; and
provided, further, that (i) the repurchases of the Ordinary Shares (including
ordinary shares in the form of ADSs) effected by the Company or its agent in
conformity with Rule 10b-18 under the Exchange Act will not be included in any
adjustment to the Conversion Rate made under this clause (g) and (ii) no
adjustment will be made under this clause (g) for the repurchases of Ordinary
Shares pursuant to that certain Repurchase Agreement, dated as of October 15,
2004, by and between the Company and SB Asia Infrastructure Fund L.P. For
purposes of this clause (g), (i) the "market capitalization" will be calculated
by multiplying the current market price of the Ordinary Shares by the number of
shares then outstanding on the date of the repurchase triggering the adjustment
and (ii) the "current market price" will be the average of the closing sale
prices of the Ordinary Shares for the five consecutive Trading Days beginning on
the Trading Day next succeeding the date of the repurchase triggering the
adjustment and (iii) in determining the repurchase premium, the "then-prevailing
market price" of the Ordinary Shares will be the average of the Reference Prices
of the Ordinary Shares for the five consecutive Trading Days ending on the
relevant repurchase date.
In the event of a taxable distribution to holders of the Ordinary
Shares which results in an adjustment of the Conversion Rate, Noteholders may,
in certain circumstances, be deemed to have received a distribution subject to
United States federal income tax as a dividend. In certain other circumstances,
the absence of such an adjustment may result in a taxable dividend to the
holders of the Ordinary Shares. In addition to these adjustments, the Company
may increase the Conversion Rate as the board of directors considers advisable
to avoid or diminish any income tax to holders of the Ordinary Shares (including
ADSs representing such Ordinary Shares) or rights to purchase Ordinary Shares
resulting from any dividend or distribution of shares (or rights to acquire
shares) or from any event treated as such for income tax purposes. They Company
may also, from time to time, to the extent permitted by applicable law, increase
the Conversion Rate by any amount for any period of at least 20 days if the
board of directors has determined that such increase would be in the Company's
best interests. If the board of directors makes such a determination, it will be
conclusive. The Company will give Noteholders at least 15 days notice of such an
increase in the Conversion Rate.
No adjustment to the Conversion Rate or on Noteholders' ability to
convert will be made if such holders otherwise participate in the distribution
without conversion or in certain other cases.
57
The applicable Conversion Rate will not be adjusted:
(i) upon the issuance of any Ordinary Shares pursuant to any present
or future plan providing for the reinvestment of dividends or interest
payable on the Company's securities and the investment of additional
optional amounts in Ordinary Shares under any plan;
(ii) upon the issuance of any of the Ordinary Shares or options or
rights to purchase those shares pursuant to any present or future
employee, director or consultant benefit plan or program of or assumed by
the Company or any of its subsidiaries;
(iii) upon the issuance of any Ordinary Shares pursuant to any
option, warrant, right or exercisable, exchangeable or convertible
security not described in the preceding bullet and outstanding as of the
date the Notes were first issued;
(iv) for a change in the par value of the Ordinary Shares; or
(v) for accrued and unpaid interest and Liquidated Damages, if any.
ARTICLE 15
ADJUSTMENT TO CONVERSION RATE UPON A FUNDAMENTAL CHANGE
SECTION 15.01. Adjustment to Conversion Rate. If and only to the
extent that Noteholders convert their notes within thirty (30) days after a
Fundamental Change Notice Date, pursuant to which 5% or more of the
consideration for the Company's stock (other than cash payments for fractional
shares and cash payments made in respect to dissenters' appraisal rights) in
such Fundamental Change consists of cash or securities (or other property) that
are not traded or scheduled to be traded immediately following such transaction
on a U.S. national securities exchange or the Nasdaq National Market, the
Company will increase the Conversion Rate for the Notes surrendered for
conversion by a number of Additional Shares. The number of Additional Shares
will be determined by reference to the table below, based on the date on which
such Fundamental Change transaction become effective (the "effective date") and
the price (the "share price") paid per Ordinary Share in such fundamental change
transaction. If holders of Ordinary Shares receive only cash in such Fundamental
Change transaction, the share price will be the cash amount paid per share.
Otherwise, the share price will be the average of the Reference Prices of the
Ordinary Shares on each of the five consecutive Trading Days prior to but not
including the effective date of such Fundamental Change transaction.
SECTION 15.02. Adjustment to Ordinary Share Prices. The share prices
set forth in the first row of the first following table (i.e., the column
headers) will be adjusted as of any date on which the Conversion Rate of the
notes is adjusted. The adjusted share prices will equal the share prices
applicable immediately prior to such adjustment, multiplied by a fraction, the
numerator of which is the Conversion Rate immediately prior to the adjustment
giving rise to the share price adjustment and the denominator of which is the
Conversion Rate as so adjusted. The number of additional shares will be adjusted
in the same manner as the Conversion Rate.
58
The following table sets forth the hypothetical share price and
number of additional shares issuable per $1,000 initial principal amount of
notes:
ORDINARY SHARE PRICE
EFFECTIVE DATE OF ---------------------------------------------------------------------------------------------
FUNDAMENTAL CHANGE $ 14.98 $ 17.50 $ 20.00 $ 22.50 $ 25.00 $ 27.50 $ 30.00 $ 35.00 $ 45.00
------------------ -------- -------- --------- --------- --------- --------- -------- -------- -------
October 20, 2004 .... 16.3745 11.4333 8.0818 5.7896 4.1060 2.9462 2.0853 0.9799 0.1108
October 15, 2005 .... 16.9472 11.4358 7.9422 5.4451 3.8285 2.6069 1.7720 0.7530 0.0361
October 15, 2006 .... 16.8959 10.8453 6.8607 4.4702 2.8164 1.6901 1.0582 0.2603 0.0000
October 15, 2007 .... 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
The exact share price and Conversion Dates may not be set forth on
the table, in which case, if the share price is:
- between two share price amounts on the table or the Conversion
Date is between two dates on the table, the number of additional shares
will be determined by straight-line interpolation between the number of
additional shares set forth for the higher and lower share price amounts
and the two dates, as applicable, based on a 365 day year;
- more than US$45.00 per share (subject to adjustment as set forth
in the first paragraph of this Section 15.02), no Additional Shares will
be issued in conversion; and
- less than US$14.98 per share (subject to adjustment as set forth
in the paragraph of this Section 15.02), no Additional Shares will be
issued upon conversion.
