Exhibit 99.1
__________________________________________________________________
ADVANCED MEDICAL OPTICS, INC.,
AMO HOLDINGS, LLC,
and each of the other Guarantors named herein
To
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
___________________________________________________
INDENTURE
Dated as of
June 24, 2003
________________________________________________
3 1/2% Convertible Senior Subordinated Notes Due 2023
__________________________________________________________________
TABLE OF CONTENTS
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PAGE
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions......................................................................................2
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01. Designation Amount and Issue of Notes...........................................................12
Section 2.02. Form of Notes...................................................................................12
Section 2.03. Date and Denomination of Notes; Payments of Interest............................................13
Section 2.04. Execution of Notes..............................................................................15
Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer........................15
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes......................................................21
Section 2.07. Temporary Notes.................................................................................22
Section 2.08. Cancellation of Notes...........................................................................23
Section 2.09. CUSIP Numbers...................................................................................23
ARTICLE 3
REDEMPTION AND REPURCHASE OF NOTES
Section 3.01. Redemption of Notes.............................................................................23
Section 3.02. Notice of Optional Redemption; Selection of Notes...............................................23
Section 3.03. Payment of Notes Called for Redemption by the Company...........................................25
Section 3.04. Conversion Arrangement on Call for Redemption...................................................26
Section 3.05. Repurchase at Option of Holders Upon a Fundamental Change.......................................27
Section 3.06. Repurchase of Notes by the Company at Option of the Holder......................................29
Section 3.07. Company's Right to Elect Manner of Payment of Purchase Price for Payment........................30
Section 3.08. Effect of Repurchase Notice; Withdrawal.........................................................35
Section 3.09. Deposit of Purchase Price.......................................................................36
Section 3.10. Notes Repurchased in Part.......................................................................36
Section 3.11. Repayment to the Company........................................................................36
ARTICLE 4
SUBORDINATION OF NOTES
Section 4.01. Notes Subordinated To Senior Indebtedness.......................................................37
Section 4.02. No Payment On Notes In Certain Circumstances....................................................37
Section 4.03. Payment Over Of Proceeds Upon Dissolution, Etc..................................................39
Section 4.04. Subrogation.....................................................................................40
Section 4.05. Obligations Of Company Unconditional............................................................41
Section 4.06. Notice To Trustee...............................................................................41
Section 4.07. Reliance On Judicial Order Or Certificate Of Liquidating Agent..................................42
Section 4.08. Trustee's Relation To Senior Indebtedness.......................................................43
Section 4.09. Subordination Rights Not Impaired By Acts Or Omissions Of The Company
Or Holders Of Senior Indebtedness.............................................................43
Section 4.10. Holders Authorize Trustee To Effectuate Subordination Of Notes..................................43
Section 4.11. This Article Not To Prevent Events Of Default...................................................44
Section 4.12. Trustee's Compensation And Rights To Indemnification Not Prejudiced.............................44
Section 4.13. No Waiver Of Subordination Provisions...........................................................44
Section 4.14. Subordination Provisions Not Applicable To Money Held In Trust For
Holders; Payments May Be Paid Prior To Dissolution............................................44
Section 4.15. Acceleration Of Notes...........................................................................45
Section 4.16. Certain Conversions Not Deemed Payment..........................................................45
ARTICLE 5
CONTINGENT INTEREST
Section 5.01. Contingent Interest.............................................................................45
Section 5.02. Payment of Contingent Interest..................................................................46
Section 5.03. Contingent Interest Notification................................................................46
ARTICLE 6
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01. Payment of Principal, Premium and Interest......................................................46
Section 6.02. Maintenance of Office or Agency.................................................................46
Section 6.03. Appointments to Fill Vacancies in Trustee's Office..............................................47
Section 6.04. Provisions as to Paying Agent...................................................................47
Section 6.05. Existence.......................................................................................48
Section 6.06. Payment of Taxes and Other Claims...............................................................48
Section 6.07. Rule 144A Information Requirement...............................................................49
Section 6.08. Stay, Extension and Usury Laws..................................................................49
Section 6.09. Compliance Certificate..........................................................................49
Section 6.10. Liquidated Damages Notice.......................................................................50
Section 6.11. Tax Treatment...................................................................................50
Section 6.12. Limitation on Layering..........................................................................51
Section 6.13. Subsidiary Guarantees...........................................................................51
ARTICLE 7
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 7.01. Noteholders' Lists..............................................................................52
Section 7.02. Preservation and Disclosure of Lists............................................................52
Section 7.03. Reports by Trustee..............................................................................53
Section 7.04. Reports by Company..............................................................................53
ARTICLE 8
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
Section 8.01. Events of Default...............................................................................53
Section 8.02. Payments of Notes on Default; Suit Therefor.....................................................56
Section 8.03. Application of Monies Collected by Trustee......................................................57
Section 8.04. Proceedings by Noteholder.......................................................................58
Section 8.05. Proceedings by Trustee..........................................................................59
Section 8.06. Remedies Cumulative and Continuing..............................................................59
Section 8.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders......................60
Section 8.08. Notice of Defaults..............................................................................60
Section 8.09. Undertaking to Pay Costs........................................................................61
ARTICLE 9
THE TRUSTEE
Section 9.01. Duties and Responsibilities of Trustee..........................................................61
Section 9.02. Reliance on Documents, Opinions, etc............................................................63
Section 9.03. No Responsibility for Recitals, etc.............................................................64
Section 9.04. Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes............................64
Section 9.05. Monies to be Held in Trust......................................................................64
Section 9.06. Compensation and Expenses of Trustee............................................................65
Section 9.07. Officers' Certificate as Evidence...............................................................65
Section 9.08. Conflicting Interests of Trustee................................................................66
Section 9.09. Eligibility of Trustee..........................................................................66
Section 9.10. Resignation or Removal of Trustee...............................................................66
Section 9.11. Acceptance by Successor Trustee.................................................................68
Section 9.12. Succession by Merger............................................................................68
Section 9.13. Preferential Collection of Claims...............................................................69
ARTICLE 10
THE NOTEHOLDERS
Section 10.01. Action by Noteholders..........................................................................69
Section 10.02. Proof of Execution by Noteholders..............................................................69
Section 10.03. Absolute Owners................................................................................70
Section 10.04. Company-Owned Notes Disregarded................................................................70
Section 10.05. Revocation of Consents; Future Holders Bound...................................................70
ARTICLE 11
RESERVED
ARTICLE 12
SUPPLEMENTAL INDENTURES
Section 12.01. Supplemental Indentures Without Consent of Noteholders.........................................71
Section 12.02. Supplemental Indenture With Consent of Noteholders.............................................72
Section 12.03. Effect of Supplemental Indenture...............................................................74
Section 12.04. Notation on Notes.............................................................................74
Section 12.05. Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee....................75
ARTICLE 13
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 13.01. Company May Consolidate on Certain Terms.......................................................75
Section 13.02. Successor to be Substituted....................................................................76
Section 13.03. Opinion of Counsel to be Given Trustee.........................................................76
ARTICLE 14
SATISFACTION AND DISCHARGE OF INDENTURE
Section 14.01. Discharge of Indenture.........................................................................77
Section 14.02. Deposited Monies to be Held in Trust by Trustee................................................77
Section 14.03. Paying Agent to Repay Monies Held..............................................................78
Section 14.04. Return of Unclaimed Monies.....................................................................78
Section 14.05. Reinstatement..................................................................................78
ARTICLE 15
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 15.01. Indenture and Notes Solely Corporate Obligations...............................................78
ARTICLE 16
CONVERSION OF NOTES
Section 16.01. Right to Convert...............................................................................79
Section 16.02. Exercise of Conversion Privilege; Issuance of Common Stock on
Conversion; No Adjustment for Interest or Dividends..........................................82
Section 16.03. Cash Payments in Lieu of Fractional Shares.....................................................84
Section 16.04. Conversion Rate................................................................................85
Section 16.05. Adjustment of Conversion Rate..................................................................85
Section 16.06. Effect of Reclassification, Consolidation, Merger or Sale......................................94
Section 16.07. Taxes on Shares Issued.........................................................................95
Section 16.08. Reservation of Shares, Shares to be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock...........................................96
Section 16.09. Responsibility of Trustee......................................................................96
Section 16.10. Notice to Holders Prior to Certain Actions.....................................................97
Section 16.11. Stockholder Rights Plans.......................................................................98
ARTICLE 17
GUARANTY
Section 17.01. Unconditional Guaranty.........................................................................98
Section 17.02. Severability...................................................................................99
Section 17.03. Discharge; Reinstatement.......................................................................99
Section 17.04. Limitation of Subsidiary Guarantors' Liability................................................100
Section 17.05. Contribution..................................................................................100
Section 17.06. Execution of Note Guarantee...................................................................101
Section 17.07. Subordination of Subrogation and Other Rights.................................................101
Section 17.08. Consolidation, Merger or Sale of Assets by a Guarantor........................................101
ARTICLE 18
SUBORDINATION OF GUARANTY
Section 18.01. Guaranty Obligations Subordinated to Guarantor Senior Indebtedness............................102
Section 18.02. Payment Over of Proceeds upon Dissolution, Etc................................................102
Section 18.03. Subrogation...................................................................................103
Section 18.04. Obligations of Guarantors Unconditional.......................................................104
Section 18.05. Notice to Trustee.............................................................................105
Section 18.06. Reliance on Judicial Order or Certificate of Liquidating Agent................................105
Section 18.07. Trustee's Relation to Guarantor Senior Indebtedness...........................................106
Section 18.08. Subordination Rights not Impaired by Acts or Omissions of the Guarantors
or Holders of Guarantor Senior Indebtedness.................................................106
Section 18.09. Holders Authorize Trustee to Effectuate Subordination of Guaranty.............................107
Section 18.10. This Article not to Prevent Events of Default.................................................107
Section 18.11. Trustee's Compensation not Prejudiced.........................................................107
Section 18.12. No Waiver of Guaranty Subordination Provisions................................................107
Section 18.13. Payments may be Paid Prior to Dissolution.....................................................108
ARTICLE 19
MISCELLANEOUS PROVISIONS
Section 19.01. Provisions Binding on Company's Successors....................................................108
Section 19.02. Official Acts by Successor Corporation........................................................108
Section 19.03. Addresses for Notices, etc....................................................................108
Section 19.04. Governing Law.................................................................................109
Section 19.05. Evidence of Compliance with Conditions Precedent, Certificates to Trustee.....................109
Section 19.06. Legal Holidays................................................................................110
Section 19.07. Trust Indenture Act...........................................................................110
Section 19.08. No Security Interest Created..................................................................110
Section 19.09. Benefits of Indenture.........................................................................110
Section 19.10. Table of Contents, Headings, etc..............................................................110
Section 19.11. Authenticating Agent..........................................................................111
Section 19.12. Execution in Counterparts.....................................................................112
Section 19.13. Severability..................................................................................112
Exhibit A Form of Note A-1
INDENTURE
INDENTURE dated as of June 24, 2003 between Advanced Medical Optics,
Inc., a Delaware corporation (hereinafter called the "Company"), having its
principal office at ▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
each of the Guarantors named herein and U.S. Bank National Association, a
national banking association duly organized and existing under the laws of the
United States, as trustee hereunder (hereinafter called the "Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its 3 1/2% Convertible Senior Subordinated Notes Due
2023 (hereinafter called the "Notes"), in an aggregate principal amount not to
exceed $140,000,000 and, to provide the terms and conditions upon which the
Notes are to be authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, AMO Holdings, LLC has duly authorized the execution and
delivery of the Indenture as a Guarantor of the Notes, and all acts and things
necessary to make the Guarantee, when executed by AMO Holdings and when the
Notes are 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 obligation of AMO Holdings, 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 Guarantee have in all respects been duly authorized,
WHEREAS, the Notes, the certificate of authentication to be borne by
the Notes, a form of assignment, a form of option to elect redemption upon a
fundamental change, a form of repurchase notice and a form of conversion
notice to be borne by the Notes are to be substantially in the forms
hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee or a
duly authorized authenticating agent, as in this Indenture provided, the
valid, binding and legal obligations of the Company, and to constitute this
Indenture a valid agreement according to its terms, have been done and
performed, and the execution of this Indenture and the issue hereunder of the
Notes have in all respects been duly authorized,
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Notes are, and are to be, authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the Notes
by the holders thereof, the Company and the Guarantors covenant and agree with
the Trustee for the equal and proportionate benefit of the respective holders
from time to time of the Notes (except as otherwise provided below), as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture that are defined in the Trust Indenture Act
or which are by reference therein defined in the Securities Act (except as
herein otherwise expressly provided or unless the context otherwise requires)
shall have the respective meanings assigned to such terms in the Trust
Indenture Act and in the Securities Act as in force at the date of the
execution of this Indenture. The words "herein", "hereof", "hereunder" and
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other Subdivision. The terms defined in this
Article include the plural as well as the singular.
"Adjustment Event" has the meaning specified in Section 16.05(k).
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent Members" has the meaning specified in Section 2.05(b).
"Applicable Stock Price" means, in respect of a conversion date, the
average of the Closing Sale Price over the five-Trading Day period (the
"settlement period") beginning on the Business Day immediately following (a)
the redemption date, if the Company has called the Notes for redemption
pursuant to Section 3.02, (b) the maturity date of the Notes, in respect of
conversion notices received at maturity, and (c) in all other cases, the
second Trading Day following such conversion date.
"Board of Directors" means the Board of Directors of the Company or a
committee of such Board duly authorized to act for it hereunder.
"Business Day" means any day except a Saturday, Sunday or legal
holiday on which banking institutions in The City of
New York are authorized
or obligated by law, regulation or executive order to close.
"Closing Sale Price" of the shares of Common Stock on any date means
the closing sale price per share (or, if no closing sale price is reported,
the average of the closing bid and ask prices or, if more than one in either
case, the average of the average closing bid and the average closing ask
prices) on such date as reported in composite transactions for the principal
United States securities exchange on which shares of Common Stock are traded
or, if the shares of Common Stock are not listed on a United States national
or regional securities exchange, as reported by the Nasdaq System or by the
National Quotation Bureau Incorporated. In the absence of such a quotation,
the Company shall be entitled to determine the Closing Sale Price on the basis
it considers appropriate. The Closing Sale Price shall be determined without
reference to extended or after hours trading.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" means any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company and which is not subject to redemption by the Company. Subject to the
provisions of Section 16.06, however, shares issuable on conversion of Notes
shall include only shares of the class designated as common stock of the
Company at the date of this Indenture (namely, the Common Stock, par value
$.01) or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which are not
subject to redemption by the Company; provided that if at any time there shall
be more than one such resulting class, the shares of each such class then so
issuable on conversion shall be substantially in the proportion which the
total number of shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes resulting from all
such reclassifications.
"Company" means the corporation named as the "Company" in the first
paragraph of this Indenture, and, subject to the provisions of Article 13 and
Section 16.06, shall include its successors and assigns.
"Company Repurchase Notice" has the meaning specified in Section
3.07(d).
"Company Repurchase Notice Date" has the meaning specified in Section
3.07(b).
"contingent interest" means interest that accrues and is payable as
provided in Article 5.
"Conversion Price" of a Note as of any day will equal $1,000 divided
by the Conversion Rate as of such date.
"Conversion Rate" has the meaning specified in Section 16.04.
"Corporate Trust Office" or other similar term, means the designated
office of the Trustee at which at any particular time its corporate trust
business as it relates to this Indenture shall be administered, which office
is, at the date as of which this Indenture is dated, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Office or at any
other time at such other address as the Trustee may designate from time to
time by notice to the Company.
"Current Market Price" has the meaning specified in Section 16.05(g).
"Custodian" means U.S. Bank National Association, as custodian with
respect to the Notes in global form, or any successor entity thereto.
"default" means any event that is, or after notice or passage of
time, or both, would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.03.
"Depositary" means the clearing agency registered under the Exchange
Act that is designated to act as the Depositary for the Global Notes. DTC
shall be the initial Depositary, until a successor shall have been appointed
and become such pursuant to the applicable provisions of this Indenture, and
thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Indebtedness" means (i) Indebtedness outstanding
under the Senior Credit Facility and (ii) any other Senior Indebtedness of the
Company which, at the date of determination, has an aggregate principal amount
outstanding of at least $25.0 million if the instrument governing such Senior
Indebtedness expressly states that such Indebtedness is "Designated Senior
Indebtedness" for purposes of this Indenture.
"Determination Date" has the meaning specified in Section 16.05(k).
"DTC" means the Depository Trust Company.
"Event of Default" means any event specified in Section 8.01 as an
Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as in effect from time
to time.
"Ex-Dividend Time" has the meaning specified in Section 16.01(b).
"Expiration Time" has the meaning specified in Section 16.05(f).
"Fair Market Value" has the meaning specified in Section 16.05(g).
"Fiscal Quarter" means, with respect to the Company, the fiscal
quarter publicly disclosed by the Company. The Company shall confirm the
ending dates of its fiscal quarters for the current fiscal year to the Trustee
upon the Trustee's request.
"Fundamental Change" means any transaction or event (whether by means
of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) in connection
with which all or substantially all of the Common Stock is exchanged for,
converted into, acquired for or constitutes solely the right to receive,
consideration which is not all or substantially all common stock that: (a) is
listed, or immediately after such transaction or event, will be listed, on a
United States national securities exchange or (b) is approved, or immediately
after such transaction or event will be approved, for quotation on the Nasdaq
National Market or any similar United States system of automated dissemination
of quotations of securities prices.
"Fundamental Change Repurchase Date" has the meaning specified in
Section 3.05(a).
"Funding Guarantor" shall have the meaning set forth in Section
17.05.
"Global Note" has the meaning specified in Section 2.02.
"Guarantors" means each of (i) AMO Holdings, LLC, a Delaware limited
liability company, and (ii) any other Subsidiary of the Company that executes
a Note Guarantee in accordance with the terms of this Indenture, and in each
of (i) and (ii) above, their respective successors and assigns and, in each
case, only for so long as such Guarantor's Note Guarantee is in full force and
effect and has not been released or discharged in accordance with this
Indenture.
"Guaranty" or "Note Guarantee" has the meaning specified in Section
17.01
"Indebtedness" means, with respect to any Person, and without
duplication, whether recourse is to all or a portion of the assets of such
Person and whether or not contingent, (a) all indebtedness, obligations and
other liabilities of such Person for borrowed money (including obligations of
the Person in respect of overdrafts, foreign exchange contracts, currency
exchange agreements, interest rate protection agreements, and any loans or
advances from banks, whether or not evidenced by notes or similar instruments)
or evidenced by bonds, debentures, notes or similar instruments, other than
any account payable or other accrued current liability or obligation incurred
in the ordinary course of business in connection with the obtaining of
materials or services; (b) all reimbursement obligations and other liabilities
of such Person with respect to letters of credit, bank guarantees or bankers'
acceptances; (c) all obligations and liabilities in respect of leases of such
Person required, in conformity with generally accepted accounting principles,
to be accounted for as capitalized lease obligations on the balance sheet of
such Person and all obligations and other liabilities under any lease or
related document (including a purchase agreement) in connection with the lease
of real property which provides that such Person is contractually obligated to
purchase or cause a third party to purchase the leased property and thereby
guarantee a minimum residual value of the leased property to the lessor and
the obligations of such Person under such lease or related document to
purchase or to cause a third party to purchase such leased property; (d) all
net obligations of such Person with respect to an interest rate or other swap,
cap or collar agreement or other similar instrument or agreement or foreign
currency hedge, exchange, purchase or similar instrument or agreement; (e) all
direct or indirect guaranties or similar agreements by such Person in respect
of, and obligations or liabilities of such Person to purchase or otherwise
acquire or otherwise assure a creditor against loss in respect of,
indebtedness, obligations or liabilities of another Person of the kind
described in clauses (a) through (d); (f) any indebtedness or other
obligations described in clauses (a) through (e) secured by any mortgage,
pledge, lien or other encumbrance existing on property which is owned or held
by such Person, regardless of whether the indebtedness or other obligation
secured thereby shall have been assumed by such Person; and (g) any and all
deferrals, renewals, extensions and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or liability of
the kind described in clauses (a) through (f).
"Indenture" means this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
"Initial Purchasers" means each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
Banc of America Securities LLC, ▇▇▇▇▇▇ Brothers Inc., and Banc One Capital
Markets, Inc. (each an "Initial Purchaser").
"interest" means, when used with reference to the Notes, any interest
payable under the terms of the Notes, including contingent interest, if any,
and Liquidated Damages, if any, payable under the terms of the Registration
Rights Agreement.
"Junior Securities" has the meaning specified in Section 4.16.
"Liquidated Damages" has the meaning specified for "Liquidated
Damages Amount" in Section 2(e) of the Registration Rights Agreement.
"Liquidated Damages Notice" has the meaning specified in Section
6.10.
"non-electing share" has the meaning specified in Section 16.06.
"Note" or "Notes" means any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
"Note Register" has the meaning specified in Section 2.05.
"Note Registrar" has the meaning specified in Section 2.05.
"Noteholder" or "holder" as applied to any Note, or other similar
terms (but excluding the term "beneficial holder"), means any Person in whose
name at the time a particular Note is registered on the Note Registrar's
books.
"Obligations" means any principal, interest (including, in the case
of Senior Indebtedness, Post-Petition Interest), penalties, fees,
indemnifications, reimbursement obligations, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer" means any person holding any of the following positions
with the Company: the Chairman of the Board, any Vice Chairman, the Chief
Executive Officer, the President, any Vice President (whether or not
designated by a number or numbers or word or words added before or after the
title "Vice President"), the Chief Financial Officer, the Treasurer and the
Secretary.
"Officers' Certificate", when used with respect to the Company, means
a certificate signed by any two Officers or by one such Officer and any
Assistant Treasurer or Assistant Secretary of the Company.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or other counsel
reasonably acceptable to the Trustee.
"outstanding", when used with reference to Notes and subject to the
provisions of Section 10.04, means, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, (i) for the redemption or repurchase
of which monies in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Company) or (ii)
which shall have been otherwise discharged in accordance with Article 14;
(c) Notes in lieu of which, or in substitution for which, other Notes
shall have been authenticated and delivered pursuant to the terms of Section
2.06; and
(d) Notes converted into Common Stock pursuant to Article 16 and
Notes paid or redeemed or repurchased pursuant to Article 3.
"Person" means a corporation, an association, a partnership, a
limited liability company, an individual, a joint venture, a joint stock
company, a trust, an unincorporated organization or a government or an agency
or a political subdivision thereof.
"Portal Market" means The Portal Market operated by the National
Association of Securities Dealers, Inc. or any successor thereto.
"Post Petition Interest" means, with respect to any Indebtedness of
any Person, all interest accrued or accruing on such Indebtedness after the
commencement of any insolvency or liquidation proceeding against such Person
in accordance with and at the contract rate (including, without limitation,
any rate applicable upon default), specified in the agreement or instrument
creating, evidencing or governing such Indebtedness, whether or not, pursuant
to applicable law or otherwise, the claim for such interest is allowed as a
claim in such insolvency or liquidation proceeding.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note, and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.06 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed
or stolen Note that it replaces.
"premium" means any premium payable under the terms of the Notes.
"Purchased Shares" has the meaning specified in Section 16.05(f).
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of June 24, 2003, between the Company, the Guarantor and
the Initial Purchasers, as amended from time to time in accordance with its
terms.
"representative" means (a) the indenture trustee or other trustee,
agent or representative for holders of Senior Indebtedness or (b) with respect
to any Senior Indebtedness that does not have any such trustee, agent or other
representative, (i) in the case of such Senior Indebtedness issued pursuant to
an agreement providing for voting arrangements as among the holders or owners
of such Senior Indebtedness, any holder or owner of such Senior Indebtedness
acting with the consent of the required persons necessary to bind such holders
or owners of such Senior Indebtedness and (ii) in the case of all other such
Senior Indebtedness, the holder or owner of such Senior Indebtedness.
"Repurchase Date" has the meaning specified in Section 3.06.
"Repurchase Notice" has the meaning specified in Section 3.06(a).
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee with
direct responsibility for the administration of this Indenture and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of such person's knowledge of or familiarity
with the particular subject.
"Restricted Securities" has the meaning specified in Section 2.05(c).
"Rule 144A" means Rule 144A as promulgated under the Securities Act
as it may be amended from time to time hereafter.
"Securities" has the meaning specified in Section 16.05(d).
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, as in effect from time to
time.
"Senior Credit Facility" means the senior credit facility, under the
$100,000,000 Amended and Restated Credit Agreement dated as of June 17, 2003,
among Advanced Medical Optics, Inc., as Borrower, General Electric Capital
Corporation, as Syndication Agent, Bank One, N.A., as Documentation Agent, and
Bank of America, N.A., as Administrative Agent, Foreign Currency Fronting
Lender and L/C Issuer and the other financial institutions from time to time
party thereto, together with the documents now or hereafter related thereto
(including, without limitation, any guarantee agreements and any security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from
time to time, including any deferral thereof or any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including by
way of increasing the amount of commitments thereunder and adding the Company
or any Subsidiaries of the Company as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders (or other institutions).
"Senior Indebtedness" means, with respect to any Person, whether
outstanding on the date of this Indenture or thereafter issued, all
Obligations of such Person under the Senior Credit Facility, hedging
obligations of such Person and, with respect to the Company or any Guarantor,
Obligations of such Person in connection with all other Indebtedness of such
Person unless the instrument creating or evidencing such Indebtedness
expressly provides that such Indebtedness is not senior or superior in right
of payment to the Notes or the applicable Note Guarantee, and all renewals,
extensions, modifications, amendments or refinancings thereof; provided, that
in no event shall Senior Indebtedness include (a) to the extent that it may
constitute Indebtedness, any Obligation for federal, state, local or other
taxes; (b) any Indebtedness among or between the Company and any Subsidiary,
unless and for so long as such Indebtedness has been pledged to secure
Obligations to a third party; (c) to the extent that it may constitute
Indebtedness, any Obligation in respect of any trade payable incurred for the
purchase of goods or materials, or for services obtained in the ordinary
course of business; (d) Indebtedness evidenced by the Notes; (e) Indebtedness
that is expressly subordinate or junior in right of payment to any other
Indebtedness; (f) to the extent that it may constitute Indebtedness, any
Obligation owing under leases (other than capital lease obligations) or
management agreements; and (g) any Obligation that by operation of law is
subordinate to any general unsecured Obligations.
"Significant Subsidiary" means, as of any date of determination, a
Subsidiary of the Company that would constitute a "significant subsidiary" as
such term is defined under Rule 1-02(w) of Regulation S-X of the Commission as
in effect on the date of this Indenture.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total
voting power of shares of capital stock or other equity interest entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other
subsidiaries of that Person (or a combination thereof) and (ii) any
partnership (a) the sole general partner or managing general partner of which
is such Person or a subsidiary of such Person or (b) the only general partners
of which are such Person or of one or more subsidiaries of such Person (or any
combination thereof).
["Tax Original Issue Discount" means the amount of ordinary interest
income on a Note that must be accrued as original issue discount for United
States Federal income tax purposes pursuant to U.S. Treasury Regulation
section 1.1275-4.]
