LINEAR TECHNOLOGY CORPORATION, AS ISSUER AND AS TRUSTEE INDENTURE DATED AS OF APRIL 24, 2007
LINEAR
TECHNOLOGY CORPORATION,
AS
ISSUER
AND
U.S.
BANK
NATIONAL ASSOCIATION,
AS
TRUSTEE
3.00%
CONVERTIBLE SENIOR NOTES DUE MAY 1, 2027
DATED
AS
OF APRIL 24, 2007
Exhibit
4.1
|
____________________________________
|
|||
|
PAGE
|
|||
|
ARTICLE
1
|
|||
|
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
|||
|
Section
1.01
|
Definitions
|
1
|
|
|
Section
1.02
|
Trust
Indenture Act Provisions
|
8
|
|
|
Section
1.03
|
Rules
of Construction
|
9
|
|
|
ARTICLE
2
|
|||
|
THE
SECURITIES
|
|||
|
Section
2.01
|
Form
and Dating
|
9
|
|
|
Section
2.02
|
Execution
and Authentication
|
11
|
|
|
Section
2.03
|
Registrar,
Paying Agent and Conversion Agent
|
11
|
|
|
Section
2.04
|
Paying
Agent to Hold Money and Securities in Trust
|
12
|
|
|
Section
2.05
|
Securityholder
Lists
|
12
|
|
|
Section
2.06
|
Transfer
and Exchange
|
12
|
|
|
Section
2.07
|
Replacement
Securities
|
13
|
|
|
Section
2.08
|
Outstanding
Securities
|
14
|
|
|
Section
2.09
|
Treasury
Securities
|
15
|
|
|
Section
2.10
|
Temporary
Securities
|
15
|
|
|
Section
2.11
|
Cancellation
|
15
|
|
|
Section
2.12
|
Legend;
Additional Transfer and Exchange Requirements
|
15
|
|
|
Section
2.13
|
CUSIP
Numbers
|
21
|
|
|
Section
2.14
|
Persons
Deemed Owners
|
21
|
|
|
Section
2.15
|
Defaulted
Interest
|
21
|
|
|
Section
2.16
|
Contingent
Debt Tax Treatment
|
22
|
|
|
ARTICLE
3
|
|||
|
[RESERVED]
|
|||
|
ARTICLE
4
|
|||
|
[RESERVED]
|
|||
|
ARTICLE
5
|
|||
|
REDEMPTION
AND REPURCHASES
|
|||
|
Section
5.01
|
Company’s
Right to Redeem; Notices to Trustee
|
22
|
|
|
Section
5.02
|
Selection
of Securities to Be Redeemed
|
23
|
|
|
Section
5.03
|
Notice
of Redemption
|
23
|
|
|
Section
5.04
|
Effect
of Notice of Redemption
|
24
|
|
|
Section
5.05
|
Deposit
of Redemption Price
|
24
|
|
|
Section
5.06
|
Securities
Redeemed in Part
|
24
|
|
|
Section
5.07
|
Repurchase
of Securities by the Company at Option of the Holder
|
25
|
|
|
Section
5.08
|
Purchase
of Securities at Option of the Holder upon a Fundamental
Change
|
27
|
|
|
Section
5.09
|
Effect
of Repurchase Notice or Fundamental Change Purchase
Notice
|
31
|
|
|
Section
5.10
|
Deposit
of Repurchase Price or Fundamental Change Purchase
Price
|
32
|
|
|
Section
5.11
|
Securities
Purchased in Part
|
32
|
|
|
Section
5.12
|
Repayment
to the Company
|
32
|
|
|
Section
5.13
|
Compliance
with Securities Laws upon Purchase of Securities
|
32
|
|
|
ARTICLE
6
|
|||
|
[RESERVED]
|
|||
|
ARTICLE
7
|
|||
|
CONVERSION
|
|||
|
Section
7.01
|
Conversion
Privilege
|
33
|
|
|
Section
7.02
|
Conversion
Procedure
|
36
|
|
|
Section
7.03
|
Taxes
on Conversion
|
37
|
|
|
Section
7.04
|
Company
to Provide Stock
|
37
|
|
|
Section
7.05
|
Adjustment
of Conversion Rate
|
37
|
|
|
Section
7.06
|
No
Adjustment
|
44
|
|
|
Section
7.07
|
Stockholder
Rights Plans
|
45
|
|
|
Section
7.08
|
Effect
of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege
|
45
|
|
|
Section
7.09
|
Other
Adjustments
|
46
|
|
|
Section
7.10
|
Notice
of Adjustment
|
46
|
|
|
Section
7.11
|
[Reserved]
|
46
|
|
|
Section
7.12
|
Trustee’s
Disclaimer
|
46
|
|
|
Section
7.13
|
Settlement
Upon Conversion
|
47
|
|
|
ARTICLE
8
|
|||
|
CONTINGENT
INTEREST
|
|||
|
Section
8.01
|
Contingent
Interest
|
48
|
|
|
Section
8.02
|
Payment
of Contingent Interest
|
49
|
|
|
Section
8.03
|
Contingent
Interest Notification
|
49
|
|
|
Section
8.04
|
Trustee
Contingent Interest Disclaimer
|
49
|
|
|
ARTICLE
9
|
|||
|
COVENANTS
|
|||
|
Section
9.01
|
Payment
of Securities
|
49
|
|
|
Section
9.02
|
Reports
and Certain Information
|
50
|
|
|
Section
9.03
|
Compliance
Certificates
|
50
|
|
|
Section
9.04
|
Maintenance
of Corporate Existence
|
50
|
|
|
Section
9.05
|
Stay,
Extension and Usury Laws
|
50
|
|
|
Section
9.06
|
Maintenance
of Office or Agency of the Trustee, Registrar, Paying Agent and
|
51
|
|
|
Conversion
Agent
|
|||
|
Section
9.07
|
Notice
of Default
|
51
|
|
|
Section
9.08
|
Additional
Interest Notice
|
51
|
|
|
ARTICLE
10
|
|||
|
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|||
|
Section
10.01
|
Company
May Consolidate, etc., Only on Certain Terms
|
51
|
|
|
Section
10.02
|
Successor
Substituted
|
52
|
|
|
ARTICLE
11
|
|||
|
DEFAULT
AND REMEDIES
|
|||
|
Section
11.01
|
Events
of Default
|
52
|
|
|
Section
11.02
|
Acceleration
|
53
|
|
|
Section
11.03
|
Other
Remedies
|
54
|
|
|
Section
11.04
|
Waiver
of Defaults and Events of Default
|
54
|
|
|
Section
11.05
|
Control
by Majority
|
54
|
|
|
Section
11.06
|
Limitations
on Suits
|
54
|
|
|
Section
11.07
|
Rights
of Holders to Receive
|
55
|
|
|
Payment
and to Convert
|
|||
|
Section
11.08
|
Collection
Suit by Trustee
|
55
|
|
|
Section
11.09
|
Trustee
May File Proofs of Claim
|
55
|
|
|
Section
11.10
|
Priorities
|
56
|
|
|
Section
11.11
|
Undertaking
for Costs
|
56
|
|
|
Section
11.12
|
Delay
or Omission Not Waiver
|
56
|
|
|
ARTICLE
12
|
|||
|
TRUSTEE
|
|||
|
Section
12.01
|
Certain
Duties and Responsibilities of Trustee
|
56
|
|
|
Section
12.02
|
Certain
Rights of Trustee
|
57
|
|
|
Section
12.03
|
Trustee
Not Responsible for Recitals or Issuance of
Securities
|
59
|
|
|
Section
12.04
|
May
Hold Securities
|
59
|
|
|
Section
12.05
|
Moneys
Held in Trust
|
59
|
|
|
Section
12.06
|
Compensation
and Reimbursement
|
59
|
|
|
Section
12.07
|
Reliance
on Officers’ Certificate
|
60
|
|
|
Section
12.08
|
Disqualification:
Conflicting Interests
|
60
|
|
|
Section
12.09
|
Corporate
Trustee Required; Eligibility
|
60
|
|
|
Section
12.10
|
Resignation
and Removal; Appointment of Successor
|
61
|
|
|
Section
12.11
|
Acceptance
of Appointment By Successor
|
62
|
|
|
Section
12.12
|
Merger,
Conversion, Consolidation or Succession to Business
|
62
|
|
|
Section
12.13
|
Preferential
Collection of Claims Against the Company
|
63
|
|
|
Section
12.14
|
Notice
of Defaults
|
63
|
|
|
Section
12.15
|
Reports
by Trustee
|
63
|
|
|
Section
12.16
|
Preferential
Collection of Claims
|
63
|
|
|
ARTICLE
13
|
|||
|
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
|
|||
|
Section
13.01
|
Without
Consent of Holders
|
63
|
|
|
Section
13.02
|
With
Consent of Holders
|
64
|
|
|
Section
13.03
|
Compliance
with Trust Indenture Act
|
65
|
|
|
Section
13.04
|
Revocation
and Effect of Consents
|
65
|
|
|
Section
13.05
|
Notation
on or Exchange of Securities
|
66
|
|
|
Section
13.06
|
Trustee
to Sign Amendments, Etc
|
66
|
|
|
Section
13.07
|
Effect
of Supplemental Indentures
|
66
|
|
|
ARTICLE
14
|
|||
|
[RESERVED]
|
|||
|
ARTICLE
15
|
|||
|
SATISFACTION
AND DISCHARGE
|
|||
|
Section
15.01
|
Satisfaction
and Discharge of the Indenture
|
66
|
|
|
Section
15.02
|
Repayment
to the Company
|
67
|
|
|
ARTICLE
16
|
|||
|
MISCELLANEOUS
|
|||
|
Section
16.01
|
Trust
Indenture Act Controls
|
67
|
|
|
Section
16.02
|
Notices
|
67
|
|
|
Section
16.03
|
Communications
by Holders with Other Holders
|
68
|
|
|
Section
16.04
|
Certificate
and Opinion as to Conditions Precedent
|
68
|
|
|
Section
16.05
|
Record
Date for Vote or
|
69
|
|
|
Consent
of Securityholders
|
|||
|
Section
16.06
|
Rules
by Trustee, Paying Agent, Registrar and Conversion
Agent
|
69
|
|
|
Section
16.07
|
Legal
Holidays
|
69
|
|
|
Section
16.08
|
Governing
Law; Jury Trial Waiver
|
69
|
|
|
Section
16.09
|
No
Adverse Interpretation of Other Agreements
|
69
|
|
|
Section
16.10
|
No
Recourse Against Others
|
69
|
|
|
Section
16.11
|
Successors
|
70
|
|
|
Section
16.12
|
Multiple
Counterparts
|
70
|
|
|
Section
16.13
|
Separability
|
70
|
|
|
Section
16.14
|
Calculations
in Respect of the Securities
|
70
|
|
|
Section
16.15
|
Table
of Contents, Headings, Etc
|
70
|
|
|
Exhibit
A
|
Form
of Note:
|
||
|
-
Assignment Form
|
|||
|
-
Form of Conversion Notice
|
|||
|
-
Form of Notice of Redemption
|
|||
|
-
Form of Notice of Repurchase
|
|||
|
-
Form of [Repurchase][Fundamental Change Repurchase] Notice
|
|||
|
-
Form of Certificate to be Delivered upon Exchange or Registration
of
Transfer of
|
|||
|
Restricted
Securities
|
|||
|
Exhibit
B
|
Table
showing the Increase in Conversion Rate in connection with a Makewhole
|
||
|
Fundamental
Change
|
|||
Exhibit
4.1
CROSS-REFERENCE
TABLE*
|
TIA
Indenture Section
|
Section
|
|
Section
310(a)(1)
|
12.09
|
|
(a)(2)
|
12.09
|
|
(a)(3)
|
N.A.**
|
|
(a)(4)
|
N.A.
|
|
(a)(5)
|
12.09
|
|
(b)
|
12.08
|
|
(c)
|
N.A.
|
|
Section
311(a)
|
12.13
|
|
(b)
|
12.13
|
|
(c)
|
N.A.
|
|
Section
312(a)
|
2.05
|
|
(b)
|
16.03
|
|
(c)
|
16.03
|
|
Section
313(a)
|
12.15
|
|
(b)(1)
|
N.A.
|
|
(b)(2)
|
12.15
|
|
(c)
|
12.15;
16.02
|
|
(d)
|
12.15
|
|
Section
314(a)
|
9.02;
9.03
|
|
(b)
|
N.A.
|
|
(c)(1)
|
16.04(a)
|
|
(c)(2)
|
16.04(a)
|
|
(c)(3)
|
N.A.
|
|
(d)
|
N.A.
|
|
(e)
|
16.04(b)
|
|
(f)
|
N.A.
|
|
Section
315(a)
|
12.01(a);
12.01(b)(i)
|
|
(b)
|
12.14;
16.02
|
|
(c)
|
12.01(a)
|
|
(d)
|
12.01(b)
|
|
(e)
|
11.11
|
|
Section
316(a) (last sentence)
|
2.09
|
|
(a)(1)(A)
|
11.05
|
|
(a)(1)(B)
|
11.05
|
|
(a)(2)
|
N.A.
|
|
(b)
|
11.07
|
|
(c)
|
16.05
|
|
Section
317(a)(1)
|
11.08
|
|
(a)(2)
|
11.09
|
|
(b)
|
2.04
|
|
Section
318(a)
|
16.01
|
_________________________
* Cross-Reference
Table shall not, for any purpose, be deemed a part of this
Indenture.
** N.A.
means Not Applicable.
Exhibit
4.1
THIS
INDENTURE, dated as of April 24, 2007, is between LINEAR TECHNOLOGY
CORPORATION, a Delaware corporation (the “Company”),
and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee
(in
such capacity and not in its individual capacity, the “Trustee”).
In
consideration of the premises and the purchase of the Securities by the Holders
thereof, the parties hereto agree as follows for the equal and ratable benefit
of the Holders of the Securities.
ARTICLE
1
Definitions
And Incorporation By Reference
Section
1.01 Definitions.
“Additional
Interest”
has
the
meaning set forth in Section 7 of the Registration Rights Agreement. Unless
the
context otherwise requires, all references herein or in the Securities to
“interest” accrued or payable as of any date shall include, without duplication,
any Additional Interest accrued or payable as of such date as provided in
the
Registration Rights Agreement and any Contingent Interest payable as described
in Section 8.
“Additional
Interest Notice”
has
the
meaning specified in Section 9.08.
“Additional
Securities”
has
the
meaning specified in Section 2.02(d).
“Additional
Shares”
has
the
meaning specified in Section 7.01(c).
“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 purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control
with”), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise.
“Agent”
means
any Registrar, Paying Agent, Bid Solicitation Agent or Conversion
Agent.
“Agent
Members”
has
the
meaning specified in Section 2.01(d).
“Applicable
Procedures”
means,
with respect to any transfer or exchange of beneficial ownership interests
in a
Global Security, the rules and procedures of the Depositary, in each case
to the
extent applicable to such transfer or exchange.
“Bankruptcy
Law”
has
the
meaning specified in Section 11.01.
“beneficial
owner”
has
the
meaning specified in Section 5.08(a).
“Bid
Solicitation Agent”
means
the agent of the Company appointed to obtain quotations for the Securities,
which agent shall be appointed no later than the first Contingent Interest
Period and shall at no time be an Affiliate of the Company. The Company hereby
initially appoints the Trustee as Bid Solicitation Agent in connection with
the
Securities. The Company may from time to time change the Bid Solicitation
Agent.
1
“Board
of Directors”
means
the board of directors of the Company or, except as used in the definition
of
Fundamental Change and except where the context otherwise requires, any duly
authorized committee of such board of directors.
“Business
Day”
means,
with respect to any Security, any day, other than a Saturday or Sunday, that
is
neither a legal holiday nor a day on which commercial banks are authorized
or
obligated by law, regulation or executive order to close in The City of New
York.
“capital
stock”
has
the
meaning specified in Section 5.08(a).
“Cash”
means
such coin or currency of the United States as at any time of payment is legal
tender for the payment of public and private debts.
“Cash
Percentage”
has
the
meaning specified in Section 7.13(e).
“Close
of Business”
means
5:00 p.m. New York City time.
“Certificated
Security”
means
a
Security that is in substantially the form attached hereto as Exhibit A and
that
does not include the information or the schedule called for by footnotes
1 and 5
thereof.
“Closing
Price”
means
the reported last sale price per share of the Common Stock on any Trading
Day
(or if no last sale price is reported, the average of the bid and ask prices
per
share or, if there is more than one bid or ask price, the average of the
average
bid and the average ask prices per share) on such Trading Day as reported
by the
Nasdaq Global Select Market or, if the Common Stock is not listed or quoted
on
the Nasdaq Global Select Market, as reported by the principal national or
regional securities exchange on which the Common Stock is listed, or, if
the
Common Stock is not listed on a national or regional securities exchange,
as
available in any over-the-counter market or, if not available on any
over-the-counter market, the Closing Price shall be such price as the Board
of
Directors of the Company shall determine in good faith.
“Common
Stock”
means,
subject to Section 7.08, shares of common stock of the Company, par value
$0.001
per share, at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and that
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 that are not subject to redemption by the Company; provided
that if
at any time there shall be more than one such resulting class, the shares
of
each such class then so issuable shall be substantially in the proportion
which
the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
“Company”
means
the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture,
and thereafter “Company” shall mean such successor Company.
“Company
Notice”
means
a
notice to Holders delivered pursuant to Section 5.07 or 5.08.
“Company
Order”
has
the
meaning specified in Section 2.02(d).
“contingent
debt regulations”
has
the
meaning specified in Section 2.16.
2
“Contingent
Interest”
means
such interest payable as described in Article 8. Unless the context
otherwise requires, all references herein or in the Securities to “interest”
accrued or payable as of any date shall include, without duplication, any
Contingent Interest payable as described in Section 8 and any Additional
Interest accrued or payable as of such date as provided in the Registration
Rights Agreement.
“Contingent
Interest Period”
means
(i) the six-month period commencing on and including May 1, 2014, and
ending on, but excluding October 31, 2014, and (ii) each six-month
period from May 1 to October 31 and from November 1 to April 30
thereafter.
“continuing
director”
has
the
meaning specified in Section 5.08(a).
“Conversion
Agent”
has
the
meaning specified in Section 2.03.
“Conversion
Date”
has
the
meaning specified in Section 7.02(a).
“Conversion
Notice”
has
the
meaning specified in Section 7.02(a).
“Conversion
Price”
means,
at any time, an amount equal to $1,000 divided by the Conversion Rate in
effect
at such time, rounded to the nearest cent.
“Conversion
Rate”
has
the
meaning specified in Section 7.01(a).
“Conversion
Reference Period”
means
(a) for Securities that are converted during the 30 day period prior to the
Maturity Date or a Redemption Date, as applicable, the 20 consecutive Trading
Days beginning on the 22nd
Trading
Day prior to the Maturity Date or Redemption Date, as the case may be; and
(b)
in all other instances, the 20 consecutive Trading Days beginning on the
third
Trading Day following the Conversion Date.
“Conversion
Value”
means
the Closing Price of the Common Stock on any date of determination multiplied
by
the Conversion Rate of the Securities in effect on such date.
“Corporate
Trust Office”
means
the office of the Trustee at which at any time the trust created by this
Indenture shall be principally administered, which office at the date of
the
execution of this Indenture is located at ▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services (Linear 3.00%
Convertible Senior Notes due 2027), or such other office as the Trustee may
designate by written notice to the Company.
“Custodian”
has
the
meaning specified in Section 11.01.
“Daily
Conversion Value”
means,
for each of the 20 consecutive Trading Days during the Conversion Reference
Period, one-twentieth (1/20) of the product of (i) the Conversion Rate on
such
day and (ii) the Daily VWAP of the Common Stock on such day.
“Daily
Settlement Amount”
has
the
meaning specified in Section 7.13(b).
“Daily
Share Amount”
has
the
meaning specified in Section 7.13(b).
“Daily
VWAP”
means,
for each of the 20 consecutive Trading Days during the Conversion Reference
Period, the Volume-Weighted Average Price, provided that after the occurrence
or
effectiveness of a Fundamental Change described in clause (ii) of the definition
thereof in which the holders of Common Stock receive only Cash, the Daily
VWAP
will be deemed to be the Cash price per share received by holders of Common
Stock in such Fundamental Change.
3
“Default”
means,
when used with respect to the Securities, any event which is or, after notice
or
passage of time or both, would be an Event of Default.
“Depositary”
has
the
meaning specified in Section 2.01(b).
“Distributed
Property”
has
the
meaning specified in Section 7.05(c).
“Effective
Date”
has
the
meaning specified in Section 7.01(c).
“Event
of Default”
has
the
meaning specified in Section 11.01.
“Exchange
Act”
means
the United States Securities Exchange Act of 1934, as amended, and the rules
and
regulations promulgated thereunder, as in effect from time to time.
“Ex
Date”
means
(i) when used with respect to any dividend or distribution, the first date on
which the Common Stock trades, regular way, on the relevant exchange or in
the
relevant market from which the sale price was obtained without the right
to
receive such dividend or distribution; and (ii) when used with respect to
any
tender offer or exchange offer, the first date on which the Common Stock
trades,
regular way, on the relevant exchange or in the relevant market from which
the
sale price was obtained after the expiration time.
“Fundamental
Change”
has
the
meaning specified in Section 5.08(a).
“Fundamental
Change Company Notice”
has
the
meaning specified in Section 5.08(b).
“Fundamental
Change Purchase Date”
has
the
meaning specified in Section 5.08(a).
“Fundamental
Change Purchase Notice”
has
the
meaning specified in Section 5.08(c).
“Fundamental
Change Purchase Price”
has
the
meaning specified in Section 5.08(a).
“GAAP”
means
generally accepted accounting principles in the United States as set forth
in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession in the United States, which are in effect from
time
to time and consistently applied.
“Global
Security”
means
a
permanent Global Security that is in substantially the form attached hereto
as
Exhibit A and that includes the information and schedule called for by footnotes
1 and 5 thereof and which is deposited with the Depositary or its custodian
and
registered in the name of the Depositary or its nominee.
“Holder”
or
“Securityholder”
means
the person in whose name a Security is registered in the Register.
“Indenture”
means
this Indenture as amended or supplemented from time to time pursuant to the
terms of this Indenture, including the provisions of the TIA that are explicitly
incorporated in this Indenture by reference to the TIA.
4
“Initial
Purchaser”
means
Credit Suisse Securities (USA) LLC.
“Initial
Securities”
means
the Securities issued on the date hereof in the aggregate principal amount
of
$1,000,000,000, and any Securities issued in replacement thereof.
“Indebtedness”
has
the
meaning specified in Section 11.01(g).
“Interest
Payment Date”
has
the
meaning set forth in the Securities.
“Interest
Payment Record Date”
has
the
meaning set forth in the Securities.
“Legal
Holiday”
has
the
meaning specified in Section 16.07.
“Makewhole
Fundamental Change”
has
the
meaning specified in Section 5.08(a).
“Market
Disruption Event”
means
(a) a failure by the primary exchange or quotation system on which the Common
Stock trades or is quoted to open for trading during its regular trading
session
or (b) the occurrence or existence prior to 1:00 p.m. New York City time
on any
Trading Day for the Common Stock of an aggregate one half hour period, of
any
suspension or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by the stock exchange or otherwise) in the Common
Stock or in any options, contracts or future contracts relating to the Common
Stock.
“Maturity
Date”
means
May 1, 2027.
“Measurement
Period”
has
the
meaning specified in Section 7.01(b).
“Merger
Event”
has
the
meaning specified in Section 7.08.
“Nasdaq”
means
the Nasdaq Global Market.
“Notice
of Default”
has
the
meaning specified in Section 11.01.
“NYSE”
means
the New York Stock Exchange.
“Offering
Circular”
means
the Confidential Offering Circular dated April 18, 2007, relating to the
Securities.
“Officer”
means,
with respect to any Person, the Chief Executive Officer, the Chief Operating
Officer, the Chief Legal Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary
or any Vice President of such Person.
“Officers’ Certificate”
means
a
certificate signed by at least two Officers of the Company; provided,
however,
that
for purposes of Section 7.08 and Section 9.03, “Officers’ Certificate” means a
certificate signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company and at least one other
Officer of the Company.
“Opinion
of Counsel”
means
a
written opinion from legal counsel containing, as applicable, the information
specified in Section 16.04. The counsel may be an employee of or counsel
to the
Company who is reasonably satisfactory to the Trustee.
“Paying
Agent”
has
the
meaning specified in Section 2.03.
5
“Person”
or
“person”
means
any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, statutory trust,
unincorporated organization, government or any agency or political subdivision
thereof.
“Principal
Amount”
of
a
Security means the principal amount as set forth on the face of the
Security.
“QIB”
means
a
qualified institutional buyer as defined in Rule 144A.
“Record
Date”
means
(i) with respect to any payment of interest (including Contingent Interest
or
Additional Interest, if any) on the Securities, each April 15 and October
15
(whether or not a Business Day) and (ii) with respect to the events specified
in
Section 7.05, the meaning specified in Section 7.05.
“Redemption
Date”
means
the date specified in a notice of redemption on which the Securities may
be
redeemed in accordance with the terms of the Securities and this
Indenture.
“Redemption
Price”
has
the
meaning specified in Section 5.01.
“Reference
Property”
has
the
meaning specified in Section 7.08.
“Register”
has
the
meaning specified in Section 2.03.
“Registrar”
has
the
meaning specified in Section 2.03.
“Registration
Rights Agreement”
means
the Registration Rights Agreement, dated as of the date hereof, between the
Company and the Initial Purchaser, relating to the Securities.
“Repurchase
Date”
has
the
meaning specified in Section 5.08(a).
“Repurchase
Notice”
has
the
meaning specified in Section 5.07(b).
“Repurchase
Price”
has
the
meaning specified in Section 5.07(a).
“Restricted
Certificated Security”
means
a
Certificated Security that is a Restricted Security.
“Restricted
Global Security”
means
a
Global Security that is a Restricted Security.
“Restricted
Legend”
has
the
meaning specified in Section 2.12(f).
“Restricted
Security”
means
a
Security required to bear the Restricted Legend called for by footnotes 2
and 3
to the form of Security set forth in Exhibit A of this Indenture.
“Rule
144”
means
Rule 144 under the Securities Act or any successor to such rule, as it may
be
amended from time to time.
“Rule
144A”
means
Rule 144A under the Securities Act or any successor to such rule, as it may
be
amended from time to time.
“Rule
144A Information”
has
the
meaning specified in Section 9.02(b).
“SEC”
means
the United States 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 the SEC is not existing and performing the duties
now assigned to it under the TIA, then the body performing such duties at
such
time.
6
“Security”
or
“Securities”
means
the Company’s 3.00% Convertible Senior Notes due May 1, 2027, as amended or
supplemented from time to time pursuant to the terms of this Indenture, that
are
issued under this Indenture.
“Securities
Act”
means
the United States Securities Act of 1933 and the rules and regulations
promulgated thereunder, as in effect from time to time.
“Securities
Custodian”
means
the Trustee, as custodian with respect to the Global Securities, or any
successor thereto.
“Settlement
Amount”
has
the
meaning specified in Section 7.13(a).
“Significant
Subsidiary”
means
any Subsidiary of the Company which has: (i) consolidated assets or in which
the
Company and its other Subsidiaries have investments equal to or greater than
10%
of the Company’s total consolidated assets; or (ii) consolidated gross revenue
equal to or greater than 10% of the Company’s consolidated gross revenue,
measured as of the end of the Company’s most recently completed fiscal year in
the case of investments or consolidated assets or for the Company’s most
recently completed fiscal year in the case of consolidated gross
revenue.
“Specified
Repurchase Date”
has
the
meaning set forth in Section 5.07(a).
“Spin-Off”
has
the
meaning specified in Section 7.05(c).
“Spin-Off
Securities”
has
the
meaning specified in Section 7.05(c).
“Stock
Price”
has
the
meaning specified in Section 7.01(c).
“Subsidiary”
means,
in respect of any Person, any corporation, association, partnership or other
business entity of which more than 50% of the outstanding voting stock (as
defined in Section 5.08) or other interests (including partnership interests)
entitled (without regard to the occurrence of any contingency) to vote in
the
election of directors, managers, general partners or trustees thereof, or
persons performing similar functions, is at the time owned or controlled,
directly or indirectly, by (i) such Person; (ii) such Person and one or more
Subsidiaries of such Person; or (iii) one or more Subsidiaries of such
Person.