SECTION 15.03. Public Acquirer Change of Control. Notwithstanding
the foregoing or anything herein to the contrary (including the Company's
obligations under Section 3.04 above), in the case of a Public Acquirer Change
of Control, the Company may, in lieu of permitting a repurchase at the holder's
option under Section 3.04 above or adjusting the Conversion Rate under this
Article 15, elect to adjust the Conversion Rate and the related conversion
obligation such that from and after the effective date of such Public Acquirer
Change of Control, holders of the Notes will be entitled to convert their Notes
into a number of shares of Public Acquirer Common Stock by multiplying the
Conversion Rate in effect immediately before the Public Acquirer Change of
Control by a fraction:
(a) The numerator of which will be (i) in the case of a share
exchange, consolidation, merger or binding share exchange, pursuant to
which the Ordinary Shares are converted into cash, securities or other
property, the average value of all cash and any other consideration (as
determined by the board of directors) paid or payable per Ordinary Share
or (ii) in the case of any other Public Acquirer Change of Control, the
average of the Reference Price of the Ordinary Shares for the five
consecutive Trading Days prior to but excluding the effective date of such
Public Acquirer Change of Control, and
(b) The denominator of which will be the average of the last
reported sale prices of the Public Acquirer Common Stock for the five
consecutive Trading Days commencing on the Trading Day next succeeding the
effective date of such Public Acquirer Change of Control.
59
In the event that the Public Acquirer Common Stock consists of ADSs,
the foregoing calculation will be equitably adjusted to reflect the number of
shares of the acquirer's common stock represented by such ADSs.
ARTICLE 16
MISCELLANEOUS PROVISIONS
SECTION 16.01. Provisions Binding on Successors. All the covenants,
stipulations, promises and agreements by a party hereto contained in this
Indenture shall bind such party's successors and assigns whether so expressed or
not.
SECTION 16.02. 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 16.03. 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 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 telecopier transmission addressed as follows: ▇▇▇▇▇▇
Interactive Entertainment Limited, No. 1 Office Building, ▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ 201203, China,
Attention: General Counsel, telecopier no: (8621) 5080-5132 with a copy of any
notice given pursuant to Article 6 hereof to: O'Melveny & ▇▇▇▇▇ LLP, Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Suite 1905, Tower Two, Lippo Centre, ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, telecopier no. (▇▇▇) ▇▇▇▇-▇▇▇▇. 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 telecopier transmission addressed to the Corporate Trust
Office of the Trustee at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
Attention: Global Trust Services, Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/03.
By notice to the other party, the Company or the Trustee, as the
case may be, may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed
to him by first class mail, postage prepaid, at his address as it appears on the
Note Register and shall be sufficiently given to him 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 16.04. Governing Law. This Indenture and each Note shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall
60
be construed in accordance with the laws of the State of New York (including
Section 5-1401 of the New York General Obligations Law or any successor to such
statute).
SECTION 16.05. Jurisdiction. The Company hereby irrevocably and
unconditionally submits to the non-exclusive jurisdiction of any United States
federal or New York State court located in the Borough of Manhattan, The City of
New York over any suit, action or proceeding arising out of or relating to this
Indenture or any Note. The Company irrevocably and unconditionally waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding brought
in such a court and any claim that any such suit, action or proceeding brought
in such a court has been brought in an inconvenient forum. To the extent that
the Company has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process with respect to itself or its property, the
Company irrevocably waives such immunity in respect of its obligations hereunder
or under any Note. The Company agrees that final judgment in any such suit,
action or proceeding brought in such a court shall be conclusive and binding
upon the Company and, to the extent permitted by applicable law, may be enforced
in any court to the jurisdiction of which the Company is subject by a suit upon
such judgment or in any manner provided by law, provided that service of process
is effected upon the Company in the manner specified in the following subsection
or as otherwise permitted by law.
SECTION 16.06. 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 each 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 each such Person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with.
SECTION 16.07. Legal Holidays. In any case in which the date of
maturity of interest on or principal of the Notes or the Redemption Date of any
Note or any Repurchase Date with respect to any Note will not be a Business Day,
then payment of such interest on or principal 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 Date or
the Repurchase Date, as the case may be, and no interest shall accrue for the
period from and after such date to the next succeeding Business Day.
61
SECTION 16.08. Company Responsible for Making Calculations. Unless
otherwise specified in this Indenture, the Company will be responsible for
making all calculations called for under the Notes. These calculations include,
but are not limited to, determination of the Last Reported Sale Price, the
amount of accrued interest payable on the Notes and the Conversion Rate of the
Notes. The Company will make these calculations in good faith and, absent
manifest error, these calculations will be final and binding on the Noteholders.
Promptly after the calculation thereof, the Company will provide to each of the
Trustee and the Conversion Agent an Officers' Certificate setting forth a
schedule of its calculations, and each of the Trustee and the Conversion Agent
is entitled to conclusively rely upon the accuracy of such calculations without
independent verification. The Trustee will forward the Company's calculations to
any holder upon the request of such holder. The Trustee has no duty to determine
when such calculations under this Indenture, including all adjustments to the
Conversion Rate under Articles 14 and 15, should be made, how they should be
made or what they should be. The Trustee shall not be accountable for and makes
no representation as to the validity of such calculations by the Company, and
the Trustee shall not be responsible for the Company's failure to make such
calculations under this Indenture.
SECTION 16.09. 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 this Section 16.09 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 16.10. No Security Interest Created. Except as provided in
Section 7.06, 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 16.11. 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 16.12. 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 16.13. Authenticating Agent. The Trustee may appoint an
authenticating agent that shall be authorized to act on its behalf, and subject
to its direction, in
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the authentication and delivery of Notes in connection with the original
issuance thereof and transfers and exchanges of Notes hereunder, including under
Sections 2.03, 2.07, 2.08, 2.10, 3.02 and 3.07, 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 7.09.
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 16.13, 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 7.02, 7.03, 7.04 and 8.03 and this
Section 16.13 shall be applicable to any authenticating agent.
SECTION 16.14. 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 16.15. 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.
63
The Bank of New York hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions herein above set forth.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
64
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed.
▇▇▇▇▇▇ INTERACTIVE ENTERTAINMENT
LIMITED
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
65
APPENDIX I
PROVISIONS RELATING TO NOTES
1. Definitions
1.1 Definitions
For the purposes of this Appendix I the following terms shall have the
meanings indicated below:
"Definitive Note" means a certificated Note (bearing the Restricted
Securities Legend if the transfer of such Note is restricted by applicable law)
that does not include the Global Notes Legend.
"DTC" means The Depository Trust Company, its nominees and their
respective successors.
"Global Notes Legend" means the legend set forth in Exhibit A to
this Indenture.
"IAI" means an institutional "accredited investor" as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act.
"Initial Purchaser" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C.