"Trading Day" has the meaning specified in Section 16.05(g).
"Trading Price" means, with respect to the Notes on any date of
determination, the average of the secondary market bid quotations per $1,000
principal amount of Notes obtained by the Trustee for $10,000,000 principal
amount of Notes at approximately 3:30 p.m.,
New York City time, on such
determination date from three independent nationally recognized securities
dealers selected by the Company; provided that if three such bids cannot
reasonably be obtained by the Trustee, but two such bids are obtained, then
the average of the two bids shall be used, and if only one such bid can
reasonably be obtained by the Trustee, this one bid shall be used; and
provided further that if the Trustee cannot reasonably obtain at least one bid
for $10,000,000 principal amount of Notes from a nationally recognized
securities dealer, then the Trading Price per $1,000 principal amount of Notes
shall be deemed to be less than 95% of the product of (a) the Conversion Rate
and (b) the Closing Sale Price on such determination date; provided, however,
that for purposes of determining the "Trading Price" as used in Article 5, if
the Trustee cannot reasonably obtain at least one bid for $10,000,000
principal amount of the Notes from a nationally recognized securities dealer,
then the market price of the Notes will equal (1) the then-applicable
Conversion Rate multiplied by (2) the average Closing Sale Price on the five
Trading Days ending on such determination date.
"Trigger Event" has the meaning specified in Section 16.05(d).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as it was in force at the date of this Indenture, except as provided
in Sections 12.03; provided that if the Trust Indenture Act of 1939 is amended
after the date hereof, the term "Trust Indenture Act" shall mean, to the
extent required by such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means U.S. Bank National Association and its successors and
any corporation resulting from or surviving any consolidation or merger to
which it or its successors may be a party and any successor trustee at the
time serving as successor trustee hereunder.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01. Designation Amount and Issue of Notes. The Notes shall
be designated as "3 1/2% Convertible Senior Subordinated Notes Due 2023".
Notes not to exceed the aggregate principal amount of $140,000,000 (except
pursuant to Sections 2.05, 2.06, 3.03, 3.05, 3.06 and 16.02 hereof) upon the
execution of this Indenture, or from time to time thereafter, may be executed
by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Notes to or upon the
written order of the Company, signed by an Officer or by any Assistant
Treasurer of the Company or any Assistant Secretary of the Company, without
any further action by the Company hereunder.
Section 2.02. Form of Notes. The Notes and the Trustee's certificate
of authentication to be borne by such Notes shall be substantially in the form
set forth in Exhibit A hereto. The terms and provisions contained in the form
of Note attached as Exhibit A hereto shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends, endorsements or changes as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required by the Custodian, the Depositary or by
the National Association of Securities Dealers, Inc. in order for the Notes to
be tradable on The Portal Market or as may be required for the Notes to be
tradable on any other market developed for trading of securities pursuant to
Rule 144A or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed, or to conform to usage, or to indicate any special limitations or
restrictions to which any particular Notes are subject.
So long as the Notes are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, or otherwise contemplated by
Section 2.05(b), all of the Notes will be represented by one or more Notes in
global form registered in the name of the Depositary or the nominee of the
Depositary (a "Global Note"). The transfer and exchange of beneficial
interests in any such Global Note shall be effected through the Depositary in
accordance with this Indenture and the applicable procedures of the
Depositary. Except as provided in Section 2.05(b), beneficial owners of a
Global Note shall not be entitled to have certificates registered in their
names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered holders of such
Global Note.
Any Global Note shall represent such of the outstanding Notes as
shall be specified therein and shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from
time to time be increased or reduced to reflect redemptions, repurchases,
conversions, transfers or exchanges permitted hereby. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in such manner and upon
instructions given by the holder of such Notes in accordance with this
Indenture. Payment of principal of, interest on and premium, if any, on any
Global Note shall be made to the holder of such Note.
Section 2.03. Date and Denomination of Notes; Payments of Interest.
The Notes shall be issuable in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof. Each
Note shall be dated the date of its authentication and shall bear interest
from the date specified on the face of the form of Note attached as Exhibit A
hereto. Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
The Person in whose name any Note (or its Predecessor Note) is
registered on the Note Register at the close of business on any Record Date
with respect to any interest payment date shall be entitled to receive the
interest payable on such interest payment date, except that the interest
payable upon redemption or repurchase will be payable to the Person to whom
principal is payable pursuant to such redemption or repurchase (unless the
redemption date, the Fundamental Change Repurchase Date or the Repurchase
Date, as the case may be, is an interest payment date, in which case the
semi-annual payment of interest becoming due on such date shall be payable to
the holder of such Note registered as such on the applicable Record Date).
Notwithstanding the foregoing, any Note or portion thereof surrendered for
conversion during the period from the close of business on the Record Date for
any interest payment date to the close of business on the Business Day
preceding the applicable interest payment date that has not been called for
redemption during such period shall be accompanied by payment, in immediately
available funds or other funds acceptable to the Company, of an amount equal
to the interest otherwise payable on such interest payment date on the
principal amount being converted; provided that no such payment need be made
(1) if 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 redemption date following a Fundamental Change that is during such period or
(3) to the extent of any overdue interest, if any overdue interest exists at
the time of conversion with respect to such Note. Interest shall be payable at
the office of the Company maintained by the Company for such purposes in the
Borough of Manhattan, The City of
New York, which shall initially be an office
or agency of the Trustee. The Company shall pay interest (i) on any Notes in
certificated form by check mailed to the address of the Person entitled
thereto as it appears in the Note Register or (ii) on any Global Note by wire
transfer of immediately available funds to the account of the Depositary or
its nominee. The term "Record Date" with respect to any interest payment date
shall mean the April 1 or October 1 preceding the applicable April 15 or
October 15 interest payment date, respectively.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any April 15 or October 15 (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Noteholder registered as
such on the relevant Record Date, and such Defaulted Interest shall be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a special record date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Note and the date of the
proposed payment (which shall be not less than twenty-five (25) days after the
receipt by the Trustee of such notice, unless the Trustee shall consent to an
earlier date), and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix
a special record date for the payment of such Defaulted Interest which shall
be not more than fifteen (15) days and not less than ten (10) days prior to
the date of the proposed payment, and not less than ten (10) days after the
receipt by the Trustee of the notice of the proposed payment (unless, the
Trustee shall consent to an earlier date). The Trustee shall promptly notify
the Company of such special record date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first-class
postage prepaid, to each holder at his address as it appears in the Note
Register, not less than ten (10) days prior to such special record date
(unless, the Trustee shall consent to an earlier date). Notice of the proposed
payment of such Defaulted Interest and the special record date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered at the
close of business on such special record date and shall no longer be payable
pursuant to the following clause (2) of this Section 2.03.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Notes may be listed or
designated for issuance, and upon such notice as may be required by such
exchange or automated quotation system, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Section 2.04. Execution of Notes. The Notes shall be signed in the
name and on behalf of the Company by the manual or facsimile signature of an
Officer and attested by the manual or facsimile signature of its Secretary or
any of its Assistant Secretaries or its Treasurer or any of its Assistant
Treasurers (which may be printed, engraved or otherwise reproduced thereon, by
facsimile or otherwise). Only such Notes as shall bear thereon a certificate
of authentication substantially in the form set forth on the form of Note
attached as Exhibit A hereto, manually executed by the Trustee (or an
authenticating agent appointed by the Trustee as provided by Section 19.11),
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee (or such an authenticating
agent) upon any Note executed by the Company shall be conclusive evidence that
the Note so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Notes so signed shall have
been authenticated and delivered by the Trustee, or disposed of by the
Company, such Notes nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Notes had not ceased to be
such officer of the Company, and any Note may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such Note,
shall be the proper officers of the Company, although at the date of the
execution of this Indenture any such person was not such an officer.
Section 2.05. Exchange and Registration of Transfer of Notes;
Restrictions on Transfer. (a) The Company shall cause to be kept at the
Corporate Trust Office a register (the register maintained in such office and
in any other office or agency of the Company designated pursuant to Section
6.02 being herein sometimes collectively referred to as the "Note Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Notes and of transfers of Notes.
The Note Register shall be in written form or in any form capable of being
converted into written form within a reasonably prompt period of time. The
Trustee is hereby appointed "Note Registrar" for the purpose of registering
Notes and transfers of Notes as herein provided. The Company may appoint one
or more co-registrars in accordance with Section 6.02.
Upon surrender for registration of transfer of any Note to the Note
Registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.05, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture.
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Notes to be exchanged at any such office or agency maintained by the Company
pursuant to Section 6.02. Whenever any Notes are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Notes which the Noteholder making the exchange is entitled to receive bearing
registration numbers not contemporaneously outstanding.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
All Notes presented or surrendered for registration of transfer or
for exchange, redemption, repurchase or conversion shall (if so required by
the Company or the Note Registrar) be duly endorsed, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company, and the Notes shall be duly executed by the Noteholder thereof or his
attorney duly authorized in writing.
No service charge shall be made to any holder for any registration
of, transfer or exchange of Notes, but the Company may require payment by the
holder of a sum sufficient to cover any tax, assessment or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes.
Neither the Company nor the Trustee nor any Note Registrar shall be
required to exchange or register a transfer of (a) any Notes for a period of
fifteen (15) days next preceding any selection of Notes to be redeemed, (b)
any Notes or portions thereof called for redemption pursuant to Section 3.02,
(c) any Notes or portions thereof surrendered for conversion pursuant to
Article 16, (d) any Notes or portions thereof tendered for repurchase (and not
withdrawn) pursuant to Section 3.05 or (e) any Notes or portions thereof
tendered for repurchase (and not withdrawn) pursuant to Section 3.06.
(b) The following provisions shall apply only to Global Notes:
(i) Each Global Note authenticated under this Indenture shall
be registered in the name of the Depositary or a nominee thereof and
delivered to such Depositary or a nominee thereof or Custodian
therefor, and each such Global Note shall constitute a single Note
for all purposes of this Indenture.
(ii) Notwithstanding any other provision in this Indenture, no
Global Note may be exchanged in whole or in part for Notes
registered, and no transfer of a Global Note in whole or in part may
be registered, in the name of any Person other than the Depositary or
a nominee thereof unless (A) the Depositary (x) has notified the
Company that it is unwilling or unable to continue as Depositary for
such Global Note and a successor depositary has not been appointed by
the Company within ninety days or (y) has ceased to be a clearing
agency registered under the (B) an Event of Default has occurred and
is continuing or (C) the Company, in its sole discretion, notifies
the Trustee in writing that it no longer wishes to have all the Notes
represented by Global Notes. Any Global Note exchanged pursuant to
clause (A) or (B) above shall be so exchanged in whole and not in
part and any Global Note exchanged pursuant to clause (C) above may
be exchanged in whole or from time to time in part as directed by the
Company. Any Note issued in exchange for a Global Note or any portion
thereof shall be a Global Note; provided that any such Note so issued
that is registered in the name of a Person other than the Depositary
or a nominee thereof shall not be a Global Note.
(iii) Securities issued in exchange for a Global Note or any
portion thereof pursuant to clause (ii) above shall be issued in
definitive, fully registered form, without interest coupons, shall
have an aggregate principal amount equal to that of such Global Note
or portion thereof to be so exchanged, shall be registered in such
names and be in such authorized denominations as the Depositary shall
designate and shall bear any legends required hereunder. Any Global
Note to be exchanged in whole shall be surrendered by the Depositary
to the Trustee, as Note Registrar. With regard to any Global Note to
be exchanged in part, either such Global Note shall be so surrendered
for exchange or, if the Trustee is acting as Custodian for the
Depositary or its nominee with respect to such Global Note, the
principal amount thereof shall be reduced, by an amount equal to the
portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and make
available for delivery the Note issuable on such exchange to or upon
the written order of the Depositary or an authorized representative
thereof.
(iv) In the event of the occurrence of any of the events
specified in clause (ii) above, the Company will promptly make
available to the Trustee a reasonable supply of certificated Notes in
definitive, fully registered form, without interest coupons.
(v) Neither any members of, or participants in, the Depositary
("Agent Members") nor any other Persons on whose behalf Agent Members
may act shall have any rights under this Indenture with respect to
any Global Note registered in the name of the Depositary or any
nominee thereof, and the Depositary or such nominee, as the case may
be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and holder of such
Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or
any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between
the Depositary, its Agent Members and any other Person on whose
behalf an Agent Member may act, the operation of customary practices
of such Persons governing the exercise of the rights of a holder of
any Note.
(vi) At such time as all interests in a Global Note have been
redeemed, repurchased, converted, canceled or exchanged for Notes in
certificated form, such Global Note shall, upon receipt thereof, be
canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian. At
any time prior to such cancellation, if any interest in a Global Note
is redeemed, repurchased, converted, canceled or exchanged for Notes
in certificated form, the principal amount of such Global Note shall,
in accordance with the standing procedures and instructions existing
between the Depositary and the Custodian, be appropriately reduced,
and an endorsement shall be made on such Global Note, by the Trustee
or the Custodian, at the direction of the Trustee, to reflect such
reduction.
(c) Every Note (and all securities issued in exchange therefor or in
substitution thereof) that bears or is required under this Section 2.05(c) to
bear the legend set forth in this Section 2.05(c) (together with any Common
Stock issued upon conversion of the Notes and required to bear the legend set
forth in Section 2.05(c), collectively, the "Restricted Securities") shall be
subject to the restrictions on transfer set forth in this Section 2.05(c)
(including those set forth in the legend below) unless such restrictions on
transfer shall be waived by written consent of the Company, and the holder of
each such Restricted Security, by such Note holder's acceptance thereof,
agrees to be bound by all such restrictions on transfer. As used in this
Section 2.05(c), the term "transfer" means any sale, pledge, loan, transfer or
other disposition whatsoever of any Restricted Security or any interest
therein.
Until the expiration of the holding period applicable to sales of
Restricted Securities under Rule 144(k) under the Securities Act (or any
successor provision), any certificate evidencing Restricted Security shall
bear a legend in substantially the following form, unless such Restricted
Security has been sold pursuant to a registration statement that has been
declared effective under the Securities Act (and which continues to be
effective at the time of such transfer) or sold pursuant to Rule 144 under the
Securities Act or any similar provision then in force, or unless otherwise
agreed by the Company in writing, with written notice thereof to the Trustee:
THIS SECURITY AND THE SHARES OF ADVANCED MEDICAL OPTICS, INC. (THE "COMPANY")
COMMON STOCK ("COMMON STOCK") ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE
SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHTS OF THE COMPANY AND
THE WITHIN MENTIONED TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN
EACH OF THE FOREGOING CASES WHERE REGISTRATION OR TRANSFER OF THIS SECURITY IS
REQUIRED, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED AFTER THE RESALE RESTRICTION TERMINATION DATE UPON THE
REQUEST OF THE HOLDER AND THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATES
AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY.
Any Restricted Securities as to which such restrictions on transfer
shall have expired in accordance with their terms or as to conditions for
removal of the foregoing legend set forth therein have been satisfied may,
upon surrender of such Note for exchange to the Note Registrar in accordance
with the provisions of this Section 2.05, be exchanged for a new Note or
Notes, of like tenor and aggregate principal amount, which shall not bear the
restrictive legend required by this Section 2.05(c). If the Restricted
Security surrendered for exchange is represented by a Global Note bearing the
legend set forth in this Section 2.05(c), the principal amount of the legended
Global Note shall be reduced by the appropriate principal amount and the
principal amount of a Global Note without the legend set forth in this Section
2.05(c) shall be increased by an equal principal amount. If a Global Note
without the legend set forth in this Section 2.05(c) is not then outstanding,
the Company shall execute and the Trustee shall authenticate and deliver an
unlegended Global Note to the Depositary.
(d) Any Restricted Securities, prior to the expiration of the holding
period applicable to sales thereof under Rule 144(k) under the Securities Act
(or any successor provision), is purchased or owned by the Company or any
Affiliate thereof may not be resold by the Company or such Affiliate unless
registered under the Securities Act or resold pursuant to an exemption from
the registration requirements of the Securities Act in a transaction which
results in such Notes or Common Stock, as the case may be, no longer being
"restricted securities" (as defined under Rule 144).
(e) The Trustee shall have no responsibility or obligation to any
Agent Members or any other Person with respect to the accuracy of the books or
records, or the acts or omissions, of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Notes or with respect to the delivery to any Agent Member or other Person
(other than the Depositary) of any notice (including any notice of redemption)
or the payment of any amount, under or with respect to such Notes. All notices
and communications to be given to the Noteholders and all payments to be made
to Noteholders under the Notes shall be given or made only to or upon the
order of the registered Noteholders (which shall be the Depositary or its
nominee in the case of a Global Note). The rights of beneficial owners in any
Global Note shall be exercised only through the Depositary subject to the
customary procedures of the Depository. The Trustee may rely and shall be
fully protected in relying upon information furnished by the Depositary with
respect to its Agent Members.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Agent Members in any
Global Indenture) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Indenture, and to examine
the same to determine substantial compliance as to form with the express
requirements hereof.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes. In case any
Note shall become mutilated or be destroyed, lost or stolen, the Company in
its discretion may execute, and upon its written request the Trustee or an
authenticating agent appointed by the Trustee shall authenticate and make
available for delivery, a new Note, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note, or in lieu
of and in substitution for the Note so destroyed, lost or stolen. In every
case, the applicant for a substituted Note shall furnish to the Company, to
the Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any
loss, liability, cost or expense caused by or connected with such
substitution, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss
or theft of such Note and of the ownership thereof.
Following receipt by the Trustee or such authenticating agent, as the
case may be, of satisfactory security or indemnity and evidence, as described
in the preceding paragraph, the Trustee or such authenticating agent may
authenticate any such substituted Note and make available for delivery such
Note. Upon the issuance of any substituted Note, the Company may require the
payment by the holder of a sum sufficient to cover any tax, assessment or
other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith. In case any Note which has matured or is
about to mature or has been called for redemption or has been properly
tendered on a Repurchase Date for redemption upon a Fundamental Change
Repurchase Date (and not withdrawn) or has been surrendered for repurchase on
a Repurchase Date (and not withdrawn), as the case may be, is to be converted
into Common Stock shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Note, pay or authorize the
payment of or convert or authorize the conversion of the same (without
surrender thereof except in the case of a mutilated Note), as the case may be,
if the applicant for such payment or conversion shall furnish to the Company,
to the Trustee and, if applicable, to such authenticating agent such security
or indemnity as may be required by them to save each of them harmless for any
loss, liability, cost or expense caused by or in connection with such
substitution, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company, the Trustee and, if applicable, any paying
agent or conversion agent evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this
Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Note shall be found at any time, and
shall be entitled to all the benefits of (but shall be subject to all the
limitations set forth in) this Indenture equally and proportionately with any
and all other Notes duly issued hereunder. To the extent permitted by law, all
Notes shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment or
conversion or redemption or repurchase of mutilated, destroyed, lost or stolen
Notes and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect
to the replacement or payment or conversion or redemption or repurchase of
negotiable instruments or other securities without their surrender.
Section 2.07. Temporary Notes. Pending the preparation of Notes in
certificated form, the Company may execute and the Trustee or an
authenticating agent appointed by the Trustee shall, upon the written request
of the Company, authenticate and deliver temporary Notes (printed or
lithographed). Temporary Notes shall be issuable in any authorized
denomination, and substantially in the form of the Notes in certificated form,
but with such omissions, insertions and variations as may be appropriate for
temporary Notes, all as may be determined by the Company. Every such temporary
Note shall be executed by the Company and authenticated by the Trustee or such
authenticating agent upon the same conditions and in substantially the same
manner, and with the same effect, as the Notes in certificated form. Without
unreasonable delay, the Company will execute and deliver to the Trustee or
such authenticating agent Notes in certificated form and thereupon any or all
temporary Notes may be surrendered in exchange therefor, at each office or
agency maintained by the Company pursuant to Section 6.02 and the Trustee or
such authenticating agent shall authenticate and make available for delivery
in exchange for such temporary Notes an equal aggregate principal amount of
Notes in certificated form. Such exchange shall be made by the Company at its
own expense and without any charge therefor. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits and subject to
the same limitations under this Indenture as Notes in certificated form
authenticated and delivered hereunder.
Section 2.08. Cancellation of Notes. All Notes surrendered for the
purpose of payment, redemption, repurchase, conversion, exchange or
registration of transfer shall, if surrendered to the Company or any paying
agent or any Note Registrar or any conversion agent, be surrendered to the
Trustee and promptly canceled by it or, if surrendered to the Trustee, shall
be promptly canceled by it and no Notes shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Indenture. The Trustee
shall dispose of such canceled Notes in accordance with its customary
procedures. If the Company shall acquire any of the Notes, such acquisition
shall not operate as a redemption, repurchase or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
Section 2.09. CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Noteholders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Notes or as contained
in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Notes, and any such redemption
shall not be affected by any defect in or omission of such numbers. The
Company will promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3
REDEMPTION AND REPURCHASE OF NOTES
Section 3.01. Redemption of Notes. At any time on or after April 18,
2008 and prior to maturity, the Notes may be redeemed at the option of the
Company, in whole or in part, upon notice as set forth in Section 3.02, at the
redemption prices set forth in the form of Note attached as Exhibit A hereto,
together with accrued and unpaid interest, to, but excluding, the date fixed
for redemption.
Section 3.02. Notice of Optional Redemption; Selection of Notes. In
case the Company shall desire to exercise the right to redeem all or, as the
case may be, any part of the Notes pursuant to Section 3.01, it shall fix a
date for redemption and it or, at its written request received by the Trustee
not fewer than five (5) Business Days prior (or such shorter period of time as
may be acceptable to the Trustee) to the date the notice of redemption is to
be mailed, the Trustee in the name of and at the expense of the Company, shall
mail or cause to be mailed a notice of such redemption not fewer than thirty
(30) nor more than sixty (60) days prior to the redemption date to each holder
of Notes so to be redeemed as a whole or in part at its last address as the
same appears on the Note Register; provided that if the Company makes such
request of the Trustee, it shall, together with such request, also give
written notice of the redemption date to the Trustee, provided that the text
of the notice shall be prepared by the Company. Such mailing shall be by first
class mail. The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Note designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Note. Concurrently with the mailing of any such notice
of redemption, the Company shall issue a press release announcing such
redemption, the form and content of which press release shall be determined by
the Company in its sole discretion. The failure to issue any such press
release or any defect therein shall not affect the validity of the redemption
notice or any of the proceedings for the redemption of any Note called for
redemption.
Each such notice of redemption shall specify the aggregate principal
amount of Notes to be redeemed, the CUSIP number or numbers of the Notes being
redeemed, the date fixed for redemption (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 and unpaid to, but excluding, the date fixed for
redemption will be paid as specified in said notice, and that on and after
said date interest thereon or on the portion thereof to be redeemed will cease
to accrue. Such notice shall also state the current Conversion Rate, the date
on which the right to convert such Notes or portions thereof into Common Stock
will expire and whether the Company has elected to pay cash in lieu of
delivery of any shares of Common Stock on such conversion and, if so, the
portion of the Conversion Rate to be so paid in cash, which may be all or any
portion thereof; provided that the Company will pay cash for fractional
interests in shares of Common Stock as provided herein. If the Company elects
to pay in cash, the amount of cash per $1,000 principal amount of Notes shall
equal (x) the Applicable Stock Price multiplied by (y) the Conversion Rate in
effect on the conversion date, as provided in Section 16.01(c). If fewer than
all the Notes are to be redeemed, the notice of redemption shall identify the
Notes to be redeemed (including CUSIP numbers, if any). In case any Note is to
be redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that, on and after
the redemption date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof will be issued.
On or prior to the redemption date specified in the notice of
redemption given as provided in this Section 3.02, the Company will deposit
with the 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 6.04) an amount of money in immediately available funds
sufficient to redeem on the redemption date all the Notes (or portions
thereof) so called for redemption (other than those theretofore surrendered
for conversion into Common Stock) at the appropriate redemption price,
together with accrued interest to, but excluding, the redemption date;
provided that if such payment is made on the redemption date it must be
received by the Trustee or paying agent, as the case may be, by 11:00 a.m.
New
York City time on such date. The Company shall be entitled to retain any
interest, yield or gain on amounts deposited with the Trustee or any paying
agent pursuant to this Section 3.02 in excess of amounts required hereunder to
pay the redemption price and accrued interest to, but excluding, the
redemption date. If any Note called for redemption is converted pursuant
hereto prior to such redemption date, any money deposited with the Trustee or
any paying agent or so segregated and held in trust for the redemption of such
Note shall be paid to the Company or, if then held by the Company, shall be
discharged from such trust. Whenever any Notes are to be redeemed, the Company
will give the Trustee written notice of the redemption date, together with an
Officers' Certificate as to the aggregate principal amount of Notes to be
redeemed not fewer than thirty (30) days (or such shorter period of time as
may be acceptable to the Trustee) prior to the redemption date.
If less than all of the outstanding Notes are to be redeemed, the
Trustee shall select the Notes or portions thereof of the Global Note or the
Notes in certificated form to be redeemed (in principal amounts of $1,000 or
multiples thereof) by lot, on a pro rata basis or by another method the
Trustee deems fair and appropriate. If any Note selected for 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 the portion to be selected for redemption. The Notes (or
portions thereof) so selected for redemption shall be deemed duly selected for
redemption for all purposes hereof, notwithstanding that any such Note is
submitted for conversion in part before the mailing of the notice of
redemption.
Upon any redemption of less than all of the outstanding Notes, the
Company and the Trustee may (but need not), solely for purposes of determining
the pro rata allocation among such Notes that are unconverted and outstanding
at the time of redemption, treat as outstanding any Notes surrendered for
conversion during the period of fifteen (15) days preceding the mailing of a
notice of redemption and may (but need not) treat as outstanding any Note
authenticated and delivered during such period in exchange for the unconverted
portion of any Note converted in part during such period.
Section 3.03. Payment of Notes Called for Redemption by the Company.
If notice of redemption has been given as provided in Section 3.02, the Notes
or portion of Notes with respect to which such notice has been given shall,
unless converted into Common Stock pursuant to the terms hereof, become due
and payable on the date fixed for redemption and at the place or places stated
in such notice at the applicable redemption price, together with interest,
accrued to (but excluding) the redemption date, and on and after said date
(unless the Company shall default in the payment of such Notes at the
redemption price, together with interest, if any, accrued to, but excluding,
said date) interest on the Notes or portion of Notes so called for redemption
shall cease to accrue on and after such date and, after the close of business
on the Business Day immediately preceding the redemption date (unless the
Company shall default in the payment of such Notes at the redemption price,
together with interest, accrued to said date) such Notes shall cease to be
convertible into Common Stock and, except as provided in Section 9.05 and
Section 14.04, 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 and unpaid interest, to (but
excluding) the redemption date. On presentation and surrender of such Notes at
a place of payment in said notice specified, the said Notes or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with interest, accrued thereon to, but excluding,
the redemption date; 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 notice of redemption during the continuance of a default in
payment of interest, or premium, if any, on the Notes. If any Note called for
redemption shall not be so paid upon surrender thereof for redemption on the
redemption date, as provided in Section 3.03, the principal, and premium, if
any, shall, until paid or duly provided for, bear interest from and including
the redemption date at a rate equal to 1% per annum above the rate borne by
the Notes and such Note shall remain convertible into Common Stock until the
principal and premium, if any, and interest, shall have been paid or duly
provided for.