“TIA”
means
the United States Trust Indenture Act of 1939, as amended, and the rules
and
regulations thereunder as in effect on the date of this Indenture; provided,
however,
that in
the event the Trust Indenture Act of 1939 is amended after such date, then
“TIA”
means, to the extent required by such amendment, the Trust Indenture Act
of 1939
as so amended.
“Trading
Day”
means
a
day during which (i) trading in the Common Stock generally occurs and (ii)
there
is no Market Disruption Event.
“Trading
Price”
means,
on any date of determination, the average of the secondary market bid quotations
obtained by the Bid Solicitation Agent for $5,000,000 aggregate principal
amount
of the Securities at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities
dealers that the Company selects; provided,
that if
(i) at least three such bids cannot reasonably be obtained by the Bid
Solicitation Agent, but two such bids are obtained, then the average of these
two bids shall be used and (ii) only one such bid can reasonably be obtained
by
the Bid Solicitation Agent, this one bid shall be used;
provided,
further
that, if
no bids are received or, in the Company’s reasonable judgment, the bid
quotations are not indicative of the secondary market value of the Securities,
then (x) for purposes of any determination of whether Contingent Interest
is
payable or of the amount of any Contingent Interest, the Trading Price of
the
Securities as of the determination date shall equal (1) the applicable
Conversion Rate of the Securities as of the determination date multiplied
by (2)
the average Closing Price of the Common Stock on the five Trading Days ending
on
the determination date, and (y) for purposes of any determination of whether
the
condition in Section 7.01(b)(ii) is satisfied, the Trading Price per $1,000
principal amount of the Securities shall be deemed to be less than 98% of
the
product of the Closing Price and the Conversion Rate and, for the sole purpose
of calculating any average Trading Price, shall be deemed to be equal to
97.999%
of the Conversion Value.
7
“Trigger
Event”
has
the
meaning specified in Section 7.05(c).
“Trust
Officer”
means,
with respect to the Trustee, any officer within the Corporate Trust Services
department (or any successor department) of the Trustee located at the Corporate
Trust Office of the Trustee, who shall have direct responsibility for the
administration of this Indenture, and also means, with respect to any particular
corporate trust matter, any other officer of the Trustee to whom such corporate
trust matter is referred because of such officer’s knowledge of and familiarity
with the particular subject.
“Trustee”
means
U.S. Bank National Association, not in its individual capacity, but solely
in
its capacity as trustee hereunder, until a successor replaces it pursuant
to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor Trustee.
“Unrestricted
Certificated Security”
means
a
Certificated Security that is not a Restricted Security.
“Unrestricted
Global Security”
means
a
Global Security that is not a Restricted Security.
“Vice
President”
when
used with respect to the Company or the Trustee, means any vice president,
whether or not designated by a number or a word or words added before or
after
the title “vice president.”
“Volume-Weighted
Average Price,”
on
any
Trading Day, means the per share volume-weighted average price as displayed
under the heading “Bloomberg VWAP” on Bloomberg page LLTC <EQUITY>VAP (or
its equivalent successor if such page is not available) in respect of the
period
from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day (or
if such
volume-weighted average price is unavailable, the market value of one share
of
the Common Stock on such Trading Day determined, using a volume-weighted
average
method, by a nationally recognized independent investment banking firm retained
for this purpose by the Company. The volume-weighted average price shall
be
rounded to the nearest whole cent.
“voting
stock”
has
the
meaning specified in Section 5.08(a).
Section
1.02 Trust
Indenture Act Provisions.
Whenever
this Indenture refers to a provision of the TIA, that provision is incorporated
by reference in and made a part of this Indenture. The Indenture shall also
include those provisions of the TIA required to be included herein by the
provisions of the TIA. The following TIA terms used in this Indenture have
the
following meanings:
“Commission”
means
the SEC;
8
“Indenture
Securities”
means
the Securities;
“Indenture
Security Holder”
means
a
Securityholder;
“Indenture
to be qualified”
means
this Indenture;
“Indenture
Trustee”
or
“institutional trustee” means the Trustee; and
“Obligor”
on
the
indenture securities means the Company and any successor obligor on the
Securities.
All
other
terms used in this Indenture that are defined in the TIA, defined by TIA
reference to another statute or defined by any SEC rule and not otherwise
defined herein have the meanings assigned to them therein.
Section
1.03 Rules
of Construction.
Unless
the context otherwise requires:
(a) a
term
has the meaning assigned to it herein;
(b) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) words
in
the singular include the plural, and words in the plural include the
singular;
(d) provisions
apply to successive events and transactions;
(e) the
term
“merger” includes a statutory share exchange and the term “merged” has a
correlative meaning;
(f) the
masculine gender includes the feminine and the neuter;
(g) references
to agreements and other instruments include subsequent amendments
thereto;
(h) references
to “interest” include Contingent Interest and Additional Interest;
(i) “herein,”
“hereof,” “hereunder,” “hereinafter” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(j) unless
context otherwise requires, any reference to an “Article” or a “Section” refers
to an Article or Section, as the case may be, of this Indenture;
(k) “or”
is
not exclusive; and
(l) “including”
means
including without limitation.
9
ARTICLE
2
The
Securities
Section
2.01 Form
and Dating.
(a)
The
Securities and the corresponding Trustee’s certificate of authentication shall
be substantially in the respective forms set forth in Exhibit A, which Exhibit
is incorporated in and made part of this Indenture. The Securities may have
notations, legends or endorsements required by law, exchange rule, Applicable
Procedures or usage. The Company shall provide any such notations, legends
or
endorsements to the Trustee in writing. Each Security shall be dated the
date of
its authentication.
The
terms
and provisions contained in the Securities shall constitute, and are hereby
expressly made, a part of this Indenture and the Company and the Trustee,
by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby; provided,
however,
to the
extent permitted by applicable law, if any provision of any Security conflicts
with the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.
(b) Restricted
Global Securities.
All of
the Securities shall be issued initially in the form of one or more Restricted
Global Securities, which shall be deposited on behalf of the purchasers of
the
Securities represented thereby with the Securities Custodian, as custodian
for
the depositary, The Depository Trust Company (such depositary, or any successor
thereto, being hereinafter referred to as the “Depositary”),
and
registered in the name of its nominee, Cede & Co., or as otherwise
instructed by the Depositary, duly executed by the Company and authenticated
by
the Trustee as hereinafter provided. The aggregate principal amount of the
Restricted Global Securities may from time to time be increased or decreased
by
adjustments made on the records of the Securities Custodian and the Depositary
as hereinafter provided, subject in each case to compliance with the Applicable
Procedures and the provisions of this Indenture.
(c) Global
Securities In General.
Each
Global Security shall represent such of the out-standing Securities as shall
be
specified therein and each shall provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that
the
aggregate amount of outstanding Securities represented thereby may from time
to
time be reduced or increased, as appropriate, to reflect exchanges, purchases,
redemptions or conversions of such Securities, in each case in accordance
with
this Indenture. Any adjustment of the aggregate principal amount of a Global
Security to reflect the amount of any increase or decrease in the amount
of
outstanding Securities represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section
2.12 hereof, or otherwise in accordance with this Indenture, and shall be made
on the records of the Trustee and the Depositary.
The
Company shall issue and the Trustee shall, upon receipt of a Company Order,
authenticate and deliver in accordance with Section 2.02, initially one or
more
Global Securities that (i) shall be registered in the name of Cede & Co. or
as otherwise instructed by the Depositary, (ii) shall be delivered by the
Trustee to the Depositary or to the Securities Custodian pursuant to the
Depositary’s instructions and (iii) shall bear legends required for Global
Securities as set forth in Exhibit A hereto.
(d) Book
Entry Provisions.
Members
of, or participants in, the Depositary (“Agent
Members”)
shall
have no rights under this Indenture with respect to any Global Security held
on
their behalf by the Depositary or under the Global Security, and the Depositary
(including, for this purpose, its nominee) 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 Security for all purposes whatsoever.
None
of
the Company, the Trustee, the Registrar, any Paying Agent or any agent of
any of
them shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests
in the
Securities, for maintaining, supervising or reviewing any records relating
to
such beneficial owner interests, or for any acts or omissions of a Depositary
or
for any transactions between a Depositary and any beneficial owner or between
or
among beneficial owners. No owner of a beneficial interest in the Securities
shall have any rights under this Indenture, and the Depositary or its nominee,
if any, shall be deemed and treated by the Company, the Trustee, the Registrar,
any Paying Agent or any agent of any of them as the absolute owner and holder
of
such Securities for all purposes whatsoever.
10
Notwithstanding
the foregoing, nothing herein shall (A) 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 its
nominee, as the case may be, or (B) impair, as between the Depositary and
its
Agent Members, the Applicable Procedures or the operation of customary practices
governing the exercise of the rights of a Holder of any Security.
(e) Certificated
Securities.
Certificated Securities shall be issued only under the circumstances provided
in
Section 2.12(a)(i).
Section
2.02 Execution
and Authentication.
.(a)
A duly
authorized Officer of the Company shall sign the Securities for the Company
by
manual or facsimile signature.
(b) If
an
Officer of the Company whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
be
valid nevertheless.
(c) A
Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under
this
Indenture.
(d) The
Trustee shall initially authenticate and make available for delivery Securities
for original issue in the
aggregate principal amount of up to $1,000,000,000 upon receipt of a written
order or orders of the Company signed by an Officer of the Company (a
“Company
Order”).
The
Company may, without the consent of the Holders, issue additional Securities
(the “Additional
Securities”)
with
the same terms and with the same CUSIP number as the Securities in an unlimited
aggregate principal amount; provided,
however
that no
such Additional Securities may be issued unless fungible with the Securities
for
U.S. federal income tax purposes. The Trustee shall authenticate Additional
Securities thereafter in unlimited aggregate principal amount (so long as
permitted by the terms of this Indenture) for original issue upon a Company
Order of the Company in aggregate principal amount as specified in such order
(except as provided in Section 2.07). Each such Company Order shall specify
the
amount of Securities to be authenticated and the date on which the Securities
are to be authenticated. Such Additional Securities shall have identical
terms
to the Initial Securities except for issuance dates and prices and with respect
to interest accruing prior to their date of issuance, and will constitute
the
same series as the Initial Securities for all purposes hereunder, including,
without limitation, waivers, amendments and offers to purchase.
(e) The
Trustee shall act as the initial authenticating agent. Thereafter, the Trustee
may appoint an authenticating agent acceptable to the Company to authenticate
Securities. An authenticating agent may authenticate Securities whenever
the
Trustee may do so. Each reference in this Indenture to authentication by
the
Trustee includes authentication by such Agent. An authenticating agent shall
have the same rights as an Agent to deal with the Company or an Affiliate
of the
Company.
The
Securities shall be issuable only in registered form without coupons and
only in
denominations of $1,000 principal amount and any integral multiple
thereof.
Section
2.03 Registrar,
Paying Agent and Conversion Agent.
The
Company shall maintain an office or agency where Securities may be presented
for
registration of transfer or for exchange (“Registrar”),
an
office or agency in the United States where Securities may be presented for
purchase or payment (“Paying
Agent”),
an
office or agency where Securities may be presented for conversion (“Conversion
Agent”)
and an
office or agency where notices and demands to or upon the Company in respect
of
the Securities and this Indenture may be served. The Registrar shall keep
a
register of the Securities (“Register”)
and of
their transfer and exchange.
11
The
Company may have one or more co-registrars, one or more additional paying
agents, and one or more additional conversion agents. The term “Registrar”
includes any co-registrar, including any named pursuant to Section 9.06.
The
term “Paying Agent” includes any additional paying agent, including any named
pursuant to Section 9.06. The term “Conversion Agent” includes any additional
conversion agent, including any named pursuant to Section 9.06.
The
Company shall enter into an appropriate agency agreement with any Agent not
a
party to this Indenture. The agreement shall implement the provisions of
this
Indenture that relate to such Agent. The Company shall notify the Trustee
of the
name and address of any Agent not a party to this Indenture. If the Company
fails to maintain a Registrar, Paying Agent or Conversion Agent or agent
for
service of notices and demands in any place required by this Indenture, or
fails
to give the foregoing notice, the Trustee shall act as such. The Company
or any
Affiliate of the Company may act as Paying Agent.
The
Company hereby initially appoints the Trustee as Registrar, Paying Agent
and
Conversion Agent in connection with the Securities.
Section
2.04 Paying
Agent to Hold Money and Securities in Trust.
Prior
to 11:00 a.m., New York City time, on each due date of payments in respect
of,
or delivery of Cash or shares of Common Stock, as applicable and as provided
herein, the Company shall deposit with the Paying Agent Cash (in immediately
available funds if deposited on the due date) or with the Conversion Agent
such
number of shares of Common Stock or other consideration sufficient to make
such
payments or deliveries when so becoming due. The Company shall require each
Paying Agent or Conversion Agent, as applicable (other than the Trustee),
to
agree in writing that such Agent shall hold in trust for the benefit of
Securityholders or the Trustee all Cash, Common Stock or other consideration,
as
applicable, held by such Agent for the making of payments or deliveries in
respect of the Securities and shall notify the Trustee in writing of any
default
by the Company in making any such payment or delivery. If the Company or
an
Affiliate of the Company acts as Paying Agent or Conversion Agent, as
applicable, it shall segregate the Cash, Common Stock and other consideration,
as applicable, held by it as Paying Agent or Conversion Agent, as applicable,
and hold it as a separate trust fund.
The
Company at any time may require a Paying Agent or Conversion Agent, as
applicable, to pay all Cash, Common Stock or other consideration, as applicable,
held by it to the Trustee, and the Trustee may at any time during the
continuance of any Default, upon written request to the Paying Agent or the
Conversion Agent, as applicable, require such Paying Agent or Conversion
Agent,
as applicable, to pay forthwith to the Trustee all Cash, Common Stock or
other
consideration, as applicable, so held in trust by such Paying Agent or
Conversion Agent. Upon doing so, the Paying Agent or the Conversion Agent,
as
applicable, shall have no further liability for such Cash, Common Stock or
other
consideration, as applicable.
Section
2.05 Securityholder
Lists.
.The
Trustee shall preserve in as current a form as is reasonably practicable
the
most recent list available to it of the names and addresses of the
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each Interest Payment Date, and at such other
times
as the Trustee may request in writing, a list of the names and addresses
of the
Securityholders in such form and as of such date as the Trustee may reasonably
request.
12
Section
2.06 Transfer
and Exchange.
(a)
Subject
to compliance with any applicable additional requirements contained in Section
2.12, when a Security is presented to a Registrar with a request to register
a
transfer thereof or to exchange such Security for an equal principal amount
of
Securities of other authorized denominations, the Registrar shall register
the
transfer or make the exchange as requested; provided,
however,
that
every Security presented or surrendered for registration of transfer or exchange
shall, if such Security is a Certificated Security, be duly endorsed or
accompanied by an assignment form, in the form included in Exhibit A attached
hereto and, if applicable, a transfer certificate, in the form included in
Exhibit A attached hereto, and in form reasonably satisfactory to the Registrar
duly executed by the Holder thereof or its attorney duly authorized in writing.
To permit registration of transfers and exchanges, upon surrender of any
Security for registration of transfer or exchange at an office or agency
maintained pursuant to Section 2.03, the Company shall execute and the Trustee
shall, upon receipt of a Company Order, authenticate Securities of a like
aggregate principal amount at the Registrar’s request. Any exchange or transfer
shall be without charge, except that the Company or the Registrar may require
payment of a sum sufficient to cover any tax, assessment or other governmental
charge that may be imposed in relation thereto, other than exchanges pursuant
to
Section 2.10, Section 13.05, Article 5 or Article 7, in each case, not involving
any transfer.
Neither
the Company, any Registrar nor the Trustee shall be required to exchange
or
register a transfer of any Securities or portions thereof selected for
redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or any Securities in respect of which
a
Repurchase Notice or Fundamental Change Purchase Notice has been delivered
and
not validly withdrawn by the Holder thereof (except, in the case of the purchase
of a Security in part, the portion thereof not to be purchased).
All
Securities issued upon any transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt and entitled to the
same
benefits under this Indenture as the Securities surrendered upon such transfer
or exchange.
(b) Any
Registrar appointed pursuant to Section 2.03 or Section 9.06 hereof shall
provide to the Trustee such information as the Trustee may reasonably request
in
connection with the delivery by such Registrar of Securities upon transfer
or
exchange of Securities.
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
Security (including any transfers between or among Agent Members or other
beneficial owners of interests in any Global Security) other than to require
delivery of such opinions of counsel, 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 (including if so requested by the
Company exercising a right to require the delivery of such items), and to
examine the same to determine substantial compliance as to form with the
express
requirements hereof.
Any
Holder of a Global Security shall, by acceptance of such Global Security,
agree
that transfers of beneficial interests in such Global Security may be effected
only through a book-entry system maintained by the Depositary (or its agent),
and that ownership of a beneficial interest in a Global Security shall be
required to be reflected in a book-entry system.
Section
2.07 Replacement
Securities.
If
(a)
any mutilated Security is surrendered to the Company, a Registrar or the
Trustee, or (b) the Company, the Registrar and the Trustee receive evidence
to
their satisfaction of the destruction, loss or theft of any Security, and,
in
either case, there is delivered to the Company, the Registrar and the Trustee
such security or indemnity as shall be reasonably required by them to save
each
of them harmless, then, in the absence of notice to the Company, such Registrar
or the Trustee that such Security has been acquired by a bona fide or protected
purchaser, the Company shall issue, and the Trustee shall, upon receipt of
a
Company Order (which the Company agrees to deliver promptly), authenticate
and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
13
In
case
any such mutilated, destroyed, lost or stolen Security has become or is about
to
become due and payable, or is about to be redeemed or purchased by the Company
pursuant to Article 5, the Company in its discretion may, instead of issuing
a
new Security, pay, redeem or purchase such Security, as the case may be,
in
accordance herewith.
Upon
the
issuance of any new Securities under this Section 2.07, the Company may require
the payment of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in relation thereto as the result
of any
Securities, at the request of any Holder, being issued to a Person other
than
such Holder and any other reasonable expenses (including the reasonable fees
and
expenses of the Trustee or the Registrar) in connection therewith.
Every
new
Security issued pursuant to this Section 2.07 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be
entitled to all benefits of this Indenture equally and proportionately with
any
and all other Securities duly issued and outstanding hereunder.
The
provisions of this Section 2.07 are (to the extent lawful) exclusive and
shall
preclude (to the extent lawful) all other rights and remedies with respect
to
the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
Section
2.08 Outstanding
Securities.
Securities
outstanding at any time are all Securities authenticated by the Trustee,
except
for those canceled by it, those paid, redeemed or repurchased, those delivered
to it for cancellation and those described in this Section 2.08 as not
outstanding.
If
a
Security is replaced pursuant to Section 2.07 (other than a mutilated Security
surrendered for replacement), it ceases to be outstanding unless the Trustee
receives, subsequent to the new Security’s authentication, proof satisfactory to
the Company that the replaced Security is held by a bona fide or protected
purchaser. A mutilated Security ceases to be outstanding upon surrender and
replacement thereof pursuant to Section 2.07.
If
the
Paying Agent holds, in accordance with the terms of this Indenture, prior
to
11:00 a.m., New York City time, on the Maturity Date, a Redemption Date or
Repurchase Date, as the case may be, Cash sufficient to pay all Initial
Securities and all Additional Securities then payable, then on and after
such
Maturity Date, Redemption Date or Repurchase Date, as the case may be, such
Securities shall cease to be outstanding and interest (including Contingent
Interest or Additional Interest, if any) on such Securities shall cease to
accrue.
If
a
Security is converted in accordance with Article 7, then on the Conversion
Date,
such Security shall cease to be outstanding and interest (including Contingent
Interest or Additional Interest, if any) on such Security shall cease to
accrue,
unless there shall be a default in the delivery of the consideration payable
hereunder upon such conversion.
Subject
to the restrictions contained in Section 2.09, a Security does not cease
to be
outstanding solely because the Company or an Affiliate of the Company holds
the
Security.
14
Section
2.09 Treasury
Securities.
In
determining whether the Holders of the required principal amount of Securities
have given or concurred in any notice, request, demand, authorization,
direction, waiver or consent, Securities owned by the Company or any other
obligor on the Securities or by any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be outstanding for such purposes,
except that, for purposes of determining whether the Trustee shall be protected
in relying on any such notice, request, demand, authorization, direction,
waiver
or consent, only Securities which a Trust Officer actually knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith shall not be disregarded if the pledgee establishes to the satisfaction
of
the Trustee the pledgee’s right so to act with respect to the Securities and
that the pledgee is not, and is not acting on the behalf of, the Company
or any
other obligor on the Securities or any Affiliate of the Company or of such
other
obligor. If requested by the Trustee, the Company agrees to notify the Trustee
in writing of the existence of any such treasury Securities or Securities
owned
by the Company, any other obligor on the Securities, or, to the knowledge
of the
Company, any Affiliate of the Company.
Section
2.10 Temporary
Securities.
Until
definitive Securities are ready for delivery, the Company may prepare and
execute, and, upon receipt of a Company Order, the Trustee shall authenticate
and deliver, temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
reasonably considers appropriate for temporary Securities. After the preparation
of definitive Securities, the temporary Securities shall be exchangeable
for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section
2.03,
without charge to the Holder. Upon surrender for cancellation of any one
or more
temporary Securities, the Company shall execute and the Trustee shall, upon
receipt of a Company Order (which the Company agrees to deliver promptly),
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section
2.11 Cancellation.
The
Company at any time may deliver Securities to the Trustee for cancellation.
The
Registrar, the Paying Agent and the Conversion Agent shall forward to the
Trustee or its agent any Securities surrendered to them for transfer, exchange,
purchase, payment, redemption or conversion. The Trustee and no one else
shall
cancel, in accordance with its standard procedures, all Securities surrendered
for transfer, exchange, payment, conversion or cancellation and shall deliver
the canceled Securities to the Company. The Company may not issue new Securities
to replace Securities that it has paid or delivered to the Trustee for
cancellation or that any Holder has converted pursuant to Article
7.
All
Securities that are purchased pursuant to Article 5 or otherwise acquired
by the
Company shall be delivered to the Trustee for cancellation. If the Company
shall
acquire any of the Securities, such acquisition shall not operate as a
repurchase or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for
cancellation.
Section
2.12 Legend;
Additional Transfer and Exchange Requirements.
(a) Transfer
and Exchange of Global Securities.
(i)
Certificated Securities (x) shall be issued in exchange for interests in
the
Global Securities only if the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the Global Securities or
if it
at any time ceases to be a “clearing agency” registered under the Exchange Act,
if so required by applicable law or regulation, and a successor Depositary
is
not appointed by the Company within 90 days of such notice or (y) may be
issued
in exchange for interests in the Global Securities, at a Holder’s election, if
an Event of Default has occurred and is continuing, each of clauses (x) and
(y)
in accordance with the Applicable Procedures. In any such case, the Company
shall execute, and the Trustee shall, upon receipt of a Company Order (which
the
Company agrees to deliver promptly), authenticate and deliver Certificated
Securities in an aggregate principal amount equal to the principal amount
of
such Global Securities in exchange therefor. Only Restricted Certificated
Securities shall be issued in exchange for beneficial interests in Restricted
Global Securities, and only Unrestricted Certificated Securities shall be
issued
in exchange for beneficial interests in Unrestricted Global Securities.
Certificated Securities issued in exchange for beneficial interests in Global
Securities shall be registered in such names and shall be in such authorized
denominations as the Depositary, pursuant to instructions from its Agent
Members
or otherwise in accordance with the Applicable Procedures, shall instruct
the
Trustee. The Trustee shall deliver or cause to be delivered such Certificated
Securities to the Persons in whose name such Securities are so registered.
Such
exchange shall be effected in accordance with the Applicable Procedures.
In the
event that the Certificated Securities are not issued to each such beneficial
owner promptly after the Registrar has received a request from the Depositary
to
issue such Certificated Securities, the Company expressly acknowledges, with
respect to the right of any Holder to pursue a remedy pursuant to Section
11.06
or 11.07 hereof, the right of any beneficial holder of Securities to pursue
such
remedy with respect to the portion of the Global Security that represents
such
Beneficial Owner’s Securities as if such Certificated Securities had been
issued.
15
(ii) Notwithstanding
any other provisions of this Indenture other than the provisions set forth
in
Section 2.12(a)(i), a Global Security may not be transferred except as a
whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of
such
successor Depositary.
(b) Transfer
and Exchange of Certificated Securities.
In the
event that Certificated Securities are issued in exchange for beneficial
interests in Global Securities in accordance with Section 2.12(a)(i), and,
on or
after such event, Certificated Securities are presented by a Holder to the
Registrar with a request:
(x) to
register the transfer of the Certificated Securities to a person who shall
take
delivery thereof in the form of Certificated Securities only; or
(y) to
exchange such Certificated Securities for an equal principal amount of
Certificated Securities of other authorized denominations,
such
Registrar shall register the transfer or make the exchange as requested;
provided,
however,
that
the Certificated Securities presented or surrendered for register of transfer
or
exchange:
(i) shall
be
duly endorsed or accompanied by a written instrument of transfer in accordance
with the proviso to the first sentence of Section 2.06(a); and
(ii) in
the
case of a Restricted Certificated Security, such request shall be accompanied
by
the following additional information and documents, as applicable:
(A) if
such
Restricted Certificated Security is being delivered to the Registrar by a
Holder
for registration in the name of such Holder, without transfer, or such
Restricted Certificated Security is being transferred to the Company or a
Subsidiary of the Company, a certification to that effect from such Holder
(in
substantially the form set forth in Exhibit A);
(B) if
such
Restricted Certificated Security is being transferred to a person the Holder
reasonably believes is a QIB in accordance with Rule 144A, or pursuant to
an
effective registration statement under the Securities Act or in compliance
with
Regulation S under the Securities Act, a certification to that effect from
such
Holder (in substantially the form set forth in Exhibit A);
(C) if
such
Restricted Certificated Security is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with
Rule
144 or pursuant to and in compliance with another exemption from the
registration requirements under the Securities Act, a certification to that
effect from the Holder (in substantially the form set forth in Exhibit A)
and,
if the Company or the Registrar so requests, an Opinion of Counsel, certificates
and other information reasonably acceptable to the Company to the effect
that
such transfer does not require registration under the Securities
Act.
16
(c) Transfer
of a Beneficial Interest in a Restricted Global Security for a Beneficial
Interest in an Unrestricted Global Security.
Any
person having a beneficial interest in a Restricted Global Security may upon
request, subject to the Applicable Procedures, transfer such beneficial interest
to a Person who is required or permitted to take delivery thereof in the
form of
a beneficial interest in an Unrestricted Global Security. Upon receipt by
the
Trustee of written instructions, or such other form of instructions as is
customary for the Depositary, from the Depositary or its nominee on behalf
of
any Person having a beneficial interest in a Restricted Global Security and
the
following additional information and documents in such form as is customary
for
the Depositary from the Depositary or its nominee on behalf of the Person
having
such beneficial interest in the Restricted Global Security (all of which
may be
submitted by facsimile or electronically):
(i) if
such
beneficial interest is being transferred pursuant to an effective registration
statement under the Securities Act, a certification to that effect from the
Holder (in substantially the form set forth in Exhibit A); or
(ii) if
such
beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144,
a
certification to that effect from the Holder (in substantially the form set
forth in Exhibit A) and, if the Company or the Trustee so requests, an Opinion
of Counsel, certificates and other information reasonably acceptable to the
Company to the effect that such transfer does not require registration under
the
Securities Act;
the
Registrar shall reduce or cause to be reduced the aggregate principal amount
of
the Restricted Global Security by the appropriate principal amount and shall
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Security by a like principal amount. Such transfer shall
otherwise be effected in accordance with the Applicable Procedures. If no
Unrestricted Global Security is then outstanding, the Company shall execute
and
the Trustee shall, upon receipt of a Company Order (which the Company agrees
to
deliver promptly), authenticate and deliver an Unrestricted Global
Security.
(d) Transfer
of a Beneficial Interest in an Unrestricted Global Security for a Beneficial
Interest in a Restricted Global Security.