"Purchase Agreement" means (1) with respect to the Securities issued
on the Original Issue Date, the Purchase Agreement dated October 15, 2004, among
the Company and the Initial Purchaser, and (2) with respect to each issuance of
Additional Securities issued in a transaction exempt from the registration
requirements of the Securities Act, the purchase agreement among the Company and
the Persons purchasing such Additional Securities.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registration Rights Agreement" means (1) with respect to the
Securities issued on the Original Issue Date, the Registration Rights Agreement
dated October 20, 2004, between the Company and the Initial Purchaser as amended
from time to time in accordance with its terms, and (2) with respect to each
issuance of Additional Securities issued in a transaction exempt from the
registration requirements of the Securities Act, the registration rights
agreement, if any, among the Company and the Persons purchasing such Additional
Securities under the related Purchase Agreement.
"Restricted Securities Legend" means the legend set forth in Section
2.3(d)(i) herein.
"Rule 144A" means Rule 144A as promulgated under the Securities Act.
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"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a Global
Note (as appointed by DTC) or any successor person thereto, who shall initially
be the Trustee.
"Shelf Registration Statement" means the registration statement
filed by the Company in connection with an offer and sale of Notes pursuant to a
Registration Agreement.
"Transfer Restricted Notes" means Definitive Notes and any other
Notes that bear or are required to bear the Restricted Securities Legend.
1.2 Other Definitions
Term:
-----
"Agent Members" ........................................................ 2.1(c)
"Global Notes" ......................................................... 2.1(b)
2. The Notes
2.1 Form and Dating
(a) The Notes will be (i) offered and sold by the Company pursuant
to the Purchase Agreement and (ii) resold initially only to QIBs in reliance on
Rule 144A. Such Notes may thereafter be transferred to, among others, QIBs and
IAIs, subject to the restrictions on transfer set forth herein.
(b) Global Notes. Notes initially resold pursuant to Rule 144A shall
be issued initially in the form of one or more permanent Global Notes in
definitive, fully registered form (collectively, the "Global Note"), without
interest coupons and bearing the Global Notes Legend and Restricted Securities
Legend, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Securities Custodian, and registered in the name of
DTC or a nominee of DTC, duly executed by the Company and authenticated by the
Trustee as provided in this Indenture.
Beneficial interests in a Global Note may transferred to IAIs if (1)
such transfer occurs in compliance with an exemption under the Securities Act
and (2) the transferor of the Global Note first delivers to the Trustee a
written certificate (substantially in the form of Exhibit B hereto) to the
effect that (A) the Global Note is being transferred to an "accredited investor"
within the meaning of 501(a) (1), (2), (3) or (7) under the Securities Act that
is an institutional investor acquiring the securities for its own account or for
the account of such an institutional accredited investor, in each case in a
minimum principal amount of Notes of $250,000, for investment purposes and not
with a view to or for offer or sale in connection with any distribution in
violation of the Securities Act and (B) in accordance with all applicable
securities laws of the states of the United States and other jurisdictions.
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The aggregate principal amount of the Global Notes may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and DTC or its nominee as hereinafter provided. The Company hereby agrees to
take all steps necessary to facilitate such transfer if such certifications are
in place.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to a
Global Note deposited with or on behalf of DTC.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(c) and Section 2.2 and pursuant to an order of the Company
signed by an Officer, authenticate and deliver one or more Global Notes that (i)
shall be registered in the name of DTC for such Global Note or Global Notes or
the nominee of DTC and (ii) shall be delivered by the Trustee to DTC or pursuant
to DTC's instructions or held by the Trustee as Securities Custodian.
Members of, or participants in, DTC ("Agent Members") shall have no
rights under this Indenture with respect to any Global Note held on their behalf
by DTC or by the Trustee as Securities Custodian or under such Global Note, and
DTC may be treated by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing 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
DTC or impair, as between DTC and its Agent Members, the operation of customary
practices of DTC governing the exercise of the rights of a holder of a
beneficial interest in any Global Note.
(d) Definitive Notes. Except as provided in Section 2.3 or 2.4,
owners of beneficial interests in Global Notes will not be entitled to receive
physical delivery of certificated Notes.
2.2 Authentication. The Trustee shall authenticate and make available for
delivery upon a written order of the Company signed by an Officer (a) Notes for
original issue on the date hereof in an aggregate principal amount of
$200,000,000, and (b) any Additional Securities for original issue in an
aggregate principal amount specified in the written order of the Company.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive Notes.
When Definitive Notes are presented to the Registrar with a request:
(i) to register the transfer of such Definitive Notes; or
(ii) to exchange such Definitive Notes for an equal principal amount
of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Notes surrendered for transfer or exchange:
I-3
(1) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar,
duly executed by the holder thereof or his attorney duly authorized in
writing; and
(2) in the case of Transfer Restricted Notes, are accompanied by the
following additional information and documents, as applicable:
(A) if such Definitive Notes are being delivered to the
Registrar by a holder for registration in the name of such holder,
without transfer, a certification from such holder to that effect
(in the form set forth on the reverse side of the Note); or
(B) if such Definitive Notes are being transferred to the
Company, a certification to that effect (in the form set forth on
the reverse side of the Note); or
(C) if such Definitive Notes are being transferred pursuant to
an exemption from registration in accordance with Rule 144 under the
Securities Act or in reliance upon another exemption from the
registration requirements of the Securities Act, (x) a certification
to that effect (in the form set forth on the reverse side of the
Note) and (y) if the Company so requests, an opinion of counsel or
other evidence reasonably satisfactory to it as to the compliance
with the restrictions set forth in the legend set forth in Section
2.3(d)(i).
(b) Restrictions on Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, together with:
(i) certification (in the form set forth on the reverse side of the
Note) that such Definitive Note is being transferred (1) to a QIB in
accordance with Rule 144A, (2) in an offshore transaction in accordance
with Regulation S under the Securities Act, (3) pursuant to an effective
registration statement under the Securities Act or (iv) pursuant to an
exemption from registration under the Securities Act provided by Rule 144
thereunder (if available) or otherwise.
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Global Note to reflect an increase in the
aggregate principal amount of the Notes represented by the Global Note,
such instructions to contain information regarding DTC account to be
credited with such increase, then the Trustee shall cancel such Definitive
Note and cause, or direct the Securities Custodian to cause, in accordance
with the standing instructions and procedures existing between DTC and the
Securities Custodian, the aggregate principal amount of Notes
I-4
represented by the Global Note to be increased by the aggregate principal
amount of the Definitive Note to be exchanged and shall credit or cause to
be credited to the account of the Person specified in such instructions a
beneficial interest in the Global Note equal to the principal amount of
the Definitive Note so canceled. If no Global Notes are then outstanding
and the Global Note has not been previously exchanged for certificated
Notes pursuant to Section 2.4, the Company shall issue and the Trustee
shall authenticate, upon written order of the Company in the form of an
Officers' Certificate, a new Global Note in the appropriate principal
amount.
(c) Transfer and Exchange of Global Notes.