Section 3.04. Conversion Arrangement on Call for Redemption. In
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes by an agreement with one or more
investment banks or other purchasers to purchase such Notes by paying to the
Trustee in trust for the Noteholders, on or before the date fixed for
redemption, an amount not less than the applicable redemption price, together
with interest, accrued to, but excluding, the date fixed for redemption, of
such Notes. Notwithstanding anything to the contrary contained in this Article
3, the obligation of the Company to pay the redemption price of such Notes,
together with interest, accrued to, but excluding, the date fixed for
redemption, shall be deemed to be satisfied and discharged to the extent such
amount is so paid by such purchasers. If such an agreement is entered into, a
copy of which will be filed with the Trustee prior to the date fixed for
redemption, any Notes not duly surrendered for conversion by the holders
thereof may, at the option of the Company, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such holders and
(notwithstanding anything to the contrary contained in Article 16) surrendered
by such purchasers for conversion, all as of immediately prior to the close of
business on the date fixed for redemption (and the right to convert any such
Notes shall be extended through such time), subject to payment of the above
amount as aforesaid. At the direction of the Company, the Trustee shall hold
and dispose of any such amount paid to it in the same manner as it would
monies deposited with it by the Company for the redemption of Notes. Without
the Trustee's prior written consent, no arrangement between the Company and
such purchasers for the purchase and conversion of any Notes shall increase or
otherwise affect any of the powers, duties, responsibilities or obligations of
the Trustee as set forth in this Indenture.
Section 3.05. Repurchase at Option of Holders Upon a Fundamental
Change. (a) If there shall occur a Fundamental Change at any time prior to
maturity of the Notes, then each Noteholder shall have the right, at such
holder's option, to require the Company to repurchase all of such holder's
Notes, or any portion thereof that is a multiple of $1,000 principal amount,
on a date (the "Fundamental Change Repurchase Date") specified by the Company,
that is not less than 20 nor more than 35 Business Days after the date of the
Company Repurchase Notice (as defined in Section 3.07(d)) related to such
Fundamental Change (or, if such day is not a Business Day, the next succeeding
Business Day) at a purchase price equal to 100% of the principal amount
thereof, together with interest, accrued to, but excluding, the Fundamental
Change Repurchase Date, subject to the provisions of Section 3.07; provided
that if such Fundamental Change Repurchase Date falls after a record date and
on or prior to the corresponding interest payment date, then the interest
payable on such interest payment date shall be paid to the holders of record
of the Notes on the applicable Record Date instead of the holders surrendering
the Notes for redemption on such date.
(b) On or before the tenth Business Day after the occurrence of a
Fundamental Change, the Company shall mail or cause to be mailed to all
holders of record on the date of the Fundamental Change a Company Repurchase
Notice as set forth in Section 3.07(d). The Company shall also deliver a copy
of the Company Repurchase Notice to the Trustee at such time as it is mailed
to Noteholders. Concurrently with the mailing of such Company Repurchase
Notice, the Company shall issue a press release announcing such Fundamental
Change referred to in the Company Repurchase Notice, the form and content of
which press release shall be determined by the Company in its sole discretion.
The failure to issue any such press release or any defect therein shall not
affect the validity of the Company Repurchase Notice or any proceedings for
the repurchase of any Note which any Noteholder may elect to have the Company
redeem as provided in this Section 3.05.
No failure of the Company to give the foregoing notices and no defect
therein shall limit the Noteholders' repurchase rights or affect the validity
of the proceedings for the repurchase of the Notes pursuant to this Section
3.05.
(c) For a Note to be so repurchased at the option of the holder, the
Company must receive at the office or agency of the Company maintained for
that purpose or, at the option of such holder, the Corporate Trust Office, (i)
the form entitled "Repurchase Notice" as set forth on the reverse of the Note
duly completed, together with (ii) such Notes duly endorsed for transfer, or
(if the Notes are Global Notes) book-entry transfer of the Notes, on or before
the close of business on the Fundamental Change Repurchase Date; provided that
the Notes so delivered shall be repurchased only if they conform in all
respects to the description thereof in the related Repurchase Notice. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Note for repurchase shall be determined by the Company,
whose determination shall be final and binding absent manifest error.
(d) The Company shall purchase from the holder thereof, pursuant to
this Section 3.05, a portion of a Note, if the principal amount of such
portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture
that apply to the purchase of all of a Note also apply to the purchase of such
portion of such Note.
(e) In the case of a reclassification, change, consolidation, merger,
combination, sale or conveyance to which Section 16.06 applies, in which the
Common Stock of the Company is changed or exchanged as a result into the right
to receive stock, securities or other property or assets (including cash),
which includes shares of Common Stock of the Company or shares of common stock
of another Person that are, or upon issuance will be, traded on a United
States national securities exchange or approved for trading on an established
automated over-the-counter trading market in the United States and such shares
constitute at the time such change or exchange becomes effective in excess of
50% of the aggregate fair market value of such stock, securities or other
property or assets (including cash) (as determined by the Company, which
determination shall be conclusive and binding), then the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture (accompanied by an Opinion of Counsel that such supplemental
indenture complies with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture) modifying the provisions of this
Indenture relating to the right of holders of the Notes to cause the Company
to repurchase the Notes following a Fundamental Change, including without
limitation the applicable provisions of this Section 3.05 and the definitions
of Closing Sale Price, Common Stock and Fundamental Change, as appropriate, as
determined in good faith by the Company (which determination shall be
conclusive and binding), to make such provisions apply to such other Person if
different from the Company and the common stock issued by such Person (in lieu
of the Company and the Common Stock of the Company).
(f) If the Company has elected to pay the purchase price in whole or
in part in shares of Common Stock, but is unable to deliver the shares, a
holder, in such holder's Repurchase Notice and in any written notice of
withdrawal delivered by such holder pursuant to the terms of Section 3.08, may
elect to withdraw the Repurchase Notice or to receive cash. If a holder fails
to indicate in its Repurchase Notice its election to receive cash or withdraw,
the holder shall be deemed to have elected to receive cash in respect of the
entire purchase price for all Notes subject to such Repurchase Notice.
(g) 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.
(h) The Trustee (or other paying agent appointed by the Company)
shall promptly notify the Company of the receipt by it of any Repurchase
Notice or written notice of withdrawal thereof.
Any purchase by the Company contemplated pursuant to the provisions
of this Section 3.05 shall be consummated by the delivery of the consideration
to be received by the holder promptly following the later of the Repurchase
Date and the time of the book-entry transfer or delivery of the Note.
Section 3.06. Repurchase of Notes by the Company at Option of the
Holder. Each Noteholder shall have the right, at such holder's option, to
require the Company to repurchase all of such holder's Notes, or any portion
thereof that is a multiple of $1,000 principal amount, on April 15, 2008, 2013
and 2018 (the "Repurchase Date"), at a purchase price of 100% of the principal
amount, plus any accrued and unpaid interest, to, but excluding, the
Repurchase Date, subject to the provisions of Section 3.07. Payment of the
purchase price for Notes repurchased under this Section 3.06 is conditioned
upon:
(a) delivery to the Trustee (or other paying agent appointed by the
Company) by a holder of a duly completed Repurchase Notice in the form set
forth on the reverse of the Note during the period beginning at any time from
the opening of business on the date that is 20 Business Days prior to the
applicable Repurchase Date until the close of business on the Repurchase Date;
and
(b) delivery (if the Notes are certificated) or book-entry transfer
(if the Notes are Global Notes) of the Notes to the Trustee (or other paying
agent appointed by the Company) at any time after delivery of the Repurchase
Notice (together with all necessary endorsements) at the Corporate Trust
Office of the Trustee (or other paying agent appointed by the Company) as
provided in Section 6.02, such delivery being a condition to receipt by the
holder of the purchase price therefor; provided that such purchase price shall
be so paid pursuant to this Section 3.06 only if the Note so delivered to the
Trustee (or other paying agent appointed by the Company) shall conform in all
respects to the description thereof in the related Repurchase Notice.
The Company shall purchase from the holder thereof, pursuant to this
Section 3.06, a portion of a Note, if the principal amount of such portion is
$1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to the purchase of all of a Note also apply to the purchase of such portion of
such Note.
If the Company has elected to pay the purchase price in whole or in
part in shares of Common Stock, but is unable to deliver the shares, a holder,
in such holder's Repurchase Notice and in any written notice of withdrawal
delivered by such holder pursuant to the terms of Section 3.08, may elect to
withdraw the Repurchase Notice or to receive cash. If a holder fails to
indicate in its Repurchase Notice its election to receive cash or to withdraw,
the holder shall be deemed to have elected to receive cash in respect of the
entire purchase price for all Notes subject to such Repurchase Notice.
Any purchase by the Company contemplated pursuant to the provisions
of this Section 3.06 shall be consummated by the delivery of the consideration
to be received by the holder promptly following the later of the Repurchase
Date and the time of the book-entry transfer or delivery of the Note.
The Trustee (or other paying agent appointed by the Company) shall
promptly notify the Company of the receipt by it of any Repurchase Notice or
written notice of withdrawal thereof.
Section 3.07. Company's Right to Elect Manner of Payment of Purchase
Price for Payment.
(a) The Notes to be repurchased on any Fundamental Change Repurchase
Date pursuant to Section 3.05 or Repurchase Date pursuant to Section 3.06 may
be paid for, in whole or in part, at the election of the Company, in cash or
shares of Common Stock or any combination of cash and shares of Common Stock,
subject to the conditions set forth in Section 3.07(c) and (d). The Company
shall designate, in the Company Repurchase Notice delivered pursuant to
Section 3.07(d), whether the Company will repurchase the Notes for cash or
shares of Common Stock, or, if a combination thereof, the percentages of the
purchase price of Notes in respect of which it will pay in cash or shares of
Common Stock; provided that the Company will pay cash for fractional interests
in shares of Common Stock. For purposes of determining the existence of
potential fractional interests, all Notes subject to repurchase by the Company
held by a holder shall be considered together (no matter how many separate
certificates are to be presented). Each holder whose Notes are repurchased
pursuant to Section 3.05 or Section 3.06 shall receive the same percentage of
cash or shares of Common Stock in payment of the purchase price for such
Notes, except with regard to the payment of cash in lieu of fractional shares
of Common Stock. The Company may not change its election with respect to the
consideration (or components or percentages of components thereof) to be paid
once the Company has given its Company Repurchase Notice to holders; except
pursuant to Section 3.07(c) in the event of a failure to satisfy, prior to the
Fundamental Change Repurchase Date or the Repurchase Date, as applicable, any
condition to the payment of the purchase price, in whole or in part, in shares
of Common Stock.
At least three Business Days (or such shorter period of time as may
be acceptable to the Trustee) before each Company Repurchase Notice Date, the
Company shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.07(d) in the Company
Repurchase Notice,
(iii) if the Company elects to pay the purchase price, or a
specified percentage thereof, in shares of Common Stock, that the
conditions to such manner of payment set forth in Section 3.07(c)
have been or will be complied with, and
(iv) whether the Company desires the Trustee to give the
Company Repurchase Notice required by Section 3.07(d).
(b) At the option of the Company, the purchase price of Notes in
respect of which a Repurchase Notice pursuant to Section 3.05 or Section 3.06
has been given, or a specified percentage thereof, may be paid by the Company
with cash. The Company Repurchase Notice, as provided in Section 3.07(d),
shall be sent to holders not less than 20 Business Days prior to the
Repurchase Date or in the event of a Fundamental Change on or before the tenth
Business Day after the occurrence of such a Fundamental Change (in either
case, the "Company Repurchase Notice Date").
(c) At the option of the Company, the purchase price of Notes in
respect of which a Repurchase Notice pursuant to Section 3.05 or Section 3.06
has been given, or a specified percentage thereof, may be paid by the Company
by the issuance of a number of shares of Common Stock equal to the quotient
obtained by dividing (i) the portion of the purchase price to be paid in
shares of Common Stock by (ii) 97.5% of the average of the Closing Sale Price
of the shares of Common Stock for the five-Trading Day period ending on the
third Trading Day prior to the applicable Repurchase Date or Fundamental
Change Repurchase Date (in each case appropriately adjusted to take into
account the occurrence, during the period commencing on the first Trading Day
during the five-Trading Day period and ending on the Repurchase Date or
Fundamental Change Repurchase Date, of any event described in Section 16.06),
subject to the next succeeding paragraph.
The Company will not issue fractional shares of Common Stock in
payment of the purchase price. Instead, the Company will pay cash based on the
Closing Sale Price as of the applicable Repurchase Date or Fundamental Change
Repurchase Date for all fractional shares. It is understood that if a holder
elects to have more than one Note purchased, the number of shares of Common
Stock shall be based on the aggregate amount of Notes to be purchased.
The Company's right to exercise its election to purchase Notes
through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company's giving a timely Company Repurchase Notice
containing an election to purchase all or a specified percentage of
the Notes with shares of Common Stock as provided herein;
(ii) the registration of such shares of Common Stock under the
Securities Act and the Exchange Act, if required;
(iii) the listing of such shares of Common Stock on a United
States national securities exchange or the quotation of such shares
of Common Stock in an inter-dealer quotation system of any registered
United States national securities association;
(iv) any necessary qualification or registration of such shares
of Common Stock under applicable state securities laws or the
availability of an exemption from such qualification and
registration; and
(v) the receipt by the Trustee of an (a) Officers' Certificate
stating that the terms of the issuance of the shares of Common Stock
are in conformity with this Indenture and that the conditions to the
issuance of the shares of Common Stock have been satisfied and (b)
upon the Trustee's written request, an Opinion of Counsel to the
effect that the shares of Common Stock to be issued by the Company in
payment of the purchase price in respect of the Notes have been duly
authorized and, when issued and delivered pursuant to the terms of
this Indenture in payment of the purchase price in respect of the
Notes, will be validly issued, fully paid and non-assessable.
Such Officers' Certificate shall also set forth the number of shares
of Common Stock to be issued for each $1,000 principal amount of Notes upon
their stated maturity and the Closing Sale Price of a share of Common Stock on
each Trading Day during the five-Trading Day period ending on the third
Trading Day prior to the applicable Repurchase Date or Fundamental Change
Repurchase Date. If the foregoing conditions are not satisfied prior to the
Repurchase Date or Fundamental Change Repurchase Date, as applicable, and the
Company has elected to repurchase the Notes through the issuance of shares of
Common Stock, the Company shall pay the entire purchase price of the Notes in
cash.
Promptly after determination of the actual number of shares of Common
Stock to be issued upon repurchase of Notes, the Company shall be required to
disseminate a press release through Dow ▇▇▇▇▇ & Company, Inc. or Bloomberg
Business News containing this information or publish the information on the
Company's web site or through such other public medium as the Company may use
at that time.
(d) In connection with any repurchase of Notes, the Company shall, no
less than 20 Business Days prior to each Repurchase Date or in the case of a
Fundamental Change, on or before the tenth Business Day after the occurrence
of such Fundamental Change, give notice to holders (with a copy to the
Trustee) setting forth information specified in this Section 3.07(d) (in
either case, the "Company Repurchase Notice").
Each Company Repurchase Notice shall:
(1) state the repurchase price and the Repurchase Date or the
Fundamental Change Repurchase Date to which the Company Repurchase
Notice relates;
(2) state, if applicable, the circumstances constituting the
Fundamental Change;
(3) state whether the repurchase price will be paid in cash,
shares of Common Stock or a combination thereof, specifying the
percentages of each;
(4) state that holders must exercise their right to elect
repurchase on or prior to the close of business on the Repurchase
Date or Fundamental Change Repurchase Date, as the case may be;
(5) if shares of Common Stock will be used to pay all or part
of the repurchase price, state:
(a) the method for valuing the shares of Common Stock to
be delivered in connection with the repurchase; and
(b) that holders of the Notes will bear the market risk
with respect to the value of the shares of Common Stock to be
delivered from the date the number of shares is determined;
(6) include a form of Repurchase Notice;
(7) state the name and address of the Trustee (or other paying
agent or conversion agent appointed by the Company);
(8) state that Notes must be surrendered to the Trustee (or
other paying agent or conversion agent appointed by the Company) to
collect the purchase price;
(9) state that a holder may withdraw its Repurchase Notice at
any time prior to the close of business on the Repurchase Date or
Fundamental Change Repurchase Date, as the case may be, by delivering
a valid written notice of withdrawal in accordance with Section 3.08;
(10) if the Notes are then convertible, state that Notes as to
which a Repurchase Notice has been given may be converted only if the
Repurchase Notice is withdrawn in accordance with the terms of this
Indenture;
(11) state the amount of interest accrued and unpaid per $1,000
principal amount of Notes to but excluding the Fundamental Change
Repurchase Date and Repurchase Date, as applicable; and
(12) state the CUSIP number of the Notes.
Company Repurchase Notices may be given by the Company or, at the Company's
request, the Trustee shall give such Company Repurchase Notice in the
Company's name and at the Company's expense; provided, that the text of the
Company Repurchase Notice shall be prepared by the Company.
(e) All shares of Common Stock delivered upon repurchase of the Notes
shall be duly authorized, validly issued, fully paid and nonassessable.
(f) If a holder of a repurchased Note is paid in shares of Common
Stock, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on such issue of Common Stock. However, the holder shall pay
any such tax which is due because the holder requests the Common Stock to be
issued in a name other than the holder's name. The Trustee (or other paying
agent appointed by the Company) may refuse to deliver the certificates
representing the shares of Common Stock being issued in a name other than the
holder's name until the Trustee (or other paying agent appointed by the
Company) receives a sum sufficient to pay any tax which will be due because
the shares of Common Stock are to be issued in a name other than the holder's
name. Nothing herein shall preclude any income tax withholding required by law
or regulations.
(g) The Company will 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.
Section 3.08. Effect of Repurchase Notice; Withdrawal. Upon receipt
by the Trustee (or other paying agent appointed by the Company) of the
Repurchase Notice specified in Section 3.05 or Section 3.06, the holder of the
Note in respect of which such Repurchase Notice was given shall (unless such
Repurchase Notice is validly withdrawn in accordance with the following
paragraph) thereafter be entitled to receive solely the purchase price with
respect to such Note. Such purchase 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 following the later of (x) the Repurchase
Date or the Fundamental Change Repurchase Date with respect to such Note
(provided the holder has satisfied the conditions in Section 3.05 or Section
3.06) and (y) the time of 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 3.05 or Section 3.06. Notes in respect of which a
Repurchase Notice has been given by the holder thereof may not be converted
pursuant to Article 16 hereof on or after the date of the delivery of such
Repurchase Notice unless such Repurchase Notice has first been validly
withdrawn.
A Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Trustee (or other paying agent
appointed by the Company) in accordance with the Repurchase Notice at any time
prior to the close of business on the Repurchase Date or the Fundamental
Change Repurchase Date, specifying:
(a) the certificate number, if any, of the Note in respect of which
such notice of withdrawal is being submitted, or the appropriate Depositary
information, in accordance with appropriate Depositary procedures, if the Note
in respect of which such notice of withdrawal is being submitted is
represented by a Global Note,
(b) the principal amount of the Note with respect to which such
notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Note which remains subject
to the original Repurchase Notice and which has been or will be delivered for
purchase by the Company.
Section 3.09. Deposit of Purchase Price. (a) Prior to 11:00 a.m. (
New
York City Time) on the Business Day following the Repurchase Date or the
Fundamental Change Repurchase Date, the Company shall deposit with the Trustee
(or other paying agent appointed by the Company or, if the Company is acting
as the paying agent, shall segregate and hold in trust as provided in Section
6.04) an amount of cash (in immediately available funds if deposited on such
Business Day), sufficient to pay the aggregate purchase price of all the Notes
or portions thereof that are to be purchased for cash as of the Repurchase
Date or the Fundamental Change Repurchase Date, as the case may be.
As soon as practicable after the Repurchase Date or the Fundamental
Change Repurchase Date, as the case may be, the Company shall deliver to each
holder entitled to receive shares of Common Stock through the Trustee (or
other paying agent appointed by the Company), a certificate for the number of
full shares of Common Stock issuable in payment of the purchase price and cash
in lieu of any fractional interests. The person in whose name the certificate
for the shares of Common Stock is registered shall be treated as a holder of
record of Common Stock on the Business Day following the applicable repurchase
date. No payment or adjustment in the repurchase price will be made for
dividends on the shares of Common Stock the Record Date for which occurred on
or prior to the Repurchase Date.
If the paying agent holds money or shares of Common Stock sufficient
to pay the repurchase price of the Notes on the Business Day following the
Repurchase Date, then, immediately after the Repurchase Date, the Note will
cease to be outstanding, interest will cease to accrue and all other rights of
the Note holder will terminate, other than the right to receive the repurchase
price upon delivery of the Note. This will be the case whether or not
book-entry transfer or the Note has been made or the Note has been delivered
to the paying agent.
Section 3.10. Notes Repurchased in Part. Upon presentation of any
Note repurchased only in part, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the holder thereof, at the
expense of the Company, a new Note or Notes, of any authorized denomination,
in aggregate principal amount equal to the unrepurchased portion of the Notes
presented.
Section 3.11. Repayment to the Company. The Trustee (or other paying
agent appointed by the Company) shall return to the Company any cash or shares
of Common Stock that remain unclaimed, together with interest or dividends, if
any, thereon, held by them for the payment of the purchase price; provided
that to the extent that the aggregate amount of cash or shares of Common Stock
deposited by the Company pursuant to Section 3.09 exceeds the aggregate
purchase price of the Notes or portions thereof which the Company is obligated
to purchase as of the Repurchase Date or the Fundamental Change Repurchase
Date, as the case may be, then, unless otherwise agreed in writing with the
Company, promptly after the Business Day following the Repurchase Date or the
Fundamental Change Repurchase Date, as the case may be, the Trustee shall
return any such excess to the Company together with interest or dividends, if
any, thereon.
ARTICLE 4
SUBORDINATION OF NOTES
Section 4.01. Notes Subordinated To Senior Indebtedness. The Company
covenants and agrees, and the Trustee and each Holder of the Notes by the
acceptance thereof likewise covenant and agree, that all Notes shall be issued
subject to the provisions of this Article 4; and each person holding any Note,
whether upon original issue or upon transfer, assignment or exchange thereof,
accepts and agrees that all payments of the principal of, premium, if any, and
interest on the Notes by the Company shall, to the extent and in the manner
set forth in this Article 4, be subordinated and junior in right of payment to
the prior payment in full in cash of all obligations arising under Senior
Indebtedness. The Notes will be contractually equal in right of payment to the
Company's 91/4% Senior Subordinated Notes due 2010.
Section 4.02. No Payment On Notes In Certain Circumstances.
(a) No direct or indirect payment by or on behalf of the Company of
principal of, premium, if any, or interest on the Notes, whether pursuant to
the terms of the Notes, upon acceleration, pursuant to an offer to purchase,
redemption or otherwise (other than in Junior Securities), will be made, if,
at the time of such payment, there exists a default in the payment of all or
any portion of the obligations on any Designated Senior Indebtedness, whether
at maturity, on account of mandatory redemption or prepayment, acceleration or
otherwise, and such default shall not have been cured or waived or the
benefits of this sentence waived by or on behalf of the holders of such
Designated Senior Indebtedness. In addition, during the continuance of any
non-payment event of default with respect to any Designated Senior
Indebtedness pursuant to which the maturity thereof may be immediately
accelerated, and upon receipt by the Trustee of written notice (a "Payment
Blockage Notice") from the holder or holders of such Designated Senior
Indebtedness or the trustee or agent acting on behalf of the holders of such
Designated Senior Indebtedness, then, unless and until such event of default
has been cured or waived or has ceased to exist or such Designated Senior
Indebtedness has been discharged or repaid in full in cash or cash equivalents
(or such payment shall be duly provided for in a manner satisfactory to
holders of Senior Indebtedness) or otherwise to the extent holders of Senior
Indebtedness in their sole discretion accept satisfaction of amounts due by
settlement in other than cash or cash equivalents or the benefits of these
provisions have been waived by the holders of such Designated Senior
Indebtedness, no direct or indirect payment will be made by or on behalf of
the Company of principal of, premium, if any, or interest on the Notes,
whether pursuant to the terms of the Notes, upon acceleration, pursuant to an
offer to purchase, redemption or otherwise (other than in Junior Securities)
to such Holders during a period (a "Payment Blockage Period") commencing on
the date of receipt of such notice by the Trustee and ending 179 days
thereafter. The Trustee shall deliver a copy of the Payment Blockage Notice to
the Company promptly upon receipt thereof.
Notwithstanding anything in the subordination provisions of this
Indenture or the Notes to the contrary, (1) in no event will a Payment
Blockage Period extend beyond 179 days from the date the Payment Blockage
Notice in respect thereof was given, (2) there shall be a period of at least
181 consecutive days in each 360-day period when no Payment Blockage Period is
in effect and (3) not more than one Payment Blockage Period may be commenced
with respect to the Notes during any period of 360 consecutive days. No event
of default that existed or was continuing on the date of commencement of any
Payment Blockage Period (whether or not such event is with respect to the same
issue of Designated Senior Indebtedness) may be, or be made, the basis for the
commencement of any other Payment Blockage Period by the holder or holders of
such Designated Senior Indebtedness or the trustee or agent acting on behalf
of such Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such event of default has been cured or waived for a
period of not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder at a time when such payment is
prohibited by Section 4.02(a), such payment shall be received and held in
trust for the benefit of, and shall be paid over or delivered to, the holders
of Designated Senior Indebtedness or their respective representatives, or to
the trustee or trustees or agent or agents under any indenture or agreement
pursuant to which any of such Designated Senior Indebtedness may have been
issued or incurred, as their respective interests may appear, but only to the
extent that, upon notice from the Trustee to the holders of Designated Senior
Indebtedness that such prohibited payment has been made, the holders of the
Designated Senior Indebtedness (or their representative or representatives or
a trustee or trustees) notify the Trustee in writing of the amounts then due
and owing on the Designated Senior Indebtedness, if any, and only the amounts
specified in such notice to the Trustee shall be paid to the holders of
Designated Senior Indebtedness.
Section 4.03. Payment Over Of Proceeds Upon Dissolution, Etc.
(a) Upon any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities,
upon any dissolution or winding-up or total liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other similar proceedings, all Senior Indebtedness shall first
be paid in full in cash or cash equivalents (or such payment shall be duly
provided for in a manner satisfactory to the holders of Senior Indebtedness)
or otherwise to the extent holders of Senior Indebtedness in their sole
discretion accept satisfaction of amounts due by settlement in other than cash
or cash equivalents, before the Holders of the Notes or the Trustee on behalf
of such Holders shall be entitled to receive any payment by the Company of the
principal of, premium, if any, or interest on the Notes, or any payment by the
Company to acquire any of the Notes for cash, property or securities, or any
distribution by the Company with respect to the Notes of any cash, property or
securities (in each case other than Junior Securities).