Any
person having a beneficial interest in an Unrestricted Global Security may
upon
request, subject to the Applicable Procedures, transfer such beneficial interest
to a person who is required or permitted to take delivery thereof in the
form of
a beneficial interest in a Restricted Global Security. Upon receipt by the
Trustee of written instructions, or such other form of instructions as is
customary for the Depositary, from the Depositary or its nominee on behalf
of
any person having a beneficial interest in an Unrestricted Global Security
and
the following additional information and documents in such form as is customary
for the Depositary, from the Depositary or its nominee on behalf of the person
having such beneficial interest in the Unrestricted Global Security (all
of
which may be submitted by facsimile or electronically):
17
(i) a
certification from the Holder (in substantially the form set forth in Exhibit
A)
to the effect that such beneficial interest is being transferred to a person
that the transferor reasonably believes is a QIB in accordance with Rule
144A;
(ii) a
certification from the Holder (in substantially the form set forth in Exhibit
A)
to the effect that such beneficial interest is being transferred in compliance
with Regulation S under the Securities Act;
(iii) if
such
beneficial interest in such Unrestricted Global Security is being transferred
in
compliance with any other exemption from registration under the Securities
Act,
certification to that effect from such Holder (in substantially the form
set
forth in Exhibit A) and if the Company or the Trustee so requests, an Opinion
of
Counsel, certificates and other information reasonably acceptable to the
Company
to the effect that such transfer does not require registration under the
Securities Act; or
(iv) a
certification (in substantially the form set forth in Exhibit A) to the effect
that such beneficial interest is being transferred to the Company or a
Subsidiary of the Company, the Registrar shall reduce or cause to be reduced
the
aggregate principal amount of the Unrestricted Global Security by the
appropriate principal amount and shall increase or cause to be increased
the
aggregate principal amount of the Restricted Global Security by a like principal
amount. Such transfer shall otherwise be effected in accordance with the
Applicable Procedures. If no Restricted Global Security is then outstanding,
the
Company shall execute and the Trustee shall, upon receipt of a Company Order
(which the Company agrees to deliver promptly), authenticate and deliver
a
Restricted Global Security.
(e) Transfers
of Certificated Securities for Beneficial Interest in Global
Securities.
In the
event that Certificated Securities are issued in exchange for beneficial
interests in Global Securities and, thereafter, the events or conditions
specified in Section 2.12(a)(i) which required such exchange shall cease
to
exist, the Company shall mail notice to the Trustee and to the Holders
(i)
stating
that Holders may exchange Certificated Securities for interests in Global
Securities by complying with the procedures set forth in this Indenture and
(ii)
briefly
describing such procedures and the events or circumstances requiring that
such
notice be given. Thereafter, if Certificated Securities are presented by
a
Holder to a Registrar with a request:
(x) to
register the transfer of such Certificated Securities to a Person who will
take
delivery thereof in the form of a beneficial interest in a Global Security,
which request shall specify whether such Global Security will be a Restricted
Global Security or an Unrestricted Global Security; or
(y) to
exchange such Certificated Securities for an equal principal amount of
beneficial interests in a Global Security, which beneficial interests will
be
owned by the Holder transferring such Certificated Securities (provided that
in
the case of such an exchange, Restricted Certificated Securities may be
exchanged only for Restricted Global Securities and Unrestricted Certificated
Securities may be exchanged only for Unrestricted Global
Securities),
the
Registrar shall register the transfer or make the exchange as requested by
canceling such Certificated Security and causing the aggregate principal
amount
of the applicable Global Security to be increased accordingly and, if no
such
Global Security is then outstanding, the Company shall issue and the Trustee
shall, upon receipt of a Company Order (which the Company agrees to deliver
promptly) authenticate and deliver a new Global Security; provided,
however,
that
the Certificated Securities presented or surrendered for registration of
transfer or exchange:
18
(iii) shall
be
duly endorsed or accompanied by a written instrument of transfer in accordance
with the proviso to Section 2.06(a);
(iv) in
the
case of a Restricted Certificated Security to be transferred for a beneficial
interest in an Unrestricted Global Security, shall be accompanied by the
following additional information and documents, as applicable:
(A) if
such
Restricted Certificated Security is being transferred pursuant to an effective
registration statement under the Securities Act, a certification to that
effect
from such Holder (in substantially the form set forth in Exhibit A);
or
(B) if
such
Restricted Certificated Security is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with
Rule
144, a certification to that effect from such Holder (in substantially the
form
set forth in Exhibit A) and an Opinion of Counsel, certificates and other
information reasonably acceptable to the Company to the effect that such
transfer does not require registration under of the Securities Act;
(v) in
the
case of a Restricted Certificated Security to be transferred to another person
for a beneficial interest in a Restricted Global Security, shall be accompanied
by the following information and documents, as applicable:
(A) if
such
Restricted Certificated Security is being transferred to a person the Holder
reasonably believes is a QIB in accordance with Rule 144A, a certification
to
that effect from such Holder (in substantially the form set forth in Exhibit
A);
or
19
(B) if
such
Restricted Certificated Security is being transferred in compliance with
Regulation S under the Securities Act, certification to that effect from
such
Holder (in substantially the form set forth in Exhibit A);
(vi) in
the
case of an Unrestricted Certificated Security to be transferred or exchanged
for
a beneficial interest in an Unrestricted Global Security, or in the case
of a
Restricted Certificated Security to be exchanged (and not transferred) for
a
beneficial interest in a Restricted Global Security, such request need not
be
accompanied by any additional information or documents; and
(vii) in
the
case of an Unrestricted Certificated Security to be transferred or exchanged
for
a beneficial interest in a Restricted Global Security, such request shall
be
accompanied by the following additional information and documents, as
applicable:
(A) if
such
Unrestricted Certificated Security is being transferred to a person the Holder
reasonably believes is a QIB (which, in the case of an ex-change, shall be
such
Holder) in accordance with Rule 144A, a certification to that effect from
such
Holder (in substantially the form set forth in Exhibit A);
(B) if
such
Unrestricted Certificated Security is being transferred in compliance with
Regulation S under the Securities Act, certification to that effect from
such
Holder (in substantially the form set forth in Exhibit A);
(C) if
such
Unrestricted Certificated Security is being transferred in compliance with
any
other exemption from registration under the Securities Act, certification
to
that effect from such Holder (in substantially the form set forth in Exhibit
A)
and an Opinion of Counsel, certificates and other information reasonably
acceptable to the Company to the effect that such transfer does not require
registration under the Securities Act; or
(D) if
such
Unrestricted Certificated Security is being transferred to the Company or
a
Subsidiary of the Company, a certification to that effect from such Holder
(in
substantially the form set forth in Exhibit A).
(f) Legends.
(i)
Except
as permitted by the following paragraphs (ii), (iii) and (iv), each Global
Security and Certificated Security (and all Securities issued in exchange
therefor or upon registration of transfer or replacement thereof) shall bear
a
legend in substantially the form called for by Exhibit A attached hereto
(the
“Restricted
Legend”),
for
so long as it is required by this Indenture to bear such legend.
(ii) Upon
any
sale or transfer of a Restricted Security (x) after the expiration of the
holding period applicable to sales of the Securities under Rule 144(k) of
the
Securities Act, (y) pursuant to Rule 144 or (z) pursuant to an effective
registration statement under the Securities Act:
(A) in
the
case of any Restricted Certificated Security, each Registrar shall permit
the
Holder thereof to transfer such Restricted Certificated Security to a transferee
who, unless such transferee is an Affiliate of the Company, shall take such
Security in the form of an Unrestricted Certificated Security or (under the
circumstances described in Section 2.12(e)) an Unrestricted Global Security,
and
in each case shall rescind any restriction on the transfer of such Security;
provided,
however,
that
the Holder of such Restricted Certificated Security shall, in connection
with
such exchange or transfer, comply with the other applicable provisions of
this
Section 2.12; and
(B) in
the
case of a Restricted Global Security, each Registrar shall permit the Holder
thereof to transfer such beneficial interest in a Restricted Global Security
to
a transferee who, unless such transferee is an Affiliate of the Company,
shall
take such Security in the form of a beneficial interest in an Unrestricted
Global Security and shall rescind any restriction on transfer of such Security;
provided,
however,
that
such Unrestricted Global Security shall continue to be subject to the provisions
of Section 2.12(a)(ii); and provided further,
however,
that
the owner of such beneficial interest shall, in connection with such transfer,
comply with the other applicable provisions of this Section 2.12.
If
the
Applicable Procedures so require, prior to the removal of any restrictive
legend
at the end of the holding period applicable to sales of the Securities under
Rule 144(k) of the Securities Act, such requesting Holder shall deliver an
Opinion of Counsel in form reasonably acceptable to the Company to the effect
that the restrictions on transfer contained herein and the restrictive legend
are no longer required in order to maintain compliance with the Securities
Act.
20
(iii) Upon
the
exchange, registration of transfer or replacement of Securities not bearing
the
Restricted Legend, the Company shall issue, and the Trustee shall, upon receipt
of a Company Order (which the Company agrees to deliver promptly), authenticate
and deliver, Securities that do not bear such Restricted Legend.
(iv) After
the
expiration of the holding period pursuant to Rule 144(k) of the Securities
Act,
the Company may with the consent of any Holder of a Restricted Global Security
or a Restricted Certificated Security that is not an Affiliate of the Company,
remove any restriction of transfer on such Security, and the Company shall
issue, and the Trustee shall, upon receipt of a Company Order (which the
Company
agrees to deliver promptly), authenticate and deliver Securities that do
not
bear the Restricted Legend.
(v) Until
the
expiration of the holding period applicable to sales of the Securities under
Rule 144(k) of the Securities Act or a transfer pursuant to Rule 144 or pursuant
to an effective registration statement under the Securities Act, the shares
of
Common Stock issued upon conversion of the Securities shall bear a legend
substantially to the same effect as the Restricted Legend; provided
that all
Securities held by Affiliates of the Company shall bear the Restricted Legend
at
all times.
(g) Transfers
to the Company.
Nothing
contained in this Indenture or in the Securities shall prohibit the sale
or
other transfer of any Securities (including beneficial interests in Global
Securities) to the Company, or any of its Subsidiaries or any of its
Affiliates.
Section
2.13 CUSIP
Numbers.
The
Company in issuing the Securities may use one or more “CUSIP,” “ISIN” or other
similar numbers (if then generally in use), and, if so, the Trustee shall
use
“CUSIP,” “ISIN” or other similar numbers in notices of purchase or redemption as
a convenience to Holders; provided,
however,
that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a purchase or redemption and that reliance may be placed only on
the
other identification numbers printed on the Securities, and any such purchase
or
redemption shall not be affected by any defect in or omission of such numbers.
The Company shall promptly notify the Trustee of any change in the “CUSIP,”
“ISIN” or other similar numbers.
Section
2.14 Persons
Deemed Owners.
Prior
to
due presentment of a Security for registration of transfer, the Company,
the
Trustee and any agent of the Company or the Trustee may treat the person
in
whose name such Security is registered, which shall initially be the Depositary,
as the owner of such Security for the purpose of receiving payment of principal
of, the Repurchase Price, the Fundamental Change Purchase Price and interest
(including Contingent Interest or Additional Interest, if any), on the Security,
for the purpose of receiving Common Stock or Cash and for all other purposes,
including without limitation, for purposes of giving notices hereunder,
whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected
by
notice to the contrary. The registered Holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action that a
Holder
is entitled to take under this Indenture or the Securities.
Section
2.15 Defaulted
Interest.
If
the
Company defaults on a payment of interest (including Contingent Interest
or
Additional Interest, if any) on the Securities, it shall pay the defaulted
interest, plus (to the extent permitted by law) any interest payable on the
defaulted interest, in accordance with the terms hereof, to the Persons who
are
Holders on a subsequent special record date, which date shall be at least
five
Business Days prior to the payment date. The Company shall fix such special
record date and payment date in a reasonable manner. At least 10 days before
such special record date, the Company shall mail to each Holder a notice
that
states the special record date, the payment date and the amount of defaulted
interest, and interest payable on defaulted interest, if any, to be paid.
The
Company may make payment of any defaulted interest in any other lawful manner
not inconsistent with the requirements (if applicable) of any securities
exchange on which the Securities may be listed and, upon such notice as may
be
required by such exchange.
21
Section
2.16 Contingent
Debt Tax Treatment.
(a) The
Company and each Holder, by acquiring a beneficial interest in a Security,
agree
(in the absence of an administrative pronouncement or judicial ruling to
the
contrary) (i) to treat the Security as indebtedness for U.S. federal income
tax purposes that is subject to the Treasury Regulations governing contingent
payment debt instruments (the “contingent
debt regulations”),
(ii) that each Holder shall be bound by the Company’s application of the
contingent debt regulations to the Security, including the Company’s
determination of the “comparable yield” and “projected payment schedule” within
the meaning of the contingent debt regulations, (iii) to treat the cash and
the fair market value of any Common Stock received upon the conversion of
the
Security as a contingent payment for purposes of the contingent debt
regulations, (iv) to accrue interest with respect to the outstanding
Security as original issue discount according to the “noncontingent bond method”
set forth in the contingent debt regulations, using the comparable yield
of
7.00% compounded semi-annually and (v) that the Company and each Holder
will not take any position on any U.S. federal tax return that is inconsistent
with (i), (ii), (iii) or (iv) unless required by applicable law.
The
Company acknowledges and agrees, and each Holder and any beneficial holder
of a
Security by its purchase thereof shall be deemed to acknowledge and agree,
that
(i) the comparable yield means the annual yield the Company would pay, as
of the Issue Date, on a fixed rate, nonconvertible debt security with no
contingent payments, but with terms and conditions otherwise comparable to
those
of the Securities, (ii) the schedule of projected payments is determined on
the basis of an assumption of a constant annual growth rate of the stock
price
and is not determined for any purpose other than for the determination of
interest accruals and adjustments thereof in respect of the Securities for
U.S.
federal income tax purposes and (iii) the comparable yield and the schedule
of projected payments do not constitute a projection or representation regarding
the amounts payable on the Securities.
A
Holder
may obtain the projected payment schedule for the Security, as determined
by the
Company pursuant to the contingent debt regulations, by submitting a written
request to the Company at the following address: Linear Technology Corporation,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial
Officer.
(b) Each
Security shall bear a legend relating to U.S. federal income tax matters
in the
form set forth in Exhibit A.
ARTICLE
3
[Reserved]
ARTICLE
4
[Reserved]
22
ARTICLE
5
Redemption
and Repurchases
Section
5.01 Company’s
Right to Redeem; Notices to Trustee.
Prior
to
May 1, 2014, the Securities shall not be redeemable at the Company’s
option. On or after May 1, 2014, the Company, at its option, may redeem the
Securities for Cash at any time, in whole or in part, at a redemption price
(the
“Redemption
Price”)
equal
to 100% of the principal amount of the Securities being redeemed, plus any
accrued and unpaid interest (including Contingent Interest or Additional
Interest, if any) to, but not including, the Redemption Date; provided
that if
the Redemption Date falls after an Interest Payment Record Date and prior
to the
corresponding Interest Payment Date, accrued and unpaid interest (including
Contingent Interest or Additional Interest, if any) shall be paid to the
Holder
on the relevant Interest Payment Record Date. If the Company elects to redeem
Securities pursuant to this Section 5.01, it shall notify the Trustee in
writing
of such election together with the Redemption Date, the Conversion Rate,
the
principal amount of Securities to be redeemed and the Redemption Price.
Notwithstanding the foregoing, the Company may not redeem the Securities
if it
has failed to pay any interest (including Contingent Interest or Additional
Interest, if any) on the Securities when due and such failure to pay is
continuing.
The
Company shall give the notice to the Trustee provided for in this Section
5.01
by a Company Order, at least 20 days but not more than 60 days before the
Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee).
Section
5.02 Selection
of Securities to Be Redeemed.
If
the
Company decides to redeem fewer than all of the Securities, unless the
procedures of the Depositary provide otherwise, the Trustee shall select
the
Securities to be redeemed by lot, or in its discretion, on a pro rata basis.
The
Trustee may select for redemption portions of the principal amount of Securities
that have denominations larger than $1,000.
Securities
and portions of Securities that the Trustee selects shall be in principal
amounts of $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly (but in any case within seven days of the Company Order referred
to in
Section 5.01 unless a shorter notice is acceptable to the Company) of the
Securities or portions of the Securities selected to be redeemed and, in
the
case of any Securities selected for partial redemption, the method it has
chosen
for the selection of the Security.
Following
a notice of redemption, Securities and portions of Securities are convertible,
pursuant to Section 7.01(b)(iii), by the Holder until the Close of Business
on the Business Day prior to the Redemption Date. If any Security selected
for
partial redemption is converted in part before termination of the conversion
right with respect to the portion of the Security so selected, the converted
portion of such Security shall be deemed (so far as may be) to be the portion
selected for redemption. Securities that have been converted during a selection
of Securities to be redeemed may be treated by the Trustee as outstanding
for
the purpose of such selection.
Section
5.03 Notice
of Redemption.
At
least
20 days but no more than 60 days before a Redemption Date, the Company shall
mail a notice of redemption (substantially in the form set forth in Exhibit
A)
by first-class mail, postage prepaid, to each Holder of Securities to be
redeemed.
The
notice shall identify the Securities to be redeemed and shall state (along
with
any other information the Company wishes to include):
(a) the
Redemption Date;
(b) the
Redemption Price;
(c) the
Conversion Rate;
(d) the
name
and address of the Paying Agent and Conversion Agent;
23
(e) that
Securities may be converted at any time before the Close of Business on the
Business Day prior to the Redemption Date;
(f) that
Securities called for redemption and not converted shall be redeemed on the
Redemption Date;
(g) that
Holders who want to convert their Securities must satisfy the requirements
set
forth in the Securities;
(h) that
Securities called for redemption must be surrendered to the Paying Agent
(by
effecting book entry transfer of the Securities or delivering Certificated
Securities, together with necessary endorsements, as the case may be) to
collect
the Redemption Price;
(i) if
fewer
than all of the outstanding Securities are to be redeemed, the certificate
numbers, if any, and principal amounts of the particular Securities to be
redeemed;
(j) that,
unless the Company defaults in making payments of such Redemption Price,
interest, including Contingent Interest, if any, and Additional Interest,
if
any, on the Securities called for redemption shall cease to accrue from and
after the Redemption Date; and
(k) the
CUSIP, “ISIN” or other similar number(s), as the case may be, of the Securities
being redeemed.
At
the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at the Company’s expense, provided
that the
Company makes such request at least seven Business Days (or such shorter
period
as may be satisfactory to the Trustee) prior to the date by which such notice
of
redemption must be given to Holders in accordance with this
Section 5.03.
Section
5.04 Effect
of Notice of Redemption.
Once
notice of redemption is given, Securities called for redemption become due
and
payable on the Redemption Date and at the Redemption Price stated in the
notice
except for Securities that are converted in accordance with the terms of
this
Indenture. Upon surrender to the Paying Agent, such Securities shall be paid
at
the Redemption Price stated in the notice and from and after the Redemption
Date
(unless the Company shall default in the payment of the Redemption Price)
such
Securities shall cease to bear interest (including Contingent Interest or
Additional Interest, if any) and the rights of the Holders therein shall
terminate (other than the right to receive the Redemption Price).
Section
5.05 Deposit
of Redemption Price.
Prior
to
10:00 a.m. (New York City time), on the Redemption Date, the Company shall
deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate
of either of them is the Paying Agent, shall segregate and hold in trust)
money
sufficient to pay the Redemption Price of all Securities to be redeemed on
that
date other than Securities or portions of Securities called for redemption
which
on or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted. Upon written request of the Company,
the
Paying Agent shall as promptly as practicable return to the Company any money
not required for that purpose because of conversion of Securities pursuant
to
Article 7. If such money is then held by the Company or a Subsidiary or an
Affiliate of either in trust and is not required for such purpose it shall
be
discharged from such trust.
24
Section
5.06 Securities
Redeemed in Part.
Upon
surrender of a Security that is redeemed in part, the Company shall execute
and
the Trustee shall, without charge, authenticate and deliver to the Holder
a new
Security in an authorized denomination equal in principal amount to the
unredeemed portion of the Security surrendered.
Section
5.07 Repurchase
of Securities by the Company at Option of the Holder.
(a)
On each of May 1, 2014, May 1, 2017 and May 1, 2022 (each, a “Specified Repurchase
Date”),
each
Holder shall have the option to require the Company to repurchase Securities
for
which that Holder has properly delivered and not withdrawn a written Repurchase
Notice (as described below) at a repurchase price in cash equal to 100% of
the principal amount of those Securities, plus accrued and unpaid interest,
including Contingent Interest or Additional Interest, if any, on those
Securities, to, but not including, such Specified Repurchase Date (the
“Repurchase
Price”);
provided
that if
the Specified Repurchase Date is on a date that is after an Interest Payment
Record Date and on or prior to the corresponding Interest Payment Date, the
Repurchase Price shall be 100% of the principal amount of the Securities
repurchased but shall not include accrued and unpaid interest, including
Contingent Interest or Additional Interest, if any. Instead, the Company
shall
pay such accrued and unpaid interest, Contingent Interest, if any, and
Additional Amounts, if any, on the Interest Payment Date, to the Holder of
record on the corresponding Interest Payment Record Date. Not later than
20
Business Days prior to any Specified Repurchase Date, the Company shall mail
a
Company Notice (substantially in the form set forth in Exhibit A) by first
class mail to the Trustee and to each Holder (and to beneficial owners if
required by applicable law). The Company Notice shall include a form of
Repurchase Notice to be completed by a Holder and shall state:
(i)
the
Repurchase Price and the Conversion Rate;
(ii)
the
name
and address of the Paying Agent and the Conversion Agent;
(iii)
that
Securities as to which a Repurchase Notice has been given may be converted
if
they are otherwise convertible only in accordance with Article 7 hereof and
the
terms of the Securities if the applicable Repurchase Notice has been withdrawn
in accordance with the terms of this Indenture;
(iv)
that
Securities must be surrendered to the Paying Agent (by effecting book entry
transfer of the Securities or delivering Certificated Securities, together
with
necessary endorsements, as the case may be) to collect
payment;
(v)
that
the
Repurchase Price for any security as to which a Repurchase Notice has been
given
and not withdrawn shall be paid promptly following the later of the Business
Day
immediately following the Repurchase Date and the time of surrender of such
Security as described in clause (iv) above;
(vi)
the
procedures the Holder must follow to exercise its right to require the Company
to repurchase such Holder’s Securities under this Section 5.07 and a brief
description of that right;
(vii)
briefly,
the conversion rights, if any, that exist at the date of the Company Notice
or
as a result of the Company Notice with respect to the Securities;
(viii)
the
procedures for withdrawing a Repurchase Notice;
(ix)
that,
unless the Company defaults in making payment on Securities for which a
Repurchase Notice has been submitted, interest, Contingent Interest, if any,
or
Additional Interest, if any, on such Securities shall cease to accrue from
and
after the Repurchase Date;
25
(x)
the
CUSIP, “ISIN” or other similar number(s), as the case may be, of the
Securities;
(xi)
that
any
Security not properly tendered or otherwise not accepted for repurchase shall
remain outstanding and continue to accrue interest, Contingent Interest,
if any,
and Additional Interest, if any;
(xii)
that,
in
order to withdraw any Repurchase Notice previously delivered by a Holder
to the
Paying Agent, the Holder must deliver to the Paying Agent, by 5:00 p.m. (New
York time) on the day that is the second Business Day prior to the Repurchase
Date, a written notice of withdrawal specifying (A) the certificate number,
if
any, of the Securities in respect of which such notice of withdrawal is being
submitted, (B) the principal amount of Securities in respect of which such
notice of withdrawal is being submitted (or if the Securities are not in
definitive form, the notice of withdrawal must comply with the Applicable
Procedures), and (C) if the Holder is not withdrawing its Repurchase Notice
for
all of its Securities, the principal amount of the Securities which still
remain
subject to the original Repurchase Notice; and
(xiii)
that
Holders whose Securities are being repurchased only in part will be issued
new
Securities equal in principal amount to the portion of the Securities tendered
(or transferred by book-entry transfer) that is not to be repurchased, which
portion must be equal to $1,000 in principal amount or an integral multiple
thereof.
At
the
Company’s request, the Trustee shall give such Company Notice to each Holder in
the Company’s name and at the Company’s expense; provided,
however,
that,
in all cases, the text of such Company Notice shall be prepared by the
Company.
(b)
A
Holder
may exercise its rights specified in Section 5.07(a) upon delivery to the
Paying Agent of a written notice of repurchase substantially in the form
set
forth in Exhibit A (a “Repurchase
Notice”) during
the period beginning at any time from the opening of business on the date
that
is 20 Business Days prior to the relevant Repurchase Date until the Close
of
Business on the Business Day immediately preceding such Specified Repurchase
Date, stating:
(i)
if
Certificated Securities have been issued, the certificate number(s) of the
Securities which the Holder shall deliver to be repurchased or, if Certificated
Securities have not been issued for such Security, the Repurchase Notice
shall
comply with the appropriate Depositary procedures for book-entry
transfer;
(ii)
the
portion of the principal amount of the Security which the Holder shall deliver
to be repurchased, which portion must be in principal amounts of $1,000 or
an
integral multiple of $1,000; and
(iii)
that
such
Security shall be repurchased by the Company as of the Repurchase Date pursuant
to the terms and conditions specified in Section 6 of the Securities and
in this
Indenture.
The
delivery of such Security (together with all necessary endorsements) to the
Paying Agent at any time after delivery of the Repurchase Notice at the offices
of the Paying Agent shall be a condition to receipt by the Holder of the
Specified Repurchase Price therefor; provided,
however,
that
such Repurchase Price shall be so paid pursuant to this Section 5.07 only
if the
Security (together with all necessary endorsements) so delivered to the
Paying Agent shall conform in all respects to the description thereof in
the
related Repurchase Notice.
26
The
Company shall repurchase from the Holder thereof, pursuant to this Section
5.07,
a portion of a Security, if the principal amount of such portion is $1,000
or an
integral multiple of $1,000. Provisions of this Indenture that apply to the
repurchase of all of a Security also apply to the repurchase of such portion
of
such Security.
Any
repurchase by the Company contemplated pursuant to the provisions of this
Section 5.07 shall be consummated by the delivery of the consideration to
be
received by the Holder promptly following the later of the Business Day
immediately following the Specified Repurchase Date and the time of delivery
of
the Security (together with all necessary endorsements or notifications of
book-entry transfer).
Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent
the
Repurchase Notice contemplated by this Section 5.07 shall have the right
to
withdraw such Repurchase Notice by delivery of a written notice of withdrawal
to
the Paying Agent in accordance with Section 5.09(b) at any time prior to
the
Close of Business on the second Business Day prior to the Specified Repurchase
Date.
The
Paying Agent shall promptly notify the Company of the receipt by it of any
Repurchase Notice or written notice of withdrawal thereof.
Section
5.08 Purchase
of Securities at Option of the Holder upon a Fundamental
Change.
(a) In
the event a Fundamental Change shall occur at any time when any Securities
remain outstanding, each Holder shall have the right, at such Holder’s option,
to require the Company to purchase all of such Holders’ Securities not called
for redemption or any portion of the principal amount thereof that is equal
to
$1,000 or an integral multiple thereof on a date specified by the Company
(the
“Fundamental
Change Purchase Date”,
together with the Specified Purchase Dates, the “Repurchase
Dates”)
that
is not less than 15 nor more than 45 Business Days after the date the Company
mails the Fundamental Change Company Notice pursuant to Section 5.08(b),
at a
purchase price in Cash equal to 100% of the principal amount of the Securities
tendered for purchase, plus accrued and unpaid interest (including Contingent
Interest and Additional Interest, if any) on those Securities to, but not
including, the Fundamental Change Purchase Date (the “Fundamental
Change Purchase Price”),
subject to satisfaction by or on behalf of any Holder of the requirements
set
forth in Section 5.08(c).