(i) The transfer and exchange of Global Notes or beneficial
interests therein shall be effected through DTC, in accordance with this
Indenture (including applicable restrictions on transfer set forth herein,
if any) and the procedures of DTC therefor. A transferor of a beneficial
interest in a Global Note shall deliver a written order given in
accordance with DTC's procedures containing information regarding the
participant account of DTC to be credited with a beneficial interest in
such Global Note or another Global Note and such account shall be credited
in accordance with such order with a beneficial interest in the applicable
Global Note and the account of the Person making the transfer shall be
debited by an amount equal to the beneficial interest in the Global Note
being transferred.
(ii) If the proposed transfer is a transfer of a beneficial interest
in one Global Note to a beneficial interest in another Global Note, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Global Note to which such interest is being
transferred in an amount equal to the principal amount of the interest to
be so transferred, and the Registrar shall reflect on its books and
records the date and a corresponding decrease in the principal amount of
Global Note from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix I (other
than the provisions set forth in Section 2.4), a Global Note may not be
transferred as a whole except by DTC to a nominee of DTC or by a nominee
of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a
successor depositary or a nominee of such successor depositary.
(iv) In the event that a Global Note is exchanged for Definitive
Notes pursuant to Section 2.4 prior to the effectiveness of a Shelf
Registration Statement with respect to such Notes, such Notes may be
exchanged only in accordance with such procedures as are substantially
consistent with the provisions of this Section 2.3 (including the
certification requirements set forth on the reverse of the Notes intended
to ensure that such transfers comply with Rule 144A or such other
applicable exemption from registration under the Securities Act, as the
case may be) and such other procedures as may from time to time be adopted
by the Company.
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(d) Legend.
(i) Except as permitted by the following paragraphs (ii) and (iii),
each Note certificate evidencing the Global Notes and the Definitive Notes
(and all Notes issued in exchange therefor or in substitution thereof)
shall bear a legend in substantially the following form (each defined term
in the legend being defined as such for purposes of the legend only):
THE NOTES EVIDENCED HEREBY, AND THE ORDINARY SHARES OF ▇▇▇▇▇▇ INTERACTIVE
ENTERTAINMENT LIMITED ("▇▇▇▇▇▇") ISSUABLE UPON CONVERSION OF THE NOTES AND
THE AMERICAN DEPOSITARY SHARES ("ADSs") REPRESENTING SUCH ORDINARY SHARES,
HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND SUCH NOTES, ORDINARY SHARES AND ADSs MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) IN
TRANSACTIONS MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A") TO A PERSON THAT IS (A) A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A) OR A PURCHASER THAT THE SELLER AND ANY PERSON
ACTING ON THE SELLER'S BEHALF REASONABLY BELIEVE IS A QUALIFIED
INSTITUTIONAL BUYER, IN EACH CASE PURCHASING FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER AND (B) AWARE THAT THE OFFER, SALE, PLEDGE
OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO A PERSON
OTHER THAN A U.S. PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES
ACT), (3) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, OR (5) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. EACH HOLDER
AND BENEFICIAL OWNER, BY ITS ACCEPTANCE OF THIS NOTE OR AN INTEREST IN THE
NOTES EVIDENCED HEREBY, REPRESENTS THAT IT UNDERSTANDS AND AGREES TO THE
FOREGOING RESTRICTIONS AND THAT NO REPRESENTATION CAN BE MADE AS TO THE
AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF THIS
NOTE, ORDINARY SHARES AND/OR ADSs. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A.
Each Definitive Note shall bear the following additional legend:
I-6
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Note that is
a Definitive Note, the Registrar shall permit the holder thereof to exchange
such Transfer Restricted Note for a Definitive Note that does not bear the
legends set forth above and rescind any restriction on the transfer of such
Transfer Restricted Note if the holder certifies in writing to the Registrar
that its request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Note).
(iii) After a transfer of any Notes during the period of the
effectiveness of a Shelf Registration Statement with respect to such Notes, all
requirements pertaining to the Restricted Securities Legend on such Notes shall
cease to apply and the requirements that any such Notes be issued in global form
shall continue to apply.
(e) Cancelation or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for Definitive
Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be
returned by DTC to the Trustee for cancelation or retained and canceled by the
Trustee. At any time prior to such cancelation, if any beneficial interest in a
Global Note is exchanged for Definitive Notes, transferred in exchange for an
interest in another Global Note, redeemed, repurchased or canceled, the
principal amount of Notes represented by such Global Note shall be reduced and
an adjustment shall be made on the books and records of the Trustee (if it is
then the Securities Custodian for such Global Note) with respect to such Global
Note, by the Trustee or the Securities Custodian, to reflect such reduction.
(f) Obligations with Respect to Transfers and Exchanges of Notes.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Definitive Notes and Global
Notes at the Registrar's request if and as contemplated by the Indenture.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes, assessments or similar
governmental charge payable upon exchanges pursuant to Sections 2.07, 3.03, and
10.04 of this Indenture).
(iii) Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent or the Registrar may deem
and treat the person in whose name a Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest on
such Note and for all other
I-7
purposes whatsoever, whether or not such Note is overdue, and none of the
Company, the Trustee, the Paying Agent or the Registrar shall be affected by
notice to the contrary.
(iv) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled to
the same benefits under this Indenture as the Notes surrendered upon such
transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Note, a member of, or a participant in DTC or any
other Person with respect to the accuracy of the records of DTC 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 participant, member,
beneficial owner or other Person (other than DTC) of any notice (including any
notice of redemption or repurchase) or the payment of any amount, under or with
respect to such Notes. All notices and communications to be given to the holders
and all payments to be made to holders under the Notes shall be given or made
only to the registered holders (which shall be DTC or its nominee in the case of
a Global Note). The rights of beneficial owners in any Global Note shall be
exercised only through DTC subject to the applicable rules and procedures of
DTC. The Trustee may rely and shall be fully protected in relying upon
information furnished by DTC with respect to its members, participants and any
beneficial owners.
(ii) 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 DTC participants,
members or beneficial owners in any Global Note) 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.
2.4 Definitive Notes
(a) A Global Note deposited with DTC or with the Trustee as
Securities Custodian pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of Definitive Notes in an aggregate
principal amount equal to the principal amount of such Global Note, in exchange
for such Global Note, only if such transfer complies with Section 2.3 and (i)
DTC notifies the Company that it is unwilling or unable to continue as a
depositary for such Global Note or if at any time DTC ceases to be a "clearing
agency" registered under the Exchange Act, and a successor depositary is not
appointed by the Company within 90 days of such notice or after the Company
becomes aware of such cessation, or (ii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
certificated Notes under this Indenture.