Before any payment may be made by, or on behalf of, the Company of
the principal of, premium, if any, or interest on the Notes upon any such
dissolution or winding-up or total liquidation or reorganization, any payment
or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities (in each case other than
Junior Securities), to which the Holders of the Notes or the Trustee on their
behalf would be entitled, but for the subordination provisions of this
Indenture, payment shall be made by the Company or by any receiver, trustee in
bankruptcy, liquidation trustee, agent or other Person making such payment or
distribution, directly to the holders of the Senior Indebtedness (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders) or their representatives or to the trustee or trustees
or agent or agents under any agreement or indenture pursuant to which any of
such Senior Indebtedness may have been issued, as their respective interests
may appear, to the extent necessary to pay all such Senior Indebtedness in
full in cash or cash equivalents (or such payment shall be duly provided for
in a manner satisfactory to the holders of Senior Indebtedness) or otherwise
to the extent holders of Senior Indebtedness in their sole discretion accept
satisfaction of amounts due by settlement in other than cash or cash
equivalents after giving effect to any prior or concurrent payment,
distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of
assets or securities of the Company of any kind or character, whether in cash,
property or securities (in each case other than Junior Securities), shall be
received by the Trustee or any Holder of Notes at a time when such payment or
distribution is prohibited by Section 4.03(a) and before all obligations in
respect of Senior Indebtedness are paid in full in cash or cash equivalents
(or such payment shall be duly provided for in a manner satisfactory to the
holders of Senior Indebtedness) or otherwise to the extent holders of Senior
Indebtedness in their sole discretion accept satisfaction of amounts due by
settlement in other than cash or cash equivalents, such payment or
distribution shall be received and held in trust for the benefit of, and shall
be paid over or delivered to, the holders of Senior Indebtedness (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders) or their respective representatives, or to the trustee
or trustees or agent or agents under any indenture or agreement pursuant to
which any of such Senior Indebtedness may have been issued or incurred, as
their respective interests may appear, for application to the payment of
Senior Indebtedness remaining unpaid until all such Senior Indebtedness has
been paid in full in cash or cash equivalents (or such payment shall be duly
provided for in a manner satisfactory to the holders of Senior Indebtedness)
or otherwise to the extent holders of Senior Indebtedness in their sole
discretion accept satisfaction of amounts due by settlement in other than cash
or cash equivalents after giving effect to any prior or concurrent payment,
distribution or provision therefor to or for the holders of such Senior
Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another corporation or limited liability company or the
liquidation or dissolution of the Company following the sale, conveyance,
transfer or lease of the Company's and its subsidiaries' property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided in Article 13 shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Article 4
if such other corporation shall, as a part of such consolidation, merger,
sale, conveyance, transfer or lease, comply with the conditions stated in
Article 13.
Section 4.04. Subrogation. Upon the payment in full in cash or cash
equivalents (or such payment shall be duly provided for in a manner
satisfactory to the holders of Senior Indebtedness) or otherwise to the extent
holders of Senior Indebtedness in their sole discretion accept satisfaction of
amounts due by settlement in other than cash or cash equivalents of all Senior
Indebtedness, the Holders of the Notes shall be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company made on such Senior Indebtedness
until the principal of and interest on the Notes shall be paid in full in
cash; and, for the purposes of such subrogation, no payments or distributions
to the holders of the Senior Indebtedness of any cash, property or securities
to which the Holders of the Notes or the Trustee on their behalf would be
entitled except for the provisions of this Article 4, and no payment over
pursuant to the provisions of this Article 4 to the holders of Senior
Indebtedness by Holders of the Notes or the Trustee on their behalf shall, as
between the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Notes, be deemed to be a payment by the Company to or
on account of the Senior Indebtedness. It is understood that the provisions of
this Article 4 are and are intended solely for the purpose of defining the
relative rights of the Holders of the Notes, on the one hand, and the holders
of the Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders of the Notes
would otherwise have been entitled but for the provisions of this Article 4
shall have been applied, pursuant to the provisions of this Article 4, to the
payment of all amounts payable under Senior Indebtedness, then and in such
case, the Holders of the Notes shall be entitled to receive from the holders
of such Senior Indebtedness any payments or distributions received by such
holders of Senior Indebtedness in excess of the amount required to make
payment in full in cash or cash equivalents of such Senior Indebtedness (or to
duly provide for such payment in a manner satisfactory to the holders of
Senior Indebtedness) or otherwise to the extent holders of Senior Indebtedness
in their sole discretion accept satisfaction of amounts due by settlement in
other than cash or cash equivalents.
Section 4.05. Obligations Of Company Unconditional. Nothing contained
in this Article 4 or elsewhere in this Indenture or in the Notes is intended
to or shall impair, as among the Company and the Holders of the Notes, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Notes the principal of, premium on and interest on the Notes as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders of the
Notes and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Holder of any
Note or the Trustee on their behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 4 of the holders of the Senior Indebtedness
in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained
in this Article 4 shall restrict the right of the Trustee or the Holders of
Notes to take any action to declare the Notes to be due and payable prior to
their stated maturity pursuant to Section 8.01 or to pursue any rights or
remedies hereunder; provided, however, that all Senior Indebtedness then due
and payable shall first be paid in full in cash or cash equivalents (or such
payment shall be duly provided for in a manner satisfactory to the holders of
Senior Indebtedness) or otherwise to the extent holders of Senior Indebtedness
in their sole discretion accept satisfaction of amounts due by settlement in
other than cash or cash equivalents before the Holders of the Notes or the
Trustee are entitled to receive any direct or indirect payment from the
Company of principal of or interest on the Notes.
Section 4.06. Notice To Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Notes pursuant to the provisions of this Article 4. Unless the Trustee has
failed to give notice of its change of address pursuant to Section 19.03
hereof, the Trustee shall not be charged with knowledge of the existence of
any event of default with respect to any Senior Indebtedness or of any other
facts which would prohibit the making of any payment to or by the Trustee
unless and until the Trustee shall have received notice in writing at its
Corporate Trust Office to that effect signed by an Officer of the Company, or
by a holder of Senior Indebtedness or trustee or agent therefor; and prior to
the receipt of any such written notice, the Trustee subject to the provisions
of Article 9 shall, be entitled to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for
in this Section 4.06 at least two Business Days prior to the date upon which
by the terms of this Indenture any moneys shall become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Note), then, regardless of anything herein to the
contrary, the Trustee shall have full power and authority to receive any
moneys from the Company and to apply the same to the purpose for which they
were received, and shall not be affected by any notice to the contrary which
may be received by it on or after such prior date. Nothing contained in this
Section 4.06 shall limit the right of the holders of Senior Indebtedness to
recover payments as contemplated by Section 4.03 or from any Holder under
Section 4.02(b). The Trustee shall be entitled to conclusively rely on the
delivery to it of a written notice by a Person representing himself or itself
to be a holder of any Senior Indebtedness (or a trustee on behalf of, or agent
or other representative of, such holder) to establish that such notice has
been given by a holder of such Senior Indebtedness or a trustee or agent or
representative on behalf of any such holder. A holder of Senior Indebtedness
and any trustee, agent or other representative on behalf of such holder shall
be entitled to deliver all notices required by this Section 4.06 or otherwise
pursuant to this Article 4 to the address of the Trustee set forth herein
unless such holder or the trustee, agent or representative of such holder
shall have received actual written notice of a change of address of the
Trustee.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 4, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article 4, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 4.07. Reliance On Judicial Order Or Certificate Of
Liquidating Agent. Upon any payment or distribution of assets or securities
referred to in this Article 4, the Trustee and the Holders of the Notes shall
be entitled to conclusively rely upon any order or decree made by any court of
competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of the Notes for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 4.
Section 4.08. Trustee's Relation To Senior Indebtedness. The Trustee
and any paying agent shall be entitled to all the rights set forth in this
Article 4 with respect to any Senior Indebtedness which may at any time be
held by it in its individual or any other capacity to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee or any paying agent of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 4, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness (except as
provided in Section 4.02(b) and 4.03(b)). The Trustee shall not be liable to
any such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Holders of Notes or to the Company or to any other person cash,
property or securities to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article 4 or otherwise.
Section 4.09. Subordination Rights Not Impaired By Acts Or Omissions
Of The Company Or Holders Of Senior Indebtedness. No right of any present or
future holders of any Senior Indebtedness to enforce subordination as provided
herein shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with
the terms of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with. The provisions of this
Article 4 are intended to be for the benefit of, and shall be enforceable
directly by, the holders of Senior Indebtedness.
Section 4.10. Holders Authorize Trustee To Effectuate Subordination
Of Notes. Each Holder of Notes by his acceptance of such Notes authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article 4, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, total liquidation or
reorganization of the Company (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company, the filing of a claim for the unpaid
balance of its or his Notes in the form required in those proceedings.
Section 4.11. This Article Not To Prevent Events Of Default. The
failure to make a payment on account of principal of or interest on the Notes
by reason of any provision of this Article 4 shall not be construed as
preventing the occurrence of an Event of Default specified in clauses (a) or
(b) of Section 8.01.
Section 4.12. Trustee's Compensation And Rights To Indemnification
Not Prejudiced. Nothing in this Article 4 shall apply to amounts due to the
Trustee, or its rights to indemnification, pursuant to other sections in this
Indenture.
Section 4.13. No Waiver Of Subordination Provisions. Without in any
way limiting the generality of Section 4.09, the holders of Senior
Indebtedness may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Notes, without incurring
responsibility to the Holders of the Notes and without impairing or releasing
the subordination provided in this Article 4 or the obligations hereunder of
the Holders of the Notes to the holders of Senior Indebtedness, do any one or
more of the following: (a) change the manner, place or terms of payment or
extend the time of payment of, or renew, alter or amend, Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding or secured; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (c) release any Person liable in any manner for the
collection of Senior Indebtedness; and (d) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 4.14. Subordination Provisions Not Applicable To Money Held
In Trust For Holders; Payments May Be Paid Prior To Dissolution. All funds
deposited in trust with the Trustee pursuant to and in accordance with Article
14 when permitted pursuant to Article 4 shall be for the sole benefit of the
Holders and shall not be subject to this Article 4.
Nothing contained in this Article 4 or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in
Section 4.02, from making payments of principal of and interest on the Notes
or from depositing with the Trustee any moneys for such payments or from
effecting a termination of the Company's and the Guarantors' obligations under
the Notes and this Indenture as provided in Article 14, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of and interest on the Notes, to the holders
entitled thereto unless at least two Business Days prior to the date upon
which such payment becomes due and payable, the Trustee shall have received
the written notice provided for in Section 4.02(b) or in Section 4.06. The
Company shall give prompt written notice to the Trustee of any dissolution,
winding-up, liquidation or reorganization of the Company.
Section 4.15. Acceleration Of Notes. If payment of the Notes is
accelerated because of an Event of Default, the Company shall promptly notify
holders of the Senior Indebtedness of the acceleration.
Section 4.16. Certain Conversions Not Deemed Payment. For the
purposes of this only, (1) the issuance and delivery of Junior Securities upon
conversion of Notes in accordance with and (2) the payment, issuance or
delivery of cash, property or securities upon conversion of a Note as a result
of any transaction specified in shall not be deemed to constitute a payment or
distribution on account of the principal of, premium, if any, or interest on
Notes or on account of the purchase or other acquisition of Notes. For the
purposes of this Article 4 and Article 18, the term "Junior Securities" means
(a) Common Stock of the Company or (b) securities of the Company that are
subordinated in right of payment to all Senior Indebtedness that may be
outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Notes are
so subordinated as provided in this . Nothing contained in this or elsewhere
in this Indenture or in the Notes is intended to or shall impair, as among the
Company, its creditors (other than holders of Senior Indebtedness) and the
Noteholders, the right, which is absolute and unconditional, of the Holder of
any Note to convert such Note in accordance with .
ARTICLE 5
CONTINGENT INTEREST
Section 5.01. Contingent Interest. Beginning with the six-month
interest period commencing April 15, 2008, the Company will pay contingent
interest during any six-month interest period if the Trading Price of the
Notes for each of the five Trading Days ending on the second Trading Day
immediately preceding the first day of the applicable six-month interest
period equals or exceeds 120% of the principal amount of the Notes. During any
six-month interest period when contingent interest is payable, the contingent
interest payable on each $1,000 principal amount of Notes shall equal 0.25% of
the average Trading Price of $1,000 principal amount of Notes during the five
Trading Days immediately preceding the first day of the applicable six-month
interest period used to determine whether contingent interest must be paid.
The Trustee's sole responsibility pursuant to Section 5.01 hereof
shall be to obtain the Trading Price of the Notes for each of the five Trading
Days immediately preceding the first day of the applicable six-month interest
period and to provide such information to the Company. The Company shall
determine whether holders are entitled to receive contingent interest, and if
so, provide notice pursuant to Section 5.03. Notwithstanding any term
contained in this Indenture or any other document to the contrary, the Trustee
shall have no responsibilities, duties or obligations for or with respect to
(i) determining whether the Company must pay contingent interest or (ii)
determining the amount of contingent interest, if any, payable by the Company.
Section 5.02. Payment of Contingent Interest. Contingent interest for
any six-month interest period shall be paid on the applicable interest payment
date to the Person in whose name any Note (or its Predecessor Note) is
registered on the Note Register at the corresponding Record Date. Contingent
interest due under this Article 5 shall be treated for all purposes of this
Indenture like any other interest accruing on the Notes.
Section 5.03. Contingent Interest Notification. On or before the
first Business Day of a six-month interest period during which contingent
interest will be paid, the Company will disseminate a press release through
Dow ▇▇▇▇▇ & Company, Inc. or Bloomberg Business News stating that contingent
interest will be paid on the Notes and identifying the six month interest
period.
ARTICLE 6
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01. Payment of Principal, Premium and Interest. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
when due the principal of (including the redemption price upon redemption or
the purchase price upon repurchase, in each case pursuant to Article 3), and
premium, if any, and interest, on each of the Notes at the places, at the
respective times and in the manner provided herein and in the Notes.
Section 6.02. Maintenance of Office or Agency. The Company will
maintain an office or agency in the Borough of Manhattan, The City of
New
York, where the Notes may be surrendered for registration of transfer or
exchange or for presentation for payment or for conversion, redemption or
repurchase and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency not designated or appointed by the Trustee. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office.
The Company may also from time to time designate co-registrars and
one or more offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.
The Company hereby initially designates the Trustee as paying agent,
Note Registrar, Custodian and conversion agent and the Corporate Trust Office,
shall be considered as one such office or agency of the Company for each of
the aforesaid purposes.
So long as the Trustee is the Note Registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 9.10(a) and the
third paragraph of Section 9.11. If co-registrars have been appointed in
accordance with this Section, the Trustee shall mail such notices only to the
Company and the holders of Notes it can identify from its records.
Section 6.03. Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, upon the terms and conditions and otherwise as in
Section 9.10 provided, a Trustee, so that there shall at all times be a
Trustee hereunder.
Section 6.04. Provisions as to Paying Agent. (a) If the Company shall
appoint a paying agent other than the Trustee, or if the Trustee shall appoint
such a paying agent, the Company will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 6.04:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or interest on the
Notes (whether such sums have been paid to it by the Company or by
any other obligor on the Notes) in trust for the benefit of the
holders of the Notes;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Notes) to make any payment of
the principal of and premium, if any, or interest on the Notes when
the same shall be due and payable; and
(3) that at any time during the continuance of an Event of
Default, upon request of the Trustee, it will forthwith pay to the
Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal of,
premium, if any, or interest on the Notes, deposit with the paying agent a sum
(in funds which are immediately available on the due date for such payment)
sufficient to pay such principal, premium, if any, or interest, and (unless
such paying agent is the Trustee) the Company will promptly notify the Trustee
of any failure to take such action; provided that if such deposit is made on
the due date, such deposit shall be received by the paying agent by 11:00 a.m.
New York City time, on such date.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of, premium, if any, or interest on the
Notes, set aside, segregate and hold in trust for the benefit of the holders
of the Notes a sum sufficient to pay such principal, premium, if any, or
interest so becoming due and will promptly notify the Trustee of any failure
to take such action and of any failure by the Company (or any other obligor
under the Notes) to make any payment of the principal of, premium, if any, or
interest on the Notes when the same shall become due and payable.
(c) Anything in this Section 6.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by the Company or any paying agent
hereunder as required by this Section 6.04, such sums to be held by the
Trustee upon the trusts herein contained and upon such payment by the Company
or any paying agent to the Trustee, the Company or such paying agent shall be
released from all further liability with respect to such sums.
(d) Anything in this Section 6.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 6.04 is
subject to Sections 14.03 and 14.04.
The Trustee shall not be responsible for the actions of any other
paying agents (including the Company if acting as its own paying agent) and
shall have no control of any funds held by such other paying agents.
Section 6.05. Existence. Subject to Article 13, the Company will do
or cause to be done all things necessary to preserve and keep in full force
and effect its existence and rights (charter and statutory); provided that the
Company shall not be required to preserve any such right if the Company shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Noteholders.
Section 6.06. Payment of Taxes and Other Claims. The Company will pay
or discharge, or cause to be paid or discharged, before the same may become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Significant Subsidiary or upon the income,
profits or property of the Company or any Significant Subsidiary, (ii) all
claims for labor, materials and supplies which, if unpaid, might by law become
a lien or charge upon the property of the Company or any Significant
Subsidiary and (iii) all stamp taxes and other duties, if any, which may be
imposed by the United States or any political subdivision thereof or therein
in connection with the issuance, transfer, exchange, conversion, redemption or
repurchase of any Notes or with respect to this Indenture; provided that, in
the case of clauses (i) and (ii), the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge
or claim (A) if the failure to do so will not, in the aggregate, have a
material adverse impact on the Company, or (B) if the amount, applicability or
validity is being contested in good faith by appropriate proceedings.
Section 6.07. Rule 144A Information Requirement. Within the period
prior to the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision), the
Company covenants and agrees that it shall, during any period in which it is
not subject to Section 13 or 15(d) under the Exchange Act, make available to
any holder or beneficial holder of Notes or any Common Stock issued upon
conversion thereof which continue to be Restricted Securities in connection
with any sale thereof and any prospective purchaser of Notes or such Common
Stock designated by such holder or beneficial holder, the information required
pursuant to Rule 144A(d)(4) under the Securities Act upon the request of any
holder or beneficial holder of the Notes or such Common Stock, all to the
extent required to enable such holder or beneficial holder to sell its Notes
or Common Stock without registration under the Securities Act within the
limitation of the exemption provided by Rule 144A.
Section 6.08. Stay, Extension and Usury Laws. The Company covenants
(to the extent that it may lawfully do so) that it shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law or other law which would
prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture and the Company (to
the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 6.09. Compliance Certificate. The Company shall deliver to
the Trustee, within one hundred twenty (120) days after the end of each fiscal
year of the Company, a certificate signed by either the principal executive
officer, principal financial officer or principal accounting officer of the
Company, stating whether or not to the knowledge of the signer thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall
be in default, specifying all such defaults and the nature and the status
thereof of which the signer may have knowledge.
The Company will deliver to the Trustee, forthwith upon becoming
aware of (i) any default in the performance or observance of any covenant,
agreement or condition contained in this Indenture, or (ii) any Event of
Default, an Officers' Certificate specifying with particularity such default
or Event of Default and further stating what action the Company has taken, is
taking or proposes to take with respect thereto.
Any notice required to be given under this Section 6.09 shall be
delivered to a Responsible Officer of the Trustee at its Corporate Trust
Office.
Section 6.10. Liquidated Damages Notice. 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 Trustee of its obligation to pay
Liquidated Damages no later than fifteen (15) days prior to the proposed
payment date for the Liquidated Damages, and the Liquidated Damages Notice
shall set forth the amount of Liquidated D amages 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 6.11. Tax Treatment.
(a) The parties hereto hereby agree, and each Holder and any
beneficial holder of a Security by its purchase of a Security hereby agrees
(in the absence of administrative pronouncement or judicial ruling to the
contrary):
(i) to treat the Securities as indebtedness of the Company for
all United States federal income tax purposes;
(ii) to treat the Securities as debt instruments that are
subject to Treasury Regulation section 1.1275-4(b); and
(iii) to treat the delivery of Common Stock or cash (including
cash delivered in lieu of a fractional share) to a Holder of a
Security upon conversion of such Security, or upon a repurchase or
redemption, as a contingent payment (in an amount equal to the sum of
the Fair Market Value of such Common Stock and any cash received)
under Treasury Regulation section 1.1275-4(b).
(b) Solely for purposes of applying Treasury Regulation section
1.1275-4 to the Notes:
(i) for United States federal income tax purposes, the Company
shall accrue interest with respect to outstanding Securities as
original issue discount according to the "noncontingent bond method,"
as set forth in Treasury Regulation section 1.1275-4(b) using a
comparable yield of 8.125%, compounded semiannually, and the
projected payment schedule attached as Annex 1 to this Indenture; and
(ii) the Company acknowledges and agrees, and each Holder and
any beneficial holder of a Security, by its purchase of a Security
shall be deemed to acknowledge and agree, that (A) the comparable
yield and the projected payment schedule are determined on the basis
of an assumption of linear growth of stock price, (B) the comparable
yield and the projected payment schedule are not determined for any
purpose other than for the purpose of applying Treasury Regulation
section 1.1275-4(b)(4) to the Security, (C) the comparable yield and
the projected payment schedule do not constitute a projection or
representation regarding the actual amounts payable on the
Securities, and (D) the Company's application of Treasury Regulation
section 1.1275-4(b) shall be binding on each Holder and any
beneficial holder of a Security, including the Company's
determination of the comparable yield and the projected payment
schedule attached as Annex 1 to this Indenture.
Section 6.12. Limitation on Layering. The Company shall not incur any
Indebtedness that is contractually senior in right of payment to the Notes and
contractually subordinate in right of payment to any other Indebtedness of the
Company. No Guarantor shall incur any Indebtedness that is contractually
senior in right of payment to the Note Guarantee of such Guarantor and
contractually subordinate in right of payment to any other Indebtedness of
such Guarantor.
Section 6.13. Subsidiary Guarantees. If any Subsidiary shall
guarantee any other senior subordinated Indebtedness ("Guaranteed
Indebtedness") of the Company, then such Subsidiary shall (i) execute and
deliver to the Trustee a supplemental indenture in form reasonably
satisfactory to the Trustee pursuant to which such Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Notes and
this Indenture, (ii) execute and deliver to the Trustee a Note Guarantee in
accordance with Section 17.01 and (iii) upon the Trustee's written request
deliver to the Trustee an Opinion of Counsel that, subject to customary
qualifications such supplemental indenture has been duly authorized, executed
and delivered by such Subsidiary and constitutes a legal, valid, binding and
enforceable obligation of such Subsidiary. In addition, the Company may, at
its option, cause any Subsidiary to guarantee all of the Company's obligations
under the Notes and this Indenture.
Notwithstanding the foregoing, any guarantee by a Subsidiary may
provide by its terms that it shall be automatically and unconditionally
released and discharged (i) upon any sale or other disposition of that
Guarantor or all or substantially all of the assets of that Guarantor
(including by way of merger or consolidation or any sale of all of the capital
stock of that Guarantor) to a Person that is not the Company or a Subsidiary
of the Company; and (ii) at such time as such Guarantor's guarantee of such
other senior subordinated Indebtedness is released or discharged, or, at the
Company's option, if the Guarantor is not a guarantor of such other senior
subordinated Indebtedness.
ARTICLE 7
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 7.01. Noteholders' Lists. The Company covenants and agrees
that it will furnish or cause to be furnished to the Trustee, semiannually,
not more than fifteen (15) days after each April 1 and October 1 in each year
beginning with October 1, 2003, and at such other times as the Trustee may
reasonably request in writing, within thirty (30) days after receipt by the
Company of any such request (or such lesser time as the Trustee may reasonably
request in order to enable it to timely provide any notice to be provided by
it hereunder), a list in such form as the Trustee may reasonably require of
the names and addresses of the holders of Notes as of a date not more than
fifteen (15) days (or such other date as the Trustee may reasonably request in
order to so provide any such notices) prior to the time such information is
furnished, except that no such list need be furnished by the Company to the
Trustee so long as the Trustee is acting as the sole Note Registrar.
Section 7.02. Preservation and Disclosure of Lists. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Notes contained in
the most recent list furnished to it as provided in Section 7.01 or maintained
by the Trustee in its capacity as Note Registrar or co-registrar in respect of
the Notes, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Noteholders to communicate with other holders of
Notes with respect to their rights under this Indenture or under the Notes,
and the corresponding rights and duties of the Trustee, shall be as provided
by the Trust Indenture Act.
(c) Every Noteholder, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to names and
addresses of holders of Notes made pursuant to the Trust Indenture Act.
Section 7.03. Reports by Trustee. (a) Within sixty (60) days after
May 15 of each year commencing with the year 2003, the Trustee shall transmit
to holders of Notes such reports dated as of May 15 of the year in which such
reports are made concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. In the event that no events have occurred
under the applicable sections of the Trust Indenture Act the Trustee shall be
under no duty or obligation to provide such reports.
(b) A copy of such report shall, at the time of such transmission to
holders of Notes, be filed by the Trustee with each stock exchange and
automated quotation system, if any, upon which the Notes are listed and with
the Company. The Company will promptly notify the Trustee in writing if the
Notes are listed on any stock exchange or automated quotation system or
delisted therefrom.
Section 7.04. Reports by Company. The Company shall deliver to the
Trustee (and the Commission if at any time after the Indenture becomes
qualified under the Trust Indenture Act), and the Trustee shall deliver to
holders of Notes, such information, documents and other reports and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to the Trust Indenture Act,
whether or not the Notes are governed by such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be delivered to the
Trustee within fifteen (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' Certificates).