A
“Fundamental
Change”
shall
be deemed to have occurred upon the occurrence of any of the
following:
(i) any
“person” or “group” (other than the Company or its employee benefit plans)
becomes the “beneficial owner,” directly or indirectly, of shares of the
Company’s voting stock representing 50% or more of the total voting power of all
outstanding classes of the Company’s voting stock or has the power, directly or
indirectly, to elect a majority of the members of the board of directors
of the
Company and (a) such person or group files a Schedule 13D or Schedule TO,
or any
successor schedule, form or report under the Exchange Act, disclosing the
same
or (b) the Company otherwise becomes aware of any such person or
group;
(ii) the
Company consolidates with, or merges with or into, another person, or in
a
single transaction or a series of transactions, the Company sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially
all of
its assets, or any person consolidates with, or merges with or into, the
Company, in any such event other than pursuant to a transaction in which
the
persons that “beneficially owned” directly or indirectly, the shares of the
Company’s voting stock immediately prior to such transaction beneficially own,
directly or indirectly, shares of voting stock representing a majority of
the
total voting power of all outstanding classes of voting stock of the surviving
or transferee person in substantially the same proportion amongst themselves
(disregarding for this purpose any shares of voting stock (a) received as
consideration for the capital stock of any person other than the Company
or
(b) held prior to such transaction and issued by a person other than the
Company) as such ownership immediately prior to such transaction;
27
(iii) the
common stock into which the Securities are then convertible ceases to be
listed
on the NYSE, Nasdaq or another national securities exchange and is not then
quoted on an established automated over-the-counter trading market in the
United
States and no American Depositary Shares or similar instruments for the common
stock are so listed or quoted in the United States;
(iv) continuing
directors cease to constitute a majority of the Company’s board of directors;
or
(v) the
Company’s stockholders approve any plan or proposal for the Company’s
liquidation or dissolution.
Subject
to the next succeeding paragraph, “Makewhole
Fundamental Change”
shall
be deemed to have occurred upon the occurrence of a Fundamental Change described
in clauses (i), (ii), and (v) above.
Notwithstanding
anything to the contrary set forth in this Indenture, a merger or consolidation
described in clause (ii) above shall be deemed not to constitute a Fundamental
Change for any purpose under the definition of Fundamental Change if at least
90% of all the consideration (excluding Cash payments for fractional shares
and
Cash payments pursuant to dissenters’ appraisal rights) in the merger or
consolidation constituting the Fundamental Change consists of common stock
traded on the NYSE, Nasdaq or another national securities exchange (or which
shall be so traded when issued or exchanged in connection with such merger
or
consolidation) and as a result of such transaction or transactions the
Securities become convertible solely into Cash in an amount equal to the
lesser
of $1,000 and the Conversion Value and, if the Conversion Value is greater
than
$1,000, payment of the excess value in Cash, shares or a combination of Cash
and
shares in substantially the same manner as described herein.
For
purposes of this Section 5.08:
| · |
“person”
and “group”
shall have the meanings given to them for purposes of Sections 13(d)
and
14(d) of the Exchange Act or any successor provisions, and the term
“group” includes any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under
the
Exchange Act, or any successor provision;
|
| · |
a
“beneficial
owner”
shall be determined in accordance with Rule 13d-3 under the Exchange
Act,
as in effect on the date of this
Indenture;
|
| · |
“beneficially
own”
and “beneficially
owned”
have meanings correlative to that of beneficial
owner;
|
| · |
“board
of directors”
means the board of directors or other governing body charged with
the
ultimate management of any person;
|
28
| · |
“capital
stock”
means: (i) in the case of a corporation, corporate stock; (ii) in
the case
of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated)
of
corporate stock; (iii) in the case of a partnership or limited liability
company, partnership interests (whether general or limited) or membership
interests; or (iv) any other interest or participation that confers
on a
person the right to receive a share of the profits and losses of,
or
distributions of assets of, the issuing
person;
|
| · |
“continuing
director”
means a director who either was a member of the Company’s board of
directors on April 18, 2007, or who becomes a member of the board of
directors subsequent to that date and whose election, appointment
or
nomination for election by the Company’s stockholders is duly approved by
a majority of the continuing directors on the board of directors
at the
time of such approval, either by a specific vote or by approval of
the
proxy statement issued by the Company on behalf of the Company’s entire
board of directors in which such individual is named as a nominee
for
director; and
|
| · |
“voting
stock”
means any class or classes of capital stock or other interests then
outstanding and normally entitled (without regard to the occurrence
of any
contingency) to vote in the election of the board of
directors.
|
(b) Notice
of Fundamental Change.
Within
30 Business Days after the effective date of each Fundamental Change, the
Company shall notify the Trustee of the Fundamental Change Purchase Date
and
shall mail a written notice of the Fundamental Change (the “Fundamental
Change Company Notice”)
to
each Holder (and to beneficial owners as required by applicable law) in
accordance with Section 16.02. The notice shall include the form of a
Fundamental Change Purchase Notice to be completed by the Holder and shall
state, as applicable:
(i) the
events causing such Fundamental Change and the date of such Fundamental
Change;
(ii) that
the
Holder has a right to require the Company to purchase the Holder’s
Securities;
(iii) the
date
by which the Fundamental Change Purchase Notice must be delivered to the
Paying
Agent in order for a Holder to exercise the Fundamental Change purchase
right;
(iv) the
Fundamental Change Purchase Date;
(v) the
Fundamental Change Purchase Price;
(vi) the
procedures that the Holder must follow to exercise its Fundamental Change
purchase right under this Section 5.08;
(vii) the
names
and addresses of the Paying Agent and the Conversion Agent;
(viii) that
the
Securities must be surrendered to the Paying Agent to collect payment of
the
Fundamental Change Purchase Price;
(ix) that
the
Fundamental Change Purchase Price for any Security as to which a Fundamental
Change Purchase Notice has been duly given and not withdrawn shall be paid
promptly following the later of the Fundamental Change Purchase Date and
the
time of surrender of such Security;
29
(x) the
Conversion Rate (after giving effect to any change in the Conversion Rate
that
resulted from the Fundamental Change) and any increase in the Conversion
Rate
that shall result from the Fundamental Change;
(xi) that
the
Securities with respect to which a Fundamental Change Purchase Notice has
been
given may be converted pursuant to Article 7 of this Indenture only if either
(i) the Fundamental Change Purchase Notice has been withdrawn in accordance
with
the terms of this Indenture or (ii) there shall be a default in the payment
of
the Fundamental Change Purchase Price;
(xii) the
procedures for withdrawing a Fundamental Change Purchase Notice;
(xiii) that,
unless the Company defaults in making payment of such Fundamental Change
Purchase Price, interest (including Contingent Interest or Additional Interest,
if any) on Securities surrendered for purchase by the Company shall cease
to
accrue on and after the Fundamental Change Purchase Date; and
(xiv) the
CUSIP
number(s) of the Securities.
If
any of
the Securities are in the form of a Global Security, then the Company shall
modify such notice to the extent necessary to accord with the Applicable
Procedures for repurchases.
At
the
Company’s request, the Trustee shall give the Fundamental Change Company Notice
on behalf of the Company and at the Company’s expense; provided,
however,
that
the Company makes such request at least three Business Days (unless a shorter
period shall be consented to by the Trustee) prior to the date by which such
Fundamental Change Company Notice must be given to the Holders in accordance
with this Section 5.08(b); provided further,
however,
that
the text of such notice shall be prepared by the Company.
(c) Fundamental
Change Purchase Notice.
A
Holder may exercise its right specified in Section 5.08(a) upon delivery
of a
written notice (which shall be in substantially the form included in Exhibit
A
hereto and which may be delivered by letter, overnight courier, hand delivery,
facsimile transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in accordance
with
the Applicable Procedures) of the exercise of such rights (a “Fundamental
Change Purchase Notice”)
to and
actually received by a Paying Agent at any time prior to 5:00 p.m., New York
City time, on the Business Day immediately preceding the Fundamental Change
Purchase Date. The Fundamental Change Purchase Notice must state:
(i) if
Certificated Securities are to be delivered, the certificate numbers of the
Securities that the Holder shall deliver to be purchased;
(ii) the
portion of the principal amount of the Securities that the Holder shall deliver
to be purchased, which portion must be in principal amounts of $1,000 or
an
integral multiple thereof; and
(iii) that
such
Securities shall be purchased by the Company on the Fundamental Change Purchase
Date pursuant to the terms and conditions specified in this
Indenture.
30
The
delivery of such Security to any Paying Agent (together with all necessary
endorsements) at the office of such Paying Agent shall be a condition to
the
receipt by the Holder of the Fundamental Change Purchase Price; provided,
however,
that
such Fundamental Change Purchase Price shall be paid pursuant to this Section
5.08 only if the Security so delivered to the Paying Agent shall conform
in all
material respects to the description thereof in the related Fundamental Change
Purchase Notice.
The
Company shall purchase from the Holder thereof, pursuant to this Section
5.08, a
portion of a Security if the principal amount of such portion is $1,000 or
an
integral multiple of $1,000. Provisions of this Section 5.08 that apply to
the
purchase of all of a Security also apply to the purchase of such a portion
of
such Security.
Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent
the
Fundamental Change Purchase Notice contemplated by this Section 5.08(c) shall
have the right to withdraw such Fundamental Change Purchase Notice at any
time
prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Fundamental Change Purchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section
5.09(b).
A
Paying
Agent shall promptly notify the Company once each Business Day of the receipt
by
it of any Fundamental Change Purchase Notices or written notices of withdrawal
thereof.
(d) Notwithstanding
anything herein to the contrary, in the case of Global Securities, any
Fundamental Change Purchase Notice may be delivered or withdrawn, and such
Securities may be surrendered or delivered for purchase, in accordance with
the
Applicable Procedures.
Section
5.09 Effect
of Repurchase Notice or Fundamental Change Purchase Notice.
(a)
Upon
receipt by any Paying Agent of a Repurchase Notice or a Fundamental Change
Purchase Notice, the Holder of the Security in respect of which such Repurchase
Notice or Fundamental Change Purchase Notice, as the case may be, was given
shall (unless such Repurchase Notice or Fundamental Change Purchase Notice
is
withdrawn as specified below) thereafter be entitled to receive the Repurchase
Price or Fundamental Change Purchase Price, as the case may be, with respect
to
such Security. Such Fundamental Change Purchase Price shall be paid to such
Holder promptly following the later of (i) the Fundamental Change Purchase
Date
(provided such Holder has satisfied the conditions in Section 5.08(c)) with
respect to such Security or Repurchase Date (provided such Holder has satisfied
the conditions of Section 5.07) with respect to such Security, as the case
may
be, and (ii) the time of delivery of such Security to a Paying Agent by the
Holder thereof in the manner required by Section 5.07 or 5.08(c). A Security
in
respect of which a Repurchase Notice or a Fundamental Change Purchase Notice
has
been given by the Holder thereof may not be converted pursuant to Article
7
hereof on or after the date of the delivery of such Repurchase Notice or
Fundamental Change Purchase Notice, unless either (i) such Repurchase Notice
or
Fundamental Change Purchase Notice has first been validly withdrawn in
accordance with Section 5.09(b); or (ii) there shall be a default in the
payment
of the Repurchase Price or Fundamental Change Purchase Price, provided,
that
the conversion right with respect to such Security shall terminate at 5:00
p.m.,
New York City time, on the date such default is cured and such Security is
purchased in accordance herewith.
(b) A
Repurchase Notice or Fundamental Change Purchase Notice may be withdrawn
by any
Holder delivering such Fundamental Change Purchase Notice upon delivery of
a
written notice of withdrawal (which may be delivered by mail, overnight courier,
hand delivery, facsimile transmission or in any other written form and, in
the
case of Global Securities, may be delivered electronically or by other means
in
accordance with the Applicable Procedures) to and actually received by Paying
Agent at any time prior to 5:00 p.m., New York City time, on the second Business
Day immediately preceding the Repurchase Date or the Business Day immediately
preceding the Fundamental Change Purchase Date, specifying:
31
(i) if
Certificated Securities are to be withdrawn, the certificate numbers of the
Securities in respect of which such notice of withdrawal is being
submitted;
(ii) the
principal amount of the Securities in respect of which such notice of withdrawal
is being submitted, which principal amount must be $1,000 or an integral
multiple thereof; and
(iii) the
principal amount, if any, of the Securities that remains subject to the original
Repurchase Notice or Fundamental Change Purchase Notice, as the case may
be, and
that has been or shall be delivered for purchase by the Company.
Section
5.10 Deposit
of Repurchase Price or Fundamental Change Purchase Price.
Prior
to
10:00 a.m., New York City time, on a Repurchase Date, the Company shall deposit
with the Paying Agent (or if the Company or an Affiliate of the Company is
acting as the Paying Agent, shall segregate and hold in trust as provided
in
Section 2.04) an amount in Cash (in immediately available funds) sufficient
to
pay the aggregate Repurchase Price or Fundamental Change Purchase Price,
as the
case may be, of all the Securities or portions thereof that are to be purchased
on that Repurchase Date.
If
a
Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m., New
York
City time, on a Repurchase Date, Cash sufficient to pay the aggregate Repurchase
Price or Fundamental Change Purchase Price, as the case may be, of all
Securities for which a Repurchase Notice or Fundamental Change Purchase Notice
has been delivered and not validly withdrawn in accordance with this Indenture,
then, on and after such Repurchase Date, such Securities shall cease to be
outstanding and interest (including Contingent Interest or Additional Interest,
if any) on such Securities shall cease to accrue, whether or not such Securities
are delivered to the Paying Agent, and the rights of the Holders in respect
thereof shall terminate (other than the right to receive the Repurchase Price
or
Fundamental Change Purchase Price, as applicable, upon delivery of such
Securities by their Holders to the Paying Agent).
Section
5.11 Securities
Purchased in Part.
Any
Certificated Security that is to be purchased only in part shall be surrendered
at the office of a Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
reasonably satisfactory to the Company and the Trustee duly executed by,
the
Holder thereof or such ▇▇▇▇▇▇’s attorney duly authorized in writing), and
promptly after a Repurchase Date, the Company shall issue and the Trustee
shall,
upon receipt of a Company Order (which the Company agrees to deliver promptly),
authenticate and deliver to the Holder of such Security, without service
charge,
a new Security or Securities, of such authorized denomination or denominations
as may be requested by such Holder, in aggregate principal amount equal to,
and
in exchange for, the portion of the principal amount of the Security so
surrendered that is not purchased.
Section
5.12 Repayment
to the Company.
To
the
extent that the aggregate amount of Cash deposited by the Company pursuant
to
Section 5.10 exceeds the aggregate Repurchase Price or Fundamental Change
Purchase Price, as the case may be, of the Securities or portions thereof
that
the Company is obligated to purchase on the applicable Repurchase Date, then,
within one day after the applicable Repurchase Date, the Paying Agent shall
return any such excess Cash to the Company.
Section
5.13 Compliance
with Securities Laws upon Purchase of Securities.
When
complying with the provisions of Article 5 hereof and subject to any exemptions
available under applicable law, the Company shall:
32
(a) comply
with Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange
Act that may then be applicable;
(b) file
a
Schedule TO or other successor or similar schedule, if required, under the
Exchange Act; and
(c) otherwise
comply with all federal and state securities laws so as to permit the rights
and
obligations in connection with any purchase pursuant to this Article 5 to
be
exercised in the time and in the manner specified herein.
ARTICLE
6
[Reserved]
ARTICLE
7
Conversion
Section
7.01 Conversion
Privilege.
(a)
Subject
to and upon compliance with the provisions of this Article 7, at the option
of
the Holder thereof, any Security, in whole or in part, may be converted into
the
Settlement Amount, at a rate (the “Conversion
Rate”)
of
20.00 shares of Common Stock per $1,000 principal amount of Securities, subject
to adjustment pursuant to Section 7.05, prior to the Close of Business on
the
Business Day immediately preceding the Maturity Date.
(b) The
Securities shall be convertible (i) at any time on or after March 1, 2027
and prior to the Close of Business on the Business Day immediately preceding
the
Maturity Date and (ii) prior to March 1, 2027, only upon the
occurrence of one of the following events:
(i) During
any calendar quarter after the calendar quarter ending June 30, 2007 and
only
during such calendar quarter, if the Closing Price of the Common Stock for
twenty (20) or more Trading Days in a period of 30 consecutive Trading Days
ending on the last Trading Day of the preceding calendar quarter is more
than
130% of the Conversion Price on such last Trading Day. Commencing July 1,
2007
and at the beginning of each calendar quarter thereafter, the Conversion
Agent
shall determine, on the Company’s behalf, whether the Securities are convertible
as the result of the satisfaction of this condition in the preceding calendar
quarter and shall promptly notify the Company and the Trustee accordingly.
The
Trustee shall, in turn, notify the Holders in each calendar quarter but in
no
event later than seven (7) days after the beginning of such calendar
quarter.
(ii) During
any five Business Day period after any five consecutive Trading Day period
(the
“Measurement
Period”)
in
which the Trading Price per $1,000 principal amount of Securities for each
day
of such Measurement Period was less than 98% of the product of the Closing
Price
on such date and the Conversion Rate on such date, all as determined by the
Trustee. The Trustee shall have no obligation to determine the Trading Price
of
Securities unless requested by the Company to do so in writing, and the Company
shall have no obligation to make such request unless a Holder provides the
Company with reasonable evidence that the Trading Price per $1,000 principal
amount of Securities would be less than 98% of the product of (a) the Conversion
Rate of the Securities and (b) the Closing Price at such time, at which time
the
Company shall instruct the Trustee to determine the Trading Price of the
Securities beginning on the next Trading Day and on each successive Trading
Day
until the Trading Price per $1,000 principal amount of Securities is greater
than or equal to 98% of the product of (a) the Conversion Rate of the Securities
and (b) the Closing Price on such date. If the Trading Price condition set
forth
in this Section 7.01(b)(ii) has been met, the Company shall so notify the
Holders. If, at any time after the Trading Price condition set forth in this
Section 7.01(b)(ii) has been met, the Trading Price per $1,000 principal
amount
of Securities is greater than or equal to 98% of the product of (a) the
Conversion Rate of the Securities and (b) the Closing Price on such date,
the
Company shall so notify the Holders.
33
(iii) If
any of
the Securities are called for redemption pursuant to Section 5.01 at any
time
prior to the Close of Business on the Business Day prior to the Redemption
Date,
even if the Securities are not otherwise convertible at such time.
(iv) If
the
Company elects to distribute to all holders of Common Stock:
(A) certain
rights (including rights under a stockholder rights plan) or warrants entitling
them to purchase, for a period expiring within 45 days of the date of issuance,
shares of Common Stock at less than the average of the Closing Price for
the
five consecutive Trading Day period ending on the Trading Day preceding the
announcement of such distribution; or
(B) cash,
assets, debt securities or certain rights to purchase the Company’s securities,
which distribution has a per share value exceeding 7.5% of the Closing Price
of
the Common Stock on the Trading Day immediately preceding the announcement
of
such distribution;
then,
in
either case, the Company shall notify the Holders at least 25 Trading Days
prior
to the ex-dividend date for such distribution; provided
that if
the Company distributes rights pursuant to a stockholder rights plan, it
shall
notify the holders of the Securities on the Business Day after the Company
is
required to give notice generally to its stockholders pursuant to such
stockholder rights plan if such date is less than 25 Trading Days prior to
the
date of such distribution. Once the Company has given the notice, Holders
may
surrender their Securities for conversion at any time until the earlier of
the
Close of Business on the Business Day prior to the ex-dividend date or the
Company’s announcement that such distribution will not take place.
Notwithstanding the foregoing, a Holder may not convert its Securities under
this Section 7.01(b)(iv) if the Holder participates in such distribution
due to
the participation of Holders in such distribution.
(v) If
the
Company is a party to any transaction or an event occurs that constitutes
a
Fundamental Change, a Holder may surrender Securities for conversion at any
time
from and after the date which is ten (10) Trading Days prior to the anticipated
effective date of such Fundamental Change until and including the Trading
Day
prior to the related Fundamental Change Repurchase Date. The Company shall
give
notice in writing to all Holders and the Trustee of a Fundamental Change
no
later than ten (10) Trading Days prior to the anticipated effective date
of the
Fundamental Change that the Company knows or reasonably should know will
occur.
If the Company does not know, and should not reasonably know, that a Fundamental
Change will occur until a date that is within ten (10) Trading Days before
the
anticipated effective date of such Fundamental Change, the Company shall
give
notice in writing to all Holders and the Trustee of the Fundamental Change
promptly after the Company has knowledge of such Fundamental Change. The
Board
of Directors shall determine in good faith the anticipated effective date
of the
Fundamental Change, and such determination shall be conclusive and binding
on
the Holders and shall be publicly announced by the Company not later than
two
Business Days prior to the end of such 10 Trading Day period.
(c) If
a
Holder elects to convert Securities in connection with a Makewhole Fundamental
Change that has an Effective Date prior to May 1, 2014, the Company shall
increase the Conversion Rate by an additional number of shares of Common
Stock
(the “Additional
Shares”)
set
forth in Exhibit B. For purposes of this Section 7.01, any conversion occurring
at a time when the Securities would be convertible in light of the expected
or
actual occurrence of a Makewhole Fundamental Change shall be deemed to have
occurred “in connection” with a Makewhole Fundamental Change to the extent that
such conversion is effected during the time period specified in Section
7.01(b)(v) (regardless of whether the provisions of Section 7.01(b) shall
apply
to such conversion).
34
The
increase in the Conversion Rate, expressed as a number of Additional Shares
per
$1,000 principal amount of Securities, will be determined by the Company
by
reference to the table attached as Exhibit B hereto, based on the date the
Makewhole Fundamental Change occurs or becomes effective (the “Effective
Date”)
and the
price paid or deemed to be paid per share of Common Stock in the transaction
constituting the Makewhole Fundamental Change (the “Stock
Price”);
provided
that if
a Holder of the Common Stock receives only Cash in connection with a Fundamental
Change described in clause (ii) of the definition thereof contained in Section
5.08(a), the Stock Price shall be the Cash amount paid per share. In all
other
cases, the Stock Price shall be the average of the Closing Price of the Common
Stock over the five consecutive Trading Day period ending on the Trading
Day
preceding the Effective Date of the Fundamental Change, provided
that if
the Stock Price is between two Stock Price amounts in the table or the Effective
Date is between two Effective Dates in the table, the Company shall determine
the increased Conversion Rate by a straight-line interpolation between the
number of Additional Shares set forth for the next higher and next lower
Stock
Price amounts and the next earliest and next latest Effective Dates, based
on a
365 day year, as applicable. The Stock Price set forth in the first column
of
the table attached as Exhibit B hereto shall be adjusted as of any date on
which
the Conversion Rate is adjusted pursuant to Section 7.05. The adjusted Stock
Prices shall equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the Conversion
Rate immediately prior to the adjustment giving rise to the Stock Price
adjustment and the denominator of which is the Conversion Rate as so adjusted.
The number of Additional Shares shall be adjusted in the same manner as the
Conversion Rate is adjusted pursuant to Section 7.05. If (1) the Stock Price
is
greater than $150.00 per share of Common Stock (subject to adjustment in
the
same manner as the Stock Price) no increase in the Conversion Rate will be
made,
and (2) the Stock Price is less than $36.05 per share (subject to adjustment
in
the same manner as the Stock Price), no increase in the Conversion Rate will
be
made. Notwithstanding the foregoing, in no event will the number of Additional
Shares in connection with a Makewhole Fundamental Change exceed 7.74 per
$1,000
principal amount of Securities (subject to adjustment in the same manner
as set
forth in Section 7.05).
(d) If
the
Company is required to increase the Conversion Rate in connection with a
Makewhole Fundamental Change pursuant to clause (c) above, Securities
surrendered for conversion will be settled as follows (subject in all respects
to the provisions set forth in Section 7.13):
(i) If
the
last day of the applicable Conversion Reference Period related to Securities
surrendered for conversion is prior to the third Trading Day preceding the
anticipated Effective Date of such Makewhole Fundamental Change, the Company
shall settle such conversion as described in Section 7.13 by delivering the
amount of consideration due (as described in Section 7.13, based on the
Conversion Rate without regard to the number of Additional Shares to be added
to
the Conversion Rate as provided in clause (c) above) on the third Trading
Day
immediately following the last day of the applicable Conversion Reference
Period. In addition, if a Makewhole Fundamental Change occurs, as soon as
practicable following the Effective Date of such Makewhole Fundamental Change,
the Company shall deliver the increase in such amount of Cash, shares of
Common
Stock or a combination of Cash and shares of Common Stock or Reference Property,
if any, as the case may be, as if the Conversion Rate had been increased
by such
number of Additional Shares during the related Conversion Reference Period
(and
based upon the relevant Daily Conversion Value during such Conversion Reference
Period). If such increased amount results in an increase to the amount of
Cash
to be paid to Holders, the Company shall pay such increase in Cash, and if
such
increased Settlement Amount results in an increase to the amount of Cash,
shares
of Common Stock or a combination of Cash and share of Common Stock, at the
Company’s option, the Company will deliver such increase by delivering Cash,
shares of Common Stock or a combination of Cash and shares of Common Stock
or
Reference Property based on such increase; and
35
(ii) If
the
last day of the applicable Conversion Reference Period related to the Securities
surrendered for conversion is on or following the third Trading Day preceding
the anticipated Effective Date of the Makewhole Fundamental Change, the Company
shall settle such conversion as described in Section 7.13 (based on the
Conversion Rate as increased by the Additional Shares as provided in clause
(c)
above) on the later to occur of (A) the Effective Date of the transaction
and (B) the third Trading Day immediately following the last day of the
applicable Conversion Reference Period.
Section
7.02 Conversion
Procedure.
(a)
The
right of conversion attaching to any Security may be exercised at any time
during which conversion is permitted in accordance with Section 7.01 (i)
if such
Security is represented by a Global Security, by book-entry transfer to the
Conversion Agent through the facilities of the Depositary in accordance with
the
Applicable Procedures, or (ii) if such Security is represented by a Certificated
Security, by delivery of such Security at the specified office of the Conversion
Agent, accompanied, in either case, by: (1) a duly signed and completed
conversion notice, in the form as set forth on the reverse of Security attached
hereto as Exhibit A (a “Conversion
Notice”);
(2)
if such Certificated Security has been lost, stolen, destroyed or mutilated,
a
notice to the Conversion Agent in accordance with Section 2.07 regarding
the
loss, theft, destruction or mutilation of the Security; (3) appropriate
endorsements and transfer documents if required by the Conversion Agent;
and (4)
payment of any tax or duty, in accordance with Section 7.03, which may be
payable in respect of any transfer involving the issue or delivery of the
Common
Stock in the name of a Person other than the Holder of the Security. The
date on
which the Holder satisfies all of those requirements is the “Conversion
Date.”
The
Securities shall be deemed to be converted immediately prior to the Close
of
Business on the Conversion Date. The Company shall deliver to the Holder
through
a Conversion Agent Cash and, if applicable, a certificate for the number
of
whole shares of Common Stock issuable upon the conversion (and Cash in lieu
of
any fractional shares pursuant to Section 7.13(h)) on the applicable date
specified for such delivery in Section 7.13(g) hereof.
(b) The
person in whose name the Security is registered shall, if shares of Common
Stock
are issuable upon conversion and if the Company so elects to issue all or
any
portion of such shares in lieu of paying Cash, be deemed to be a stockholder
of
record on the Conversion Date; provided,
however,
that no
surrender of a Security or satisfaction of the other conditions in Section
7.02(a) on any date when the stock transfer books of the Company shall be
closed
shall be effective to constitute the person or persons entitled to receive
the
shares of Common Stock upon such conversion as the record holder or holders
of
such shares of Common Stock on such date, but such surrender shall, provided
that all such conditions have been satisfied, be effective to constitute
the
person or persons entitled to receive such shares of Common Stock as the
record
holder or holders thereof for all purposes at the Close of Business on the
next
succeeding day on which such stock transfer books are open. Upon conversion
of a
Security, such person shall no longer be a Holder of such Security. No separate
payment or adjustment will be made for accrued and unpaid interest (including
Contingent Interest or Additional Interest, if any) on a converted Security
or
for dividends or distributions on shares of Common Stock issued upon conversion
of a Security. By delivering to the holder the Cash, shares or combination
of
Cash and shares of Common Stock issuable upon conversion, together with a
cash
payment in lieu of any fractional shares, the Company will satisfy its
obligation with respect to the conversion of the Securities. Accordingly,
any
accrued but unpaid interest (including Contingent Interest or Additional
Interest, if any) will be deemed paid in full upon conversion, rather than
cancelled, forfeited or extinguished.
36
(c) Upon
surrender of a Security that is converted in part, the Company shall execute,
and the Trustee shall, upon receipt of a Company Order, authenticate and
deliver
to the Holder, a new Security equal in principal amount of the unconverted
portion of the Security surrendered.
Section
7.03 Taxes
on Conversion.
If
a
Holder converts a Security, the Company shall pay any documentary, stamp
or
similar issue or transfer taxes or duties relating to the issuance or delivery
of shares of Common Stock upon exercise of such conversion rights. However,
the
Holder shall pay any tax or duty which may be payable relating to any transfer
involving the issuance or delivery of shares of Common Stock in a name other
than the Holder’s name. The Conversion Agent may refuse to deliver the
certificate representing shares of Common Stock being issued in a name other
than the Holder’s name until the Conversion Agent receives a sum sufficient to
pay any tax or duties which will be due because the shares are to be issued
in a
name other than the Holder’s name. Nothing herein shall preclude any tax
withholding required by law or regulation.