(b) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section 2.4 shall be surrendered by DTC to the Trustee,
to be so
I-8
transferred, in whole or from time to time in part, without charge, and the
Trustee shall authenticate and deliver, upon such transfer of each portion of
such Global Note, an equal aggregate principal amount of Definitive Notes of
authorized denominations. Any portion of a Global Note transferred pursuant to
this Section shall be executed, authenticated and delivered only in
denominations of $1,000 and any integral multiple thereof and registered in such
names as DTC shall direct. Any certificated Note in the form of a Definitive
Note delivered in exchange for an interest in the Global Note shall, except as
otherwise provided by Section 2.3(d), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the registered
holder of a Global Note may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a holder is entitled to take under this
Indenture or the Notes.
(d) In the event of the occurrence of any of the events specified in
Section 2.4(a)(i), (ii) or (iii), the Company will promptly make available to
the Trustee a reasonable supply of Definitive Notes in fully registered form
without interest coupons.
I-9
EXHIBIT A
[FORM OF FACE OF NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, 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
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THE NOTES EVIDENCED HEREBY, AND THE ORDINARY SHARES OF ▇▇▇▇▇▇
INTERACTIVE ENTERTAINMENT LIMITED ("▇▇▇▇▇▇") ISSUABLE UPON CONVERSION OF THE
NOTES AND THE AMERICAN DEPOSITARY SHARES ("ADSs") REPRESENTING SUCH ORDINARY
SHARES, HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND SUCH NOTES, ORDINARY SHARES AND ADSs MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) IN TRANSACTIONS
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO
A PERSON THAT IS (A) A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A)
OR A PURCHASER THAT THE SELLER AND ANY PERSON ACTING ON THE SELLER'S BEHALF
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
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BUYER, IN EACH CASE PURCHASING FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER AND (B) AWARE THAT THE OFFER, SALE, PLEDGE OR OTHER TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A, (2) TO A PERSON OTHER THAN A U.S. PERSON (AS DEFINED
IN REGULATION S UNDER THE SECURITIES ACT), (3) TO AN INSTITUTIONAL INVESTOR THAT
IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (5) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
THE STATES OF THE UNITED STATES AND OTHER JURSIDICTIONS. EACH HOLDER AND
BENEFICIAL OWNER, BY ITS ACCEPTANCE OF THIS NOTE OR AN INTEREST IN THE NOTES
EVIDENCED HEREBY, REPRESENTS THAT IT UNDERSTANDS AND AGREES TO THE FOREGOING
RESTRICTIONS AND THAT NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF
THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF THIS NOTE, ORDINARY SHARES
AND/OR ADSs. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A.
Each Definitive Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
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▇▇▇▇▇▇ INTERACTIVE ENTERTAINMENT LIMITED
ZERO COUPON SENIOR CONVERTIBLE NOTE
CUSIP:
No. US$
▇▇▇▇▇▇ Interactive Entertainment Limited, an exempted company
incorporated in the Cayman Islands (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 CEDE & CO. or its
registered assigns the principal sum set forth on the face hereof [or such
greater or lesser amount as is indicated on Schedule I](1) on October 15, 2014,
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. The principal of this Note shall not bear interest
except as described herein.
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 on the terms and subject to
the limitations referred to on the reverse hereof and as more fully specified in
the Indenture.
This Note shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be construed in accordance
with and governed by the laws of the State of New York (including Section 5-1401
of the New York General Obligations Law or any successor to such statute).
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.
If and to the extent that any provision of this Note limits,
qualifies or conflicts with a provision of the Indenture, such Indenture
provision shall control.
----------
(1) This phrase should be included only if the Note is a Global Note.
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Additional provisions of this Note are set forth on the other side
of this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
▇▇▇▇▇▇ INTERACTIVE ENTERTAINMENT
LIMITED
By: _________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of the
Notes referred to
in the Indenture.
By: __________________________
Authorized Signatory
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[FORM OF REVERSE OF NOTE]
▇▇▇▇▇▇ INTERACTIVE ENTERTAINMENT LIMITED
ZERO COUPON SENIOR CONVERTIBLE NOTE
This Note is one of a duly authorized issue of Notes of the Company,
designated as its Zero Coupon Senior Convertible Notes due 2014 (herein called
the "NOTES"), limited in aggregate principal amount to US$200,000,000 (or
US$275,000,000 if the Additional Purchase Option is exercised in full), issued
and to be issued under and pursuant to an Indenture dated as of October 20, 2004
(herein called the "INDENTURE"), between the Company and The Bank of New York,
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. The Company shall be entitled
to issue Additional Securities pursuant to Section 2.01(b) of the Indenture. The
Notes issued on the Original Issuance Date and any Additional Securities will be
treated as a single class for all purposes under the Indenture.
In case an Event of Default shall have occurred and be continuing,
the principal of and accrued interest on all Notes may be declared by either the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Notes then outstanding, and upon said declaration shall become, due and payable,
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 at least 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; provided that no such
supplemental indenture shall (a) reduce the amount of Notes whose holders must
consent to an amendment, supplement or waiver; (b) reduce the rate of accrual of
interest or Liquidated Damages or modify the method for calculating interest or
Liquidated Damages or change the time for payment of interest or Liquidated
Damages on the Notes; (c) modify the provisions with respect to Noteholders'
rights upon a Fundamental Change in a manner adverse to Noteholders, including
the Company's obligations to repurchase the Notes following a Fundamental
Change; (d) reduce the principal amount of the Notes or change the final stated
maturity of the Notes; (e) reduce the redemption or repurchase price of the
Notes or change the time at which the Notes may or must be redeemed or
repurchased; (f) make payments on the Notes payable in currency other than as
originally stated in the Notes; (g) impair the rights of Noteholders to
institute suit for the enforcement of any payment on the Notes; (h)make any
change in the percentage of principal amount of Notes necessary to waive
compliance with provisions of this Indenture or to make any change in this
provision for modification; (i)waive a continuing default or Event of Default
regarding any payment on the Notes; or (j) modify the conversion or repurchase
provisions of the Notes in a manner adverse to the Noteholders. 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 existing or past default or Event of Default under the
Indenture and its consequences except (A) a default in the payment of
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interest or premium (if any) on, or the principal of, any of the Notes, (B) a
failure by the Company to convert any Notes into the Conversion Consideration,
(C) a default in the payment of the Redemption Price pursuant to Article 3 of
the Indenture, (D) a default in the payment of the Company Repurchase Price or
Fundamental Change Repurchase Price pursuant to Article 3 of the Indenture or
(E) a default in respect of a covenant or provisions of the Indenture which
under Article 10 of the Indenture cannot be modified or amended without the
consent of the holders of each or all Notes then outstanding or affected
thereby. Any such consent or waiver by the holder of this Note (unless revoked
as provided in the Indenture) shall be conclusive and binding upon such holder
and upon all future holders and owners of this Note and any Notes which may be
issued in exchange or substitution hereof, irrespective of whether or not any
notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligations of the Company, which
are absolute and unconditional, to pay the principal of, premium (if any) and
interest on this Note at the place, at the respective times, at the rate and in
the coin or currency herein prescribed.