ARTICLE 8
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
Section 8.01. Events of Default. In case one or more of the following
Events of Default (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) shall have occurred and
be continuing:
(a) default in the payment of any installment of interest, upon any
of the Notes as and when the same shall be due and payable, and continuance of
such default for a period of thirty (30) days, whether or not the payment is
prohibited by Article 4; 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 be due and payable either at
maturity, or in connection with any redemption or repurchase or otherwise, in
each case pursuant to Article 3, by acceleration or otherwise, whether or not
the payment is prohibited by Article 4; or
(c) the Company fails to provide on a timely basis a Repurchase
Notice upon a Fundamental Change as provided in Section 3.07(d); or
(d) failure on the part of the Company to observe or perform any
other of the covenants or agreements on the part of the Company in the Notes
or in this Indenture (other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section 8.01 specifically
dealt with) 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
Responsible Officer of the Trustee by the holders of at least twenty-five
percent (25%) in aggregate principal amount of the Notes at the time
outstanding; or
(e) the Company shall default in the payment of principal when due at
maturity or resulting in acceleration of other Indebtedness of the Company for
borrowed money where the aggregate principal amount with respect to which the
default or acceleration has occurred exceeds $25.0 million and such
acceleration has not been rescinded or annulled within a period of 30 days
after written notice of such failure, requiring the Company to remedy the
same, shall have been given to the Company by the Trustee, or to the Company
and a Responsible Officer of the Trustee by the holders of at least
twenty-five percent (25%) in aggregate principal amount of the Notes at the
time outstanding;
(f) the Company shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to the
Company or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, or shall consent to any such
relief or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against the Company, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
(g) an involuntary case or other proceeding shall be commenced
against the Company seeking liquidation, reorganization or other relief with
respect to the Company or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of the
Company or any substantial part of the property of the Company, and such
involuntary case or other proceeding shall remain undismissed and unstayed for
a period of sixty (60) consecutive days;
then, and in each and every such case (other than an Event of Default
specified in Section 8.01(g)), 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 twenty-five percent (25%) in aggregate principal amount of the Notes
then outstanding, by notice in writing to the Company (and to the Trustee if
given by Noteholders), may declare the principal of and premium, if any, on
all the Notes interest, accrued and unpaid thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable if there shall no longer be a Senior Credit
Facility or, if the Senior Credit Facility is in effect, immediately upon the
earlier to occur of (i) the date indebtedness under the Senior Credit Facility
is declared accelerated and (ii) five business days after written notice of
the occurrence of such event of default has been given to the agents under the
Senior Credit Facility, anything in this Indenture or in the Notes contained
to the contrary notwithstanding. If an Event of Default specified in Section
8.01(f) or Section 8.01(g) occurs, the principal of all the premium, if any,
interest, accrued and unpaid thereon shall be immediately and automatically
due and payable without necessity of further action. If, (a) at any time after
the principal of and premium, if any, of the Notes shall have been so declared
due and payable, and before any judgment or decree for the payment of the
monies due shall have been obtained or entered as hereinafter provided, 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 and
premium, if any, on any and all Notes which shall have become due otherwise
than by acceleration (with interest on overdue installments of accrued and
unpaid interest, (to the extent that payment of such interest is enforceable
under applicable law) and on such principal and premium, if any, as provided
in Section 8.02, to the date of such payment or deposit) and amounts due to
the Trustee pursuant to Section 9.06, and (b) if any and all defaults under
this Indenture, other than the nonpayment of principal of and premium, if any,
and accrued and unpaid interest, on Notes which shall have become due by
acceleration, shall have been cured or waived pursuant to Section 8.07, then
and in every such case the holders of a majority in aggregate principal amount
of the Notes then outstanding, 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 Responsible Officer of the Trustee, promptly upon becoming
aware thereof, of any Event of Default, as provided in Section 6.09.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such waiver or rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company, the holders of Notes, and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the holders of Notes, and the Trustee
shall continue as though no such proceeding had been taken.
Section 8.02. Payments of Notes on Default; Suit Therefor. The
Company covenants that in the case of an Event of Default pursuant to Section
8.01(a) or 8.01(b), upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Notes, (i) the whole amount
that then shall be due and payable on all such Notes for principal and
premium, if any, or interest, as the case may be, with interest upon the
overdue principal and premium, if any, and (to the extent that payment of such
interest is enforceable under applicable law) upon the overdue installments of
accrued and unpaid interest at the rate borne by the Notes, plus 1%, from the
required payment date and, (ii) in addition thereto, any amounts due the
Trustee under Section 9.06. Until such demand by the Trustee, the Company may
pay the principal of and premium, if any, and interest, on the Notes to the
registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor on the Notes and collect in the manner provided by law out of the
property of the Company or any other obligor on the Notes wherever situated
the monies adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Notes under
Title 11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of the Company
or such other obligor, or in the case of any other judicial proceedings
relative to the Company or such other obligor upon the Notes, or to the
creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the provisions
of this Section 8.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal, premium, if any, accrued and unpaid interest, in respect
of the Notes, and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee and of the Noteholders allowed in such
judicial proceedings relative to the Company or any other obligor on the
Notes, its or their creditors, or its or their property, and to collect and
receive any monies or other property payable or deliverable on any such
claims, and to distribute the same after the deduction of any amounts due the
Trustee under Section 9.06, and to take any other action with respect to such
claims, including participating as a member of any official committee of
creditors, as it reasonably deems necessary or advisable, unless prohibited by
law or applicable regulations, and any receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, custodian or similar official is
hereby authorized by each of the Noteholders to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of
such payments directly to the Noteholders, to pay to the Trustee any amount
due it for reasonable compensation, expenses, advances and disbursements,
including counsel fees and expenses incurred by it up to the date of such
distribution. To the extent that such payment of reasonable compensation,
expenses, advances and disbursements out of the estate in any such proceedings
shall be denied for any reason, payment of the same shall be secured by a lien
on, and shall be paid out of, any and all distributions, dividends, monies,
securities and other property which the holders of the Notes may be entitled
to receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Trustee without the possession
of any of the Notes, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the holders of the
Notes.
In any proceedings brought by the Trustee (and in any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
holders of the Notes, and it shall not be necessary to make any holders of the
Notes parties to any such proceedings.
Section 8.03. Application of Monies Collected by Trustee. Any monies
collected by the Trustee pursuant to this Article 8, shall be applied, subject
to Article 4, in the following order, at the date or dates fixed by the
Trustee for the distribution of such monies, upon presentation of the several
Notes, and stamping thereon the payment, if only partially paid, and upon
surrender thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
9.06;
SECOND: In case the principal of the outstanding Notes shall not have
become due and be unpaid, to the payment of accrued and unpaid interest, if
any, on the Notes in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has been
collected by the Trustee) as provided in Section 8.02 upon the overdue
installments of interest at the annual rate of 1% above the then applicable
interest rate, such payments to be made ratably to the Persons entitled
thereto;
THIRD: In case the principal of the outstanding Notes shall have
become due, by declaration or otherwise, and be unpaid to the payment of the
whole amount then owing and unpaid upon the Notes for principal and premium,
if any, and interest, with interest on the overdue principal and premium, if
any, and (to the extent that such interest has been collected by the Trustee)
upon overdue installments of accrued and unpaid interest, as provided in
Section 8.02, and in case such monies shall be insufficient to pay in full the
whole amounts so due and unpaid upon the Notes, then to the payment of such
principal and premium, if any, and interest without preference or priority of
principal and premium, if any, over interest, or of interest over principal
and premium, if any, or of any installment of interest over any other
installment of interest, or of any Note over any other Note, ratably to the
aggregate of such principal and premium, if any, and accrued and unpaid
interest; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto.
Section 8.04. Proceedings by Noteholder. No holder of any Note shall
have any right by virtue of or by reference to any provision of this Indenture
to institute any suit, action or proceeding in equity or at law upon or under
or with respect to this Indenture, or for the appointment of a receiver,
trustee, liquidator, custodian or other similar official, or for any other
remedy hereunder, except in the case of a default in the payment of principal,
premium, if any, or interest on the Notes, unless (a) such holder previously
shall have given to the Trustee written notice of an Event of Default and of
the continuance thereof, as hereinbefore provided, (b) the holders of not less
than twenty-five percent (25%) in aggregate principal amount of the Notes then
outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable security or indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby,
(c) 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 (d) no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 8.07; it
being understood and intended, and being expressly covenanted by the taker and
holder of every Note with every other taker and holder and the Trustee, that
no one or more holders of Notes shall have any right in any manner whatever by
virtue of or by reference to any provision of this Indenture to affect,
disturb or prejudice the rights of any other holder of Notes, or to obtain or
seek to obtain priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all holders of Notes (except
as otherwise provided herein). For the protection and enforcement of this
Section 8.04, each and every Noteholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any
provision of any Note, the right of any holder of any Note to receive payment
of the principal of (including the redemption price upon redemption pursuant
to Article 8) and premium, if any, and accrued interest on such Note, on or
after the respective due dates expressed in such Note or in the event of
redemption or repurchase, or to institute suit for the enforcement of any such
payment on or after such respective dates against the Company shall not be
impaired or affected without the consent of such holder.
Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, in its own behalf and for its own
benefit, may enforce, and may institute and maintain any proceeding suitable
to enforce, its rights of conversion as provided herein.
Section 8.05. Proceedings by Trustee. In case of an Event of Default,
the Trustee may, in its discretion, proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial proceedings as are
necessary to protect and enforce any of such rights, either by suit in equity
or by action at law or by proceeding in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Section 8.06. Remedies Cumulative and Continuing. Except as provided
in Section 2.06, all powers and remedies given by this Article 8 to the
Trustee or to the Noteholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee or of any holder of any of the Notes to exercise any right or
power accruing upon any default or Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or any acquiescence therein, and, subject to the
provisions of Section 8.04, every power and remedy given by this Article 8 or
by law to the Trustee or to the Noteholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Noteholders.
Section 8.07. Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders. The holders of a majority in aggregate principal
amount of the Notes at the time outstanding shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee;
provided that (a) such direction shall not be in conflict with any rule of law
or with this Indenture, (b) the Trustee may take any other action which is not
inconsistent with such direction, (c) the Trustee may decline to take any
action that would benefit some Noteholder to the detriment of other
Noteholders and (d) the Trustee may decline to take any action that would
involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Notes at the time outstanding may, on behalf
of the holders of all of the Notes, waive any past default or Event of Default
hereunder and its consequences except (i) a default in the payment of
interest, or premium, if any, on, or the principal of, the Notes, (ii) a
failure by the Company to convert any Notes into Common Stock, (iii) a default
in the payment of the redemption price pursuant to Article 3, (iv) a default
in the payment of the purchase price pursuant to Article 3 or (v) a default in
respect of a covenant or provisions hereof which under Article 12 cannot be
modified or amended without the consent of the holders of all Notes then
outstanding or each Note affected thereby. Upon any such waiver, the Company,
the Trustee and the holders of the Notes shall be restored to their former
positions and rights hereunder; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 8.07, said default or Event of Default
shall for all purposes of the Notes and this Indenture be deemed to have been
cured and to be not continuing; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 8.08. Notice of Defaults. The Trustee shall, within ninety
(90) days after a Responsible Officer of the Trustee has knowledge of the
occurrence of a default, mail to all Noteholders, as the names and addresses
of such holders appear upon the Note Register, notice of all defaults known to
a Responsible Officer, unless such defaults shall have been cured or waived
before the giving of such notice; provided that except in the case of default
in the payment of the principal of, or premium, if any, or interest, on any of
the Notes, the Trustee shall be protected in withholding such notice if and so
long as a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Noteholders.
Section 8.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Note by his acceptance thereof shall be deemed
to have agreed, that any court may, in its discretion, require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided that the provisions
of this Section 8.09 (to the extent permitted by law) shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Noteholder, or
group of Noteholders, holding in the aggregate more than ten percent in
principal amount of the Notes at the time outstanding determined in accordance
with Section 10.04, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of or premium, if any, or interest
on any Note on or after the due date expressed in such Note or to any suit for
the enforcement of the right to convert any Note in accordance with the
provisions of Article 16.
ARTICLE 9
THE TRUSTEE
Section 9.01. Duties and Responsibilities of Trustee. The Trustee,
prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. In case
an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture and the
Trust Indenture Act, and the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically
set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture and the Trust Indenture Act against
the Trustee; and
(ii) in the absence of bad faith and willful misconduct on the
part of the Trustee, the Trustee may conclusively rely as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but, in the
case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the written
direction of the holders of not less than a majority in principal amount of
the Notes at the time outstanding determined as provided in Section 10.04
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture;
(d) whether or not therein provided, every provision of this
Indenture relating to the conduct or affecting the liability of, or affording
protection to, the Trustee shall be subject to the provisions of this Section;
(e) the Trustee shall not be liable in respect of any payment (as to
the correctness of amount, entitlement to receive or any other matters
relating to payment) or notice effected by the Company or any paying agent
(other than the Trustee) or any records maintained by any co-registrar (other
than the Trustee) with respect to the Notes;
(f) if any party fails to deliver a notice relating to an event the
fact of which, pursuant to this Indenture, requires notice to be sent to the
Trustee, the Trustee may conclusively rely on its failure to receive such
notice as reason to act as if no such event occurred unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless the Trustee has
otherwise received written notice thereof; and
(g) the Trustee shall not be deemed to have knowledge of any Event of
Default hereunder unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless the Trustee shall have been notified in writing of
such Event of Default by the Company or a holder of Notes.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
Section 9.02. Reliance on Documents, Opinions, etc. Except as
otherwise provided in Section 9.01:
(a) the Trustee may conclusively rely and shall be protected in
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, coupon or
other paper or document (whether in its original or facsimile form) believed
by it in good faith to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its own selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in reliance on and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture
or other paper or document, but the Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder;
(g) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(h) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder;
(i) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and
(j) any permissive right or authority granted to the Trustee shall
not be construed as a mandatory duty.
Section 9.03. No Responsibility for Recitals, etc. The recitals
contained herein and in the Notes (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture
or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of any Notes or the proceeds of any Notes
authenticated and delivered by the Trustee in conformity with the provisions
of this Indenture.
Section 9.04. Trustee, Paying Agents, Conversion Agents or Registrar
May Own Notes. The Trustee, any paying agent, any conversion agent or Note
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Notes with the same rights it would have if it were not Trustee,
paying agent, conversion agent or Note Registrar.
Section 9.05. Monies to be Held in Trust. Subject to the provisions
of Section 14.04, all monies received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. Except as
otherwise provided herein, the Trustee shall be under no liability for
interest on any money received by it hereunder except as may be agreed in
writing from time to time by the Company and the Trustee.
Section 9.06. Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) as mutually
agreed to from time to time in writing between the Company and the Trustee,
and the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances reasonably incurred or made by
the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence, willful misconduct, recklessness or bad faith. The Company also
covenants to indemnify the Trustee and any predecessor Trustee (or any
officer, director or employee of the Trustee), in any capacity under this
Indenture and any authenticating agent for, and to hold them harmless against,
any and all loss, liability, damage, claim or reasonable expense including
taxes (other than taxes based on the income of the Trustee) incurred without
negligence, willful misconduct, recklessness or bad faith on the part of the
Trustee or such officers, directors, employees or authenticating agent, as the
case may be, and arising out of or in connection with the acceptance or
administration of this trust or in any other capacity hereunder, including the
reasonable costs and expenses of defending themselves against any claim
(whether asserted by the Company, any holder or any other Person) of liability
in the premises. The obligations of the Company under this Section 9.06 to
compensate or indemnify the Trustee and to pay or reimburse the Trustee for
reasonable expenses, disbursements and advances shall be secured by a lien
prior to that of the Notes upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the holders
of particular Notes. The obligation of the Company under this Section shall
survive the satisfaction and discharge of this Indenture.
When the Trustee and its agents and any authenticating agent incur
expenses or render services after an Event of Default specified in Section
8.01(d) or (e) with respect to the Company occurs, the expenses and the
compensation for the services are intended to constitute reasonable expenses
of administration under any bankruptcy, insolvency or similar laws.
Section 9.07. Officers' Certificate as Evidence. Except as otherwise
provided in Section 9.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or omitting any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence, bad faith, recklessness
or willful misconduct on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee.
Section 9.08. Conflicting Interests of Trustee. If the Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
Section 9.09. Eligibility of Trustee. There shall at all times be a
Trustee hereunder which shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000 (or if such Person is a member of a bank holding company
system, its bank holding company shall have a combined capital and surplus of
at least $50,000,000). If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of any supervising or
examining authority, then for the purposes of this Section the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 9.09, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
Section 9.10. Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written notice of
such resignation to the Company and to the holders of Notes. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment sixty (60) days after the
mailing of such notice of resignation to the Noteholders, the resigning
Trustee may, upon ten (10) Business Days' notice to the Company and the
Noteholders, appoint a successor identified in such notice or may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor trustee, or, if any Noteholder who has been a bona
fide holder of a Note or Notes for at least six (6) months may, subject to the
provisions of Section 8.09, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with Section 9.08 after
written request therefor by the Company or by any Noteholder who has
been a bona fide holder of a Note or Notes for at least six (6)
months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 9.09 and shall fail to resign after written
request therefor by the Company or by any such Noteholder; or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 8.09, any Noteholder who has been a bona fide holder of
a Note or Notes for at least six (6) months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee;
provided that if no successor Trustee shall have been appointed and have
accepted appointment sixty (60) days after either the Company or the
Noteholders has removed the Trustee, or the Trustee resigns, the Trustee so
removed may petition, at the expense of the Company, any court of competent
jurisdiction for an appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Notes at the time outstanding may at any time remove the Trustee and nominate
a successor trustee which shall be deemed appointed as successor trustee
unless, within ten (10) days after notice to the Company of such nomination,
the Company objects thereto, in which case the Trustee so removed or any
Noteholder, or if such Trustee so removed or any Noteholder fails to act, the
Company, upon the terms and conditions and otherwise as in Section 9.10(a)
provided, may petition any court of competent jurisdiction for an appointment
of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 9.11.
(e) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 9.06 shall continue for the
benefit of the retiring Trustee.
Section 9.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 9.10 shall execute, acknowledge and deliver
to the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect
as if originally named as trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee ceasing to act
shall, upon payment of any amount then due it pursuant to the provisions of
Section 9.06, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the trustee so ceasing to act. Upon
request of any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a lien upon all property and funds held or
collected by such trustee as such, except for funds held in trust for the
benefit of holders of particular Notes, to secure any amounts then due it
pursuant to the provisions of Section 9.06.
No successor trustee shall accept appointment as provided in this
Section 9.11 unless, at the time of such acceptance, such successor trustee
shall be qualified under the provisions of Section 9.08 and be eligible under
the provisions of Section 9.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 9.11, the Company (or the former trustee, at the written
direction of the Company) shall mail or cause to be mailed notice of the
succession of such trustee hereunder to the holders of Notes at their
addresses as they shall appear on the Note Register. If the Company fails to
mail such notice within ten (10) days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Company.
Section 9.12. Succession by Merger. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee (including
any trust created by this Indenture), shall be the successor to the Trustee
hereunder without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided that in the case of any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, such corporation shall be qualified under the
provisions of Section 9.08 and eligible under the provisions of Section 9.09.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor trustee or authenticating
agent appointed by such predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee or any authenticating agent
appointed by such successor trustee may authenticate such Notes in the name of
the successor trustee; and in all such cases such certificates shall have the
full force that is provided in the Notes or in this Indenture; provided that
the right to adopt the certificate of authentication of any predecessor
Trustee or authenticate Notes in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
Section 9.13. Preferential Collection of Claims. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor
upon the Notes), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company (or
any such other obligor).
ARTICLE 10
THE NOTEHOLDERS
Section 10.01. Action by Noteholders. Whenever in this Indenture it
is provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action, the
holders of such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by
Noteholders in person or by agent or proxy appointed in writing, or (b) by the
record of the holders of Notes voting in favor thereof at any meeting of
Noteholders, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Noteholders. Whenever the Company or the
Trustee solicits the taking of any action by the holders of the Notes, the
Company or the Trustee may fix in advance of such solicitation, a date as the
record date for determining holders entitled to take such action. The record
date shall be not more than fifteen (15) days prior to the date of
commencement of solicitation of such action.
Section 10.02. Proof of Execution by Noteholders. Subject to the
provisions of Sections 9.01 and 9.02, proof of the execution of any instrument
by a Noteholder or its agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the registry of such Notes or by a
certificate of the Note Registrar.
Section 10.03. Absolute Owners. The Company, the Trustee, any paying
agent, any conversion agent and any Note Registrar may deem the Person in
whose name such Note shall be registered upon the Note Register to be, and may
treat it as, the absolute owner of such Note (whether or not such Note shall
be overdue and notwithstanding any notation of ownership or other writing
thereon made by any Person other than the Company or any Note Registrar) for
the purpose of receiving payment of or on account of the principal of,
premium, if any, and interest on such Note, for conversion of such Note and
for all other purposes; and neither the Company nor the Trustee nor any paying
agent nor any conversion agent nor any Note Registrar shall be affected by any
notice to the contrary. All such payments so made to any holder for the time
being, or upon his order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for monies
payable upon any such Note.
Section 10.04. Company-Owned Notes Disregarded. In determining
whether the holders of the requisite aggregate principal amount of Notes have
concurred in any direction, consent, waiver or other action under this
Indenture, Notes which are owned by the Company or any other obligor on the
Notes or any Affiliate of the Company or any other obligor on the Notes shall
be disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent, waiver
or other action, only Notes which a Responsible Officer knows are so owned
shall be so disregarded. Notes so owned which have been pledged in good faith
may be regarded as outstanding for the purposes of this Section 10.04 if the
pledgee shall establish to the satisfaction of the Trustee the pledgee's right
to vote such Notes and that the pledgee is not the Company, any other obligor
on the Notes or any Affiliate of the Company or any such other obligor. In the
case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee. Upon request of the
Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Notes, if any, known by the Company to
be owned or held by or for the account of any of the above described Persons,
and, subject to Section 9.01, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Notes not listed therein are outstanding for the
purpose of any such determination.
Section 10.05. Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 10.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the
evidence to be included in the Notes the holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 10.02, revoke
such action so far as concerns such Note. Except as aforesaid, any such action
taken by the holder of any Note shall be conclusive and binding upon such
holder and upon all future holders and owners of such Note and of any Notes
issued in exchange or substitution therefor, irrespective of whether any
notation in regard thereto is made upon such Note or any Note issued in
exchange or substitution therefor.
ARTICLE 11
RESERVED
ARTICLE 12
SUPPLEMENTAL INDENTURES
Section 12.01. 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) make provision with respect to the conversion rights of the
holders of Notes pursuant to the requirements of Section 16.06 and the
redemption obligations of the Company pursuant to the requirements of Section
3.05(e);
(b) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Notes, any property or assets;
(c) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company pursuant to Article 13;
(d) to add to the covenants of the Company such further covenants,
restrictions or conditions as the Board of Directors and the Trustee shall
consider to be for the benefit of the holders of Notes, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided that in respect of
any such additional covenant, restriction or condition, such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or may
limit the remedies available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of Notes in
coupon form (including Notes registrable as to principal only) and to provide
for exchangeability of such Notes with the Notes issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture that may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture that shall not materially adversely affect the
interests of the holders of the Notes;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes; or
(h) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualifications of this
Indenture under the Trust Indenture Act, or under any similar federal statute
hereafter enacted.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture, the Trustee
is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and
stipulations that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not
be obligated to, but may in its discretion, enter into any supplemental
indenture that affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 12.01 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 12.02.
Section 12.02. Supplemental Indenture With Consent of Noteholders.
With the consent (evidenced as provided in Article 10) of the holders of at
least a majority in aggregate principal amount of the Notes at the time
outstanding, the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may, from time to time and at any time, enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or any supplemental indenture or modifying in any manner the
rights of the holders of the Notes; provided that no such supplemental
indenture shall, without the consent of the holder of each Note so affected:
(i) extend the fixed maturity of any Note;
(ii) reduce the rate or extend the time for payment of
interest, thereon;
(iii) reduce the principal amount thereof or premium, if any,
thereon;
(iv) reduce any amount payable on redemption or repurchase
thereof;
(v) impair the right of any Noteholder to institute suit for
the payment thereof;
(vi) make the principal thereof or interest, or premium, if
any, thereon payable in any coin or currency other than that provided
in the Notes;
(vii) change the obligation of the Company to repurchase any
Note called for redemption on a redemption date in a manner adverse
to the holders of Notes;
(viii) change the obligation of the Company to repurchase any
Note upon the happening of a Fundamental Change in a manner adverse
to the holders of Notes;
(ix) change the obligation of the Company to repurchase any
Note at the option of a holder on a Repurchase Date in a manner
adverse to the holders of Notes;
(x) adversely affect the right of a holder to convert Notes
into Common Stock or to reduce the number of shares of Common Stock
or any other property receivable upon conversion subject to the terms
set forth herein, including Section 16.06;
(xi) adversely modify, in any material respect, the
subordination provisions hereof, in each case, without the consent of
the holder of each Note so affected, or modify any of the provisions
of this Section 12.02 or Section 8.07, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
holder of each Note so affected;
(xii) change any obligation of the Company to maintain an
office or agency in the places and for the purposes set forth in
Section 6.01;
(xiii) adversely modify in any material respect the
subordination provisions in Article 4; or
(xiv) reduce the aforesaid percentage of Notes, the holders of
which are required to consent to any such supplemental indenture,
without the consent of the holders of all Notes then outstanding.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by the Company's Secretary or
Assistant Secretary authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Noteholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Noteholders under
this Section 12.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 12.03. Effect of Supplemental Indenture. Any supplemental
indenture executed pursuant to the provisions of this Article 12 shall comply
with the Trust Indenture Act, as then in effect, provided that this Section
12.03 shall not require such supplemental indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time, if ever, such
qualification is in fact required under the terms of the Trust Indenture Act
or the Indenture has been qualified under the Trust Indenture Act, nor shall
it constitute any admission or acknowledgment by any party to such
supplemental indenture that any such qualification is required prior to the
time, if ever, such qualification is in fact required under the terms of the
Trust Indenture Act or the Indenture has been qualified under the Trust
Indenture Act. Upon the execution of any supplemental indenture pursuant to
the provisions of this Article 12, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Notes shall thereafter be
determined, exercised and enforced hereunder, subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 12.04. Notation on Notes. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions
of this Article 12 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
19.11) and delivered in exchange for the Notes then outstanding, upon
surrender of such Notes then outstanding.
Section 12.05. Evidence of Compliance of Supplemental Indenture to be
Furnished to Trustee. Prior to entering into any supplemental indenture
pursuant to this Article 12, the Trustee shall be provided with an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article 12 and is otherwise authorized or permitted by this Indenture.
ARTICLE 13
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 13.01. Company May Consolidate on Certain Terms. Subject to
the provisions of Section 13.02, 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 the property and assets of the Company substantially
as an entirety, to any other Person (whether or not affiliated with the
Company), unless: (i) the Company is the surviving Person, or the resulting,
surviving or transferee Person is a corporation or limited liability company
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia; (ii) upon any such consolidation,
merger, sale, conveyance, transfer or lease, the due and punctual payment of
the principal of and premium, if any, and interest on all of the Notes, and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company, shall be
expressly assumed, by supplemental indenture reasonably satisfactory in form
to the Trustee, executed and delivered to the Trustee by the Person (if other
than the Company) formed by such consolidation, or into which the Company
shall have been merged, or by the Person that shall have acquired or leased
such property, and such supplemental indenture shall provide for the
applicable conversion rights set forth in Section 16.06; and (iii) immediately
after giving effect to the transaction described above, no Event of Default,
and no event which, after notice or passage of time or both, would become an
Event of Default, has occurred and is continuing.