Section
7.04 Company
to Provide Stock.
(a)
The
Company shall, prior to the issuance of any Securities hereunder, and from
time
to time as may be necessary, reserve at all times and keep available, free
from
preemptive rights, out of its authorized but unissued Common Stock, a sufficient
number of shares of Common Stock deliverable upon conversion of all of the
Securities.
(b) All
shares of Common Stock that may be issued upon conversion of the Securities
shall be newly issued shares or shares held in the treasury of the Company,
shall be duly authorized, validly issued, fully paid and nonassessable and
shall
be free of any preemptive rights and free of any lien or adverse
claim.
(c) The
Company shall comply with all applicable securities laws regulating the offer
and delivery of any Common Stock upon conversion of Securities and, if the
Common Stock is then listed or quoted on the NYSE, the Nasdaq or any other
United States national or regional securities exchange or other market, shall
list or cause to have quoted and keep listed and quoted the shares of Common
Stock issuable upon conversion of the Notes to the extent permitted or required
by the rules of such exchange or market; provided,
however,
that,
if the rules of such automated quotation system or exchange permit the Company
to defer the listing of such Common Stock until the first conversion of the
Securities into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Securities in accordance with the requirements of such
automated quotation system or exchange at such time.
Section
7.05 Adjustment
of Conversion Rate.
The
Conversion Rate shall be adjusted from time to time by the Company if any
of the
following events occur, except that the Company will not make any adjustment
if
Holders of Securities may participate, as a result of holding the Securities,
in
the transactions described without having to convert their
Securities:
(a) If
the
Company, at any time or from time to time while any of the Securities are
outstanding, issues shares of its Common Stock as a dividend or distribution
on
shares of Common Stock, or if the Company effects subdivisions, combinations
or
reclassifications in respect of the Common Stock, then the Conversion Rate
shall
be adjusted based on the following formula:
|
CR'=CR0
x
|
OS'
|
|
OS0
|
37
where
|
CR0
|
=
|
the
Conversion Rate in effect immediately prior to the Ex Date of such
dividend or distribution, or effective date of such subdivision,
combination or reclassification, as applicable;
|
|
CR'
|
=
|
the
Conversion Rate in effect on and after the Ex Date or effective
date;
|
|
OS0
|
=
|
the
number of shares of Common Stock outstanding immediately prior
the Ex Date
or effective date; and
|
|
OS'
|
=
|
the
number of shares of Common Stock outstanding on and after the Ex
Date or
effective date.
|
Such
adjustment shall become effective immediately after 9:00 a.m., New York City
time, on the Business Day following the record date for such dividend or
distribution, or the date fixed for determination for such subdivision,
combination or reclassification. The Company will not pay any dividend or
make
any distribution on shares of Common Stock held in treasury by the Company.
If
any dividend
or
distribution of the type described in this Section 7.05(a) is declared but not
so paid or made, or the outstanding shares of Common Stock are not subdivided,
combined or reclassified, as the case may be, the Conversion Rate shall again
be
adjusted to
the
Conversion Rate which would then be in effect if such dividend, distribution,
subdivision, combination or reclassification had not been declared.
(b) If
the
Company, at any time or from time to time while any of the Securities are
outstanding, issues to all holders of its outstanding shares of Common Stock
any
rights or warrants entitling them for a period of not more than 45 calendar
days
from the issuance date thereof to subscribe for or purchase shares of Common
Stock at a price per share less than the average of the Closing Price for
the
five consecutive Trading Day period ending on the Business Day immediately
preceding the date of announcement of such issuance, the Conversion Rate
shall
be adjusted based on the following formula:
|
CR'
= CR0
x
|
OS0
+
X
|
|
OS0
+
Y
|
where
|
CR0
|
=
|
the
Conversion Rate in effect immediately prior to the Ex Date for
such
issuance;
|
|
CR'
|
=
|
the
Conversion Rate in effect on and after the Ex Date for such
issuance;
|
|
OS0
|
=
|
the
number of shares of Common Stock outstanding on and after the Ex
Date for
such issuance;
|
|
X
|
=
|
the
total number of shares of Common Stock issuable pursuant to such
rights or
warrants; and
|
|
Y
|
=
|
the
number of shares of Common Stock equal to the aggregate price payable
to
exercise such rights or warrants divided by the average of the
Closing
Price for the five consecutive Trading Day period ending on the
Business
Day immediately preceding the date of announcement of the issuance
of such
rights or warrants.
|
38
Such
adjustment shall be successively made whenever any such rights or warrants
are
issued and shall become effective immediately after 9:00 a.m., New York City
time, on the Business Day following the record date of such issuance. To
the
extent that shares of Common Stock are not delivered pursuant to such rights
or
warrants upon the expiration or termination of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate which would then
be
in effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of the delivery of only the number of shares of Common
Stock actually delivered. In the event that such rights or warrants are not
so
issued, the Conversion Rate shall again be adjusted to be the Conversion
Rate
which would then be in effect if the announcement with respect to such rights,
warrants or convertible securities had not been made.
In
determining whether any rights or warrants entitle the holders to subscribe
for
or purchase shares of Common Stock at less than the average of the Closing
Price
for the five consecutive Trading Day period ending on the Business Day
immediately preceding the date of announcement of such issuance, 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 thereof, the value
of such
consideration, if other than Cash, to be determined in good faith by the
Board
of Directors.
(c) In
case
the Company shall, by dividend
or
otherwise, distribute to all holders of its Common Stock shares of any class
of
capital stock of the Company (other than distributions of Common Stock covered
by Section 7.05(a)), evidences of its Indebtedness or other assets or property
of the Company
(including securities, but excluding (i) dividends and distributions and
rights
or warrants covered by Section 7.05(a), Section 7.05(b) or Section 7.05(e)
(for
which an adjustment is made to the Conversion Rate), (ii) to the extent provided
in Section 7.07, rights distributed pursuant to a stockholder rights plan
and
(iii) cash covered by Section 7.05(d) (any of such shares of Capital Stock,
Indebtedness, Cash or other assets or property hereinafter in this Section
7.05(c) called the “Distributed
Property”),
then,
in each such case the Conversion Rate shall be adjusted based on the following
formula:
|
CR'
= CR0
x
|
SP0
|
|
SP0
-
FMV
|
where
|
CR0
|
=
|
the
Conversion Rate in effect immediately prior to the Ex Date for
such
distribution;
|
|
CR'
|
=
|
the
Conversion Rate in effect on and after the Ex Date for such
distribution;
|
|
SP0
|
=
|
the
average of the Closing Price over the five consecutive Trading
Day period
ending on the Trading Day immediately preceding the Ex Date for
such
distribution; and
|
|
FMV
|
=
|
the
fair market value (as determined by the Company’s Board of Directors) of
the shares of capital stock of the Company, evidences of Indebtedness,
assets or property distributed with respect to each outstanding
share of
Common Stock on the Ex Date for such
distribution.
|
39
Such
adjustment shall become effective immediately prior to 9:00 a.m., New York
City
time, on the Business Day following the date fixed for the determination
of
stockholders entitled to receive such distribution; provided
that if
the then fair market value (as so determined) of the portion of the Distributed
Property so distributed applicable to one share of Common Stock is equal
to or
greater than SP0
as set
forth above, in lieu of the foregoing adjustment, adequate provision shall
be
made so that each Holder shall have the right to receive, for each $1,000
principal amount of Securities upon conversion, the amount of Distributed
Property such holder would have received had such holder owned a number of
shares of Common Stock equal to the Conversion Rate 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
record date had not been fixed. If the Board of Directors determines
the
fair
market value of any distribution for purposes of this Section 7.05(c) by
reference to the actual or when issued trading market for any securities,
it
shall in doing so consider the prices in such market over the same period
used
in computing the average
of
the Closing Price of the Common Stock.
With
respect to an adjustment pursuant to this Section 7.05(c) where there has
been a
payment of a dividend or other distribution on the Common Stock consisting
of
shares of capital stock of any class or series, or similar equity interest,
of
or relating to a Subsidiary or other business unit (a “Spin-Off,”
and
any such dividend or distribution of Common Stock, shares of capital stock
or
equity interests being “Spin-Off
Securities”),
the
Conversion Rate in effect immediately before 5:00 p.m., New York City time,
on
the fifteenth Trading Day immediately following, and including, the Ex Date
for
the distribution of the Spin-Off Securities shall be increased based on the
following formula:
|
CR'
= CR0
x
|
FMV0
+
MP0
|
|
MP0
|
where
|
CR0
|
=
|
the
Conversion Rate in effect immediately prior to the Close of Business
on
the fifteenth Trading Day immediately following, and including,
the Ex
Date for the distribution of the Spin-Off Securities;
|
|
CR'
|
=
|
the
Conversion Rate in effect from and after the Close of Business
on the
Trading Day immediately following, and including, the Ex Date for
the
distribution of the Spin-Off Securities;
|
|
FMV0
|
=
|
the
average of the Closing Price of the capital stock or similar equity
interest distributed to holders of Common Stock applicable to one
share of
Common Stock over the first 10 consecutive Trading Day period commencing
on, and including, the fifth Trading Day after the Ex Date for
such
distribution; and
|
|
MP0
|
=
|
the
average of the Closing Price of Common Stock over the first 10
consecutive
Trading Day period commencing on, and including, the fifth Trading
Day
after the Ex Date for such
distribution.
|
Such
adjustment shall occur at the Close of Business on the fifteenth Trading
Day
from, and including, the Ex Date for the distribution of the Spin-Off
Securities; provided, however, that the Company may in lieu of the foregoing
adjustment elect to make adequate provision so that each Holder of Securities
shall have the right to receive upon conversion thereof the amount of such
Spin-Off Securities that such Holder of Securities would have received if
such
Securities had been converted on the record date with respect to such
distribution.
40
Rights
or
warrants distributed by the Company to all holders of Common Stock entitling
the
holders thereof to subscribe for, purchase or convert into 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”):
(x)
are deemed to be transferred with such shares of Common Stock; (y) are not
exercisable; and (z) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this
Section 7.05(b), (and no adjustment to the Conversion Rate under this Section
7.05(b), will be required) until the occurrence of the earliest Trigger Event,
whereupon such rights or 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 7.05(b). 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 7.05(b) 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 or warrants had not been issued.
For
purposes of this Section 7.05(c), Section 7.05(a) and Section 7.05(b), any
dividend or distribution to which this Section 7.05(c) is applicable that
also
includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock to which Section 7.05(a) or 7.05(b) applies
(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 to which Section 7.05(a) or
7.05(b)
applies (and any Conversion Rate adjustment required by this Section 7.05(c)
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 to which Section 7.05(a) or 7.05(b) applies (and
any
further Conversion Rate adjustment required by Section 7.05(a) and 7.05(b)
with
respect to such dividend or distribution shall then be made), except (A)
the Ex
Date of such dividend or distribution shall be substituted for “the Ex Date,”
“the Ex Date or effective date,” “the day following the record date for such
dividend or distribution, or the date fixed for determination for such
subdivision, combination or reclassification,” “the Ex Date for such issuance”
and “the date fixed for the determination of stockholders entitled to receive
such rights and warrants” within the meaning of Section 7.05(a) and Section
7.05(b) and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed “outstanding immediately prior to the Ex Date
or effective date” within the meaning of Section 7.05(a).
41
(d) If
a cash
dividend or distribution is made to all holders of Common Stock (other than
(i)
in connection with the Company’s liquidation, dissolution or winding up or (ii)
distributions described in Section 7.05(e)), the Conversion Rate shall be
adjusted based on the following formula:
|
CR'
= CR0
x
|
SP0
|
|
SP0
-
C
|
where
|
CR0
|
=
|
the
Conversion Rate in effect at the Close of Business on the Business
Day
immediately prior to the Ex Date for such dividend or
distribution;
|
|
CR'
|
=
|
the
Conversion Rate in effect on and after the Ex Date for such
distribution;
|
|
SP0
|
=
|
the
average Closing Price of the Common Stock for the five consecutive
Trading
Day period ending on the Trading Day immediately preceding the
Ex Date for
such dividend or distribution; and
|
|
C
|
=
|
the
amount in cash per share of Common Stock the Company dividends
or
distributes to holders of Common
Stock.
|
Such
adjustment shall become effective immediately prior to the opening of business
on the Ex Date for such dividend or distribution; provided that if the portion
of the cash so distributed applicable to one share of Common Stock is equal
to
or greater than SP0
as set
forth above, in lieu of the foregoing adjustment, adequate provision shall
be
made so that each Holder shall have the right to receive, for each $1,000
principal amount of Securities upon conversion, the amount of cash such Holder
would have received had such Holder owned a number of shares of Common Stock
equal to the Conversion Rate on the record date for such dividend or
distribution. 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.
For
the
avoidance of doubt, for purposes of this Section 7.05(d), in the event of any
reclassification of the Common Stock, as a result of which the Securities
become
convertible into more than one class of Common Stock, if an adjustment to
the
Conversion Rate is required pursuant to this Section 7.05(d), references in
this Section to one share of Common Stock or Closing Price of one share of
Common Stock shall be deemed to refer to a unit or to the price of a unit
consisting of the number of shares of each
class
of Common Stock into which the Securities are then convertible equal to the
numbers of shares of such class issued in respect of one share of Common
Stock
in such reclassification. The above provisions of this paragraph shall similarly
apply to successive reclassifications.
(e) If
the
Company or any of its Subsidiaries makes a payment in respect of a tender
offer
or exchange offer for all or any portion of the Common Stock, to the extent
that
the cash and value of any other consideration included in the payment per
share
of Common Stock validly tendered or exchanged exceeds the Closing Price of
the
Common Stock on the Trading Day next succeeding the last date on which tenders
or exchanges may be made pursuant to such tender or exchange offer (as it
may be
amended), the Conversion Rate shall be increased based on the following
formula:
42
|
CR'
= CR0
x
|
AC
+ (SP'
x
OS')
|
|
OS0
x
SP'
|
where
|
CR0
|
=
|
the
Conversion Rate in effect immediately before the Close of Business
on the
expiration date;
|
|
CR'
|
=
|
the
Conversion Rate in effect on and after the effective date of the
adjustment;
|
|
AC
|
=
|
the
aggregate value of all cash and any other consideration (as determined
in
good faith by the Company’s Board of Directors) paid or payable for shares
purchased in such tender or exchange offer;
|
|
OS0
|
=
|
the
number of shares of Common Stock outstanding as of the last time
tenders
or exchanges could have been made pursuant to such tender or exchange
offer (including any shares validly tendered and not withdrawn
pursuant to
the tender or exchange offer but excluding shares held in
treasury);
|
|
OS'
|
=
|
the
number of shares of Common Stock outstanding as of the last time
tenders
or exchanges could have been made pursuant to such tender or exchange
offer (not including any shares validly tendered and not withdrawn
pursuant to the tender or exchange offer or shares held in treasury);
and
|
|
SP'
|
=
|
the
Closing Price on the Trading Day such tender or exchange offer
expires.
|
The
adjustment to the Conversion Rate under this Section 7.05(e) shall occur
on the
Trading Day from, and including, the Trading Day next succeeding the date
such
tender or exchange offer expires.
If
the
Company is obligated to repurchase 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 or any portion of 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
or had only been made in respect of the purchases that had been
effected.
(f) For
purposes of this Section 7.05 the term “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).
(g) If
application of the formulas provided in Sections 7.05(a), 7.05(b), 7.05(c),
7.05(d) or 7.05(e) would result in a decrease in the Conversion Rate, no
adjustment to the Conversion Rate shall be made except in the case of a
subdivision or split of the Common Stock.
43
(h) In
any
case in which this Section 7.05 shall require that an adjustment be made
following a record date or Expiration Date, as the case may be, established
for
purposes of this Section 7.05, the Company may elect to defer (but only until
five Business Days following the filing by the Company with the Trustee of
the
certificate described in Section 7.10) issuing to the Holder of any Security
converted after such record date or Expiration Date the shares of Common
Stock
and other capital stock of the Company, evidences of indebtedness or other
non-Cash assets or rights or warrants issuable upon such conversion over
and
above Cash payable, or the shares of Common Stock and other capital stock
of the
Company, evidences of indebtedness or other non-Cash assets or rights or
warrants issuable, upon such conversion only on the basis of the Conversion
Rate
prior to adjustment; and, in lieu of the shares, evidences of indebtedness
or
other non-Cash assets or rights or warrants the issuance of which, or Cash
the
payment of which, is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence prepared by the Company
of the right to receive such shares or Cash, as the case may be. If any
distribution in respect of which an adjustment to the Conversion Rate is
required to be made as of the record date or Expiration Date therefor is
not
thereafter made or paid by the Company for any reason, the Conversion Rate
shall
be readjusted to the Conversion Rate which would then be in effect if such
record date had not been fixed or such effective date or Expiration Date
had not
occurred.
(i) In
the
event of any adjustment to the Conversion Rate pursuant to clauses (b), (c),
(d)
and (e) above or as the result of or in connection with a Makewhole Fundamental
Change pursuant to Section 7.01(c) that would or could reasonably be expected
to
result in the Securities, in the aggregate, becoming convertible into shares
of
Common Stock in excess of limits established by Nasdaq that would require
stockholder approval of the issuances of such shares of Common Stock upon
such
conversion, the Company will, at its option, either obtain stockholder approval
of such issuances or deliver cash in lieu of any shares otherwise deliverable
upon conversions in excess of such limitations (based on the Closing Price
of
the Common Stock on the Trading Day immediately prior to the date when such
shares would otherwise be required to be distributed).
(j) If
one or
more events occur requiring an adjustment be made to the Conversion Rate
for a
particular period, adjustments to the Conversion Rate shall be determined
by the
Company’s Board of Directors to reflect the combined impact of such Conversion
Rate adjustments, as set out in this Section 7.05, during such
period.
Section
7.06 No
Adjustment.
No
adjustment in the Conversion Rate shall be required unless the adjustment
would
result in a change in the Conversion Rate of at least 1.00%; provided,
however,
that
any adjustment which by reason of this Section 7.06 is not required to be
made
shall be carried forward and taken into account in subsequent adjustments
and in
connection with any conversion of Securities. All calculations under this
Article 7 shall be made to the nearest one-ten thousandth (1/10,000) of a
cent
or to the nearest one-ten thousandth (1/10,000) of a share, as the case may
be.
No
adjustment in the Conversion Rate need be made for (i) issuances of Common
Stock
pursuant to any present or future Company plan for reinvestment of dividends
or
interest payable on the Company’s securities or the investment of additional
optional amounts thereunder in shares of Common Stock, (ii) upon the issuance
of
any shares of Common Stock or options or rights to purchase shares of Common
Stock pursuant to any present or future employee, director or consultant
benefit
plan or program of or assumed by the Company or any of its subsidiaries or
(iii)
upon the issuance of any shares of Common Stock pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security not described
in
clause (i) or (ii) and outstanding as of the date the Securities were first
issued.
To
the
extent that the Securities become convertible into the right to receive Cash,
interest will not accrue on such Cash.
44
No
adjustment to the Conversion Rate need be made pursuant to Section 7.05 for
a
transaction if Holders are permitted to participate in the transaction without
conversion on a basis and with notice that the Board of Directors of the
Company
determines in good faith to be fair and appropriate in light of the basis
and
notice on which holders of Common Stock participate in the
transaction.
No
adjustment to the Conversion Rate need be made for accrued and unpaid interest,
including Contingent Interest or Additional Interest, if any.
Whenever
a provision of this Indenture requires the calculation of an average of the
Closing Price or Volume-Weighted Average Price over a span of multiple days,
the
Company shall make appropriate adjustments to account for any adjustment
to the
Conversion Rate that becomes effective, or any event requiring an adjustment
to
the Conversion Rate that becomes effective, or any event requiring an adjustment
to the Conversion Rate where the Ex Date of the event occurs, at any time
during
the period from which the average is to be calculated.
Section
7.07 Stockholder
Rights Plans.
Upon
conversion of the Securities, the Holders shall receive, in addition to any
shares of Common Stock issuable upon such conversion, any associated rights
issued under any future stockholder rights plan the Company adopts that provides
each share of Common Stock issued upon conversion of the Securities at any
time
prior to the distribution of separate rights certificates representing such
rights will be entitled to receive such rights unless, prior to conversion,
the
rights have separated from the Common Stock, expired, terminated or been
redeemed or exchanged in accordance with such rights plan, and no adjustment
shall be made to the Conversion Rate pursuant to Section 7.05. If the rights
have separated from the Common Stock prior to any conversion, the Conversion
Rate shall be adjusted at the time of separation as if the Company distributed
to all holders of Common Stock, shares of Capital Stock, evidences of
Indebtedness or assets as described in Section 7.05(c), subject to readjustment
in the event of the expiration, termination or redemption of such
rights.
Section
7.08 Effect
of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege.
If
(1)
there shall occur (a) any reclassification of the Company’s Common Stock (other
than a change in par value, or from par value to no par value, or from no
par
value to par value, or as a result of a subdivision or combination); (b)
a
statutory share exchange, consolidation, merger or combination involving
the
Company other than a merger in which the Company is the continuing corporation
and which does not result in any reclassification of, or change (other than
in
par value, or from par value to no par value, or from no par value to par
value,
or as a result of a subdivision or combination) in, outstanding shares of
Common
Stock; or (c) a sale or conveyance as an entirety or substantially as an
entirety of the property and assets of the Company, directly or indirectly,
to
another Person; and (2) pursuant to such reclassification, statutory share
exchange, consolidation, merger, combination, sale or conveyance, holders
of
outstanding shares of Common Stock would be entitled to receive stock (other
than Common Stock), other securities, other property, assets or Cash for
such
shares of Common Stock (any such event a “Merger
Event”),
then
the Company, or such successor or surviving, purchasing or transferee Person,
as
the case may be, shall, as a condition precedent to such Merger Event, execute
and deliver to the Trustee a supplemental indenture providing that the right
to
convert a Security will be changed into a right to convert it into the kind
and
amount of shares of stock, other securities or other property or assets
(including Cash or any combination thereof) that a holder of a number of
shares
of Common Stock equal to the Conversion Rate immediately prior to such Merger
Event would have owned or been entitled to receive (the “Reference
Property”)
upon
such transaction (assuming for such purposes that such conversion were settled
entirely in Common Stock and without giving effect to any adjustment to the
Conversion Rate with respect to a Makewhole Fundamental Change) immediately
prior to such Merger Event, except that such Holders shall not be entitled
to
receive Additional Shares with respect to such transaction constituting a
Makewhole Fundamental Change if such Holder does not convert its Securities
“in
connection with” the relevant Fundamental Change. Appropriate provisions shall
be made, as determined in good faith by the Board of Directors, to preserve
the
net share settlement provisions of the Securities described in Section 7.13
following such Merger Event to the extent feasible. If the Merger Event causes
the Common Stock to be converted into the right to receive more than a single
type of consideration (determined based in part upon any form of stockholder
election), the Reference Property into which the Securities will be convertible
will be deemed to be the weighted average of the types and amounts of
consideration received by the holders of Common Stock that affirmatively
make
such an election. However, at and after the effective time of the Merger
Event,
any amount otherwise payable in Cash upon conversion of the Securities shall
continue to be payable in Cash, and the Daily Conversion Value shall be
calculated based on the value of the Reference Property. None of the foregoing
provisions shall affect the right of a holder of Securities to convert its
Securities in accordance with the provisions of this Article 7 prior to the
effective date of such Merger Event. Such supplemental indenture shall provide
for adjustments of the Conversion Rate which shall be as nearly equivalent
as
may be practicable to the adjustments of the Conversion Rate provided for
in
this Article 7. The provisions of this Section 7.08 shall similarly apply
to
successive Merger Events.
45
Section
7.09 Other
Adjustments.
Subject
to applicable stock exchange rules and listing standards, the Company shall
be
entitled to increase the Conversion Rate by any amount for a period of at
least
20 days if the Board of Directors determines that such increase would be
in the
best interests in the Company, provided
the
Company has given to Holders at least 15 days’ prior notice, in accordance with
Section 16.02, of any such increase in the Conversion Rate. Subject to
applicable stock exchange rules and listing standards, the Company shall
be
entitled to increase the Conversion Rate, in addition to the events requiring
an
increase in the Conversion Rate pursuant to Section 7.05, as it in its
discretion shall determine to be advisable in order to avoid or diminish
any tax
to stockholders in connection with any stock dividends, subdivisions of shares,
distributions of rights to purchase stock or securities or distributions
of
securities convertible into or exchangeable for stock hereafter made by the
Company to its stockholders.
Section
7.10 Notice
of Adjustment.
Whenever
the Conversion Rate or conversion privilege is adjusted, the Company shall
promptly mail to Securityholders a notice of the adjustment in accordance
with
Section 16.02, and file with the Trustee an Officers’ Certificate briefly
stating the Conversion Rate, the facts requiring the adjustment and the manner
of computing it. Unless and until the Trustee shall receive an Officers’
Certificate setting forth an adjustment of the Conversion Rate, the Trustee
may
assume without inquiry that the Conversion Rate has not been adjusted and
that
the last Conversion Rate of which it has knowledge remains in
effect.
Section
7.11 [Reserved].
Section
7.12 Trustee’s
Disclaimer.
The
Trustee shall have no duty to determine when an adjustment under this Article
7
should be made, how it should be made or what such adjustment should be,
but may
accept as conclusive evidence of that fact or the correctness of any such
adjustment set forth in, and shall be protected in relying upon, an Officers’
Certificate, including the Officers’ Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 7.10. The
Trustee makes no representation as to the validity or value of any securities
or
assets issued upon conversion of Securities, and the Trustee shall not be
responsible for the Company’s failure to comply with any provisions of this
Article 7.
The
Trustee shall not be under any responsibility to determine the correctness
of
any provisions contained in any supplemental indenture executed pursuant
to
Section 7.08, but may accept as conclusive evidence of the correctness thereof,
and shall be fully protected in relying upon, the Officers’ Certificate and
Opinion of Counsel with respect thereto which the Company is obligated to
file
with the Trustee pursuant to Section 7.08.
46
Section
7.13 Settlement
Upon Conversion.
(a)
Upon any
conversion of any Security, the Company shall deliver to converting Holders,
in
respect of each $1,000 Principal Amount of Securities being converted, a
“Settlement
Amount”
equal
to the sum of the Daily Settlement Amounts for each of the 20 Trading Days
during the Conversion Reference Period for such Security.
(b) The
“Daily
Settlement Amount”
for
each of the 20 Trading Days during the Conversion Reference Period shall
consist
of:
(i) Cash
equal to the lesser of $50 and the Daily Conversion Value; and
(ii) to
the
extent the Daily Conversion Value exceeds $50, a number of shares of Common
Stock (the “Daily
Share Amount”)
equal
to (x) the difference between the Daily Conversion Value and $50, divided
by (y)
the Daily VWAP for such day.
(c) Upon
conversion, Holders shall not receive any separate cash payment for accrued
and
unpaid interest (including Contingent Interest or Additional Interest, if
any),
unless such conversion occurs between a Record Date and the Interest Payment
Date to which it relates and such Holder was the holder of record at the
Close
of Business on such Record Date.
(d) If
Securities are converted after 5:00 p.m., New York City time, on a Record
Date
for the payment of interest, Holders of such Securities at 5:00 p.m., New
York
City time, on such Record Date will receive the interest payable on such
Securities on the corresponding Interest Payment Date notwithstanding the
conversion. Securities surrendered for conversion during the period from
5:00
p.m., New York City time, on any Record Date to 9:00 a.m., New York City
time,
on the immediately following Interest Payment Date, must be accompanied by
funds
equal to the amount of interest payable on the Securities so converted;
provided
that no
such payment need be made (i) if the Company has specified a Repurchase Date
following a Fundamental Change or Redemption Date in respect of the Securities
that is after a Record Date and on or prior to the Business Day next succeeding
the next Interest Payment Date; (ii) in respect of any conversion which occurs
after the Record Date for the interest payment due on May 1, 2027 or (iii)
to
the extent of any overdue interest, if any such amount exists at the time
of
conversion with respect to such Security.
(e) On
any
day prior to the first Trading Day of the applicable Conversion Reference
Period, the Company may specify by notice to the Trustee and Holders, a
percentage of the Daily Share Amount that will be settled in cash (the
“Cash
Percentage”).