Interest and Liquidated Damages on the Notes shall be computed on
the basis of a 360-day year of twelve 30-day months and, in the case of an
incomplete month, the actual number of days elapsed.
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.
The holder of this Note is entitled to the benefits of the
Registration Rights Agreement. If a Registration Default occurs, the Company
shall be obligated to pay Liquidated Damages to each holder of Transfer
Restricted Notes during the period of such Registration Default, in an amount
equal to 0.25% per annum of the amount of Transfer Restricted Securities of such
Noteholder, for the period from the occurrence of the Registration Default until
such time as no Registration Default is in effect. If an Effective Failure
occurs, the Company shall be obligated to pay Liquidated Damages to each holder
of Transfer Restricted Notes during the period of such Effective Failure, in an
amount equal to 0.50% per annum of the of the amount of Transfer Restricted
Securities of such Noteholder, for the period from the occurrence of the
Effective Failure until such time as no Effective Failure is in effect. In no
event will Liquidated Damages accrue at a rate per annum exceeding 0.50% per
annum. The holder of this Note, by acceptance hereof, acknowledges and agrees to
the provisions of the Registration Rights Agreement, including the obligations
of the holders of the Notes with respect to a registration and the
indemnification of the Company to the extent provided therein. Capitalized terms
used in this paragraph but not defined herein or in the Indenture have the
meanings assigned to them in the Registration Rights Agreement.
A-6
At any time on or after October 15, 2007 and prior to maturity, the
Notes may be redeemed at the option of the Company, in whole or in part, in cash
upon mailing a notice of such redemption not less than thirty (30) days but not
more than sixty (60) days before the Redemption Date to the holders of Notes at
their last registered addresses, all as provided in the Indenture, at a
redemption price equal to 100% of the principal amount of the Notes, plus
accrued and unpaid interest and Liquidated Damages to, but excluding, the
Redemption Date: provided that if the Redemption Date is on April 15 or October
15, then the interest payable on such date shall be paid to the holder of record
on the preceding April 1 or October 1, respectively.
The Company may not give notice of any redemption of the 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 shall occur at any time prior to Stated
Maturity, each holder 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 equal to US$1,000 or an integral multiple of $1,000 principal amount,
for cash on the date specified in the Fundamental Change Repurchase Date, which
is a date no fewer than twenty (20) days nor more than thirty-five (35) days
after the Fundamental Change Notice Date, subject to extension to comply with
applicable law. The Company shall repurchase such Notes at the Fundamental
Change Repurchase Price, equal to 100% of the principal amount thereof plus any
accrued and unpaid interest and Liquidated Damages, if any, to (but not
including) the Fundamental Change Repurchase Date; provided however, that in the
case of Note repurchased upon the occurrence of a Fundamental Change during the
period from the applicable Record Date to, but excluding, the next succeeding
Liquidated Damages payment date, Liquidated Damages will be payable on the date
of repurchase to the holder of the Note repurchased as of the relevant Record
Date, and no Liquidated Damages will be paid on such Liquidated Damages payment
date in respect of any such Note (or portion thereof).
On October 15, 2007 (the "COMPANY REPURCHASE DATE"), each holder
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. The Company shall repurchase such Notes at Company
Repurchase Price, which is equal to 100% of the principal amount thereof plus
any accrued and unpaid interest to but excluding the Company Repurchase Date;
provided that if such Company Repurchase Date falls on an 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.
On or before the Company Notice Date, which is the thirtieth (30th)
Business Day prior to the Company Repurchase Date, the Company, or at its
written request the Trustee in the name of and at the expense of the Company
(which request must be received by the Trustee at least three (3) Business Days
prior to the date the Trustee is requested to give notice as described below),
unless the Trustee shall agree to a shorter period), shall mail or cause to be
mailed, by
A-7
first class mail, the Company Repurchase Notice to each holder of record of
Notes on such date at its last address as the same appears on the Note Register;
provided that if the Company shall give such notice, it shall also give written
notice to the Trustee and the Paying Agent at such time as it is mailed to
Noteholders. Such 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.
Notes shall be repurchased upon delivery to the Trustee (or other
Paying Agent appointed by the Company) by a holder of a duly completed
Fundamental Change Repurchase Election in the form set forth on the reverse of
the Note at any time prior to the close of business on the fifth Business Day
immediately preceding the Fundamental Change Repurchase Date (subject to
extension by applicable law).
Holders have the right to withdraw any Repurchase Election by
delivering to the Trustee (or other Paying Agent appointed by the Company) a
written notice of withdrawal up to the close of business on the second Business
Day immediately preceding the Repurchase Date, all as provided in the Indenture.
If cash sufficient to pay the Repurchase Price with respect to all
Notes or portions thereof to be repurchased as of any Repurchase Date are
deposited with the Trustee (or other Paying Agent appointed by the Company),
then on and after such Repurchase Date, interest will cease to accrue on such
Notes (or portions thereof), 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.
If the Company (i) is a party to a consolidation, merger, statutory
share exchange or combination, (ii) reclassifies the Ordinary Shares or (iii)
sells or conveys its properties and assets substantially as an entirety to any
Person, the right to convert a Note into cash and Ordinary Shares may be changed
into a right to convert it into securities, cash or other assets of the Company
or such other Person, in each case in accordance with the Indenture.
Subject to and upon compliance with the provisions of the Indenture,
prior to the close of business on the date of Stated Maturity, the holder of
this Note shall have the right, at such holder's option, to convert the
principal amount of such Note, or any portion of such principal amount which is
a multiple of $1,000, into the Conversion Consideration. 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 close of business on any record date for
the payment of interest to the close of business on the Business Day preceding
the following Interest Payment Date and has not been called for redemption by
the Company on a Redemption Date that occurs during such period, 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 Company has specified a Redemption Date that is after a record date and
prior to the next Interest Payment Date, (2) if the Company has specified a
Fundamental Change Repurchase Date that is during such period or (3) to the
extent of any
A-8
overdue interest, if any overdue interest exists at the time of conversion with
respect to such Note.
No fractional shares will be issued upon any conversion, but a
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 upon a Fundamental Change or repurchase on a Repurchase Date
may be converted only if such holder withdraws its election to exercise such
right in accordance with the terms of the Indenture.
Any Notes called for redemption, unless surrendered for conversion
by the holders thereof on or before the close of business on the second Business
Day preceding the Redemption Date, may be deemed 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 Redemption Date, 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 Company's Ordinary Shares and (ii) to make payment for such Notes as
aforesaid to the Trustee in trust for the holders.
Upon due presentment for registration of transfer of this Note at
the office or agency of the Company maintained for that purpose in accordance
with the terms of the Indenture, a new Note or Notes of authorized denominations
for an equal aggregate principal amount will be issued to the transferee in
exchange thereof, subject to the limitations provided in the Indenture, without
charge except for any tax, assessment or other governmental charge imposed in
connection therewith.