Section 13.02. Successor to be Substituted. In case of any such
consolidation, merger, sale, conveyance, transfer or lease in which the
Company is not the surviving person and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the Trustee and
reasonably satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and premium, if any, and interest on all of the
Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Company, 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 Advanced Medical Optics, Inc. any or all of the
Notes, issuable hereunder that theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver, or cause to be authenticated and delivered, any Notes that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Notes that such successor Person
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Notes so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Notes theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Notes had been issued at the date of the execution hereof. In the event of any
such consolidation, merger, sale, conveyance, transfer or lease, upon
compliance with this Article 13 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 13 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 13.03. Opinion of Counsel to be Given Trustee. Prior to
execution of any supplemental indenture pursuant to this Article 13, 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 13.
ARTICLE 14
SATISFACTION AND DISCHARGE OF INDENTURE
Section 14.01. Discharge of Indenture. When (a) the Company shall
deliver to the Trustee for cancellation all Notes theretofore authenticated
(other than any Notes that have been destroyed, lost or stolen and in lieu of
or in substitution for which other Notes shall have been authenticated and
delivered) and not theretofore canceled, or (b) all the Notes not theretofore
canceled or delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year
or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit with the Trustee, in trust, funds sufficient to pay at
maturity or upon redemption all of the Notes (other than any Notes that shall
have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and
delivered) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and premium, if any, and interest, due or to
become due to such date of maturity or redemption date, as the case may be,
accompanied by a verification report, as to the sufficiency of the deposited
amount, from an independent certified accountant or other financial
professional satisfactory to the Trustee, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except as to (i) remaining
rights of registration of transfer, substitution and exchange and conversion
of Notes, (ii) rights hereunder of Noteholders to receive payments of
principal of and premium, if any, and interest, on, the Notes and the other
rights, duties and obligations of Noteholders, as beneficiaries hereof with
respect to the amounts, if any, so deposited with the Trustee and (iii) the
rights, obligations and immunities of the Trustee hereunder), and the Trustee,
on written demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel as required by Section 19.05 and at the cost and expense
of the Company, shall execute proper instruments acknowledging satisfaction of
and discharging this Indenture; the Company, however, hereby agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Notes.
Section 14.02. Deposited Monies to be Held in Trust by Trustee.
Subject to Section 14.04, all monies deposited with the Trustee pursuant to
Section 14.01, shall be held in trust for the sole benefit of the Noteholders,
and such monies shall be applied by the Trustee to the payment, either
directly or through any paying agent (including the Company if acting as its
own paying agent), to the holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest and premium, if
any. Moneys so held in trust shall not be subject to the provisions of Article
4. All moneys deposited with the Trustee pursuant to Section 14.01 (and held
by it or any paying agent) for the payment of Notes subsequently converted
shall be returned to the Company upon request. The Trustee is not responsible
to anyone for interest on any deposited funds except as agreed in writing.
Section 14.03. 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 14.04. Return of Unclaimed Monies. Subject to the
requirements of applicable law, any monies deposited with or paid to the
Trustee for payment of the principal of, premium, if any, or interest on Notes
and not applied but remaining unclaimed by the holders of Notes for two years
after the date upon which the principal of, premium, if any, or interest on
such Notes, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee on demand and all liability of the
Trustee shall thereupon cease with respect to such monies; and the holder of
any of the Notes shall thereafter look only to the Company for any payment
that such holder may be entitled to collect unless an applicable abandoned
property law designates another Person.
Section 14.05. Reinstatement. If the Trustee or the paying agent is
unable to apply any money in accordance with Section 14.02 by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 14.01 until such time as
the Trustee or the paying agent is permitted to apply all such money in
accordance with Section 14.02; provided that if the Company makes any payment
of interest on or principal of any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the holders of
such Notes to receive such payment from the money held by the Trustee or
paying agent.
ARTICLE 15
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 15.01. Indenture and Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or interest
on any Note, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company or any Guarantor in this Indenture or in any supplemental indenture or
in any Note, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, member, manager,
employee, agent, officer, director or subsidiary, as such, past, present or
future, of the Company, any Guarantor or any of the Company's subsidiaries or
of any successor thereto, either directly or through the Company, any
Guarantor or any of the Company's subsidiaries or any successor thereto,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture
and the issue of the Notes.
ARTICLE 16
CONVERSION OF NOTES
Section 16.01. Right to Convert. (a) Subject to and upon compliance
with the provisions of this Indenture, on or prior to April 15, 2023, 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 fully paid and non-assessable shares of
Common Stock (as such shares shall then be constituted) at the Conversion Rate
in effect at such time, by surrender of the Note so to be converted in whole
or in part, together with any required funds, under the circumstances
described in this Section 16.01 and in the manner provided in Section 16.02.
The Notes shall be convertible only upon the occurrence of one of the
following events:
(i) during any Fiscal Quarter commencing after September 30,
2003, if the Closing Sale Price exceeds 120% of the Conversion Price
in effect for at least 20 Trading Days in the 30 consecutive
Trading-Day period ending on the last Trading Day of the immediately
preceding Fiscal Quarter (it being understood for purposes of this
Section 16.01(a)(i) that the Conversion Price in effect at the close
of business on each of the 30 consecutive Trading Days should be
used);
(ii) during the five Business Days immediately following any
five consecutive Trading-Day period in which the Trading Price per
$1,000 principal amount of the Notes for each day of such five
Trading-Day period was less than 95% of the product of the Closing
Sale Price and the Conversion Rate; provided that a holder may not
convert Notes in reliance on this Section 16.01(a)(ii) after April
15, 2018, if on any Trading Day during such five Trading Day period
the Closing Sale Price of the Common Stock is between 100% and 120%
of the Conversion Price;
(iii) if such Note has been called for redemption, at any time
on or after the date the Company Repurchase Notice has been given
until the close of business on the Business Day immediately preceding
the redemption date;
(iv) as provided in Section (b) of this Section 16.01; or
(v) after the earlier of (x) the date the notes are rated by
both Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors ("S&P") and ▇▇▇▇▇'▇
Investor Services and its successors ("Moody's") and (y) 20 Business
Days from the date the Notes are issued, during any period in which
the credit rating assigned to the Notes by S&P and ▇▇▇▇▇'▇ is below
CCC+ and Caa2, respectively, or if either or both of S&P or Moody's
does not rate or no longer rates the Notes, or if either S&P or
Moody's suspends or withdraws the rating assigned to the Notes.
The Trustee (or other conversion agent appointed by the Company)
shall, on behalf of the Company, determine on a daily basis during the time
period specified in Section 16.01(a)(i) whether the Notes shall be convertible
as a result of the occurrence of an event specified in clause (i) above and,
if the Notes shall be so convertible, the Trustee (or other conversion agent
appointed by the Company) shall promptly deliver to the Company and the
Trustee (if the Trustee is not the conversion agent) written notice thereof.
Whenever the Notes shall become convertible pursuant to this Section 16.01,
the Company or, at the Company's request, the Trustee in the name and at the
expense of the Company, shall notify the holders of the event triggering such
convertibility in the manner provided in Section 19.03, and the Company shall
also publicly announce such information and publish it on the Company's web
site. Any notice so given shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice.
The Trustee (or other conversion agent appointed by the Company)
shall have no obligation to determine the Trading Price under this Section
16.01 unless the Company has requested such a determination; and the Company
shall have no obligation to make such request unless a holder provides it with
reasonable evidence prior to 12:00 noon (
New York City time) on any Trading
Day that the Trading Price per $1,000 principal amount of Notes would be less
than 95% of the product of the Closing Sale Price and the Conversion Rate. If
such evidence is provided, the Company shall instruct the Trustee (or other
conversion agent) to determine the Trading Price of the Notes beginning on the
next Trading Day and on each successive Trading Day until the Trading Price
per $1,000 principal amount of Notes is greater than or equal to 95% of the
product of the Closing Sale Price and the Conversion Rate; provided that the
Trustee shall be under no duty or obligation to make the calculations
described in Section 16.01(a)(ii) hereof or to determine whether the Notes are
convertible pursuant to such section. For the avoidance of doubt, the Company
shall make the calculations described in Section 16.01(a)(ii), using the
Trading Price provided by the Trustee.
The Trustee shall be entitled at its sole discretion to consult with
the Company and to request the assistance of the Company in connection with
the Trustee's duties and obligations pursuant to Section 16.01(a)(i) and
Section 16.01(a)(ii) hereof (including without limitation the calculation or
determination of the Conversion Price, the Closing Sales Price and the Trading
Price), and the Company agrees, if requested by the Trustee, to cooperate
with, and provide assistance to, the Trustee in carrying out its duties under
this Section 16.01; provided, however, that nothing herein shall be construed
to relieve the Trustee of its duties pursuant to Section 16.01(a)(i) and
Section 16.01(a)(ii) hereof.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common
Stock rights or warrants entitling them (for a period expiring within
45 days of the record date for the determination of the stockholders
entitled to receive such distribution) to subscribe for or purchase
shares of Common Stock, at a price per share less than the average of
the Closing Sale Price for the ten Trading Days immediately
preceding, but not including, the declaration date for such
distribution, or (B) the Company distributes to all holders of its
Common Stock, cash or other assets, debt securities or rights to
purchase its securities, where the Fair Market Value of such
distribution per share of Common Stock exceeds 5% of the Closing Sale
Price on the Trading Day immediately preceding the declaration date
for such distribution, then, in either case, the Notes may be
surrendered for conversion at any time on and after the date that the
Company gives notice to the holders of such distribution, which shall
be not less than 20 days prior to the Ex-Dividend Time for such
distribution, until the earlier of the close of business on the
Business Day immediately preceding, but not including, the
Ex-Dividend Time or the date the Company publicly announces that such
distribution will not take place; provided that no adjustment to the
Conversion Price or the ability of a holder of a Note to convert will
be made if the holder will otherwise participate in such distribution
without conversion; or
(ii) the Company consolidates with or merges with or into
another Person or is a party to a binding share exchange or conveys,
transfers, sells, leases or otherwise disposes of all or
substantially all of its properties and assets in each case pursuant
to which the Company's Common Stock is converted into cash,
securities or other property, then the Notes may be surrendered for
conversion at any time from and after the date that is fifteen (15)
days prior to the anticipated effective date of the transaction and
ending on and including the date that is fifteen (15) days after the
consummation of the transaction. The Board of Directors shall
determine the anticipated effective date of the transaction, and such
determination shall be conclusive and binding on the holders and
shall be publicly announced by the Company and posted on its web site
not later than two Business Day prior to such 15th day.
"Ex-Dividend Time" means, with respect to any distribution on shares
of Common Stock, the first date on which the shares of Common Stock trade
regular way on the principal securities market on which the shares of Common
Stock are then traded without the right to receive such distribution.
(c) In lieu of delivery of shares of Common Stock upon conversion of
the Notes, for all or any portion of the Notes, the Company may elect to pay
holders surrendering such Notes an amount in cash per Note (or a portion of a
Note) equal to the Applicable Stock Price multiplied by the Conversion Rate in
effect on the conversion date. The Company shall inform holders through the
Trustee of its election to deliver shares of Common Stock:
(i) if the Notes have been called for redemption pursuant to
Section 3.01, in the notice of redemption pursuant to Section 3.02;
(ii) in respect of amounts due April 15, 2023, at least five
Business Days prior to such date; or
(iii) in all other cases, no later than two Business Days
following the conversion date.
Shares of Common Stock and cash deliverable upon conversion will be
delivered through the conversion agent no later than the third Business Day
following the end of the settlement period.
(d) A Note in respect of which a holder is electing to exercise its
option to require repurchase upon a Fundamental Change pursuant to Section
3.05 or repurchase pursuant to Section 3.06 may be converted only if such
holder withdraws its election in accordance with Section 3.08. A holder of
Notes is not entitled to any rights of a holder of Common Stock until such
holder has converted his Notes to Common Stock, and only to the extent such
Notes are deemed to have been converted to Common Stock under this Article 16.
Section 16.02. Exercise of Conversion Privilege; Issuance of Common
Stock on Conversion; No Adjustment for Interest or Dividends. In order to
exercise the conversion privilege with respect to any Note in certificated
form, the Company must receive at the office or agency of the Company
maintained for that purpose or, at the option of such holder, the Corporate
Trust Office, such Note with the original or facsimile of the form entitled
"Conversion Notice" on the reverse thereof, duly completed and manually
signed, together with such Notes duly endorsed for transfer, accompanied by
the funds, if any, required by this Section 16.02. Such notice shall also
state the name or names (with address or addresses) in which the certificate
or certificates for shares of Common Stock which shall be issuable on such
conversion shall be issued, and shall be accompanied by transfer or similar
taxes, if required pursuant to Section 16.07.
In order to exercise the conversion privilege with respect to any
interest in a Global Note, the beneficial holder must complete, or cause to be
completed, the appropriate instruction form for conversion pursuant to the
Depositary's book-entry conversion program, deliver, or cause to be delivered,
by book-entry delivery an interest in such Global Note, furnish appropriate
endorsements and transfer documents if required by the Company or the Trustee
or conversion agent, and pay the funds, if any, required by this Section 16.02
and any transfer taxes if required pursuant to Section 16.07.
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, subject to compliance with any restrictions on
transfer if shares issuable on conversion are to be issued in a name other
than that of the Noteholder (as if such transfer were a transfer of the Note
or Notes (or portion thereof) so converted), the Company shall issue and shall
deliver to such Noteholder at the office or agency maintained by the Company
for such purpose pursuant to Section 6.02, a certificate or certificates for
the number of full shares of Common Stock issuable upon the conversion of such
Note or portion thereof as determined by the Company in accordance with the
provisions of this Article 16 and a check or cash in respect of any fractional
interest in respect of a share of Common Stock arising upon such conversion,
calculated by the Company as provided in Section 16.03. In case any Note of a
denomination greater than $1,000 shall be surrendered for partial conversion,
and subject to Section 2.03, the Company shall execute and the Trustee shall
authenticate and deliver to the holder of the Note so surrendered, without
charge to him, a new Note or Notes in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected as to any such
Note (or portion thereof) on the date on which the requirements set forth
above in this Section 16.02 have been satisfied as to such Note (or portion
thereof), and the Person in whose name any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall be deemed
to have become on said date the holder of record of the shares represented
thereby; provided that any such surrender on any date when the stock transfer
books of the Company shall be closed shall constitute the Person in whose name
the certificates are to be issued as the record holder thereof for all
purposes on the next succeeding day on which such stock transfer books are
open, but such conversion shall be at the Conversion Rate in effect on the
date upon which such Note shall be surrendered.
Any Note or portion thereof surrendered for conversion during the
period from the close of business on the Record Date for any interest payment
date to the close of business on the Business Day preceding the applicable
interest payment date that has not been called for redemption during such
period shall be accompanied by payment, in immediately available funds or
other funds acceptable to the Company, of an amount equal to the interest
otherwise payable on such interest payment date on the principal amount being
converted; provided that no such payment need be made (1) if 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 redemption date
following a Fundamental Change that is during such period or (3) to the extent
of any overdue interest, if any overdue interest exists at the time of
conversion with respect to such Note. Except as provided above in this Section
16.02, no payment or other adjustment shall be made for interest accrued on
any Note converted or for dividends on any shares issued upon the conversion
of such Note as provided in this Article 16.
Upon the conversion of an interest in a Global Note, the Trustee (or
other conversion agent appointed by the Company), or the Custodian at the
direction of the Trustee (or other conversion agent appointed by the Company),
shall make a notation on such Global Note as to the reduction in the principal
amount represented thereby. The Company shall notify the Trustee in writing of
any conversions of Notes effected through any conversion agent other than the
Trustee.
Upon the conversion of a Note, that portion of the accrued but unpaid
interest, and accrued Tax Original Issue Discount attributable to the period
from the issue date of the Note to the conversion date, with respect to the
converted Note shall not be cancelled, extinguished or forfeited, but rather
shall be deemed to be paid in full to the holder thereof through delivery of
the Common Stock (together with the cash payment, if any in lieu of fractional
shares) in exchange for the Note being converted pursuant to the provisions
hereof; and the Fair Market Value of such shares of Common Stock (together
with any such cash payment in lieu of fractional shares) shall be treated as
issued, to the extent thereof, first in exchange for and in satisfaction of
our obligation to pay the principal amount of the converted Note, the accrued
but unpaid interest, and accrued Tax Original Issue Discount through the
conversion date from the issue date, and the balance, if any, of such fair
market value of such Common Stock (and any such cash payment) shall be treated
as issued in exchange for and in satisfaction of the right to convert the Note
being converted pursuant to the provisions hereof.
Section 16.03. Cash Payments in Lieu of Fractional Shares. No
fractional shares of Common Stock or scrip certificates representing
fractional shares shall be issued upon conversion of Notes. If more than one
Note shall be surrendered for conversion at one time by the same holder, the
number of full shares that shall be issuable upon conversion shall be computed
on the basis of the aggregate principal amount of the Notes (or specified
portions thereof to the extent permitted hereby) so surrendered. If any
fractional share of stock would be issuable upon the conversion of any Note or
Notes, the Company shall make an adjustment and payment therefor in cash to
the holder of Notes at a price equal to the Closing Sale Price on the last
Trading Day immediately preceding the day on which the Notes (or specified
portions thereof) are deemed to have been converted.
Section 16.04. Conversion Rate. Each $1,000 principal amount of the
Notes shall be convertible into the number of shares of Common Stock specified
in the form of Note (herein called the "Conversion Rate") attached as Exhibit
A hereto, subject to adjustment as provided in this Article 16.
Section 16.05. Adjustment of Conversion Rate. The Conversion Rate
shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of
Common Stock, the Conversion Rate shall be increased so that the same shall
equal the rate determined by multiplying the Conversion Rate in effect at the
opening of business on the date following the date fixed for the determination
of stockholders entitled to receive such dividend or other distribution by a
fraction,
(i) the numerator of which shall be the sum of the number of
shares of Common Stock outstanding at the close of business on the
date fixed for the determination of stockholders entitled to receive
such dividend or other distribution plus the total number of shares
of Common Stock constituting such dividend or other distribution; and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed
for such determination,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purpose of
this paragraph (a), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company. The
Company will not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company. If any dividend or distribution of
the type described in this Section 16.05(a) is declared but not so paid or
made, the Conversion Rate shall again be adjusted to the Conversion Rate that
would then be in effect if such dividend or distribution had not been
declared.
(b) In case the Company shall issue rights or warrants to all holders
of its outstanding shares of Common Stock entitling them (for a period
expiring within forty-five (45) days after the date fixed for determination of
stockholders entitled to receive such rights or warrants) to subscribe for or
purchase shares of Common Stock at a price per share less than the Closing
Sale Price on the Business Day immediately preceding the date of announcement
of such issuance of such rights or warrants, the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the date fixed for
determination of stockholders entitled to receive such rights or warrants by a
fraction,
(i) the numerator of which shall be the number of shares of
Common Stock outstanding on the date fixed for determination of
stockholders entitled to receive such rights or warrants plus the
total number of additional shares of Common Stock offered for
subscription or purchase, and
(ii) the denominator of which shall be the sum of the number of
shares of Common Stock outstanding at the close of business on the
date fixed for determination of stockholders entitled to receive such
rights or warrants plus the number of shares that the aggregate
offering price of the total number of shares so offered would
purchase at such Current Market Price.
Such adjustment shall be successively made whenever any such rights
or warrants are issued, and shall become effective immediately after the
opening of business on the day following the date fixed for determination of
stockholders entitled to receive such rights or warrants. To the extent that
shares of Common Stock are not delivered after the expiration of such rights
or warrants, the Conversion Rate shall be readjusted to the Conversion Rate
that would then be in effect had the adjustments made upon the issuance of
such rights or warrants been made on the basis of delivery of only the number
of shares of Common Stock actually delivered. If such rights or warrants are
not so issued, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such date fixed for the
determination of stockholders entitled to receive such rights or warrants had
not been fixed. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at less than such
Current Market Price, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights or warrants and any amount payable on
exercise or conversion thereof, the value of such consideration, if other than
cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Rate in effect
at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately increased, and
conversely, in case outstanding shares of Common Stock shall be combined into
a smaller number of shares of Common Stock, the Conversion Rate in effect at
the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately reduced, such increase
or reduction, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such subdivision
or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock shares of any class of capital stock of the
Company or evidences of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in Section 16.05(b), and
excluding any dividend or distribution (x) paid exclusively in cash or (y)
referred to in Section 16.05(a) (any of the foregoing hereinafter in this
Section 16.05(d)) called the "Securities")), then, in each such case (unless
the Company elects to reserve such Securities for distribution to the
Noteholders upon the conversion of the Notes so that any such holder
converting Notes will receive upon such conversion, in addition to the shares
of Common Stock to which such holder is entitled, the amount and kind of such
Securities which such holder would have received if such holder had converted
its Notes into Common Stock immediately prior to the record date) the
Conversion Rate shall be increased so that the same shall be equal to the rate
determined by multiplying the Conversion Rate in effect on the record date
with respect to such distribution by a fraction,
(i) the numerator of which shall be the Current Market Price on
such Record Date; and
(ii) the denominator of which shall be the Current Market Price
on such record date less the Fair Market Value (as determined by the
Board of Directors, whose determination shall be conclusive, and
described in a resolution of the Board of Directors) on the record
date of the portion of the Securities so distributed applicable to
one share of Common Stock,
such adjustment to become effective immediately prior to the opening of
business on the day following such record date; provided that if the then Fair
Market Value (as so determined) of the portion of the Securities so
distributed applicable to one share of Common Stock is equal to or greater
than the Current Market Price on the record date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder shall
have the right to receive upon conversion the amount of Securities such holder
would have received had such holder converted each Note on the record date. If
such dividend or distribution is not so paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate that would then be in effect
if such dividend or distribution had not been declared. If the Board of
Directors determines the Fair Market Value of any distribution for purposes of
this Section 16.05(d) by reference to the actual or when issued trading market
for any securities, it must in doing so consider the prices in such market
over the same period used in computing the Current Market Price on the
applicable record date.
If the dividend or distribution requiring an adjustment pursuant to
this clause (d) consists of capital stock of any class or series, or similar
equity interests, of a Subsidiary or other business unit of the Company, for
purposes of making such adjustment, (i) the Current Market Price shall be
based on the average of the Closing Sale Prices of such securities for the ten
(10) Trading Days commencing on and including the fifth Trading Day after
"ex-dividend trading" commences for such distribution on the principal
national or regional exchange, the NASDAQ National Market or other market on
which such securities are then listed or quoted, and (ii) the Fair Market
Value of such securities shall be determined as provided herein, measured for
the same period.
Rights or warrants distributed by the Company to all holders of
Common Stock entitling the holders thereof to subscribe for or purchase shares
of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"): (i) are deemed to be transferred with such
shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in
respect of future issuances of Common Stock, shall be deemed not to have been
distributed for purposes of this Section 16.05 (and no adjustment to the
Conversion Rate under this Section 16.05 will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights and warrants
shall be deemed to have been distributed and an appropriate adjustment (if any
is required) to the Conversion Rate shall be made under this Section 16.05(d).
If any such right or warrant, including any such existing rights or warrants
distributed prior to the date of this Indenture, are subject to events, upon
the occurrence of which such rights or warrants become exercisable to purchase
different securities, evidences of indebtedness or other assets, then the date
of the occurrence of any and each such event shall be deemed to be the date of
distribution and record date with respect to new rights or warrants with such
rights (and a termination or expiration of the existing rights or warrants
without exercise by any of the holders thereof). In addition, in the event of
any distribution (or deemed distribution) of rights or warrants, or any
Trigger Event or other event (of the type described in the preceding sentence)
with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Rate under this
Section 16.05 was made, (1) in the case of any such rights or warrants that
shall all have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case
may be, as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder or holders of Common Stock
with respect to such rights or warrants (assuming such holder had retained
such rights or warrants), made to all holders of Common Stock as of the date
of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise by any
holders thereof, the Conversion Rate shall be readjusted as if such rights and
warrants had not been issued.
No adjustment of the Conversion Rate shall be made pursuant to this
Section 16.05(d) in respect of rights or warrants distributed or deemed
distributed on any Trigger Event to the extent that such rights or warrants
are actually distributed, or reserved by the Company for distribution to
holders of Notes upon conversion by such holders of Notes to Common Stock.
For purposes of this Section 16.05(d) and Section 16.05(a) and (b),
any dividend or distribution to which this Section 16.05(d) is applicable that
also includes shares of Common Stock, or rights or warrants to subscribe for
or purchase shares of Common Stock (or both), shall be deemed instead to be
(1) a dividend or distribution of the evidences of indebtedness, assets or
shares of capital stock other than such shares of Common Stock or rights or
warrants (and any Conversion Rate adjustment required by this Section 16.05(d)
with respect to such dividend or distribution shall then be made) immediately
followed by (2) a dividend or distribution of such shares of Common Stock or
such rights or warrants (and any further Conversion Rate adjustment required
by Sections 16.05(a) and 16.05(b) with respect to such dividend or
distribution shall then be made), except (A) the record date of such dividend
or distribution shall be substituted as "the date fixed for the determination
of stockholders entitled to receive such dividend or other distribution", "the
date fixed for the determination of stockholders entitled to receive such
rights or warrants" and "the date fixed for such determination" within the
meaning of Section 16.05(a) and 16.05(b) and (B) any shares of Common Stock
included in such dividend or distribution shall not be deemed "outstanding at
the close of business on the date fixed for such determination" within the
meaning of Section 16.05(a).
(e) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock cash (excluding (x) any quarterly cash
dividend distributed on or after April 15, 2008 on the Common Stock to the
extent the aggregate cash dividend per share of Common Stock in any Fiscal
Quarter does not exceed the greater of (A) the amount per share of Common
Stock of the next preceding quarterly cash dividend on the Common Stock to the
extent that such preceding quarterly dividend did not require any adjustment
of the Conversion Rate pursuant to this Section 16.05(e) (as adjusted to
reflect subdivisions, or combinations of the Common Stock), and (B) 1.25% of
the average of the Closing Sale Price during the ten Trading Days immediately
prior to the date of declaration of such dividend, and (y) any dividend or
distribution in connection with the liquidation, dissolution or winding up of
the Company, whether voluntary or involuntary), then, in such case, the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect on the applicable
record date by a fraction,
(i) the numerator of which shall be the Current Market Price on
such record date; and
(ii) the denominator of which shall be the Current Market Price
on such record date less (x) the amount of the excess distribution in
the case of a quarterly dividend on or after April 15, 2008 or (y)
the full amount of cash so distributed (and not excluded as provided
above) in all other cases, in each of (x) and (y), as applicable to
one share of Common Stock,
such adjustment to be effective immediately prior to the opening of business
on the day following the record date; provided that if the portion of the cash
so distributed applicable to one share of Common Stock is equal to or greater
than the Current Market Price on the record date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder shall
have the right to receive upon conversion the amount of cash such holder would
have received had such holder converted each Note on the record date. If such
dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared. If any adjustment is
required to be made as set forth in this Section 16.05(e) as a result of a
distribution that is a quarterly dividend, such adjustment shall be based upon
the amount by which such distribution exceeds the amount of the quarterly cash
dividend permitted to be excluded pursuant hereto. If an adjustment is
required to be made as set forth in this Section 16.05(e) above as a result of
a distribution that is not a quarterly dividend, such adjustment shall be
based upon the full amount of the distribution.