If
the Company elects to specify a Cash Percentage then, in lieu of all or a
portion of the Daily Share Amount for each Trading Day in the applicable
Conversion Reference Period, the Company shall deliver Cash equal to the
product
of (i) the Cash Percentage, (ii) the Daily Share Amount for such Trading
Day and
(iii) the Daily VWAP for such Trading Day. The number of shares of Common
Stock
in respect of the Daily Share Amount for each Trading Day in the applicable
Conversion Reference Period shall equal the product of (x) the Daily Share
Amount and (y) 100% minus the Cash Percentage. If the Company does not specify
a
Cash Percentage by the start of the applicable Conversion Reference Period,
the
Company shall settle 100% of the Daily Share Amount for each Trading Day
in the
applicable Conversion Reference Period with shares of Common Stock; provided,
however,
that
(i) the Company shall pay cash in lieu of fractional shares otherwise issuable
upon conversion of such Security and (ii) if conversion of the Securities
is in
connection
with
a transaction described in Section 7.08 pursuant to which the Securities become
convertible into cash and Reference Property, the Company shall settle such
conversion in Cash and Reference Property.
47
(f) The
Company shall determine the Daily Conversion Value and the number of shares
of
Common Stock, if any, to be issued upon conversion of the Securities at the
end
of the Conversion Reference Period.
(g) Upon
conversion of any Securities, the Company will pay the Cash and deliver the
shares of Common Stock, as applicable, as promptly as practicable after
expiration of the Conversion Reference Period, but in no event later than
the
third Business Day after such expiration.
(h) The
Company shall not issue fractional shares of Common Stock upon conversion
of
Securities. If multiple Securities shall be surrendered for conversion at
one
time by the same Holder, the number of full shares which shall be issuable
upon
conversion shall be computed on the basis of the aggregate Principal Amount
of
the Securities (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 Securities, the Company shall make payment therefor in
cash
equal to the fraction of a share of Common Stock otherwise issuable multiplied
by the Daily VWAP for the final Trading Day of the applicable Conversion
Reference Period.
(i) Except
as
otherwise provided in this Indenture, no payment or adjustments in respect
of
payments of interest (including Contingent Interest or Additional Interest,
if
any) on Securities surrendered for conversion or any dividends or distributions
on the Common Stock issued upon conversion shall be made upon the conversion
of
any Securities.
(j) For
the
purposes of Section 7.13, in the event that any of Daily Settlement Amount,
Daily Conversion Value, Daily Share Amount or Daily VWAP is not calculable
for
all portions of the Conversion Reference Period, the Company’s Board of
Directors shall in good faith determine the values necessary to calculate
the
Daily Settlement Amount, Daily Conversion Value, Daily Share Amount and Daily
VWAP, as applicable.
ARTICLE
8
Contingent
Interest
Section
8.01 Contingent
Interest.
(a)
Beginning with the six-month period commencing on May 1, 2014 and ending on
October 31, 2014, and for each six-month period from May 1 to
October 31 and from November 1 to April 30 thereafter, the
Company shall pay Contingent Interest with respect to the Securities for
any
Contingent Interest Period if the average Trading Price per $1,000 principal
amount of Securities during the five consecutive Trading Days ending three
Trading Days before the applicable Contingent Interest Period equals or exceeds
120% of the principal amount of such Securities.
(b) The
amount of Contingent Interest payable per $1,000 principal amount of Securities
in respect of any Contingent Interest Period shall equal 0.25% per annum
of the
average Trading Price of $1,000 principal amount of Securities during the
relevant five Trading Day period used to determine whether Contingent Interest
must be paid.
(c) The
Company shall be responsible for calculating the amounts of Contingent Interest,
if any, accrued on the Securities. The Company shall make any such calculations
using the Trading Price provided by the Bid Solicitation Agent. The Bid
Solicitation Agent or the Trustee shall be entitled in their sole discretion
to
consult with the Company and to request the assistance of the Company in
connection with the Bid Solicitation Agent’s or Trustee’s duties pursuant to
this Article 8, and the Company agrees, if requested by the Bid
Solicitation Agent or by the Trustee, to cooperate with, and provide assistance
to, the Trustee in carrying out its duties under this Article 8.
48
Section
8.02 Payment
of Contingent Interest.
Payments
of Contingent Interest shall be made in the same manner, at the same time,
and
subject to the same restrictions, including those restrictions in respect
of
accrued and unpaid interest on any Securities that are submitted for conversion,
as payments of interest.
Section
8.03 Contingent
Interest Notification.
By
the
first Business Day of a Contingent Interest Period for which Contingent Interest
shall be payable, the Company shall disseminate a press release containing
this
information or publish the information on its Website or through such other
public medium as it may use at that time.
Section
8.04 Trustee
Contingent Interest Disclaimer.
The
Trustee has no duty to determine when Contingent Interest under this Article
8
should be paid. The Trustee shall not be accountable for and makes no
representation as to the amount of Contingent Interest payable in respect
of any
Contingent Interest Period. The Trustee shall not be responsible for the
Company’s failure to comply with this Article 8. Each Conversion Agent (other
than the Company or an Affiliate of the Company) shall have the same protection
under this Section 8.04 as the Trustee.
ARTICLE
9
Covenants
Section
9.01 Payment
of Securities.
The
Company shall promptly make all payments in respect of the Securities on
the
dates and in the manner provided in the Securities and this Indenture, including
payments of Cash and if applicable, shares of Common Stock due upon conversion.
The principal amount, Redemption Price, Repurchase Price and Fundamental
Change
Purchase Price and accrued and unpaid interest (including Contingent Interest
or
Additional Interest, if any) shall be considered paid on the date it is due
if
the Paying Agent holds by 10:00 a.m., New York City time, on such date, in
accordance with this Indenture, Cash designated and sufficient for the payment
of all such amounts then due. The Company shall, to the fullest extent permitted
by law, pay interest on overdue principal and overdue installments of interest
at the rate borne by the Securities per annum. Unless explicitly excluded,
all
references in this Indenture or the Securities to interest shall be deemed
to
include Contingent Interest, if any, payable as described in Article 8, and
Additional Interest, if any, payable pursuant to the Registration Rights
Agreement.
The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue amounts from time to time on demand
at the
rate then in effect; it shall pay interest (including post-petition interest
in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand
at
the same rate to the extent lawful. Interest shall be computed on the basis
of a
360-day year of twelve 30-day months.
Each
installment of accrued and unpaid interest (including Contingent Interest
and
Additional Interest, if any) on the Securities due on any Interest Payment
Date
may be paid by mailing checks for the amount payable to or upon the written
order of the Securityholders entitled thereto as they shall appear on the
registry books of the Company, provided
that,
with respect to any Securityholder with an aggregate principal amount of
Securities in excess of $2,000,000, at the application of such Holder in
writing
to the Security Registrar not later than the relevant record date accrued
and
unpaid interest (including Contingent Interest and Additional Interest, if
any)
on such Holder’s Securities shall be paid by wire transfer in immediately
available funds to such Holder’s account in the United States supplied by such
Holder from time to time to the Trustee and Paying Agent (if different from
Trustee); provided further
that
payment of accrued and unpaid interest (including Contingent Interest and
Additional Interest, if any) made to the Depositary shall be paid by wire
transfer in immediately available funds in accordance with such wire transfer
instructions and other procedures provided by the Depositary from time to
time.
49
Section
9.02 Reports
and Certain Information.
(a)
The
Company shall file with the Trustee, within 15 days after it files them with
the
SEC, copies of its annual report and the information, documents and other
reports which the Company is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act; provided that any such reports, information
or
documents filed with the SEC pursuant to its Electronic Data Gathering, Analysis
and Retrieval (or ▇▇▇▇▇) system shall be deemed filed with the Trustee. The
Company shall comply with the provisions of TIA Section 314(a), whether or
not
the Company is required to file reports with the SEC pursuant to Section
13 or
15(d) of the Exchange Act. Notwithstanding anything to the contrary herein,
the
Trustee shall have no duty to review such documents for purposes of determining
compliance with any provisions of this Indenture or any applicable
law.
(b) At
any
time when the Securities are Restricted Securities, and the Company is not
subject to, or is not in compliance with, Section 13 or 15(d) of the Exchange
Act, upon the request of a Holder or the holder of shares of Common Stock
issued
upon conversion of Securities, the Company shall promptly furnish or cause
to be
furnished Rule 144A Information (as defined below) to such Holder or such
holder
of shares of Common Stock issued upon conversion of Securities, or to a
prospective purchaser of any such security designated by any such Holder
or
holder, as the case may be, to the extent required to permit compliance by
such
Holder or holder with Rule 144A under the Securities Act in connection with
the
resale of any such security. “Rule
144A Information”
shall
mean such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act or any successor provision.
(c) The
Company shall notify the Trustee of any changes to its fiscal year.
Section
9.03 Compliance
Certificates.
The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’
Certificate signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company and at least one other
Officer of the Company, as to his or her knowledge of the Company’s compliance
with all terms, conditions and covenants under 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
status thereof of which he or she may have knowledge.
Section
9.04 Maintenance
of Corporate Existence.
The
Company shall do or cause to be done all things necessary to preserve and
keep
in full force and effect its corporate existence or, following any
consolidation, merger, conveyance, transfer or lease in accordance with Section
10.01, its legal existence as a Person permitted to be the resulting, surviving
or transferee Person in accordance with Section 10.01.
Section
9.05 Stay,
Extension and Usury Laws.
The
Company covenants, to the extent 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 amount,
Redemption Price, Repurchase Price or Fundamental Change Purchase Price in
respect of Securities, or any interest (including Contingent Interest and
Additional Interest, if any) on the Securities 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 shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee
or any
Agent, but shall suffer and permit the execution of every such power as though
no such law had been enacted.
50
Section
9.06 Maintenance
of Office or Agency of the Trustee, Registrar, Paying Agent and Conversion
Agent.
The
Company shall maintain an office or agency of the Trustee, Registrar, Paying
Agent and Conversion Agent in the United States where Securities may be
presented or surrendered for payment, where Securities may be surrendered
for
registration of transfer, exchange, redemption, purchase or conversion and
where
notices and demands to or upon the Company in respect of the Securities and
this
Indenture may be served. The Company hereby designates the Corporate Trust
Office as one such office or agency for all of the aforesaid purposes. The
Company shall give prompt written notice to the Trustee of the location,
and of
any change in the location, of any such office or agency (other than a change
in
the location of the Corporate Trust Office of 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 address of the Trustee set
forth in Section 16.02.
Section
9.07 Notice
of Default.
In
the
event that any Default or Event of Default shall occur and be continuing,
the
Company shall give prompt (and in any event within thirty (30) days after
the
Company becomes aware of such Default or Event of Default) written notice
by an
Officers’ Certificate of such Default or Event of Default, and any remedial
action proposed to be taken, to the Trustee.
Section
9.08 Additional
Interest Notice.
In
the
event that the Company is required to pay Additional Interest to the
Securityholders pursuant to the Registration Rights Agreement, the Company
shall
provide written notice (“Additional
Interest Notice”)
to the
Trustee of its obligation to pay Additional Interest no later than fifteen
(15)
days prior to the proposed payment date for the Additional Interest, and
the
Additional Interest Notice shall set forth the amount of Additional Interest
to
be paid by the Company on such payment date. The Trustee shall not at any
time
be under any duty or responsibility to any Securityholders to determine the
Additional Interest, or with respect to the nature, extent or calculation
of the
amount of Additional Interest when made, or with respect to the method employed
in such calculation of the Additional Interest.
ARTICLE
10
Consolidation,
Merger, Conveyance, Transfer or Lease
Section
10.01 Company
May Consolidate, etc., Only on Certain Terms.
The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease all or substantially all of the Company’s properties and
assets to any successor Person, unless:
(a) either:
(i) the
resulting, surviving or transferee Person is the Company; or
(ii) the
resulting, surviving or transferee Person is a corporation, limited liability
company, partnership or trust organized and validly existing under the laws
of
the United States of America, any State thereof or the District of Columbia
and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee,
all of
the obligations of the Company under the Securities and this
Indenture;
(b) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel (upon which the Trustee may conclusively rely), each stating that
such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
51
Section
10.02 Successor
Substituted.
Upon
any
consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of all or substantially all of
the
properties and assets of the Company in accordance with Section 10.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed
to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had
been
named as the Company herein, and thereafter, except in the case of a lease,
the
predecessor Person shall be relieved of all obligations and covenants under
this
Indenture and the Securities.
ARTICLE
11
Default
and Remedies
Section
11.01 Events
of Default.
An
“Event
of Default”
shall
occur if:
(a) the
Company defaults in the payment when due of any principal of any of the
Securities at maturity, upon redemption, upon exercise of a repurchase right
or
otherwise;
(b) the
Company defaults in the payment of any interest (including Contingent Interest
or Additional Interest, if any) when due under the Securities, and such default
continues for a period of 30 days;
(c) the
Company fails to deliver all Cash and any shares of Common Stock or other
property when such Cash and Common Stock or other property, if any, are required
to be delivered upon conversion of any Securities, and such default continues
for five days;
(d) the
Company fails to provide the Fundamental Change Company Notice when required
by
this Indenture;
(e) the
Company fails to comply with Section 10.01 of this Agreement;
(f) the
Company fails to comply with any of its other agreements contained in the
Securities or in this Indenture (other than a covenant or warranty or default
whose performance or breach is elsewhere in this Section 11.01 specifically
provided for) and such failure continues for 60 days after receipt by the
Company of a Notice of Default, provided,
however,
that
the Company shall have 120 days after receipt of a Notice of Default to remedy,
or receive a waiver for, any failure to comply with the Company’s obligation to
file with the Trustee annual, quarterly and current reports in accordance
with
this Indenture or to comply with the requirements of Section 314(a)(1) of
the
Trust Indenture Act so long as the Company is attempting to cure such failure
as
promptly as reasonably practicable;
(g) (i)
the
Company fails to make any payment by the end of any applicable grace period
after maturity of principal and/or accrued interest with respect to any
obligations (other than nonrecourse obligations) of the Company for borrowed
money or evidenced by bonds, notes or similar instruments (“Indebtedness”),
where
the amount of such unpaid and due principal and/or accrued interest is in
an
aggregate amount in excess of $100.0 million, or (ii) the acceleration of
principal or accrued interest with respect to Indebtedness, where the amount
of
such accelerated principal and interest is in an amount in excess of $100.0
million because of a default with respect to such Indebtedness, in any such
case
of (i) or (ii), without such Indebtedness having been paid or discharged
or such
acceleration having been cured, waived, rescinded or annulled within a period
of
30 days after receipt by the Company of a Notice of Default. However, if
any
such failure or acceleration referred to in (i) or (ii) of this clause (g)
shall
cease or be cured, waived, rescinded or annulled, then the Event of Default
by
reason thereof shall be deemed not to have occurred and any acceleration
as a
result of the related Event of Default shall be automatically
rescinded;
52
(h) the
Company, or any Significant Subsidiary pursuant to or within the meaning
of any
Bankruptcy Law: commences a voluntary case or proceeding; consents to the
entry
of an order for relief against it in an involuntary case or proceeding or
the
commencement of any case against it; consents to the appointment of a Custodian
of it or for any substantial part of its property; or makes a general assignment
for the benefit of its creditors; or
(i) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy
Law
that: is for relief against the Company or a Significant Subsidiary in an
involuntary case or proceeding; appoints a Custodian of the Company or a
Significant Subsidiary for any substantial part of the property of the Company
or such Significant Subsidiary; or orders the winding up or liquidation of
the
Company or a Significant Subsidiary; and in each case of this subclause (i)
the
order or decree remains unstayed and in effect for 60 consecutive
days.
The
term
“Bankruptcy
Law”
means
Title 11 of the United States Code (or any successor thereto) or any similar
federal, state or foreign law for the relief of debtors. The term “Custodian”
means
any receiver, trustee, assignee, liquidator, sequestrator or similar official
under any Bankruptcy Law.
A
default
under clause (f) or (g) above is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding notify the Company and the Trustee,
in
writing, of the Default and the Company does not cure the Default (and such
Default is not waived) within the time period specified in clauses (f) or
(g)
above, as applicable, after actual receipt of such notice. The notice given
pursuant to this Section 11.01 must specify the Default, demand that it be
remedied and state that the notice is a “Notice
of Default.”
When
any Default under this Section 11.01 is cured in accordance herewith, it
shall
cease to be a Default.
The
Trustee shall not be charged with knowledge of any Event of Default unless
written notice thereof shall have been given to a Trust Officer at the Corporate
Trust Office of the Trustee by the Company (including, without limitation,
pursuant to Section 9.03), a Paying Agent, any Holder or any agent of any
Holder, which notice references the Securities and this Indenture.
Section
11.02 Acceleration.
If
an Event of Default (other than an Event of Default with respect to the Company
specified in clauses (h) or (i) of Section 11.01) occurs and is continuing,
the
Trustee may, by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding may, by notice
to
the Company and the Trustee, declare all unpaid principal of, plus interest
(including Contingent Interest and Additional Interest, if any) accrued and
unpaid through the date of such declaration on, all the Securities then
outstanding to be due and payable upon any such declaration, and the same
shall
thereupon become and be immediately due and payable.
If
an
Event of Default with respect to the Company specified in clause (h) or (i)
of
Section 11.01 occurs, all unpaid principal of, plus interest (including
Contingent Interest and Additional Interest, if any) accrued and unpaid through
the date of such default on, all the Securities then outstanding shall ipso
facto become and be immediately due and payable without any declaration or
other
act on the part of the Trustee or any Holder.
53
The
Holders of a majority in aggregate principal amount of the Securities then
outstanding by notice to the Trustee may rescind an acceleration of Securities
and its consequences before a judgment or decree for the payment of money
has
been obtained by the Trustee if (a) the rescission would not conflict with
any
existing order or decree, (b) all existing Events of Default, other than
the
nonpayment of the principal of, plus accrued and unpaid interest (including
Contingent Interest or Additional Interest, if any) on, the Securities that
has
become due solely by such declaration of acceleration, have been cured or
waived
and (c) all payments due to the Trustee and any predecessor Trustee under
Section 12.06 have been made. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
Section
11.03 Other
Remedies.
If
an
Event of Default occurs and is continuing, the Trustee may, but shall not
be
obligated to, pursue any available remedy by proceeding at law or in equity
to
collect the payment of the principal of or accrued and unpaid interest
(including Contingent Interest and Additional Interest, if any) on the
Securities, the payment of Cash and, if applicable, shares of Common Stock
upon
conversion or to enforce the performance of any provision of the Securities
or
this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or
remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy
is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section
11.04 Waiver
of Defaults and Events of Default.
Subject
to Section 11.07 and 13.02, the Holders of a majority in aggregate principal
amount of the Securities then outstanding by notice to the Trustee may waive
an
existing or future Default or Event of Default and its consequences, except
a
Default or Event of Default in the payment of the principal of, or any interest
(including Contingent Interest and Additional Interest, if any) on any Security
when due at maturity or upon redemption, or the payment of any applicable
Repurchase Price or Fundamental Change Purchase Price, or a failure by the
Company to deliver Cash and, if applicable, shares of Common Stock upon
conversion in accordance with Article 7 or any Default or Event of Default
in
respect of any provision of this Indenture or the Securities that, under
Section
13.02, cannot be modified or amended without the consent of the Holders of
each
outstanding Security. When a Default or Event of Default is waived, it is
deemed
cured, but no such waiver shall extend to any subsequent or other Default
or
impair any consequent right. This Section 11.04 shall be in lieu of Section
316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
Section
11.05 Control
by Majority.
The
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it under this Indenture. However, the Trustee may refuse to
follow
any direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Holder or the
Trustee, or that may involve the Trustee in personal liability unless the
Trustee is offered security or indemnity reasonably satisfactory to it;
provided
that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. This Section 11.05 shall be in lieu of
Section
316(a)(1)(A) of the TIA and such Section 316(a)(1)(A) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
Section
11.06 Limitations
on Suits.
Subject
to Section 11.07, a Holder of a Security may not pursue any remedy with respect
to this Indenture or the Securities unless:
(a) the
Holder gives to the Trustee written notice of a continuing Event of
Default;
54
(b) the
Holders of at least 25% in aggregate principal amount of the then outstanding
Securities make a written request to the Trustee to pursue the
remedy;
(c) such
Holder or Holders offer to the Trustee security or indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense;
(d) the
Trustee does not comply with the request within 60 days after receipt of
the
notice, request and the offer of security or indemnity; and
(e) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in aggregate principal
amount of the Securities then outstanding.
Section
11.07 Rights
of Holders to Receive Payment and to Convert.
Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security
to
receive payment in Cash of the principal amount, Repurchase Price, Fundamental
Change Purchase Price or interest (including Contingent Interest and Additional
Interest, if any) on any Security, on or after the respective due dates or
Redemption Dates expressed in the Security and this Indenture, receive payment
in Cash and, if applicable, shares of Common Stock or other property upon
conversion in accordance with Article 7 or upon redemption in accordance
with
Article 5 and to bring suit for the enforcement of any such payment on or
after
such respective dates or the right to convert, is absolute and unconditional
and
shall not be impaired or affected without the consent of the
Holder.
Section
11.08 Collection
Suit by Trustee.
If
an
Event of Default in the payment of principal or interest, Contingent Interest
or
Additional Interest specified in clause (a) or (b) of Section 11.01 occurs
and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company or another obligor on the Securities
for
the whole amount owing with respect to the Securities and the amounts provided
for in Section 12.06.
Section
11.09 Trustee
May File Proofs of Claim.
The
Trustee may file such proofs of claim and other papers or documents as may
be
necessary or advisable in order to have the claims of the Trustee (including
any
claim for the reasonable compensation, expenses, disbursements and advances
of
the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor on the Securities),
its creditors or its property and shall be entitled and empowered to collect
and
receive any money or other property payable or deliverable on any such claims
and to distribute the same, and any Custodian in any such judicial proceeding
is
hereby authorized by each Holder to make such payments to the Trustee and,
in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 12.06, and
to
the extent that such payment of the reasonable compensation, expenses,
disbursements and advances 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, money, securities and other property
which the Holders may be entitled to receive in such proceedings, whether
in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or, on behalf of any Holder, to authorize, accept or adopt
any
plan of reorganization, arrangement, adjustment or composition affecting
the
Securities or the rights of any Holder thereof, or to authorize the Trustee
to
vote in respect of the claim of any Holder in any such proceeding.
55
Section
11.10 Priorities.
Any
money
or property collected by the Trustee pursuant to this Article 11, and after
an
Event of Default, any money or other property distributable in respect of
the
Company’s obligations under this Indenture shall be paid out in the following
order:
First,
to
the Trustee (including any predecessor Trustee) for amounts due under Section
12.06;
Second,
to Securityholders for amounts due and unpaid on the Securities for the
principal amount, interest (including Contingent Interest and Additional
Interest, if any), the Fundamental Change Purchase Price, the Repurchase
Price,
the Redemption Price, amounts due upon conversion (including amounts resulting
from a Makewhole Fundamental Change), as the case may be, ratably, without
preference or priority of any kind, according to such amounts due and payable
on
the Securities; and
Third,
the balance, if any, to the Company.
The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 11.10. At least 15 days before such record date,
the
Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
Section
11.11 Undertaking
for Costs.
In
any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as Trustee,
a
court in its discretion may require the filing by any party litigant in the
suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and
good
faith of the claims or defenses made by the party litigant. This Section
11.11
does not apply to a suit made by the Trustee, a suit by a Holder pursuant
to
Section 11.07, or a suit by Holders of more than 10% in aggregate principal
amount of the Securities then outstanding.
Section
11.12 Delay
or Omission Not Waiver.
No
delay
or omission of the Trustee or of any Holder of any Security to exercise any
right or remedy accruing upon any Event of Default shall impair any such
right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article 11 or by law to the
Trustee or to the Holders may be exercised from time to time, and as often
as
may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
ARTICLE
12
Trustee
Section
12.01 Certain
Duties and Responsibilities of Trustee.
(a) In
case an Event of Default with respect to the Securities has occurred (that
has
not been cured or waived), the Trustee shall exercise with respect to the
Securities such of the rights and powers vested in it by this Indenture,
and use
the same degree of care and skill in their exercise, as a prudent person
would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Prior
to
the occurrence of an Event of Default with respect to the Securities and
after
the curing or waiving of all such Events of Default with respect to the
Securities that may have occurred:
(i) the
duties and obligations of the Trustee shall with respect to the Securities
be
determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable with respect to the Securities 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 against
the Trustee; and
56
(ii) in
the
absence of bad faith 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 that by any provision 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 on their face to
the
requirements of this Indenture (but need not confirm or investigate the accuracy
of any mathematical calculations or other facts stated therein).
(c) 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:
(i) this
subsection shall not be construed to limit the effect of Section
12.01(b);
(ii) the
Trustee shall not be liable for any error of judgment made in good faith
by a
Trust Officer or Trust Officers, unless it shall be proved that the Trustee
was
negligent in ascertaining the pertinent facts;
(iii) 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 direction of the Holders
of not
less than a majority in principal amount of the Securities at the time
outstanding (determined as provided in Section 2.08) 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 with respect to the Securities; and
(iv) 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 liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured
to
it.
(d) Whether
or not expressly so provided, every provision of this Indenture relating
to the
conduct or affecting the liability or affording protection to the Trustee
(in
any capacity, including Paying Agent, Registrar or Conversion Agent) shall
be
subject to the provisions of this Section.
Section
12.02 Certain
Rights of Trustee.
Except
as
otherwise provided in Section 12.01:
(a) The
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security
or
other paper or document (whether in 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. The Trustee need not investigate any fact or matter stated
in
any such document;
(b) Any
request, direction, order or demand of the Company mentioned herein shall
be
sufficiently evidenced by a resolution of the Company’s Board of Directors or an
instrument signed in the name of the Company, by one or more Officers thereof
(unless other evidence in respect thereof is specifically prescribed
herein);
(c) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers’ Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its own selection and the advice of such counsel and Opinions
of
Counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder
in
good faith and in reliance thereon;
57
(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
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities
that
may be incurred therein or thereby;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by
it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(f) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, security, or other papers
or
documents, but the Trustee, in its discretion, may make even further inquiry
or
investigation into such facts or matters as it may see fit; and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation;
(g) The
Trustee 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 with due care by it hereunder;
(h) The
Trustee shall not be deemed to have knowledge or be charged with knowledge
of an
Event of Default except (i) if the Trustee is acting as Paying Agent, any
Default or Event of Default occurring pursuant to Sections 9.01, 11.01(a)
or
11.01(b) and (ii) any Default or Event of Default of which the Trustee shall
have received written notification which references the Securities and this
Indenture or of which a Trust Officer shall have obtained actual knowledge.
Delivery of reports, information and documents to the Trustee under Section
9.02
is for informational purposes only and the Trustee’s receipt of the foregoing
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 Officers’ Certificates, except as otherwise
provided herein);
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee
pursuant hereto, 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 by the Trustee
to
act hereunder;
(j) The
permissive right of the Trustee to take or refrain from taking any actions
enumerated in this Indenture shall not be construed as a duty;
(k) 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;
58
(l) Anything
in this Indenture notwithstanding, in no event shall the Trustee be liable
for
special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including but not limited to loss of profit), even if the Trustee
has been advised as to the likelihood of such loss or damage and regardless
of
the form of action; and
(m) The
Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fire; flood; terrorism;
wars and other military disturbances; sabotage; epidemics; riots; interruptions,
loss or malfunctions of utilities, computer (hardware or software) or
communication services; accidents; labor disputes; acts of civil or military
authority and governmental action.
Section
12.03 Trustee
Not Responsible for Recitals or Issuance of Securities.
(a)
The
recitals contained herein and in the Securities shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the correctness
of
the same.
(b) The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities.
(c) The
Trustee or any Authorized Agent shall not be accountable for the use or
application by the Company of any of the Securities or of the proceeds of
such
Securities, or for the use or application of any moneys paid over by the
Trustee
in accordance with any provision of this Indenture or established pursuant
to
Section 2.01, or for the use or application of any moneys received by any
Paying
Agent other than the Trustee.
Section
12.04 May
Hold Securities.
The
Trustee or any Paying Agent or Security Registrar, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject
to
Section 12.16, may otherwise deal with the Company with the same rights it
would
have if it were not Trustee, Paying Agent or Security Registrar.
Section
12.05 Moneys
Held in Trust.