The Company, the Trustee, any authenticating agent, any Paying
Agent, any Conversion Agent and any Note Registrar may deem and treat the
registered holder hereof as the absolute owner of this Note (whether or not this
Note shall be overdue and notwithstanding any notation of ownership or other
writing hereon made by anyone other than the Company or any Note Registrar) for
the purpose of receiving payment hereof, or on account hereof, for the
conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any Paying Agent nor other
Conversion Agent nor any Note Registrar shall be affected by any notice to the
contrary. All payments made to or upon the order of such registered holder
shall, to the extent of the sum or sums paid, satisfy and discharge liability
for monies payable on this Note.
No recourse for the payment of the principal of or interest on this
Note or any other amount due with respect thereto, 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,
employee, agent, officer or director or Subsidiary, as such, past, present or
future, of the Company or of any of its successor corporations, either directly
or through the Company or any of its successor corporations, whether by virtue
of any constitution, statute or rule of law or by the enforcement
A-9
of any assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
Terms used in this Note and defined in the Indenture are used herein
as therein defined.
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FORM OF
CONVERSION NOTICE
TO: ▇▇▇▇▇▇ INTERACTIVE ENTERTAINMENT LIMITED
THE BANK OF NEW YORK
The undersigned registered owner of this Note hereby irrevocably exercises the
option to convert this Note, or the portion thereof (which is US$1,000 or a
multiple thereof) below designated, into the Conversion Consideration, which
will consist of cash and a number of Ordinary Shares or (subject to compliance
with the procedures described in the Indenture and the Deposit Agreement) ADSs,
of ▇▇▇▇▇▇ Interactive Entertainment Limited in accordance with the terms of the
Indenture referred to in this Note, and directs that the Ordinary Shares or ADSs
issuable and deliverable upon such conversion, together with any check in
payment for fractional Ordinary Shares or ADSs 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 Ordinary Shares or ADSs 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 or Liquidated Damages, if any,
accompanies this Note.
Please complete Item A or B below:
A. Check here [ ] and complete items 1 and 2 below if you wish to receive
Ordinary Shares upon conversion of Notes.
1. Name and address of the person in whose name Ordinary Shares required to
be delivered on conversion are to be registered:
Name: _________________________________________________________
_________________________________________________________
Address: _________________________________________________________
_________________________________________________________
_________________________________________________________
2. I/We hereby request that the certificate for the Ordinary Shares (together
with any cash) required to be delivered upon conversion of the Notes be
dispatched (at my/our own risk and expense) to the person whose name and
address is given below and in the manner specified below:
Name of Agent: ___________________________________________________
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Address: ________________________________________________
________________________________________________
________________________________________________
Contact Person: ________________________________________________
________________________________________________
E-mail of Contact
Person: ________________________________________________
________________________________________________
Telephone No: ________________________________________________
Fax No.: ________________________________________________
________________________________________________
Manner of
Dispatch: ________________________________________________
________________________________________________
By checking and completing 1 and 2 above, I/we represent and agree that at
the time of signing and delivery of this conversion notice I/we, or the
person who has the beneficial interest in such Notes, will not offer or
sell, pledge or otherwise transfer any of the Ordinary Shares to be
delivered upon conversion except (i) pursuant to Rule 144A under the
Securities Act to a person who such holder or the beneficial owner
reasonably believes is a qualified institutional buyer within the meaning
of Rule 144A under the Securities Act, purchasing for its own account or
for the account of a qualified institutional buyer in a transaction
meeting the requirement of Rule 144A, (ii) in an offshore transaction in
accordance with Regulation S under the Securities Act, (iii) pursuant to
an effective registration statement under the Securities Act or (iv)
pursuant to an exemption from registration under the Securities Act
provided by Rule 144 thereunder (if available) or otherwise. I acknowledge
that if a Note is converted prior to the time that a shelf registration
statement in respect of the Ordinary Shares is filed and declared
effective, the Ordinary Shares issuable upon conversion will bear a
restrictive legend and may not be deposited pursuant to the Deposit
Agreement for the issuance of ADSs unless (i) the Ordinary Shares have
been resold in a transaction that is effectively registered under a shelf
registration statement, (ii) the Ordinary Shares have been resold in a
transaction that complies with Rule 144 under the Securities Act or (iii)
the exemption provided by Rule 144(k) under the Securities Act is
available and the Company has removed the transfer restriction legend from
the share certificate at my/our request.
OR
B. If you wish to receive ADSs upon conversion of the Notes check here [ ]
and complete item 1 below:
1. Complete the grid below if you are requesting conversion of the Notes for
ADSs:
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Deliver ADSs to: __________________________________________
DTC Participant Name and Account
Number: __________________________________________
__________________________________________
Account No. for Investor at DTC
Participant (f/b/o information): __________________________________________
__________________________________________
Contact person at DTC Participant: __________________________________________
Daytime Telephone Number of contact
person at DTC Participant: __________________________________________
__________________________________________
Email of contact person at DTC
Participant: __________________________________________
__________________________________________
By checking and completing 1 above, I/we represent and agree that at
the time of signing and delivery of this conversion notice, unless a shelf
registration statement in respect of the Ordinary Shares has been filed and
declared effective by the Commission, (i) I/we am/are, or the person who has the
beneficial interest in such Notes is, not a U.S. person and is/are located
outside the United States (within the meaning of Regulation S under the
Securities Act) and I/we, or such person, purchased such Notes, or the
beneficial interest therein, in an offshore transaction made in accordance with
Rule 903 or 904 of Regulation S, or (ii) the relevant Notes are not subject to
the registration requirements of the Securities Act.
In addition, I/we represent and agree that the Ordinary Shares
issued upon conversion of the Notes cannot be deposited with the Depositary
unless (i) the Ordinary Shares have been resold in a transaction that is
effectively registered under a shelf registration statement, (ii) the Ordinary
Shares have been resold in a transaction that complies with Rule 144 under the
Securities Act or (iii) the exemption provided by Rule 144(k) under the
Securities Act is available and the Company has removed the transfer restriction
legend from the share certificate at my/our request. We acknowledge that the
Depositary may require holders who wish to deposit Ordinary Shares to provide
evidence satisfactory to it that the conditions specified in clause (i), (ii) or
(iii) of the preceding sentence have been satisfied, and that we may also be
required to provide a legal option to that effect to the Depositary at our own
expense.