(f) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall
require the payment to stockholders of consideration per share of Common Stock
having a Fair Market Value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the Board
of Directors) that as of the last time (the "Expiration Time") tenders or
exchanges may be made pursuant to such tender or exchange offer (as it may be
amended) exceeds the Closing Sale Price of a share of Common Stock on the
Trading Day next succeeding the Expiration Time, the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the Expiration Time by a
fraction,
(i) the numerator of which shall be the sum of (x) the Fair
Market Value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the Closing Sale Price of a share
of Common Stock on the Trading Day next succeeding the Expiration
Time, and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares)
at the Expiration Time multiplied by the Closing Sale Price of a
share of Common Stock on the Trading Day next succeeding the
Expiration Time
such adjustment to become effective immediately prior to the opening of
business on the day following the Expiration Time. If the Company is obligated
to purchase shares pursuant to any such tender or exchange offer, but the
Company is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such
tender or exchange offer had not been made.
(g) For purposes of this Section 16.05, the following terms shall
have the meaning indicated:
(i) "Current Market Price" shall mean the average of the daily
Closing Sale Prices per share of Common Stock for the ten consecutive
Trading Days ending not later than the earlier of such date of
determination and the day before the "ex" date with respect to the
issuance, distribution, subdivision or combination requiring such
computation immediately prior to the date in question. For purpose of
this paragraph, the term "ex" date, (1) when used with respect to any
issuance or distribution, means the first date on which the Common
Stock trades, regular way, on the relevant exchange or in the
relevant market from which the Closing Sale Price was obtained
without the right to receive such issuance or distribution, and (2)
when used with respect to any subdivision or combination of shares of
Common Stock, means the first date on which the Common Stock trades,
regular way, on such exchange or in such market after the time at
which such subdivision or combination becomes effective.
If another issuance, distribution, subdivision or combination to
which Section 16.05 applies occurs during the period applicable for
calculating "Current Market Price" pursuant to the definition in the preceding
paragraph, "Current Market Price" shall be calculated for such period in a
manner determined by the Board of Directors to reflect the impact of such
issuance, distribution, subdivision or combination on the Closing Sale Price
of the Common Stock during such period.
(ii) "Fair Market Value" shall mean the amount which a willing
buyer would pay a willing seller in an arm's-length transaction.
(iii) "record date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of
Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security)
is exchanged for or converted into any combination of cash,
securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(iv) "Trading Day" shall mean (x) if the applicable security is
quoted on the Nasdaq National Market, a day on which trades may be
made thereon or (y) if the applicable security is listed or admitted
for trading on the
New York Stock Exchange or another national
securities exchange, a day on which the
New York Stock Exchange or
another national securities exchange is open for business or (z) if
the applicable security is not so listed, admitted for trading or
quoted, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(h) The Company may make such increases in the Conversion Rate, in
addition to those required by Section 16.05(a)-(f) as the Board of Directors
considers to be advisable to avoid or diminish any income tax to holders of
Common Stock or rights to purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated
as such for income tax purposes.
To the extent permitted by applicable law, the Company from time to
time may increase the Conversion Rate by any amount for any period of time if
the period is at least twenty (20) Business Days, the increase is irrevocable
during the period and the Board of Directors shall have made a determination
that such increase would be in the best interests of the Company, which
determination shall be conclusive. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to holders of
record of the Notes a notice of the increase at least fifteen (15) days prior
to the date the increased Conversion Rate takes effect, and such notice shall
state the increased Conversion Rate and the period during which it will be in
effect.
(i) No adjustment in the Conversion Rate shall be required unless
such adjustment would require an increase or decrease of at least one percent
(1%) in such rate; provided that any adjustments that by reason of this
Section 16.05(i) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article 16 shall be made by the Company and shall be made to the nearest cent
or to the nearest one-ten thousandth (1/10,000) of a share, as the case may
be. No adjustment need be made for rights to purchase Common Stock pursuant to
a Company plan for reinvestment of dividends or interest or for any issuance
of Common Stock or convertible or exchangeable securities or rights to
purchase Common Stock or convertible or exchangeable securities. To the extent
the Notes become convertible into cash, assets, property or securities (other
than capital stock of the Company), no adjustment need be made thereafter as
to the cash, assets, property or such securities. Interest will not accrue on
any cash into which the Notes are convertible.
(j) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any conversion agent other
than the Trustee an Officers' Certificate setting forth the Conversion Rate
after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Unless and until a Responsible Officer of the
Trustee shall have received such Officers' Certificate, the Trustee shall not
be deemed to have knowledge of any adjustment of the Conversion Rate and may
assume that the last Conversion Rate of which it has knowledge is still in
effect. Promptly after delivery of such certificate, the Company shall prepare
a notice of such adjustment of the Conversion Rate setting forth the adjusted
Conversion Rate and the date on which each adjustment becomes effective and
shall mail such notice of such adjustment of the Conversion Rate to the holder
of each Note at his last address appearing on the Note Register provided for
in Section 2.05 of this Indenture, within twenty (20) days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
(k) In any case in which this Section 16.05 provides that an
adjustment shall become effective immediately after (1) a record date for an
event, (2) the date fixed for the determination of stockholders entitled to
receive a dividend or distribution pursuant to Section 16.05(a), (3) a date
fixed for the determination of stockholders entitled to receive rights or
warrants pursuant to Section 16.05(b), or (4) the Expiration Time for any
tender or exchange offer pursuant to Section 16.05(f), (each a "Determination
Date"), the Company may elect to defer until the occurrence of the applicable
Adjustment Event (as hereinafter defined) (x) issuing to the holder of any
Note converted after such Determination Date and before the occurrence of such
Adjustment Event, the additional shares of Common Stock or other securities
issuable upon such conversion by reason of the adjustment required by such
Adjustment Event over and above the Common Stock issuable upon such conversion
before giving effect to such adjustment and (y) paying to such holder any
amount in cash in lieu of any fraction pursuant to Section 16.03. For purposes
of this Section 16.05(k), the term "Adjustment Event" shall mean:
(i) in any case referred to in clause (1) hereof, the
occurrence of such event,
(ii) in any case referred to in clause (2) hereof, the date any
such dividend or distribution is paid or made,
(iii) in any case referred to in clause (3) hereof, the date of
expiration of such rights or warrants, and
(iv) in any case referred to in clause (4) hereof, the date a
sale or exchange of Common Stock pursuant to such tender or exchange
offer is consummated and becomes irrevocable.
(l) For purposes of this Section 16.05, the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company.
(m) No adjustment to the Conversion Rate shall be made pursuant to
this Section 16.05 if the holders of the Notes may participate in the
transaction that would otherwise give rise to adjustment pursuant to this
Section 16.05.
Section 16.06. Effect of Reclassification, Consolidation, Merger or
Sale. If any of the following events occur, namely (i) any reclassification or
change of the outstanding shares of Common Stock (other than a subdivision or
combination to which Section 16.05(c) applies), (ii) any consolidation, merger
or combination of the Company with another Person as a result of which holders
of Common Stock shall be entitled to receive stock, other securities or other
property or assets (including cash) with respect to or in exchange for such
Common Stock, or (iii) any sale or conveyance of all or substantially all of
the properties and assets of the Company to any other Person as a result of
which holders of Common Stock shall be entitled to receive stock, other
securities or other property or assets (including cash) with respect to or in
exchange for such Common Stock, then the Company or the successor or
purchasing Person, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture) providing that
each Note shall be convertible into the kind and amount of shares of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination, sale or
conveyance by a holder of a number of shares of Common Stock issuable upon
conversion of such Notes (assuming, for such purposes, a sufficient number of
authorized shares of Common Stock are available to convert all such Notes)
immediately prior to such reclassification, change, consolidation, merger,
combination, sale or conveyance assuming such holder of Common Stock did not
exercise his rights of election, if any, as to the kind or amount of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination, sale or
conveyance (provided that, if the kind or amount of stock, other securities or
other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or
conveyance is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised ("non-electing share"),
then for the purposes of this Section 16.06 the kind and amount of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination, sale or
conveyance for each non-electing share shall be deemed to be the kind and
amount so receivable per share by a plurality of the non-electing shares).
Such supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in
this Article 16.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes, at its address appearing on
the Note Register provided for in Section 2.05 of this Indenture, within
twenty (20) days after execution thereof. Failure to deliver such notice shall
not affect the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 16.06 applies to any event or occurrence, Section
16.05 shall not apply.
Section 16.07. Taxes on Shares Issued. The issue of stock
certificates on conversions of Notes shall be made without charge to the
converting Noteholder for any documentary, stamp or similar issue or transfer
tax in respect of the issue thereof. The Company shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issue and delivery of stock in any name other than that of the
holder of any Note converted, and the Company shall not be required to issue
or deliver any such stock certificate unless and until the Person or Persons
requesting the issue thereof shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company that such tax
has been paid.
Section 16.08. Reservation of Shares, Shares to be Fully Paid;
Compliance with Governmental Requirements; Listing of Common Stock. The
Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient shares of Common Stock
to provide for the conversion of the Notes from time to time as such Notes are
presented for conversion.
Before taking any action which would cause an adjustment increasing
the Conversion Rate to an amount that would cause the Conversion Price to be
reduced below the then par value, if any, of the shares of Common Stock
issuable upon conversion of the Notes, the Company will take all corporate
action which may, in the opinion of its counsel, be necessary in order that
the Company may validly and legally issue shares of such Common Stock at such
adjusted Conversion Rate.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Notes will upon issue be fully paid and
non-assessable by the Company and free from all taxes, liens and charges with
respect to the issue thereof.
The Company covenants that, if any shares of Common Stock to be
provided for the purpose of conversion of Notes hereunder require registration
with or approval of any governmental authority under any federal or state law
before such shares may be validly issued upon conversion, the Company will in
good faith and as expeditiously as possible, to the extent then permitted by
the rules and interpretations of the Commission (or any successor thereto),
endeavor to secure such registration or approval, as the case may be.
The Company further covenants that, if at any time the Common Stock
shall be listed on the Nasdaq National Market or any other national securities
exchange or automated quotation system, the Company will, if permitted by the
rules of such exchange or automated quotation system, list and keep listed, so
long as the Common Stock shall be so listed on such exchange or automated
quotation system, all Common Stock issuable upon conversion of the Note;
provided that if the rules of such exchange or automated quotation system
permit the Company to defer the listing of such Common Stock until the first
conversion of the Notes into Common Stock in accordance with the provisions of
this Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Notes in accordance with the requirements of such exchange
or automated quotation system at such time.
Section 16.09. Responsibility of Trustee. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any holder of Notes to determine the Conversion Rate or whether any facts
exist which may require any adjustment of the Conversion Rate, or with respect
to the nature or extent or calculation of any such adjustment when made, or
with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. The Trustee and any
other conversion agent shall not be accountable with respect to the validity
or value (or the kind or amount) of any shares of Common Stock, or of any
securities or property, which may at any time be issued or delivered upon the
conversion of any Note; and the Trustee and any other conversion agent make no
representations with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to issue, transfer
or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Note for the purpose
of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article 16. Without limiting the
generality of the foregoing, neither the Trustee nor any conversion agent
shall be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture entered into pursuant to
Section 16.06 relating either to the kind or amount of shares of stock or
securities or property (including cash) receivable by Noteholders upon the
conversion of their Notes after any event referred to in such Section 16.06 or
to any adjustment to be made with respect thereto, but, subject to the
provisions of Section 9.01, may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon,
the Officers' Certificate (which the Company shall be obligated to file with
the Trustee prior to the execution of any such supplemental indenture) with
respect thereto.
Section 16.10. Notice to Holders Prior to Certain Actions. In case:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock that would require an adjustment in the Conversion Rate
pursuant to Section 16.05; or
(b) the Company shall authorize the granting to the holders of all or
substantially all of its Common Stock of rights or warrants to subscribe for
or purchase any share of any class or any other rights or warrants; or
(c) of any reclassification or reorganization of the Common Stock of
the Company (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the Company
is required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note Register provided for in
Section 2.05 of this Indenture, as promptly as possible but in any event at
least ten (10) days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution or rights or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined, or (y)
the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective or occur, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such dividend, distribution, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
Section 16.11. Stockholder Rights Plans. If the rights provided for
in the Company's stockholder rights agreement dated June 24, 2002 or in any
future rights plan adopted by the Company have separated from the shares of
Common Stock in accordance with the provisions of the applicable stockholder
rights agreement so that the holders of the Notes would not be entitled to
receive any rights in respect of Common Stock issuable upon conversion of the
Notes, the Conversion Rate will be adjusted as provided in Section 16.05(d).
ARTICLE 17
GUARANTY
Section 17.01. Unconditional Guaranty.
Each Guarantor hereby unconditionally, jointly and severally,
guarantees (each, a "Guaranty" or "Note Guarantee") to each holder of a Note
authenticated by the Trustee and to the Trustee and its successors and
assigns, irrespective of the validity regularity, or enforceability of this
Indenture, the Notes or the obligations of the Company hereunder, that: (a)
the principal of, premium, if any, and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal and interest on any overdue
interest on the Notes and all other obligations of the Company to the
Noteholders or the Trustee hereunder or under the Notes will be promptly paid
in full or performed, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not
a guarantee of collection.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any Noteholder with respect to any provisions hereof
or thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that the Note Guarantee will not be
discharged except by complete performance of the obligations contained in the
Notes, this Indenture, and this Note Guarantee.
If any Noteholder or the Trustee is required by any court or
otherwise to return to the Company, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any
Guarantor, any amount paid by the Company or any Guarantor to the Trustee or
such Noteholder, this Note Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Guarantor further agrees
that, as between each Guarantor, on the one hand, and the Noteholders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 for the purpose of this
Guaranty, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any acceleration of such obligations as provided in Article 8,
such obligations (whether or not due and payable) shall forth become due and
payable by each Guarantor for the purpose of this Note Guarantee.
Section 17.02. Severability.
In case any provision of this Note Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 17.03. Discharge; Reinstatement.
(a) Subject to Section 6.13 and Section 17.03(b), the Guarantor's
obligations hereunder will remain in full force and effect until the principal
of, premium, if any, and interest on the Notes and all other amounts payable
by the Company under the Indenture have been paid in full. Subject to Section
6.13 and Section 17.03(b), if at any time any payment of the principal of,
premium, if any, or interest on any Note or any other amount payable by the
Company under the Indenture is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of the Company or
otherwise, the Guarantor's obligations hereunder with respect to such payment
will be reinstated as though such payment had been due but not made at such
time.
(b) A Guarantor shall be automatically and unconditionally released
and discharged of its Note Guarantee and its obligations in respect of this
Indenture and the Notes without any action required on the part of the Trustee
or any Holder of Notes (i) subject to compliance with Section 17.08 upon any
sale or other disposition of that Guarantor or all or substantially all of the
assets of that Guarantor (including by way of merger or consolidation or any
sale of all of the capital stock of that Guarantor) to a Person that is not
the Company or a Subsidiary of the Company; and (ii) at such time as such
Guarantor's guarantee of such other senior subordinated Indebtedness is
released or discharged, or, at the Company's option, if the Guarantor is not a
guarantor of such other senior subordinated Indebtedness.
Section 17.04. Limitation of Subsidiary Guarantors' Liability.
Each Guarantor, and by its acceptance hereof and of the Notes, each
Holder and the Trustee hereby confirms that it is the intention of all such
parties that the Note Guarantee by such Subsidiary Guarantor pursuant to its
Note Guarantee not constitute a fraudulent transfer or conveyance for purposes
of title 11 of the United States Code, as amended, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar U.S.
federal or state or other applicable law. To effectuate the foregoing
intention, the Trustee, the Holders and each Subsidiary Guarantor hereby
irrevocably agree that the obligations of such Subsidiary Guarantor under its
Note Guarantee shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor (including any Senior Indebtedness incurred after the Issue Date)
and after giving effect to any collections from or payments made by or on
behalf of any other Subsidiary Guarantor in respect of the obligations of such
other Subsidiary Guarantor under its Note Guarantee or pursuant to Section
17.05, result in the obligations of such Subsidiary Guarantor under its Note
Guarantee not constituting such a fraudulent transfer or conveyance.
Section 17.05. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the Note
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount, based on the net assets of each
Guarantor (including the Funding Guarantor), determined in accordance with
GAAP, subject to Section 17.04, for all payments, damages and expenses
incurred by such Funding Guarantor in discharging the Company's obligations
with respect to the Notes or any other Guarantor's obligations with respect to
the Guaranty.
Section 17.06. Execution of Note Guarantee.
The execution by any Guarantor of the Indenture evidences the Note
Guarantee of the Guarantor, whether or not the person signing as an officer of
the Guarantor still holds that office at the time of authentication of any
Note. The delivery of any Note by the Trustee after authentication constitutes
due delivery of such Note Guarantee set forth in the Indenture on behalf of
such Guarantor.
Section 17.07. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the Company that
arises from the payment, performance or enforcement of such Guarantor's
obligations under its Guaranty or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Notes in accordance
with the provisions provided therefor in this Indenture.
Section 17.08. Consolidation, Merger or Sale of Assets by a
Guarantor.
(a) A Guarantor may not sell, convey, assign, transfer, lease or
otherwise dispose of all or substantially all of its assets, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving
person), another person unless:
(i) immediately after giving effect to that transaction, no
Event of Default exists; and
(ii) the person acquiring the property in any such sale or
disposition or the person formed by or surviving any such
consolidation or merger (if other than the Guarantor) assumes all the
obligations of that Guarantor pursuant to a supplemental indenture
reasonably satisfactory to the Trustee.
(b) In case of any such transaction described in and complying with
the conditions listed in Section 17.08(a) in which the Guarantor is not the
surviving person and upon the assumption by the surviving person of all the
obligations of such Guarantor under its Guaranty, this Indenture and the
Registration Rights Agreement, as the case may be, pursuant to a supplemental
indenture executed and delivered to the Trustee and reasonably satisfactory in
form to the Trustee, such surviving person shall succeed to, and be
substituted for, and may exercise every right and power of the Guarantor and
the Guarantor shall be discharged from its obligations under this Indenture
and the Notes.
ARTICLE 18
SUBORDINATION OF GUARANTY
Section 18.01. Guaranty Obligations Subordinated to Guarantor Senior
Indebtedness.
Each Guarantor covenants and agrees, and the Trustee and each
Noteholder by his acceptance thereof likewise covenants and agrees, that the
Guaranty of such Guarantor shall be issued subject to the provisions of this
Article 18; and each person holding any Note, whether upon original issue or
upon transfer, assignment or exchange thereof, accepts and agrees that all
payments of the principal of and interest on the Notes pursuant to the
Guaranty made by or on behalf of any Guarantor shall, to the extent and in the
manner set forth in this Article 18, be subordinated and junior in right of
payment to the prior payment in full in cash of all amounts payable under
Guarantor Senior Indebtedness of such Guarantor.
Section 18.02. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets or securities of any
Guarantor of any kind or character, whether in cash, property or securities
(excluding any payment or distribution of Junior Securities), upon any
dissolution or winding-up or total liquidation or reorganization of such
Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all Guarantor Senior Indebtedness of such
Guarantor shall first be paid in full in cash before the Noteholders or the
Trustee on behalf of such Holders shall be entitled to receive any payment by
such Guarantor of the principal of, premium, if any, or interest on the Notes
pursuant to such Guarantor's Guaranty, or any payment to acquire any of the
Notes for cash, property or securities, or any distribution with respect to
the Notes of any cash, property or securities (excluding any payment or
distribution of Junior Securities). Before any payment may be made by, or on
behalf of, any Guarantor of the principal of, premium, if any, or interest on
the Notes upon any such dissolution or winding-up or total liquidation or
reorganization, any payment or distribution of assets or securities of such
Guarantor of any kind or character, whether in cash, property or securities
(excluding any payment or distribution of Junior Securities), to which the
Noteholders or the Trustee on their behalf would be entitled, but for the
subordination provisions of this Indenture, shall be made by such Guarantor or
by any receiver, trustee in bankruptcy, liquidation trustee, agent or other
Person making such payment or distribution, directly to the holders of the
Guarantor Senior Indebtedness of such Guarantor (pro rata to such holders on
the basis of the respective amounts of such Guarantor Senior Indebtedness held
by such holders) or their representatives or to the trustee or trustees or
agent or agents under any agreement or indenture pursuant to which any of such
Guarantor Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all such Guarantor Senior
Indebtedness in full in cash after giving effect to any prior or concurrent
payment, distribution or provision therefor to or for the holders of such
Guarantor Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of
assets or securities of any Guarantor of any kind or character, whether in
cash, property or securities (excluding any payment or distribution of Junior
Securities), shall be received by the Trustee or any Noteholder at a time when
such payment or distribution is prohibited by Section 18.02(a) and before all
obligations in respect of the Guarantor Senior Indebtedness of such Guarantor
are paid in full in cash, such payment or distribution shall be received and
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of such Guarantor Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of such Guarantor Senior Indebtedness held by
such holders) or their respective representatives, or to the trustee or
trustees or agent or agents under any indenture pursuant to which any of such
Guarantor Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of such Guarantor Senior
Indebtedness remaining unpaid until all such Guarantor Senior Indebtedness has
been paid in full in cash after giving effect to any prior or concurrent
payment, distribution or provision therefor to or for the holders of such
Guarantor Senior Indebtedness.
The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another corporation or the liquidation or dissolution
of any Guarantor following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided in Article 13 shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section
18.02 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
5.
Section 18.03. Subrogation.
Upon the payment in full in cash of all Guarantor Senior Indebtedness
of a Guarantor, or provision for payment, the holders of the Notes shall be
subrogated to the rights of the holders of such Guarantor Senior Indebtedness
to receive payments or distributions of cash, property or securities of such
Guarantor made on such Guarantor Senior Indebtedness until the principal of
and interest on the Notes shall be paid in full in cash; and, for the purposes
of such subrogation, no payments or distributions to the holders of such
Guarantor Senior Indebtedness of any cash, property or securities to which the
Holders of the Notes or the Trustee on their behalf would be entitled except
for the provisions of this Article 18, and no payment over pursuant to the
provisions of this Article 18 to the holders of such Guarantor Senior
Indebtedness by holders of the Notes or the Trustee on their behalf shall, as
between such Guarantor, its creditors other than holders of such Guarantor
Senior Indebtedness, and the holders of the Notes, be deemed to be a payment
by such Guarantor to or on account of such Guarantor Senior Indebtedness. It
is understood that the provisions of this Article 18 are and are intended
solely for the purpose of defining the relative rights of the holders of the
Notes, on the one hand, and the holders of Guarantor Senior Indebtedness of
each Guarantor, on the other hand.
If any payment or distribution to which the holders of the Notes
would otherwise have been entitled but for the provisions of this Article 18
shall have been applied, pursuant to the provisions of this Article 18, to the
payment of all amounts payable under Guarantor Senior Indebtedness, then and
in such case, the holders of the Notes shall be entitled to receive from the
holders of such Guarantor Senior Indebtedness any payments or distributions
received by such holders of Guarantor Senior Indebtedness in excess of the
amount required to make payment in full in cash of such Guarantor Senior
Indebtedness.
Section 18.04. Obligations of Guarantors Unconditional.
Subject to Section 17.04, nothing contained in this Article 18 or
elsewhere in this Indenture or in the Notes or the Guaranties is intended to
or shall impair, as among each of the Guarantors and the Holders of the Notes,
the obligation of each Guarantor, which is absolute and unconditional, to pay
to the Holders of the Notes the principal of and interest on the Notes as and
when the same shall become due and payable in accordance with the terms of the
Guaranty of such Guarantor, or is intended to or shall affect the relative
rights of the Holders of the Notes and creditors of any Guarantor other than
the holders of Guarantor Senior Indebtedness of such Guarantor, nor shall
anything herein or therein prevent the Holder of any Note or the Trustee on
their behalf from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article 18 of the holders of Guarantor Senior Indebtedness in respect of
cash, property or securities of any Guarantor received upon the exercise of
any such remedy.
Without limiting the generality of the foregoing, nothing contained
in this Article 18 shall restrict the right of the Trustee or the Holders of
Notes to take any action to declare the Notes to be due and payable prior to
their stated maturity pursuant to Section 8.01 or to pursue any rights or
remedies hereunder; provided, however, that all Guarantor Senior Indebtedness
of any Guarantor then due and payable shall first be paid in full in cash
before the Holders of the Notes or the Trustee are entitled to receive any
direct or indirect payment from such Guarantor of principal of or interest on
the Notes pursuant to such Guarantor's Guaranty.
Section 18.05. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company or any Guarantor which would prohibit the making of
any payment to or by the Trustee in respect of the Notes pursuant to the
provisions of this Article 18. The Trustee shall not be charged with knowledge
of the existence of any event of default with respect to any Guarantor Senior
Indebtedness or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
notice in writing at its Corporate Trust Office to that effect signed by an
Officer of the Company or such Guarantor, or by a holder of Guarantor Senior
Indebtedness or trustee or agent therefor; and prior to the receipt of any
such written notice, the Trustee shall, subject to Article 9, be entitled to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 18.05 at least two
Business Days prior to the date upon which by the terms of this Indenture any
moneys shall become payable for any purpose (including, without limitation,
the payment of the principal of or interest on any Note) , then, regardless of
anything herein to the contrary, the Trustee shall have full power and
authority to receive any moneys from any Guarantor and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such prior
date. Nothing contained in this Section 18.05 shall limit the right of the
holders of Guarantor Senior Indebtedness to recover payments as contemplated
by Section 18.02. The Trustee shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself or itself to be a holder
of any Guarantor Senior Indebtedness (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given
by a holder of such Guarantor Senior Indebtedness or a trustee or
representative on behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Indebtedness to participate in any payment or distribution
pursuant to this Article 18, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Guarantor Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article 18, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
Section 18.06. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets or securities of a
Guarantor referred to in this Article 18, the Trustee and the Holders of the
Notes shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of the Notes for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of Guarantor Senior Indebtedness
of such Guarantor and other indebtedness of such Guarantor, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 18.
Section 18.07. Trustee's Relation to Guarantor Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article 18 with respect to any Guarantor Senior Indebtedness
which may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of Guarantor Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee or any Paying Agent of any
of its rights as such holder.
With respect to the holders of Guarantor Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 18, and no implied
covenants or obligations with respect to the holders of Guarantor Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Guarantor Senior Indebtedness (except as provided in Section 12.02(b)). The
Trustee shall not be liable to any such holders if the Trustee shall in good
faith mistakenly pay over or distribute to Holders of Notes or to the Company
or to any other person cash, property or securities to which any holders of
Guarantor Senior Indebtedness shall be entitled by virtue of this Article 18
or otherwise.
Section 18.08. Subordination Rights not Impaired by Acts or
Omissions of the Guarantors or Holders of Guarantor Senior Indebtedness.
No right of any present or future holders of any Guarantor Senior
Indebtedness to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
any Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by any Guarantor with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charged with. The provisions of this Article 18 are intended
to be for the benefit of, and shall be enforceable directly by, the holders of
Guarantor Senior Indebtedness.