Subject
to the provisions of Section 15.02, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes
for
which they were received, but need not be segregated from other funds except
to
the extent required by law. The Trustee shall be under no liability for interest
on any moneys received by it hereunder except such as it may agree in writing
with the Company to pay thereon.
Section
12.06 Compensation
and Reimbursement.
(a)
The
Company covenants and agrees to pay to the Trustee, and the Trustee shall
be
entitled to, such compensation (which shall not be limited by any provision
of
law in regard to the compensation of a trustee of an express trust), as the
Company and the Trustee may from time to time agree in writing for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee,
and,
except as otherwise expressly provided herein, the Company shall pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance
as may
arise from the Trustee’s gross negligence, bad faith or willful misconduct. The
Company covenants and agrees to indemnify the Trustee (and its officers,
agents,
directors, stockholders and employees) for, and to hold it harmless against,
any
loss, liability or expense (including, without limitation, reasonable attorney’s
fees and expenses) incurred without gross negligence or bad faith or willful
misconduct on the part of the Trustee and arising out of or in connection
with
the acceptance or administration of this trust, including the reasonable
costs
and expenses of defending itself against any claim of liability in the
premises.
59
(b) The
obligations of the Company under this Section to compensate and indemnify
the
Trustee and to pay or reimburse the Trustee for reasonable expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of
the
Securities upon all property and funds held or collected by the Trustee as
such,
except funds held in trust for the benefit of the Holders.
(c) When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 11.01(h) or (i) occurs, the expenses and the compensation for
the
services are intended to constitute expenses of administration under any
Bankruptcy Law.
(d) For
the
purposes of this Section 12.06, the “Trustee” shall include any predecessor
Trustee; provided,
however,
that
the gross negligence, bad faith or willful misconduct of any Trustee or other
indemnified party hereunder shall not affect the rights of any other Trustee
hereunder.
(e) The
provisions of this Section shall survive the discharge of this Indenture
and
resignation or removal of the Trustee.
Section
12.07 Reliance
on Officers’ Certificate.
Except
as
otherwise provided in Section 12.01, 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 suffering or omitting
to take any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of bad faith
on
the part of the Trustee, be deemed to be conclusively proved and established
by
an Officers’ Certificate or Opinion of Counsel delivered to the Trustee and such
certificate, in the absence of bad faith on the part of the Trustee, shall
be
full warrant to the Trustee for any action taken, suffered or omitted to
be
taken by it under the provisions of this Indenture upon the faith
thereof.
Section
12.08 Disqualification:
Conflicting Interests.
If
the
Trustee has or shall acquire any “conflicting interest” within the meaning of
Section 310(b) of the TIA, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the TIA.
Section
12.09 Corporate
Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Securities issued hereunder
which shall at all times be a corporation organized and doing business under
the
laws of the United States of America or any State or Territory thereof or
of the
District of Columbia, or a corporation or other Person permitted to act as
trustee by the SEC, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus, or being a member of a bank
holding company with a combined capital and surplus, of at least 50 million
U.S.
dollars ($50,000,000), and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most
recent report of condition so published. The Company may not, nor may any
Person
directly or indirectly controlling, controlled by, or under common control
with
the Company, serve as Trustee. In case at any time the Trustee shall cease
to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section
12.10.
60
Section
12.10 Resignation
and Removal; Appointment of Successor.
(a)
The
Trustee or any successor hereafter appointed may at any time resign as Trustee
with respect to the Securities by giving written notice thereof to the Company
and by transmitting notice of resignation by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Register.
Upon receiving such notice of resignation, the Company shall promptly appoint
a
successor trustee with respect to the Securities by or pursuant to a resolution
of the Board of Directors. If no successor trustee shall have been so appointed
and have accepted appointment within 30 days after the mailing of such notice
of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to the
Securities, or any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months may on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee, in either case at the sole cost and expense of the Company. 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 one of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 12.08 after written
request therefor by the Company or by any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months;
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section
12.09 and shall fail to resign after written request therefor by the Company
or
by any such Securityholder; or
(iii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt
or
insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of
the
Trustee or of its property shall be appointed or consented to, 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 with respect to all Securities
and appoint a successor trustee by or pursuant to a resolution of the Board
of
Directors, or, unless the Trustee’s duty to resign is stayed as provided herein,
subject to Section 11.11, any Securityholder who has been a bona fide holder
of
a Security or Securities for at least six months may, on behalf of that Holder
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the 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 Securities at
the
time outstanding may at any time remove the Trustee by so notifying the Trustee
and the Company and may appoint a successor Trustee with the consent of the
Company. If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after such notification of removal by the Holders,
the Trustee to be removed may petition any court of competent jurisdiction
for
the appointment of a successor trustee with respect to the Securities, or
any
Securityholder who has been a bona fide holder of a Security or Securities
for
at least six months may on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee, in either
case at the sole cost and expense of the Company. Such court may, as it may
deem
proper prescribe or appoint a successor trustee.
(d) Notwithstanding
anything herein to the contrary, any resignation or removal of the Trustee
and
appointment of a successor trustee with respect to the Securities pursuant
to
any of the provisions of this Section shall become effective upon acceptance
of
appointment by the successor trustee as provided in Section 12.11.
61
(e) So
long
as no event which is, or, after notice or lapse of time, or both, would become,
an Event of Default shall have occurred and be continuing, and except with
respect to a Trustee appointed by the Holders of a majority in principal
amount
of the Securities at that time outstanding pursuant to subsection (c) of
this
Section, if the Company shall have delivered to the Trustee (i) a resolution
of
the Board of Directors appointing a successor Trustee, effective as of a
date
specified therein, and (ii) an instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee in accordance with Section
12.11, the Trustee shall be deemed to have resigned as contemplated in
subsection (a) of this Section, the successor Trustee shall be deemed to
have
been appointed by the Company pursuant to subsection (a) of this Section
and
such appointment shall be deemed to have been accepted as contemplated in
Section 12.11, all as of such date, and all other provisions of this Section
and
Section 12.11 shall be applicable to such resignation, appointment and
acceptance except to the extent inconsistent with this subsection
(e).
(f) At
any
time there shall be only one Trustee with respect to the
Securities.
Section
12.11 Acceptance
of Appointment By Successor.
(a)
In case
of the appointment hereunder of a successor trustee with respect to the
Securities, every such successor trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts
and duties of the retiring Trustee; but, on the request of the Company or
the
successor trustee, such retiring Trustee shall, upon payment of its charges
and
all other amounts payable to it hereunder, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts
of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder, subject
to the lien provided for in Section 12.06(b).
(b) Upon
request of any such successor trustee, the Company shall execute any and
all
instruments for more fully and certainly vesting in and confirming to such
successor trustee all such rights, powers and trusts referred to in subsection
(a) of this Section.
(c) No
successor trustee shall accept its appointment unless at the time of such
acceptance such successor trustee shall be qualified and eligible under this
Article 12.
(d) Upon
acceptance of appointment by a successor trustee as provided in this Section,
the Company shall transmit notice of the succession of such trustee hereunder
by
mail, first class postage prepaid, to the Securityholders, as their names
and
addresses appear upon the Register. If the Company fails to transmit such
notice
within ten days after acceptance of appointment by the successor trustee,
the
successor trustee shall cause such notice to be transmitted at the expense
of
the Company.
Section
12.12 Merger,
Conversion, Consolidation or Succession to Business.
Any
corporation or other business entity into which the Trustee may be merged
or
converted or with which it may be consolidated, or any corporation or other
business entity resulting from any merger, conversion or consolidation to
which
the Trustee shall be a party, or any corporation or other business entity
succeeding to all or substantially all of the corporate trust business of
the
Trustee, including the administration of this Indenture, shall be the successor
of the Trustee hereunder, provided that such corporation or other business
entity shall be qualified under the provisions of Section 12.08 and eligible
under the provisions of Section 12.09, without the execution or filing of
any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities shall have
been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may
adopt
such authentication and deliver the Securities so authenticated with the
same
effect as if such successor Trustee had itself authenticated such
Securities.
62
Section
12.13 Preferential
Collection of Claims Against the Company.
The
Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship described in Section 311(b) of the TIA. A Trustee who has resigned
or been removed shall be subject to Section 311(a) of the TIA to the extent
included therein.
Section
12.14 Notice
of Defaults.
If
a
Default or Event of Default occurs and is continuing hereunder and if it
is
actually known to a Trust Officer of the Trustee, the Trustee shall mail
to each
Holder notice of the Default or Event of Default within 90 days after such
Default or Event of Default. Except in the case of a default in payment of
principal of or interest (including Contingent Interest or Additional Interest,
if any) on any Security, the Trustee may withhold the notice if and so long
as a
committee of its Trust Officers in good faith determines that withholding
the
notice is in the interest of the Holders of such Securities.
Section
12.15 Reports
by Trustee.
(a)
Within
sixty (60) days after May 1 of each year commencing with the year 2007, the
Trustee shall transmit to Securityholders such reports dated as of May 1
of the
year in which such report is made concerning the Trustee and its actions
under
this Indenture as may be required pursuant to the TIA, including, without
limitation, Section 313(a) thereof, at the times and in the manner provided
pursuant thereto. In the event that, on any such reporting date, no events
have
occurred under the applicable sections of the TIA within the 12 months preceding
such reporting date, the Trustee shall be under no duty or obligation to
provide
such reports. The Trustee shall also comply with TIA Section 313(b)(2). The
Trustee shall transmit by mail all reports as required by TIA Section
313(c).
(b) A
copy of
each such report shall, at the time of such transmission to Securityholders,
be
delivered to the Company and filed by the Trustee with each stock exchange
upon
which the Securities are listed and with the SEC in accordance with TIA Section
313(d). The Company shall notify the Trustee when the Securities are listed
on
any stock exchange and of any delisting thereof.
Section
12.16 Preferential
Collection of Claims.
If
and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions
of
the TIA regarding the collection of claims against the Company (or any such
other obligor).
ARTICLE
13
Amendments,
Supplements and Waivers
Section
13.01 Without
Consent of Holders.
The
Company and the Trustee may amend or supplement this Indenture or the Securities
without notice to, or consent of, any Securityholder:
(a) to
cure
any ambiguity, omission, defect or inconsistency, to correct or supplement
any
provision herein which may be inconsistent with any other provision herein,
or
to make any other provisions with respect to matters or questions arising
under
this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided that such action pursuant to this subsection (a) shall
not
adversely affect the interests of the Holders in any material
respect;
63
(b) to
provide for uncertificated Securities in addition to or in place of Certificated
Securities;
(c) to
provide for the assumption of the Company’s obligations to Holders of Securities
in the case of a share exchange, merger or consolidation or sale of all or
substantially all of the Company’s assets;
(d) to
make
any change that would provide any additional rights or benefits to the Holders
of Securities or that does not adversely affect in any material respect the
legal rights under this Indenture of any Securityholder;
(e) to
add a
guarantor;
(f) to
comply
with requirements of the SEC in order to effect or maintain the qualification
of
this Indenture under the TIA;
(g) to
secure
the Securities;
(h) to
comply
with the rules of any applicable securities depositary, including the
Depositary;
(i) to
increase the Conversion Rate;
(j) to
execute a supplemental indenture in accordance with Section 7.08;
(k) to
conform the text of this Indenture or the Securities to any provision of
the
“Description of the Notes” contained in the Offering Circular to the extent that
the text of the “Description of the Notes” was intended by the Company and the
Initial Purchaser to be a recitation of the text of this Indenture or the
Securities as represented by the Company to the Trustee in an Officers’
Certificate;
(l) to
provide for a successor Trustee in accordance with the terms of this Indenture
or to otherwise comply with any requirement of this Indenture;
(m) to
provide for the issuance of Additional Securities, to the extent that the
Company and the Trustee deem such amendment or supplement necessary or advisable
in connection with such issuance; provided
that no
such amendment or supplement shall impair the rights or interests of any
Holder
of Initial Securities;
(n) to
add to
the Company’s covenants for the benefit of the Holders or surrender any right or
power conferred on the Company; or
(o) to
modify
the restrictions and procedures for resale and other transfers of Securities
or
Common Stock pursuant to law, regulation or practice relating to the resale
or
transfer of restricted securities generally.
Section
13.02 With
Consent of Holders.
The
Company and the Trustee may amend or supplement the Securities or this Indenture
with the consent of the Holders of at least a majority in aggregate principal
amount of the Securities then outstanding. Subject to Section 11.04 and Section
11.07, the Holders of at least a majority in aggregate principal amount of
the
Securities then outstanding may waive compliance in any instance by the Company
with any provision of the Securities or this Indenture or waive any past
default
under this Indenture and its consequences, except a default in the payment
of
any amount due, or in the obligation to deliver Common Stock, with respect
to
any Security or in respect of any provision which under this Indenture cannot
be
modified or amended, in each case without notice to any Securityholder. However,
notwithstanding the foregoing but subject to Section 13.04, without the consent
of the Holders of each Security then outstanding, an amendment, supplement
or
waiver may not:
64
(a) change
the stated maturity of the principal of or the payment date of any installment
of interest (including Contingent Interest or Additional Interest, if any)
on or
with respect to any Security;
(b) reduce
the principal amount, the Redemption Price, Repurchase Price or Fundamental
Change Purchase Price, or the Conversion Rate (except as provided in this
Indenture) of any Security or rate of interest, Contingent Interest or
Additional Interest on, any Security;
(c) reduce
the amount of principal payable upon acceleration of the maturity of any
Security;
(d) change
the currency in which payment of principal, the Redemption Price, Repurchase
Price or Fundamental Change Purchase Price, or interest (including Contingent
Interest or Additional Interest, if any) with respect to, the Securities
is
payable;
(e) impair
the right to institute suit for the enforcement of any payment on, or with
respect to, any Security;
(f) modify
the provisions with respect to the repurchase rights of Holders as provided
in
Article 5 in a manner adverse to Holders;
(g) adversely
affect the right of Holders to convert Securities other than as provided
in this
Indenture;
(h) reduce
the percentage in principal amount of the outstanding Securities, the consent
of
whose Holders is required to take specific actions including, but not limited
to, the waiver of past defaults or the modification or amendment of this
Indenture; or
(i) alter
the
manner of calculation or rate of accrual of interest (including Contingent
Interest or Additional Interest, if any), the Redemption Price, Repurchase
Price, Fundamental Change Purchase Price or the Conversion Rate (except as
permitted under this Indenture) on any Security or extend the time for payment
of any such amount or shorten the time for redemption.
It
shall
not be necessary for the consent of the Holders under this Section 13.02
to
approve the particular form of any proposed amendment, supplement or waiver,
but
it shall be sufficient if such consent approves the substance
thereof.
After
an
amendment, supplement or waiver under Section 13.01 or this Section 13.02
becomes effective, the Company shall mail to the Holders affected thereby
a
notice briefly describing the amendment, supplement or waiver. Any failure
of
the Company to mail such notice, or any defect therein, shall not, however,
in
any way impair or affect the validity of any such amendment, supplement or
waiver.
Section
13.03 Compliance
with Trust Indenture Act.
Every
amendment to or supplement of this Indenture or the Securities shall comply
with
the TIA as in effect at the date of such amendment or supplement.
Section
13.04 Revocation
and Effect of Consents.
Until
an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to its Security
or portion of a Security if the Trustee receives the notice of revocation
before
the date the amendment, supplement or waiver becomes effective.
65
After
an
amendment, supplement or waiver becomes effective, it shall bind every
applicable Securityholder.
Section
13.05 Notation
on or Exchange of Securities.
If
an
amendment, supplement or waiver changes the terms of a Security, the Trustee
may
require the Holder of the Security to deliver it to the Trustee. The Trustee
may
place an appropriate notation on the Security about the changed terms and
return
it to the Holder. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
Section
13.06 Trustee
to Sign Amendments, Etc.
The
Trustee shall sign any amendment or supplemental indenture authorized pursuant
to this Article 13 if the amendment or supplemental indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee in any
material respect. If it does adversely affect the rights, duties, liabilities
or
immunities of the Trustee in any material respect, the Trustee may, in its
sole
discretion, but need not sign it. In signing or refusing to sign such amendment
or supplemental indenture, the Trustee shall be provided with and, subject
to
Section 12.01, shall be fully protected in relying upon, an Officers’
Certificate and an Opinion of Counsel stating that such amendment or
supplemental indenture is authorized or permitted by this Indenture and that
all
conditions precedent to the effectiveness of such amendment or supplement
have
been satisfied or duly waived.
Section
13.07 Effect
of Supplemental Indentures.
Upon
the
execution of any supplemental indenture under this Article, this Indenture
shall
be modified in accordance therewith, and such supplemental indenture shall
form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be
bound
thereby.
ARTICLE
14
[Reserved]
ARTICLE
15
Satisfaction
and Discharge
Section
15.01 Satisfaction
and Discharge of the Indenture.
This
Indenture shall cease to be of further effect (except as to any surviving
rights
of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(i) all
Securities theretofore authenticated and delivered (other than Securities
that
have been destroyed, lost or stolen and which have been replaced or paid
as
provided in Section 2.07) have been delivered to the Trustee for cancellation;
or
(ii) all
such
Securities not theretofore delivered to the Trustee for cancellation have
become
due and payable whether at the Maturity Date, any Redemption Date or Repurchase
Date, upon acceleration, upon conversion or otherwise and the Company deposits
with the Paying Agent or Conversion Agent, as the case may be, Cash, Common
Stock or other consideration, or a combination thereof, as applicable hereunder,
sufficient to pay on such date all amounts due and owing on all outstanding
Securities (other than Securities replaced pursuant to Section 2.07) on such
date;
66
(b) the
Company has paid or caused to be paid all other sums payable hereunder by
the
Company; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company
to the Trustee under Section 12.06 and, if money shall have been deposited
with
the Trustee pursuant to Section 15.01(a)(ii), the obligations of the Trustee
under Section 15.02 shall survive such satisfaction and discharge.
Notwithstanding
anything herein to the contrary, Article 7, Article 15, and Section 2.04,
Section 2.06, Section 2.07, Section 2.08, Section 2.15, Section 2.16, Section
9.01, Section 9.05, Section 9.06 and Section 12.06 shall survive any discharge
of this Indenture until such time as there are no Securities
outstanding.
Section
15.02 Repayment
to the Company.
The
Trustee, the Paying Agent and the Conversion Agent shall return to the Company
upon written request any Cash or securities held by them for the payment
of any
amount with respect to the Securities that remains unclaimed for two years,
subject to applicable unclaimed property law. After return to the Company,
Holders entitled to the Cash or securities must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another person and the Trustee, the Paying Agent and the Conversion Agent
shall
have no further liability to the Securityholders with respect to such Cash
or
securities for that period commencing after the return thereof.
ARTICLE
16
Miscellaneous
Section
16.01 Trust
Indenture Act Controls.
If
any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA,
including, without limitation, the duties imposed by TIA Section 318(c),
the
required provision of the TIA shall control.
Section
16.02 Notices.
.
Any
demand, authorization, notice, request, consent or communication shall be
given
in writing and delivered in person, sent by overnight courier or mailed by
first-class mail, postage prepaid, addressed as follows or transmitted by
facsimile transmission (confirmed by delivery in person or mail by first-class
mail, postage prepaid, or by guaranteed overnight courier) to the parties
hereto
as follows:
If
to the
Company, to:
Linear
Technology Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Milpitas,
CA 95035-7417
Attention:
Chief Financial Officer
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
67
if
to the
Trustee, to:
U.S.
Bank
National Association
▇▇▇
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Los
Angeles, CA 90071
Attention:
Corporate Trust Services
(Linear
3.00% Convertible Senior Notes due 2027)
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Such
notices or communications to the Trustee shall be effective when
received.
The
Company or the Trustee by notice to the other in the manner prescribed above
may
designate additional or different addresses or facsimile numbers for subsequent
notices or communications.
Any
notice or communication mailed to a Securityholder shall be mailed by
first-class mail, postage prepaid, or delivered by hand or by an overnight
delivery service to it at its address shown on the Register and shall be
sufficiently given if so mailed or delivered within the time prescribed.
Any
notice or communication shall also be mailed to any Person described in TIA
Section 313(c), to the extent required by the TIA.
Failure
to mail a notice or communication to a Securityholder or any defect in it
shall
not affect its sufficiency with respect to other Securityholders. Except
as set
forth above as to the Trustee, if a notice or communication is mailed in
the
manner provided above, it is duly given, whether or not the addressee receives
it.
Section
16.03 Communications
by Holders with Other Holders.
Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders
with
respect to their rights under this Indenture or the Securities. The Company,
the
Trustee, the Registrar, the Paying Agent, the Conversion Agent and any other
Person shall have the protection of TIA Section 312(c).
Section
16.04 Certificate
and Opinion as to Conditions Precedent.
(a)
Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee at the request of
the
Trustee:
(i) an
Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent (including any covenants, compliance with which constitutes
a condition precedent), if any, provided for in this Indenture relating to
the
proposed action have been complied with; and
(ii) an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent (including any covenants, compliance with which constitutes
a condition precedent) have been complied with.
68
(b) Each
Officers’ Certificate and Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture (other than an Officers’
Certificate provided pursuant to Section 9.03) shall include:
(i) a
statement that the person making such certificate or opinion has read such
covenant or condition;
(ii) a
brief
statement as to the nature and scope of the examination or investigation
upon
which the statements or opinions contained in such certificate or opinion
are
based;
(iii) a
statement that, in the opinion of such person, he or she has made such
examination or investigation as is necessary to enable him or her to express
an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a
statement as to whether or not, in the opinion of such person, such condition
or
covenant has been complied with;
provided
that
with respect to matters of fact an Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials.
Section
16.05 Record
Date for Vote or Consent of Securityholders.
The
Company may set a record date for purposes of determining the identity of
Holders entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture, which record date shall not be more than
30
days prior to the date of the commencement of solicitation of such action.
Notwithstanding the provisions of Section 13.04, if a record date is fixed,
those persons who were Holders of Securities at the Close of Business on
such
record date (or their duly designated proxies), and only those persons, shall
be
entitled to take such action by vote or consent or to revoke any vote or
consent
previously given, whether or not such persons continue to be Holders after
such
record date.
Section
16.06 Rules
by Trustee, Paying Agent, Registrar and Conversion Agent.
The
Trustee may make reasonable rules (not inconsistent with the terms of this
Indenture) for action by or at a meeting of Holders. Any Registrar, Paying
Agent
or Conversion Agent may make reasonable rules for its functions.
Section
16.07 Legal
Holidays.
A
“Legal
Holiday”
is
a
Saturday, Sunday or a day on which state or federally chartered banking
institutions in New York, New York are not required to be open. If a payment
date is a Legal Holiday, payment shall be made on the next succeeding day
that
is not a Legal Holiday, and no interest shall accrue for the intervening
period.
If an Interest Payment Record Date or other record date is a Legal Holiday,
the
record date shall not be affected.
Section
16.08 Governing
Law; Jury Trial Waiver.
This
Indenture and the Securities shall be governed by, and construed in accordance
with, the laws of the State of New York.
EACH
OF
THE COMPANY AND THE TRUSTEE HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS INDENTURE.
Section
16.09 No
Adverse Interpretation of Other Agreements.
This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or a Subsidiary of the Company. Any such indenture, loan or
debt
agreement may not be used to interpret this Indenture.
Section
16.10 No
Recourse Against Others.
No
recourse for the payment of the principal of, or accrued and unpaid interest
(including Contingent Interest or Additional Interest, if any), on, any
Security, or for any claim based thereon or otherwise in respect thereof,
and no
recourse under or upon any obligation, covenant or agreement of the Company
in
this Indenture or in any supplemental indenture or in any Security, or because
of the creation of any Indebtedness represented thereby, shall be had against
any past, present or future incorporator, stockholder, employee, agent, officer
or director or Subsidiary of the Company as such or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law,
or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that, to the extent permitted by law, 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 Securities.
69
Section
16.11 Successors.
All
agreements of the Company in this Indenture and the Securities shall bind
its
successors. All agreements of the Trustee in this Indenture shall bind its
successor.
Section
16.12 Multiple
Counterparts.
The
parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together shall
represent the same agreement.
Section
16.13 Separability.
In
case
any provisions in this Indenture or in the Securities 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
16.14 Calculations
in Respect of the Securities.
The
Company or its agents shall make all calculations under this Indenture and
the
Securities in good faith. In the absence of manifest error, such calculations
shall be final and binding on all Holders. The Company or its agents shall
provide a copy of such calculations to the Trustee as required hereunder,
and
the Trustee shall be entitled to rely on the accuracy of any such calculation
without independent verification.
Section
16.15 Table
of Contents, Headings, Etc.
The
table
of contents, cross-reference sheet 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.
[SIGNATURE
PAGE FOLLOWS]
70
Exhibit
4.1
IN
WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the
date
and year first above written.
LINEAR
TECHNOLOGY CORPORATION
|
By:
|
|
|
Name:
|
|
|
Title:
|
U.S.
BANK
NATIONAL ASSOCIATION, not in its individual capacity, but solely as
Trustee,
|
By:
|
|
|
Name:
|
|
|
Title:
|
71
EXHIBIT
A
[FORM
OF FACE OF SECURITY]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL
IT
IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. 1
THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON
CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. 2
THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS
SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO
A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE
REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATE IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (III)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL,
AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. 3
THIS
SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES. THE ISSUE PRICE FOR THIS SECURITY IS $1,000 PER $1,000
OF
PRINCIPAL AMOUNT AND THE ISSUE DATE FOR THIS SECURITY IS APRIL 24, 2007.
THIS
SECURITY IS SUBJECT TO UNITED STATES FEDERAL INCOME TAX REGULATIONS GOVERNING
CONTINGENT PAYMENT DEBT INSTRUMENTS. THE COMPARABLE YIELD FOR THIS SECURITY
IS
7.00% PER ANNUM, COMPOUNDED SEMI-ANNUALLY (WHICH WILL BE TREATED AS THE YIELD
TO
MATURITY FOR UNITED STATES FEDERAL INCOME TAX PURPOSES). FOR INFORMATION
REGARDING THE PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY, HOLDERS SHOULD
CONTACT THE CHIEF FINANCIAL OFFICER OF LINEAR TECHNOLOGY CORPORATION AT ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
Pursuant
to Section 2.16 of the Indenture, the foregoing legend is required for U.S.
federal income tax purposes.
1
This
legend to be included only if the Security is a Global Security.
2 This
legend to be included only if the Security is a Restricted
Security.
3
This
legend to be included only if the Security if a Restricted
Security.
Exhibit
4.1
LINEAR
TECHNOLOGY CORPORATION
3.00%
Convertible Senior Note due May 1, 2027
No.
___ CUSIP:
▇▇▇▇▇▇▇▇▇ U.S.
$_________
ISIN:
US535678AA46
Linear
Technology Corporation, a Delaware corporation (the “Company,”
which
term shall include any successor Person under the Indenture (as hereinafter
defined)), promises to pay to Cede & Co., or registered assigns, the
principal amount of ($ ) on May 1, 2027, and to pay interest thereon, in
arrears, from and including the most recent Interest Payment Date to which
interest has been paid or duly provided for (or if no interest has been paid,
from, and including April 24, 2007), to, but excluding, May 1 and November
1 of
each year (each, an “Interest
Payment Date”),
beginning on November 1, 2007, at a rate of 3.00% per annum until the principal
hereof is paid or made available for payment at May 1, 2027, or upon
acceleration, or until such date on which this Security is converted, redeemed
or purchased as provided herein. The interest so payable and punctually paid
or
duly provided for on any Interest Payment Date shall, as provided in the
Indenture (as hereinafter defined), be paid to the Person in whose name this
Security is registered at the Close of Business on the regular record date
for
such interest, which shall be the April 15 or October 15 (whether or not
a
Business Day), as the case may be, immediately preceding the relevant Interest
Payment Date (each, an “Interest
Payment Record Date”);
provided,
however,
that
interest shall be paid to a Person other than the Person in whose name this
Security is registered at the Close of Business on the Interest Payment Record
Date as provided herein. The Company will also pay contingent interest to
the
Holder during any six-month period from May 1 to October 31 and from November
1
to April 30 commencing with period beginning May 1, 2014, if the average
trading
price of the Security, for five consecutive trading days ending three trading
days before the relevant six-month period equals 120% or more of the principal
amount of the Security. The amount of contingent interest payable per $1,000
principal amount of the Security with respect to any six-month period will
equal
0.25% per year of the average trading price of the Security for the five
trading
day period referred to above.