C. Converting Holder Information and Signature:
Please complete the following information with respect to the converting
Holder:
Name: ___________________________________________________________
___________________________________________________________
Date: ___________________________________________________________
___________________________________________________________
Signature: ___________________________________________________________
A-13
Nationality: ____________________________________________
____________________________________________
DTC/Euroclear/Clearstream
A/C No:* ____________________________________________
____________________________________________
Address: ____________________________________________
____________________________________________
Contact Person: ____________________________________________
____________________________________________
Daytime Telephone No.: ____________________________________________
____________________________________________
Fax No.: ____________________________________________
____________________________________________
* delete as appropriate
For Conversion Agent's use only:
1. (A) Notes conversion identification reference: ▇▇▇▇▇▇ Interactive
Entertainment Limited Zero Coupon Senior Convertible Notes due 2014
(CUSIP: ▇▇▇▇▇▇▇▇▇): BNYNY ________________
(B) Deposit Date: ________________________________________________
(C) Conversion Date: _____________________________________________
2. (A) Aggregate principal amount of Notes deposited for conversion:
______________________________________________________________
(B) Conversion Price on Conversion Date: _________________________
(C) Number of Shares deliverable: ________________________________
(disregard fractions)
(D) Number of ADSs deliverable:
______________________________________________________________
(disregard fractions)
3. ADS issuance fees:________________________________ (only if ADSs being
delivered)
A-14
4. (If applicable) amount of cash payment due to converting Holder in respect
of fractions of Ordinary Shares or of ADSs due to a consolidation or
re-classification of Shares:
____________________________________________________________
N.B. The Conversion Agent must complete items 1 and 2 and (if applicable) 3 and
4.
A-15
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 Ordinary Shares if to be issued, and
Notes if to be delivered, other than to and in the name of the registered
holder:
_____________________________
(Name)
_____________________________
(Street Address)
_____________________________
(City, State and Zip Code)
_____________________________
Please print name and address
Principal amount to be converted
(if less than all):
US$__________________________
Social Security or Other Taxpayer
Identification Number:
_____________________________
A-16
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.
A-17
FORM OF
FUNDAMENTAL CHANGE REPURCHASE ELECTION
TO: ▇▇▇▇▇▇ INTERACTIVE ENTERTAINMENT LIMITED
THE BANK OF NEW YORK
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from ▇▇▇▇▇▇ Interactive Entertainment Limited
(the "COMPANY") as to the occurrence of a Fundamental Change with respect to the
Company and requests and instructs the Company to repurchase the entire
principal amount of this Note, or the portion thereof (which is US$1,000 or a
multiple thereof) below designated, in accordance with the terms of the
Indenture referred to in this Note at the price of 100% of such entire principal
amount or portion thereof, together with accrued interest to, but excluding, the
Fundamental Change Repurchase Date, to the registered holder hereof. Capitalized
terms used herein but not defined shall have the meanings ascribed to such terms
in the Indenture.
Dated: _____________________________
_____________________________
_____________________________
Signature(s)
A-18
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): ________________________
Social Security or Other Taxpayer Identification Number: ______________________
A-19
FORM OF
COMPANY REPURCHASE ELECTION
TO: ▇▇▇▇▇▇ INTERACTIVE ENTERTAINMENT LIMITED
THE BANK OF NEW YORK
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from ▇▇▇▇▇▇ Interactive Entertainment Limited
(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 US$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 interest to, but excluding, the Company
Repurchase Date, 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 Company Repurchase Date
pursuant to the terms and conditions specified in the Indenture.
Dated: _____________________________
_____________________________
_____________________________
Signature(s)
A-20
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):
______________________________________________________
Social Security or Other Taxpayer Identification Number:
______________________________________________________
A-21
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 of 1933, as amended (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:
- (1) To ▇▇▇▇▇▇ Interactive Intertainment Limited or a subsidiary
thereof; or
- (2) To a "QUALIFIED INSTITUTIONAL BUYER" in compliance with Rule
144A under the Securities Act; or
- (3) Pursuant to and in compliance with Rule 144 under the Securities
Act; or
- (4) To an institutional investor that is an accredited investor
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act pursuant to an exemption from
registration under the Securities Act; or
- (5) Pursuant to a registration statement that has been declared
effective under the Securities Act, and which continues to be
effective at the time of transfer;
and unless the Note has been transferred to ▇▇▇▇▇▇ Interactive Entertainment
Limited 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.
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)
A-22
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
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this Security for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: _______________ __________________________________
Notice: To be executed by an
executive officer
NOTICE: The above signature(s) of the holder hereof must correspond with the
name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatsoever.
A-23
Schedule I
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $[ ]. The
following increases or decreases in this Global Note have been made:
Principal Signature of
Amount of Amount of amount of this authorized
decrease in increase in Global Note signatory of
Principal Principal following such Trustee or
Date of Amount of this Amount of this decrease or Securities
Exchange Global Note Global Note increase Custodian
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S-1
EXHIBIT B
Form of Transferee Letter of Representation
▇▇▇▇▇▇ Interactive Entertainment Limited
No. 1 Office Building, ▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
China
In care of
General Counsel
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal
amount of the Zero Coupon Senior Convertible Notes due 2014 (the "Notes") of
▇▇▇▇▇▇ Interactive Entertainment Limited (the "Company").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name:__________________________
Address:_______________________
Taxpayer ID Numbers:___________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we invest
in or purchase securities similar to the Notes in the normal course of our
business. We, and any accounts for which we are acting, are each able to bear
the economic risk of our or its investment.
B-1
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date that is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Notes (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (i) to the Company, (ii) in the United
States to a person whom the seller reasonably believes is a qualified
institutional buyer in a transaction meeting the requirements of Rule 144A,
(iii) to an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is an institutional
accredited investor purchasing for its own account or for the account of an
institutional accredited investor, in each case in a minimum principal amount of
the Securities of $250,000, (iv) outside the United States in a transaction
complying with the provisions of Rule 904 under the Securities Act, (v) pursuant
to an exemption from registration under the Securities Act provided by Rule 144
(if available) or (vi) pursuant to an effective registration statement under the
Securities Act, in each of cases (i) through (vi) subject to any requirement of
law that the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and in
compliance with any applicable state securities laws. The foregoing restrictions
on resale will not apply subsequent to the Resale Restriction Termination Date.
If any resale or other transfer of the Securities is proposed to be made
pursuant to clause (iii) above prior to the Resale Restriction Termination Date,
the transferor shall deliver a letter from the transferee substantially in the
form of this letter to the Company and the Trustee, which shall provide, among
other things, that the transferee is an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
and that it is acquiring such Securities for investment purposes and not for
distribution in violation of the Securities Act. Each purchaser acknowledges
that the Company and the Trustee reserve the right prior to the offer, sale or
other transfer prior to the Resale Restriction Termination Date of the
Securities pursuant to clause (iii), (iv) or (v) above to require the delivery
of an opinion of counsel, certifications or other information satisfactory to
the Company and the Trustee.
TRANSFEREE:
by
__________________________________
Name:
Title:
B-2