Section 18.09. Holders Authorize Trustee to Effectuate Subordination
of Guaranty.
Each Holder of Notes by his acceptance of such Notes authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article 18, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, total liquidation or
reorganization of any Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of such Guarantor, the filing of a claim for the unpaid
balance of its or his Notes in the form required in those proceedings.
Section 18.10. This Article not to Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Notes by reason of any provision of this Article 18 shall not be
construed as preventing the occurrence of an Event of Default specified in
Section 8.01(a) or (b).
Section 18.11. Trustee's Compensation not Prejudiced.
Nothing in this Article 18 shall apply to amounts due to the Trustee,
or the lien granted to the Trustee, under Article 9, or its right to
indemnification, pursuant to other sections in this Indenture.
Section 18.12. No Waiver of Guaranty Subordination Provisions.
Without in any way limiting the generality of Section 18.08 the
holders of Guarantor Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and
without impairing or releasing the subordination provided in this Article 18
or the obligations hereunder of the holders of the Notes to the holders of
Guarantor Senior Indebtedness, do any one or more of the following: (a) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, Guarantor Senior Indebtedness or any instrument evidencing the
same or any agreement under which Guarantor Senior Indebtedness is outstanding
or secured; (b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Guarantor Senior Indebtedness; (c)
release any Person liable in any manner for the collection of Guarantor Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against
any Guarantor and any other Person.
Section 18.13. Payments may be Paid Prior to Dissolution.
Nothing contained in this Article 18 or elsewhere in this Indenture
shall prevent (i) a Guarantor, except under the conditions described in
Section 18.02, from making payments of principal of and interest on the Notes,
or from depositing with the Trustee any moneys for such payments, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of and interest on the Notes, to the holders
entitled thereto unless at least two Business Days prior to the date upon
which such payment becomes due and payable, the Trustee shall have received
the written notice provided for in Section 18.06. The Guarantors shall give
prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of such Guarantor.
ARTICLE 19
MISCELLANEOUS PROVISIONS
Section 19.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements by the Company and any
Guarantor contained in this Indenture shall bind their respective successors
and assigns whether so expressed or not.
Section 19.02. 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 or any
Guarantor 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 or such Guarantor, as the case may
be.
Section 19.03. 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 or any
Guarantor shall be in writing and shall be deemed to have been sufficiently
given or made, for all purposes, if given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box, or sent
by overnight courier, or sent by telecopier transmission addressed as follows:
to Advanced Medical Optics, Inc., ▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇
▇▇▇▇▇, Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. Any
notice, direction, request or demand hereunder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
served by being deposited, postage prepaid, by registered or certified mail in
a post office letter box, or sent by overnight courier, or sent by telecopier
transmission addressed as follows: U.S. Bank National Association, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Corporate Trust Department.
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first class mail, postage prepaid, at such Noteholder's address as it
appears on the Note Register and shall be sufficiently given to such
Noteholder if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 19.04. Governing Law. The internal law of the State of New
York applicable to contracts made and to be performed in the state of New
York, shall govern and be used to construe this indenture, the Notes and the
Guarantees, including, without limitation, Sections 5-1401 and 5-1402 of the
New York General Obligations Law and New York Civil Practice Laws and Rules
327(b).
Section 19.05. Evidence of Compliance with Conditions Precedent,
Certificates to Trustee. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include: (1) a statement that
the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in such
certificate or opinion is based; (3) a statement that, in the opinion of such
person, such person has made such examination or investigation as is necessary
to enable such person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such person, such condition or covenant has
been complied with; provided, however, that with respect to matters of fact an
Opinion of Counsel may rely on an Officers' Certificate or certificates of
public officials.
Section 19.06. Legal Holidays. In any case in which the date of
maturity of interest or premium, if any, on or principal of the Notes or the
redemption date or repurchase date of any Note will not be a Business Day,
then payment of such interest or premium, if any, 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 or repurchase date, and no interest shall accrue for the period
from and after such date.
Section 19.07. Trust Indenture Act. This Indenture is hereby made
subject to, and shall be governed by, the provisions of the Trust Indenture
Act required to be part of and to govern indentures qualified under the Trust
Indenture Act; provided that unless otherwise required by law, notwithstanding
the foregoing, this Indenture and the Notes issued hereunder shall not be
subject to the provisions of subsections (a)(1), (a)(2), and (a)(3) of Section
314 of the Trust Indenture Act as now in effect or as hereafter amended or
modified; provided further that this Section 19.07 shall not require this
Indenture or the Trustee to be qualified under the Trust Indenture Act prior
to the time such qualification is in fact required under the terms of the
Trust Indenture Act, nor shall it constitute any admission or acknowledgment
by any party to the Indenture that any such qualification is required prior to
the time such qualification is in fact required under the terms of the Trust
Indenture Act. If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in an indenture
qualified under the Trust Indenture Act, such required provision shall
control.
Section 19.08. No Security Interest Created. Nothing in this
Indenture or in the Notes, expressed or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction in
which property of the Company or its subsidiaries is located.
Section 19.09. Benefits of Indenture. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto, any paying agent, any authenticating agent, any Note Registrar
and their successors hereunder and the holders of Notes any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 19.10. Table of Contents, Headings, etc. The table of
contents and the titles and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
Section 19.11. Authenticating Agent. The Trustee may appoint an
authenticating agent that shall be authorized to act on its behalf, and
subject to its direction, in the authentication and delivery of Notes in
connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Sections 2.04, 2.05, 2.06, 2.07, 3.03, 3.05
and 3.06, as fully to all intents and purposes as though the authenticating
agent had been expressly authorized by this Indenture and those Sections to
authenticate and deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by the authenticating agent shall be
deemed to be authentication and delivery of such Notes "by the Trustee" and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent shall be deemed to satisfy any requirement hereunder or
in the Notes for the Trustee's certificate of authentication. Such
authenticating agent shall at all times be a Person eligible to serve as
trustee hereunder pursuant to Section 9.09.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust
business of any authenticating agent, shall be the successor of the
authenticating agent hereunder, if such successor corporation is otherwise
eligible under this Section 19.11, without the execution or filing of any
paper or any further act on the part of the parties hereto or the
authenticating agent or such successor corporation.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time terminate the agency of any authenticating agent by giving written
notice of termination to such authenticating agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time any authenticating agent shall cease to be eligible under this
Section, the Trustee shall either promptly appoint a successor authenticating
agent or itself assume the duties and obligations of the former authenticating
agent under this Indenture and, upon such appointment of a successor
authenticating agent, if made, shall give written notice of such appointment
of a successor authenticating agent to the Company and shall mail notice of
such appointment of a successor authenticating agent to all holders of Notes
as the names and addresses of such holders appear on the Note Register.
The Company agrees to pay to the authenticating agent from time to
time such reasonable compensation for its services as shall be agreed upon in
writing between the Company and the authenticating agent.
The provisions of Sections 9.02, 9.03, 9.04 and 10.03 and this
Section 19.11 shall be applicable to any authenticating agent.
Section 19.12. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same
instrument.
Section 19.13. Severability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, then (to the
extent permitted by law) the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
U.S. Bank National Association hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions herein above
set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed.
ADVANCED MEDICAL OPTICS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CVP & CFO
AMO Holdings, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP & CFO
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
[Include only for Global Notes:]
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF
SECTIONS 1272, 1273, AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED. UPON THE REQUEST OF THE HOLDER OF THIS NOTE, THE COMPANY WILL
PROMPTLY MAKE AVAILABLE TO THE HOLDER OF THIS NOTE, (1) THE ISSUE PRICE OF THE
NOTE, (II) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IN RESPECT THEREOF, (III) THE
ISSUE DATE OF THE NOTE, (IV) THE COMPARABLE YIELD OF THE NOTE, AND (V) THE
PROJECTED PAYMENT SCHEDULE OF THE NOTE, IN EACH CASE AS DETERMINED UNDER THE
ORIGINAL ISSUE DISCOUNT RULES OF THE U.S. INTERNAL REVENUE CODE. PLEASE
CONTACT CHIEF FINANCIAL OFFICER AT ▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇
▇▇▇▇▇.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (THE
"DEPOSITARY", WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE
CERTIFICATES) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY (AND ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.]
[Include only for Notes that are Restricted Securities]
THIS SECURITY AND THE SHARES OF ADVANCED MEDICAL OPTICS, INC. (THE "COMPANY")
COMMON STOCK ("COMMON STOCK") ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE
SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHTS OF THE COMPANY AND
THE WITHIN MENTIONED TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN
EACH OF THE FOREGOING CASES WHERE REGISTRATION OR TRANSFER OF THIS SECURITY IS
REQUIRED, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED AFTER THE RESALE RESTRICTION TERMINATION DATE UPON THE
REQUEST OF THE HOLDER AND THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATES
AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY.
ADVANCED MEDICAL OPTICS, INC.
3 1/2% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2023
CUSIP: 00763MADO
No. $_____________
Advanced Medical Optics, Inc., a Delaware corporation (herein called
the "Company", which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received hereby
promises to pay to CEDE & CO. or its registered assigns, [the principal sum of
_____________ DOLLARS] [the principal sum set forth on Schedule I hereto](1)
on April 15, 2023 at the office or agency of the Company maintained for that
purpose in accordance with the terms of the Indenture, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
semiannually on April 15 and October 15 of each year, commencing October 15,
2003, on said principal sum at said office or agency, in like coin or
currency, at the rate per annum of 3 1/2%, from the April 15 or October 15, as
the case may be, next preceding the date of this Note to which interest has
been paid or duly provided for, unless the date hereof is a date to which
interest has been paid or duly provided for, in which case from the date of
this Note, or unless no interest has been paid or duly provided for on the
Notes, in which case from June 24, 2003 until payment of said principal sum
has been made or duly provided for. Notwithstanding the foregoing, if the date
hereof is after any April 1 or October 1, as the case may be, and before the
following April 15 or October 15, this Note shall bear interest from such
April 15 or October 15; provided that if the Company shall default in the
payment of interest due on such April 15 or October 15, then this Note shall
bear interest from the next preceding April 15 or October 15 to which interest
has been paid or duly provided for or, if no interest has been paid or duly
provided for on such Note, from June 24, 2003. Beginning with the six-month
interest period commencing April 15, 2008, the Notes may accrue contingent
interest. Contingent interest, if any, for any six month interest period will
be payable on the applicable April 15 or October 15 interest payment date.
Except as otherwise provided in the Indenture, the interest payable on the
Note pursuant to the Indenture on any April 15 or October 15 will be paid to
the Person entitled thereto as it appears in the Note Register at the close of
business on the applicable record date, which shall be the April 1 or October
1 (whether or not a Business Day) next preceding such April 15 or October 15,
as provided in the Indenture; provided that any such interest not punctually
paid or duly provided for shall be payable as provided in the Indenture. The
Company shall pay interest on any Notes in certificated form by check mailed
to the address of the Person entitled thereto as it appears in the Note
Register. Payments to the Depository Trust Company will be made by wire
transfer in immediately available funds to the account of the DTC or its
nominee.
--------------------
1 For Global Notes only.
The Company promises to pay interest on overdue principal, premium,
if any, and (to the extent that payment of such interest is enforceable under
applicable law) interest at the rate of 1% per annum above the rate borne by
the Notes.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, including, without limitation, provisions giving the
holder of this Note the right to convert this Note into Common Stock on the
terms and subject to the limitations referred to on the reverse hereof and as
more fully specified in the Indenture. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
THE INTERNAL LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK, SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee or a duly authorized authenticating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
ADVANCED MEDICAL OPTICS, INC.
By:
----------------------------
By:
----------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Signatory
FORM OF REVERSE OF NOTE
ADVANCED MEDICAL OPTICS, INC.
3 1/2% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2023
This note is one of a duly authorized issue of notes of the Company,
designated as its 3 1/2% Convertible Senior Subordinated Notes Due 2023
(herein called the "Notes"), limited in aggregate principal amount to
$140,000,000, issued and to be issued under and pursuant to an Indenture dated
as of June 24, 2003 (herein called the "Indenture"), between the Company, AMO
Holdings, LLC and U.S. Bank National Association, as trustee (herein called
the "Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company, the Guarantor and the holders of the Notes. Defined terms used but
not otherwise defined in this Note shall have the respective meanings ascribed
thereto in the Indenture.
If an Event of Default occurs and is continuing, the principal of,
premium, if any, and accrued and unpaid interest, on all Notes may be declared
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, subject to
exceptions set forth in Section 12.02 of the Indenture. Subject to the
provisions of the Indenture, the holders of a majority in aggregate principal
amount of the Notes at the time outstanding may, on behalf of the holders of
all of the Notes, waive any past default or Event of Default, subject to
exceptions set forth in the Indenture. Upon any such waiver, said default
shall for all purposes of this Note and the Indenture be deemed to have been
cured and to be not continuing, but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, contractually subordinated in right of
payment or satisfaction to the prior payment or satisfaction in full of all
Senior Indebtedness of the Company, whether outstanding at the date of the
Indenture or thereafter incurred, and this Note is issued subject to the
provisions of the Indenture with respect to such subordination. Each holder of
this Note, by accepting the same, agrees to and shall be bound by such
provisions and authorizes the Trustee on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee his attorney-in-fact for such purpose.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall impair, as among the Company and the holder of the
Notes, the obligation of the Company, which is absolute and unconditional, to
pay the principal of, premium, if any, on and interest on this Note at the
place, at the respective times, at the rate and in the coin or currency herein
and in the Indenture prescribed.
Interest on the Notes shall be computed on the basis of a 360-day
year of twelve 30-day months.
The Notes are issuable in fully registered form, without coupons, in
denominations of $1,000 principal amount and any multiple of $1,000. At the
office or agency of the Company referred to on the face hereof, and in the
manner and subject to the limitations provided in the Indenture, without
payment of any service charge but with payment of a sum sufficient to cover
any tax, assessment or other governmental charge that may be imposed in
connection with any registration or exchange of Notes, Notes may be exchanged
for a like aggregate principal amount of Notes of any other authorized
denominations.
This Note is unconditionally guaranteed on an unsecured senior
subordinated basis by AMO Holdings, LLC and any other Subsidiary that executes
a Note Guarantee in accordance with the terms of the Indenture.
At any time on or after April 18, 2008 and prior to maturity, the
Notes may be redeemed at the option of the Company, in whole or in part, upon
mailing a notice of such redemption not less than 30 days but not more than 60
days before the redemption date to the holders of Notes, all as provided in
the Indenture, at a redemption price equal to 100% of the principal amount of
notes being redeemed and accrued and unpaid interest to, but excluding, the
redemption date; provided that if the redemption date is on an 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 redeem any Notes if a default in the payment of
interest or premium, if any, on the Notes has occurred and is continuing.
The Notes are not subject to redemption through the operation of any
sinking fund.
If a Fundamental Change occurs at any time prior to maturity of the
Notes, this Note will be subject to a repurchase, at the option of the holder,
on a Fundamental Change Repurchase Date, specified by the Company, that is not
less than 20 nor more than 35 Business Days after notice thereof, at a
repurchase price equal to 100% of the principal amount hereof, together with
accrued interest, to (but excluding) the Fundamental Change Repurchase Date;
provided that if such Fundamental Change Repurchase Date falls after a record
date and on or prior the corresponding interest payment date, the interest
payable on such interest payment date shall be paid to the holder of record of
this Note on the preceding April 1 or October 1, respectively. The Notes will
be redeemable in multiples of $1,000 principal amount. The Company shall mail
to all holders of record of the Notes a notice of the occurrence of a
Fundamental Change and of the repurchase right arising as a result thereof on
or before the 10th Business Day after the occurrence of such Fundamental
Change. For a Note to be so redeemed at the option of the holder, the Company
must receive at the office or agency of the Company maintained for that
purpose in accordance with the terms of the Indenture, the form entitled
"Repurchase Notice" as set forth on the reverse hereof duly completed,
together with such Note, duly endorsed for transfer, or (if the Notes are
Global Notes) book-entry transfer of the Note, on or before the close of
business on the Fundamental Change Repurchase Date (or if such day is not a
Business Day, the immediately succeeding Business Day). The purchase price may
be paid, at the option of the Company, in cash or by the issuance and delivery
of shares of Common Stock, or in any combination thereof, subject to the terms
and conditions of the Indenture.
Subject to the terms and conditions of the Indenture, each holder
shall have the right, at such holder's option, to require the Company to
repurchase all or any portion of the Notes held by such holder, on April 15,
2008, 2013 and 2018 in whole multiples of $1,000 at a purchase price of 100%
of the principal amount, plus any accrued and unpaid interest, on such Note up
to (but excluding) the Repurchase Date. To exercise such right, a holder shall
deliver to the Company the form entitled "Repurchase Notice" as set forth on
the reverse hereof duly completed, together with the Note, duly endorsed for
transfer, or (if the Notes are Global Notes) book-entry transfer of the Note,
at any time from the opening of business on the date that is 20 Business Days
prior to the applicable Repurchase Date until the close of business on the
applicable Repurchase Date, and shall deliver (if certificated) or book-entry
transfer (if the Notes are Global Notes) the Notes to the Trustee (or other
paying agent appointed by the Company) as set forth in the Indenture. The
purchase price may be paid, at the option of the Company, in cash or by the
issuance and delivery of shares of Common Stock, or in any combination
thereof, subject to the terms and conditions of the Indenture.
Holders have the right to withdraw any Repurchase Notice by
delivering to the Trustee (or other paying agent appointed by the Company) a
written notice of withdrawal at any time prior to the close of business on the
Repurchase Date, or the Fundamental Change Repurchase Date, as applicable, all
as provided in the Indenture.
If cash, shares of Common Stock or any combination thereof, as
permitted under the Indenture, sufficient to pay the purchase price of all
Notes or portions thereof to be repurchased as of the Fundamental Change
Repurchase Date or Repurchase Date, as the case may be, is deposited with the
Trustee (or other paying agent appointed by the Company), on the Business Day
following the Repurchase Date, or in the case of a Fundamental Change, on the
Business Day following the Fundamental Change Repurchase Date, then such Notes
will cease to be outstanding and interest will cease to accrue on such Notes
immediately thereafter, and the holder thereof shall have no other rights as
such other than the right to receive the repurchase price upon surrender of
such Note.
Subject to the occurrence of certain events specified in the
Indenture and in compliance with the provisions of the Indenture, on or prior
to the final maturity date of this Note, the holder hereof has the right, at
its option, to convert each $1,000 principal amount of this Note into 48.6914
shares of Common Stock (a conversion price of approximately $20.538 per
share), as such shares shall be constituted at the date of conversion and
subject to adjustment from time to time as provided in the Indenture, upon
surrender of this Note (if in certificated form) with the form entitled
"Conversion Notice" on the reverse hereof duly completed and manually signed,
to the Company at the office or agency of the Company maintained for that
purpose in accordance with the terms of the Indenture, or at the option of
such holder, the Corporate Trust Office, together with any funds required
pursuant to the terms of the Indenture, and, unless the shares issuable on
conversion are to be issued in the same name as this Note, duly endorsed by,
or accompanied by instruments of transfer in form satisfactory to the Company
duly executed by, the holder or by his duly authorized attorney. The Company
will notify the holder thereof of any event triggering the right to convert
the Notes as specified above in accordance with the Indenture. In order to
exercise the conversion privilege with respect to any interest in a Global
Note, the holder must complete the appropriate instruction form pursuant to
the Depositary's book-entry conversion program, deliver by book-entry delivery
an interest in such Global Note, furnish appropriate endorsements and transfer
documents if required by the Company or the Trustee or conversion agent, and
pay the funds, if any, required pursuant to the terms of the Indenture.
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,
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 but on or prior to the next succeeding interest payment date, (2)
if the Company has specified a redemption date following a Fundamental Change
that is during such period or (3) to the extent of any overdue interest at the
time of conversion with respect to this Note.
No fractional shares will be issued upon any conversion, but an
adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Note or Notes for conversion.
A Note in respect of which a holder is exercising its right to
require repurchase may be converted only if such holder validly withdraws its
election to exercise either 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 Business Day
preceding the redemption date, may be deemed, to the fullest extent required
by law, to be redeemed from the holders of such Notes for an amount equal to
the applicable redemption price, together with accrued but unpaid interest to,
but excluding, the date fixed for redemption, by one or more investment banks
or other purchasers who may agree with the Company (i) to purchase such Notes
from the holders thereof and convert them into shares of the Common Stock and
(ii) to make payment for such Notes as aforesaid to the Trustee in trust for
the holders.
Upon surrender for registration of transfer of any Note to the Note
Registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in the Indenture, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture. No service charge
shall be made to any holder for any registration of, transfer or exchange of
Notes, but the Company may require payment by the holder of a sum sufficient
to cover any tax, assessment or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes.
The Company, the Trustee, any paying agent, any conversion agent and
any Note Registrar may deem the Person in whose name this Note shall be
registered upon the Note Register to be, and may treat it as, the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by any
Person other than the Company or any Note Registrar) for the purpose of
receiving payment of or on account of the principal of, premium, if any, and
interest on this Note, for conversion of this Note and for all other purposes;
and neither the Company nor the Trustee nor any paying agent nor any
conversion agent nor any Note Registrar shall be affected by any notice to the
contrary. All such payments so made to any holder for the time being, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies payable upon any
this Note.
No recourse for the payment of the principal of or any premium or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company or any Guarantor in the Indenture or any supplemental indenture or
in any Note, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, member, manager,
employee, agent, officer, director or subsidiary, as such, past, present or
future, of the Company or of any successor thereto, either directly or through
the Company, any Guarantor, or any of the Company's subsidiaries or of any
successor thereto, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as consideration for, the execution of the
Indenture and the issue of this Note.
In addition to the rights provided to holders of Notes under the
Indenture, holders shall have all the rights set forth in the Registration
Rights Agreement dated as of June 24, 2003 between the Company and the Initial
Purchasers named therein (the "Registration Rights Agreement").
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT -___ Custodian ___
TEN ENT - as tenant by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors Act
of survivorship and
not as tenants in common ____________________________
(State)
Additional abbreviations may also be used though not in the above
list.
CONVERSION NOTICE
TO: ADVANCED MEDICAL OPTICS, INC.
U.S. BANK NATIONAL ASSOCIATION
The undersigned registered owner of this Note hereby irrevocably
exercises the option to convert this Note, or the portion thereof (which is
$1,000 or a multiple thereof) below designated, into shares of Common Stock of
Advanced Medical Optics, Inc. in accordance with the terms of the Indenture
referred to in this Note, and directs that the shares issuable and deliverable
upon such conversion, together with any check in payment for fractional shares
and any Notes representing any unconverted principal amount hereof, be issued
and delivered to the registered holder hereof unless a different name has been
indicated below. Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Indenture. If shares or any portion of
this Note not converted are to be issued in the name of a person other than
the undersigned, the undersigned will provide the appropriate information
below and pay all transfer taxes payable with respect thereto. Any amount
required to be paid by the undersigned on account of interest accompanies this
Note.
Dated: ______________________
-----------------------------
------------------------------
Signature(s)
Signature(s) must be guaranteed
by an "eligible guarantor
institution" meeting the
requirements of the Note
Registrar, which requirements
include membership or
participation in the Security
Transfer Agent Medallion Program
("STAMP") or such other
"signature guarantee program" as
may be determined by the Note
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
---------------------------------
Signature Guarantee
Fill in the registration of shares of Common Stock if to be issued,
and Notes if to be delivered, other than to and in the name of the registered
holder:
__________________________
(Name)
______________________________
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
______________________________
(City, State and Zip Code)
______________________________
Please print name and address
Principal amount to be converted
(if less than all):
$_____________________________
Social Security or Other Taxpayer
Identification Number:
______________________________
NOTICE: The signature on this Conversion Notice must correspond with the name
as written upon the face of the Note in every particular without alteration or
enlargement or any change whatever.
REPURCHASE NOTICE
TO: ADVANCED MEDICAL OPTICS, INC.
U.S. BANK NATIONAL ASSOCIATION
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Advanced Medical Optics, Inc. (the
"Company") regarding the right of holders to elect to require the Company to
repurchase the Notes and requests and instructs the Company to repay the
entire principal amount of this Note, or the portion thereof (which is $1,000
or an integral multiple thereof) below designated, in accordance with the
terms of the Indenture at the price of 100% of such entire principal amount or
portion thereof, together with accrued and unpaid interest to, but excluding,
the Repurchase Date or the Fundamental Change Repurchase Date, as the case may
be, to the registered holder hereof. Capitalized terms used herein but not
defined shall have the meanings ascribed to such terms in the Indenture. The
Notes shall be repurchased by the Company as of the Repurchase Date or the
Fundamental Change Repurchase Date, as the case may be, pursuant to the terms
and conditions specified in the Indenture. If the Company elects to pay the
purchase price, in whole or in part, in shares of Common Stock but is unable
to deliver the shares prior to the close of business on the applicable
Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
the undersigned registered owner elects:
[ ] to withdraw this Repurchase Notice as to $[ ] principal
amount of the Notes to which this Repurchase Notice relates (Certificate
Numbers: ), or
[ ] to receive cash in respect of $[ ] principal amount of the Notes
to which this Repurchase Notice relates.
Dated:
Signature(s):
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:
ASSIGNMENT
For value received ______________________________hereby sell(s)
assign(s) and transfer(s) unto ___________________________________ (Please
insert social security or other Taxpayer Identification Number of assignee)
the within Note, and hereby irrevocably constitutes and appoints
______________________________________ attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
In connection with any transfer of the Note prior to the expiration
of the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) (other than any transfer pursuant
to a registration statement that has been declared effective under the
Securities Act), the undersigned confirms that such Note is being transferred:
|_| To Advanced Medical Optics, Inc. or a subsidiary thereof; or
|_| To a "qualified institutional buyer" in compliance with Rule
144A under the Securities Act of 1933, as amended; or
|_| Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended; or
|_| Pursuant to a Registration Statement which has been declared
effective under the Securities Act of 1933, as amended, and
which continues to be effective at the time of transfer;
and unless the Note has been transferred to Advanced Medical Optics, Inc. or a
subsidiary thereof, the undersigned confirms that such Note is not being
transferred to an "affiliate" of the Company as defined in Rule 144 under the
Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
person other than the registered holder thereof.
Dated: ______________________
______________________________
______________________________
Signature(s)
Signature(s) must be guaranteed
by an "eligible guarantor
institution" meeting the
requirements of the Note
Registrar, which requirements
include membership or
participation in the Security
Transfer Agent Medallion Program
("STAMP") or such other
"signature guarantee program" as
may be determined by the Note
Registrar in addition to, or in
substitution for, STAMP, al in
accordance with the Securities
Exchange Act of 1934, as amended.
______________________________
Signature Guarantee
NOTICE: The signature on this Assignment must correspond with the name as
written upon the face of the Note in every particular without alteration or
enlargement or any change whatever.
Schedule I
[Include Schedule I only for a Global Note]
ADVANCED MEDICAL OPTICS, INC.
3 1/2% Convertible Senior Subordinated Note Due 2023
No. _______
Notation Explaining Principal Authorized Signature of
Date Principal Amount Amount Recorded Trustee or Custodian
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