Additional
provisions of this Security are set forth on the reverse of this
Security.
[Signature
page follows]
Exhibit
4.1
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
April 24, 2007
LINEAR
TECHNOLOGY CORPORATION
|
By:
|
|
|
Name:
|
|
|
Title:
|
Trustee’s
Certificate of Authentication: This is one of the Securities referred to
in the
within-mentioned Indenture.
U.S.
BANK
NATIONAL ASSOCIATION, not in its individual capacity, but solely as
Trustee,
|
By:
|
|
|
Name:
|
|
|
Title:
|
Exhibit
4.1
[FORM
OF REVERSE OF SECURITY]
LINEAR
TECHONOLOGY CORPORATION
3.00%
CONVERTIBLE SENIOR NOTE DUE MAY 1, 2027
This
Security is one of a duly authorized issue of 3.00% Convertible Senior Notes
due
May 1, 2027 (the “Securities”)
of the
Company issued under an Indenture, dated as of April 24, 2007 (the “Indenture”),
between the Company and U.S. Bank National Association, as trustee (the
“Trustee”).
The
terms of this Security include those stated in the Indenture, those made
part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended
(the
“TIA”),
and
those set forth in this Security. This Security is subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of
all
such terms. To the extent permitted by applicable law, if any provision of
this
Security conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling. Capitalized terms used
but not
defined herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
|
1.
|
Interest.
|
Linear
Technology Corporation, a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Security at the
rate
per annum shown above.
The
Company will pay interest, payable semi-annually in arrears, on May 1 and
November 1 of each year, with the first payment to be made on November 1,
2007.
Interest on this Security will accrue on the principal amount from, and
including, the most recent date to which interest has been paid or provided
for
or, if no interest has been paid, from, and including, April 24, 2007, in
each
case to, but excluding, the next interest payment date or Maturity Date,
as the
case may be. Interest will be computed on the basis of a 360-day year of
twelve
30-day months. The Company will also pay contingent interest to the Holder
during any six-month period from May 1 to October 31 and from November 1
to
April 30 commencing with period beginning May 1, 2014, if the average Trading
Price per $1,000 principal amount of the Security, during the five consecutive
Trading Days ending three Trading Days before the relevant six-month period
equals or exceeds 120% of the principal amount of the Security. The amount
of
contingent interest payable per $1,000 principal amount of the Security with
respect to any six-month period will equal 0.25% per year of the average
Trading
Price of the Security for the five Trading Day period referred to
above.
|
2.
|
Method
of Payment.
|
Payment
of the principal of, and interest on, this Security shall be made at the
office
of the Paying Agent in such coin or currency of the United States of America
as
at the time of payment is legal tender for payment of public and private
debts.
The Holder must surrender this Security to a Paying Agent to collect payment
of
principal. Payment of interest on Certificated Securities shall be made by
check
mailed to the address of the Person entitled thereto as such address appears
in
the Register; provided,
however,
that
Holders with Securities in an aggregate principal amount in excess of $2.0
million shall be paid, at their written election, by wire transfer of
immediately available funds. Notwithstanding the foregoing, so long as the
Securities are registered in the name of a Depositary or its nominee, all
payments with respect to the Securities shall be made by wire transfer of
immediately available funds to the account of the Depositary or its
nominee.
|
3.
|
Paying
Agent, Registrar, Conversion Agent.
|
Initially,
the Trustee shall act as Paying Agent, Registrar and Conversion Agent. The
Company or any Affiliate of the Company may act as Paying Agent, Registrar
or
Conversion Agent, subject to the terms of the Indenture.
|
4.
|
Indenture.
|
The
Securities are general unsubordinated unsecured obligations of the Company
initially limited to $1,000,000,000 aggregate principal amount. The Company
may,
without consent of the Holders, issue additional Securities under the Indenture
with the same terms as the Securities in an unlimited aggregate principal
amount; provided
that
no such
Additional Securities may be issued unless fungible with the Securities for
U.S.
federal income tax purposes. The Indenture does not limit other debt of the
Company, secured or unsecured.
|
5.
|
Redemption
at the Option of the Company.
|
The
Securities are redeemable for cash at the option of the Company, in whole
or in
part, at any time and from time to time on or after May 1, 2014 upon not
less
than 20 nor more than 60 days notice by mail for a redemption price equal
to the
principal amount of those Securities plus accrued and unpaid interest, including
Contingent Interest and Additional Interest, if any, on those Securities
up to,
but not including, the Redemption Date.
|
6.
|
Purchase
by the Company at the Option of the
Holder.
|
Subject
to the terms and conditions in Article 5 of the Indenture, the Company shall
be
obligated to repurchase for cash, at the option of the Holder, all or any
portion of the Securities held by such Holder on May 1, 2014, May 1, 2017
and
May 1, 2022 in integral multiples of $1,000 at a Repurchase Price equal to
100%
of the principal amount of those Securities submitted for repurchase, plus
accrued and unpaid interest, including Contingent Interest and Additional
Interest, if any, on those Securities to, but not including the Specified
Repurchase Date.
|
7.
|
Purchase
by the Company Upon a Fundamental
Change.
|
Subject
to the terms and conditions set forth in Article 5 of the Indenture, each
Holder
shall have the option to require the Company to repurchase its Securities
upon
the occurrence of a Fundamental Change.
|
8.
|
Conversion.
|
Subject
to the terms and conditions set forth in Article 7 of the Indenture, the
Securities shall be convertible into cash, and, if applicable, cash, shares
of
Common Stock or a combination thereof at the Company's election. In addition,
subject to the terms and conditions set forth in Section 7.01 of the Indenture,
upon the occurrence of a Makewhole Fundamental Change, we may increase the
Conversion Rate for Securities converted in connection with a Makewhole
Fundamental Change.
|
9.
|
Denominations;
Transfer; Exchange.
|
The
Securities are in registered form, without coupons, in denominations of $1,000
and integral multiples of $1,000. A Holder may register the transfer of or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain taxes, assessments or other governmental charges
that may be imposed in relation thereto by law or permitted by the
Indenture.
|
10.
|
Persons
Deemed Owners.
|
The
registered Holder of a Security may be treated as the owner of such Security
for
all purposes.
|
11.
|
Unclaimed
Money or Securities.
|
The
Trustee and the Paying Agent shall return to the Company upon written request
any Cash or securities held by them for the payment of any amount with respect
to the Securities that remains unclaimed for two years, subject to applicable
unclaimed property law. After return to the Company, Holders entitled to
the
Cash or securities must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another
person.
|
12.
|
Amendment,
Supplement and Waiver.
|
Subject
to certain exceptions, the Securities or the Indenture may be amended or
supplemented with the consent of the Holders of at least a majority in aggregate
principal amount of the Securities then outstanding, and, subject to certain
exceptions, an existing or future Default or Event of Default with respect
to
the Securities and its consequences or compliance with any provision of the
Securities or the Indenture may be waived with the consent of the Holders
of at
least a majority in aggregate principal amount of the Securities then
outstanding. Subject to the terms of the Indenture, without the consent of
or
notice to any Holder, the Company and the Trustee may amend or supplement
the
Indenture or the Securities to, among other things, cure any ambiguity, defect,
omission or inconsistency.
|
13.
|
Defaults
and Remedies.
|
Subject
to certain exceptions set forth in the Indenture, if an Event of Default
(excluding an Event of Default specified in Sections 11.01(h) or 11.01(i)
of the
Indenture with respect to the Company) occurs and is continuing, the Trustee
by
notice to the Company or the Holders of at least twenty five percent (25%)
in
principal amount of the Securities then outstanding by notice to the Company
and
the Trustee may declare the Securities to be due and payable. Upon such
declaration, the principal of, and accrued and unpaid interest on, all
Securities shall be due and payable immediately. If an Event of Default
specified in Sections 11.01(h) or 11.01(i) of the Indenture with respect
to the
Company occurs, the principal of, and accrued and unpaid interest on, all
the
Securities shall ipso facto
become
and be immediately due and payable without any declaration or other act on
the
part of the Trustee or any Holder.
|
14.
|
Trustee
Dealings with the Company.
|
Subject
to certain limitations imposed by the TIA, the Trustee under the Indenture,
in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it
by the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not the
Trustee.
|
15.
|
No
Recourse Against Others.
|
No
recourse under or upon any obligation, covenant or agreement of the Company
contained in the Indenture, or in this Security, or because of any indebtedness
evidenced thereby or hereby, shall be had against any incorporator, as such,
or
against any past, present or future employee, stockholder, officer or director,
as such, of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released,
to the extent permitted by law, by the acceptance of the Securities by the
Holders and as part of the consideration for the issuance of the
Securities.
|
16.
|
U.S.
Federal income Tax Treatment.
|
This
Security is being issued with original issue discount for U.S. federal income
tax purposes. The issue price for this Security is $1,000 per $1,000 principal
amount and the issue date for this Security is April 24, 2007. The comparable
yield for this Security is 7.00% per annum, compounded semi-annually (which
will
be treated as the yield to maturity for U.S. federal income tax purposes).
For
information regarding the projected payment schedule for the Securities,
holders
should contact the general counsel of Linear Technology Corporation at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
The
Company agrees, and by acceptance of a Security, each holder hereof is deemed
to
have agreed, with respect to each of the matters set forth below, as
follows:
(a) Tax
Treatment:
(i) to
treat
the Securities as indebtedness for U.S. federal income tax purposes that
is
subject to the Treasury Regulations governing contingent payment debt
instruments (the “contingent debt regulations”); and
(ii) to
treat
any payment to and receipt by a Holder of cash and Common Stock upon conversion
of a Security as a contingent payment under the contingent debt
regulations.
(b) Comparable
Yield and Projected Payment Schedule. Solely for purposes of applying the
contingent debt regulations:
(i) for
United States federal income tax purposes, to accrue interest with respect
to
outstanding Securities as original issue discount according to the
“noncontingent bond method,” as set forth in the contingent debt regulations,
using the comparable yield of 7.00% compounded semi-annually; and
(ii) the
Company acknowledges and agrees, and each Holder and any beneficial owner
of a
Security, by its purchase of a Security shall be deemed to acknowledge and
agree, that (A) the projected payment schedule is determined on the basis
of an assumption of constant annual growth rate of the stock price, (B) the
comparable yield and the projected payment schedule are not determined for
any
other purpose other than for the determination of interest accruals and
adjustments thereof in respect of the Securities for U.S. federal income
tax
purposes and (C) the comparable yield and the projected payment schedule
for not constitute a projection or representation regarding the actual amounts
payable on the Securities.
|
17.
|
Authentication.
|
This
Security shall not be valid until the Trustee or an authenticating agent
manually signs the certificate of authentication on the other side of this
Security.
|
18.
|
Abbreviations.
|
Customary
abbreviations may be used in the name of the Holder or an assignee, such
as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN
(=
joint tenants with right of survivorship and not as tenants in common), CUST
(=
Custodian) and UGMA (= Uniform Gifts to Minors Act).
|
19.
|
Indenture
to Control; Governing Law.
|
To
the
extent permitted by applicable law, if any provision of this Security conflicts
with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. This Security shall be governed by, and
construed in accordance with, the laws of the State of New York.
|
20.
|
Copies
of Indenture.
|
The
Company shall furnish to any Holder, upon written request and without charge,
a
copy of the Indenture. Requests may be made to: Linear Technology Corporation,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Chief Financial Officer.
21.
[Registration Rights.
The
Holders of the Securities are entitled to the benefits of a Registration
Rights
Agreement, dated as of April 24, 2007, between the Company and the Initial
Purchaser, including, in certain circumstances, the receipt of Additional
Interest upon a registration default (as defined in such agreement).]
4
Included only if the Security is a Restricted
Security.
Exhibit
4.1
SCHEDULE
OF EXCHANGES OF SECURITIES
5
The
following exchanges, redemptions, purchases or conversions of a part of this
Global Security have been made:
|
DATE
OF DECREASE OR INCREASE
|
AUTHORIZED
SIGNATORY OF SECURITIES
|
DECREASE
IN PRINCIPAL AMOUNT OF THIS GLOBAL SECURITY
|
INCREASE
IN PRINCIPAL AMOUNT OF THIS GLOBAL SECURITY
|
PRINCIPAL
AMOUNT OF THIS GLOBAL SECURITY FOLLOWING SUCH DECREASE
OR
INCREASE
|
5
This schedule to be included only if the Security is a Global
Security.
Exhibit
4.1
ASSIGNMENT
FORM6
To
assign
this Security, fill in the form below:
I
or we
assign and transfer this Security to
__________________________________________________________________
(Insert
assignee’s soc. sec. or tax ID no.)
__________________________________________________________________
(Print
or type assignee’s name, address and zip code)
and
irrevocably appoint the agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
Dated: ________________________
Your
Signature:_______________________________________________________
(Sign
exactly as your name appears on the other side of this Security)
Signature
guaranteed by a qualified
guarantor
institution with membership in
an
approved guarantee program pursuant to
Rule
17Ad-15 under the Securities Exchange
Act
of
1934
By:
_________________
Authorized
Signatory
This
Form and the following Forms to be included only if the
Security is a Certified Security.
Exhibit
4.1
FORM
OF CONVERSION NOTICE
To
convert this Security into Cash or a combination of Cash and shares of Common
Stock, as applicable and as provided in the Indenture check the box £
To
convert only part of this Security, state the principal amount to be converted
(which must be $1,000 or a multiple of $1,000):
____________________________
If
you
want the stock certificate made out in another person’s name, fill in the form
below:
____________________________________
(Insert
assignee’s soc. sec. or tax ID no.)
_______________________________________
(Print
or type assignee’s name, address and zip code)
The
undersigned (the “Applicant”) hereby makes application for the issuance of
record to the name of the Applicant of shares of Common Stock.
Dated: ________________________
Your
Signature: _____________________________________
(Sign
exactly as your name appears on the other side of this Security)
Signature
guaranteed by a qualified
guarantor
institution with membership in
an
approved guarantee program pursuant to
Rule
17Ad-15 under the Securities Exchange
Act
of
1934
By:
__________________
Authorized
Signatory
Exhibit
4.1
FORM
OF NOTICE OF REDEMPTION
[DATE]
To
the
Holders of the 3.00% Convertible Senior Notes due May 1, 2027 issued by Linear
Technology Corporation:
Linear
Technology Corporation (the “Issuer”) by this written notice hereby
exercises, pursuant to Section 5.01 of that certain Indenture (the
“Indenture”), dated as of April 24, 2007, between the Issuer and U.S. Bank
National Association, its right to redeem $[_________] of its 3.00% Convertible
Senior Notes due May 1, 2027 (the “Securities”). All capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned
to such
terms in the Indenture.
1. Redemption
Date: [_______ __, ____]
2. Redemption
Price: $[______]
3. Conversion
Rate: Each $1,000 principal amount of the Securities is convertible into
the
Settlement Amount, at a rate of 20.00 shares of the Issuer’s common stock, par
value $0.001 per share (the “Common Stock”), subject to adjustment, during the
period described below.
4. Paying
Agent and Conversion Agent: [NAME] [ADDRESS]
5. The
Securities called for redemption may be converted at your option at any time
from the date of this Notice of Redemption until 5:00 p.m. (New York City
time) on the Business Day immediately prior to the Redemption Date set forth
above.
6. The
Securities called for redemption and not converted at your election prior
to
5:00 p.m. (New York City time) on the Business Day immediately prior to
Redemption Date set forth above shall be redeemed on the Redemption
Date.
7. If
you
elect to convert your Securities, you must satisfy the requirements for
conversion set forth in your Securities.
8. Your
Securities called for redemption must be surrendered by you (by effecting
book
entry transfer of the Securities or delivering Certificated Securities, together
with necessary endorsements, as the case may be) to [Name of Paying Agent]
at [insert address] in order for you to collect the Redemption
Price.
9. [The
Securities bearing the following Certificate Number(s) in the principal amount
set forth below opposite such Certificate Number(s) are being
redeemed:
Certificate
Number(s) Principal
Amount]
10. Unless
the Issuer defaults in making the payment of the Redemption Price owed to
you,
Interest, Contingent Interest, if any, and Additional Interest, if any, on
your
Securities called for redemption shall cease to accrue on and after the
Redemption Date.
11. CUSIP
Number: ▇▇▇▇▇▇▇▇▇
LINEAR
TECHNOLOGY CORPORATION
Exhibit
4.1
FORM
OF NOTICE OF REPURCHASE
[DATE]
To
the
Beneficial Owners of the 3.00% Convertible Senior Notes due May 1, 2027 (the
“Securities”) issued by Linear Technology Corporation:
Linear
Technology Corporation (the “Issuer”) by this written notice hereby
notifies you, pursuant to Section [5.07] [5.08] of that certain Indenture
(the “Indenture”), dated as of April 24, 2007, between the Issuer and U.S. Bank
National Association, that you may request the Issuer to repurchase your
Securities by delivery of a Repurchase Notice. Included herewith is the form
of
Repurchase Notice to be completed by you if you wish to have your Securities
repurchased by the Issuer. All capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the
Indenture.
1. Repurchase
Date: [ ]
2. Repurchase
Price: [ ]
3. Conversion
Rate: To the extent described in Item 5 below, each $1,000 principal amount
of the Securities is convertible into the Settlement Amount, at a rate of
20.00
shares of the Issuer’s common stock, par value $0.001 per share (the “Common
Stock”), subject to adjustment.
4. Paying
Agent and Conversion Agent: [NAME] [ADDRESS]
5. The
Securities as to which you have delivered a Repurchase Notice to the Paying
Agent may be converted if they are otherwise convertible pursuant to Article
7
of the Indenture and the terms of the Securities only if you withdraw such
Repurchase Notice pursuant to the terms of the Indenture. You may be entitled
to
have your Securities converted into cash or a combination of cash and shares
of
the Issuer’s common stock (i) at any time on or after March 1, 2027 and prior to
the Close of Business on the Business Day immediately preceding May 1, 2027
and
(ii) prior to March 1, 2027, only upon the occurrence of the following
events:
(i) during
any calendar quarter commencing after the calendar quarter ending June 30,
2007
and only during such calendar quarter, if the Closing Price of the Issuer’s
Common Stock for twenty (20) or more Trading Days in a period of period of
30
consecutive trading days ending on the last Trading Day of the preceding
calendar quarter is more than 130% of the Conversion Price on such last Trading
Day;
(ii) during
the five Business Day period after any five consecutive Trading Day period
in
which the Trading Price per $1,000 principal amount of the Securities for
each
day of such Measurement Period was less than 98% of the product of the Closing
Price of the Common Stock and the Conversion Rate of the Securities on each
such
day;
(iii) if
the
Issuer has called the Securities for redemption, at any time prior to the
Close
of Business on the Business Day prior to the Redemption Date, even if the
Securities are not otherwise convertible at such time;
(iv) if
the
Issuer elects to make specified distributions to holders of Common Stock
as
described in the Indenture;
(v) upon
the
occurrence of certain specified corporate transactions described in the
Indenture.
6. The
Securities as to which you have delivered a Repurchase Notice must be
surrendered by you (by effecting book entry transfer of the Securities or
delivering Certificated Securities, together with necessary endorsements,
as the
case may be) to [Name of Paying Agent] at [insert address] in order for you
to
collect the Repurchase Price.
7. The
Repurchase Price for the Securities as to which you have delivered a Repurchase
Notice and not withdrawn such Repurchase Notice shall be paid promptly following
the later of the Business Day immediately following such Repurchase Date
and the
date you deliver such Securities to [Name of Paying Agent].
8. In
order
to exercise your option to have the Issuer repurchase your Securities, you
must
deliver the Repurchase Notice, duly completed by you with the information
required by such Repurchase Notice (as specified in Section [5.07] [5.08]
of the Indenture) and deliver such Repurchase Notice to the Paying Agent at
any time from 9:00 a.m. (New York City time) on [insert day that is 20
Business Days prior to Repurchase Date] until 5:00 p.m. (New York City
time) on the [insert the Business Day immediately preceding the Repurchase
Date].
9. In
order
to withdraw any Repurchase Notice previously delivered by you to the Paying
Agent, you must deliver to the Paying Agent, by 5:00 p.m. (New York
time) on [insert day that is the second Business Day prior to the
Repurchase Date], a written notice of withdrawal specifying (i) the
certificate number, if any, of the Securities in respect of which such notice
of
withdrawal is being submitted, (ii) the principal amount of the Securities
in respect of which such notice of withdrawal is being submitted (or if the
Securities are not in definitive form, the notice of withdrawal must comply
with
the Applicable Procedures), and (iii) if you are not withdrawing your
Repurchase Notice for all of your Securities, the principal amount of the
Securities which still remain subject to the original Repurchase
Notice.
10. Unless
the Issuer defaults in making the payment of the Repurchase Price owed to
you,
Interest, Contingent Interest, if any, and Additional Amounts, if any, on
your
Securities as to which you have delivered a Repurchase Notice shall cease
to
accrue on and after the Repurchase Date.
11. CUSIP
Number: ▇▇▇▇▇▇▇▇▇
12. Any
Security not properly tendered or not otherwise accepted for repurchase shall
remain outstanding and continue to accrue interest, Contingent Interest,
if any,
and Additional Interest, if any.
13. Holders
whose Securities are being repurchased only in part will be issued new
Securities equal in principal amount to that portion of the Securities tendered
(or transferred by book-entry) that is not to be repurchased, which portion
must
be equal to $1,000 in principal amount or an integral multiple
thereof.
LINEAR
TECHNOLOGY CORPORATION
Exhibit
4.1
FORM
OF [REPURCHASE][FUNDAMENTAL CHANGE REPURCHASE] NOTICE
To:
[Name
of Paying Agent]
The
undersigned registered owner of this Security hereby acknowledges receipt
of a
notice from Linear Technology Corporation (the “Company”) pursuant to Section
[5.07][5.08] of that certain Indenture (the “Indenture”), dated as of April 24,
2007, between the Company and U.S. Bank National Association, and requests
and
instructs the Company to purchase the entire principal amount of this Security,
or the portion thereof (which is $1,000 or an integral multiple thereof)
below
designated, in accordance with the terms of the Security and the Indenture
at
the [Repurchase][Fundamental Change Purchase] Price, together with accrued
and
unpaid interest (including Contingent Interest and Additional Interest, if
any),
to, but not including, the [Specified Repurchase][Fundamental Change Purchase]
Date, to the registered Holder hereof.
Date:
____________________ _______________________________________
Signature
(s)
Signatures
must be guaranteed by a qualified guarantor institution with membership in
an
approved
signature
guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange
Act of
1934.
_______________________________________
Signature
Guaranty
Principal
amount to be redeemed (in an integral
Multiple
of $1,000, if less than all):
_____________________
Certificate
number (if applicable):
_____________________
NOTICE:
The signature to the foregoing election must correspond to the name as written
upon the face of this Security in every particular, without any alteration
or
change whatsoever.
CERTIFICATE
TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION
OF TRANSFER OF RESTRICTED SECURITIES
|
Re:
|
3.00%
Convertible Senior Notes due May 1,
2027
|
(the
“Securities”)
of
Linear Technology Corporation
This
certificate relates to $ principal amount of Securities owned in (check
applicable box):
£
book-entry or £
definitive form by (the
“Transferor”).
The
Transferor has requested a Registrar or the Trustee to exchange or register
the
transfer of such Securities. In connection with such request and in respect
of
each such Security, the Transferor does hereby certify that the Transferor
is
familiar with transfer restrictions relating to the Securities as provided
in
Section 2.12 of the Indenture, dated as of April 24, 2007, between Linear
Technology Corporation and U.S. Bank National Association, as trustee (the
“Indenture”),
and
either the transfer of such Security is being made pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
“Securities Act”) (check applicable box) or the transfer or exchange, as the
case may be, of such Security does not require registration under the Securities
Act because (check applicable box):
£ Such
Security is being transferred pursuant to an effective registration statement
under the Securities Act.
£ Such
Security is being acquired for the Transferor’s own account, without
transfer.
£ Such
Security is being transferred to the Company or a Subsidiary (as defined
in the
Indenture) of the Company.
£ Such
Security is being transferred to a person the Transferor reasonably believes
is
a “qualified institutional buyer” (as defined in Rule 144A or any successor
provision thereto (“Rule 144A”) under the Securities Act) to whom notice has
been given that the transfer is being made in reliance on such Rule 144A,
in
reliance on Rule 144A.
£ Such
Security is being transferred pursuant to and in compliance with an exemption
from the registration requirements under the Securities Act in accordance
with
Rule 144 (or any successor thereto) (“Rule 144”) under the Securities
Act.
£ Such
Security is being transferred to a non-U.S. Person in an offshore transaction
in
compliance with Regulation S under the Securities Act (or any successor
thereto).
£ Such
Security is being transferred pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act (other than an
exemption referred to above).
The
Transferor acknowledges and agrees that, if the transferee will hold any
such
Securities in the form of beneficial interests in a Global Security that
is a
“restricted security” within the meaning of Rule 144 under the Securities Act,
then such transfer can be made only (x) pursuant to Rule 144A under the
Securities Act to a transferee that the transferor reasonably believes is
a
“qualified institutional buyer,” as defined in Rule 144A, or (y) pursuant to
Regulation S under the Securities Act.
Dated: ________________________
Your
Signature: _______________________________________________
(Sign
exactly as your name appears on the
other
side of this Security)
Signature
guaranteed by a qualified
guarantor
institution with membership in
an
approved guarantee program pursuant to
Rule
17Ad-15 under the Securities Exchange
Act
of
1934
By:
_________________
Authorized
Signatory
IN
WITNESS WHEREOF,
[
]
By:
___________________________________________
Name:
Title:
EXHIBIT
B
The
following table sets forth the increase in the Conversion Rate, expressed
as a
number of Additional Shares per $1,000 principal amount of
Securities:
|
Effective
Date
|
|||||||||
|
April
24,
|
May
1,
|
May
1,
|
May
1,
|
May
1,
|
May
1,
|
May
1,
|
May
1,
|
||
|
Stock
Price
|
2007
|
2008
|
2009
|
2010
|
2011
|
2012
|
2013
|
2014
|
|
|
$36.05
|
7.74
|
7.74
|
7.74
|
7.74
|
7.74
|
7.74
|
7.74
|
7.74
|
|
|
$40.00
|
6.37
|
6.16
|
5.93
|
5.68
|
5.40
|
5.09
|
4.78
|
5.00
|
|
|
$45.00
|
5.11
|
4.86
|
4.58
|
4.25
|
3.87
|
3.40
|
2.81
|
2.22
|
|
|
$50.00
|
4.21
|
3.94
|
3.63
|
3.27
|
2.85
|
2.32
|
1.61
|
0.17
|
|
|
$55.00
|
3.54
|
3.27
|
2.96
|
2.59
|
2.16
|
1.63
|
0.92
|
0.00
|
|
|
$60.00
|
3.04
|
2.77
|
2.46
|
2.11
|
1.70
|
1.19
|
0.54
|
0.00
|
|
|
$65.00
|
2.65
|
2.39
|
2.10
|
1.76
|
1.37
|
0.91
|
0.35
|
0.00
|
|
|
$70.00
|
2.34
|
2.09
|
1.82
|
1.50
|
1.14
|
0.73
|
0.24
|
0.00
|
|
|
$75.00
|
2.09
|
1.86
|
1.60
|
1.31
|
0.98
|
0.60
|
0.19
|
0.00
|
|
|
$80.00
|
1.88
|
1.67
|
1.43
|
1.16
|
0.86
|
0.52
|
0.16
|
0.00
|
|
|
$90.00
|
1.57
|
1.38
|
1.17
|
0.94
|
0.69
|
0.42
|
0.13
|
0.00
|
|
|
$100.00
|
1.34
|
1.17
|
0.99
|
0.80
|
0.58
|
0.35
|
0.12
|
0.00
|
|
|
$110.00
|
1.16
|
1.02
|
0.86
|
0.69
|
0.50
|
0.31
|
0.10
|
0.00
|
|
|
$120.00
|
1.02
|
0.90
|
0.76
|
0.61
|
0.45
|
0.28
|
0.09
|
0.00
|
|
|
$130.00
|
0.91
|
0.80
|
0.67
|
0.54
|
0.40
|
0.25
|
0.08
|
0.00
|
|
|
$140.00
|
0.81
|
0.71
|
0.61
|
0.49
|
0.36
|
0.22
|
0.08
|
0.00
|
|
|
$150.00
|
0.73
|
0.65
|
0.55
|
0.44
|
0.33
|
0.20
|
0.07
|
0.00
|
|