DRAFT OF SEPTEMBER 17, 1999
ADVANCED ENERGY INDUSTRIES, INC.
and
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A.
AS TRUSTEE
------------------
INDENTURE
DATED AS OF ___________ __, 1999
-------------------------------
___% CONVERTIBLE SUBORDINATED NOTES DUE 2006
--------------------------------
Reconciliation and tie between Trust Indenture Act of 1939 (the "Trust
Indenture Act") and this Indenture, dated as of ___________ __, ____.
Trust Indenture Action Section Indenture Section
Section 310(a)(1) 6.7
(a)(2) 6.7
(b) 6.7, 6.8
Section 311(a) 6.13
(b) 6.13
Section 312(a) 7.4
(b) 7.5
(c) 7.1
Section 313(a) 7.2
(b) 7.2
(c) 1.6, 7.2
(d) 7.2
Section 314(a) 7.3
(a)(4) 10.7
(c)(1) 1.2
(c)(2) 1.2
(c)(3) 13.3
(e) 1.2
Section 315(a) 6.2
(b) 6.1
(c) 6.2
(d) 6.2
(e) 5.15
Section 316(a) (last sentence) 1.1 ("Outstanding")
(a)(1)(A) 5.2, 5.12
(a)(1)(B) 5.13
(b) 5.8
(c) 1.4
Section 317(a)(1) 5.3
(a)(2) 5.4
(b) 10.3
Section 318(a) 1.14
(c) 1.14
----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture. Attention should also be directed to Section 318(c)
of the Trust Indenture Act, which provides that the provisions of Sections
310 to and including 317 of the Trust Indenture Act are a part of and govern
every qualified indenture, whether or not physically contained therein.
TABLE OF CONTENTS
PAGE
RECITALS..........................................................................................................1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..............................................1
SECTION 1.1 Definitions.................................................................................1
Act......................................................................................................2
Affiliate................................................................................................2
Aggregate Cash Distribution Amount.......................................................................2
Authenticating Agent.....................................................................................2
Authorized Newspaper.....................................................................................2
Board of Directors.......................................................................................2
Board Resolution.........................................................................................2
Business Day.............................................................................................2
Capital Stock............................................................................................3
Change in Control........................................................................................3
Closing Price Per Share..................................................................................3
Commission...............................................................................................3
Common Stock.............................................................................................3
Company..................................................................................................3
Company Notice...........................................................................................3
Company Request"and "Company Order.......................................................................3
Constituent Person.......................................................................................3
Conversion Agent.........................................................................................3
Conversion Price.........................................................................................3
Conversion Rate..........................................................................................4
Corporate Trust Office...................................................................................4
Corporation..............................................................................................4
Debt.....................................................................................................4
Defaulted Interest.......................................................................................4
Designated Senior Debt...................................................................................5
DTC......................................................................................................5
Dollar"or "$"............................................................................................5
Event of Default.........................................................................................5
Excess Amount............................................................................................5
Exchange Act.............................................................................................5
Expiration Time..........................................................................................5
GAAP.....................................................................................................5
Global Security..........................................................................................5
Government Obligations...................................................................................5
Holder...................................................................................................6
Indenture................................................................................................6
i
Interest Payment Date....................................................................................6
Maturity.................................................................................................6
Notes....................................................................................................6
Notice of Default........................................................................................6
Officers'Certificate.....................................................................................6
Opinion of Counsel.......................................................................................6
Outstanding..............................................................................................6
Paying Agent.............................................................................................7
Payment Blockage Notice..................................................................................7
Person...................................................................................................7
Place of Conversion......................................................................................7
Place of Payment.........................................................................................8
Predecessor Security.....................................................................................8
Purchased Shares.........................................................................................8
Purchasers...............................................................................................8
Record Date..............................................................................................8
Redemption Date..........................................................................................8
Redemption Price.........................................................................................8
Regular Record Date......................................................................................8
Representative...........................................................................................8
Repurchase Date..........................................................................................8
Repurchase Price.........................................................................................8
Responsible Officer......................................................................................8
RF Power.................................................................................................9
Secured Debt.............................................................................................9
Securities Act...........................................................................................9
Security.................................................................................................9
Security Register"and "Security Registrar................................................................9
Senior Debt..............................................................................................9
Significant Subsidiary..................................................................................10
Special Record Date.....................................................................................10
Stated Maturity.........................................................................................10
Subsidiary..............................................................................................10
Third Party Expiration Time.............................................................................10
Third Party Purchased Shares............................................................................10
Trading Day.............................................................................................10
Triggering Event........................................................................................10
Trust Indenture Act.....................................................................................11
Trustee.................................................................................................11
United States...........................................................................................11
SECTION 1.2 Compliance Certificates and Opinions..............................................11
SECTION 1.3 Form of Documents Delivered to Trustee............................................12
SECTION 1.4 Acts of Holders; Record Dates.....................................................12
SECTION 1.5 Notices, etc., to Trustee and Company.............................................13
ii
SECTION 1.6 Notice to Holders; Waiver.........................................................14
SECTION 1.7 Effect of Headings and Table of Contents..........................................14
SECTION 1.8 Successors and Assigns............................................................14
SECTION 1.9 Separability Clause...............................................................15
SECTION 1.10 Benefits of Indenture.............................................................15
SECTION 1.11 No Personal Liability.............................................................15
SECTION 1.12 Governing Law.....................................................................15
SECTION 1.13 Legal Holidays....................................................................15
SECTION 1.14 Conflict with Trust Indenture Act.................................................16
SECTION 1.15 Counterparts......................................................................16
ARTICLE II SECURITIES FORM...................................................................................16
SECTION 2.1 Designation of Securities; Form Generally.........................................16
SECTION 2.2 Form of Security..................................................................17
SECTION 2.3 Form of Trustee's Certificate of Authentication...................................26
SECTION 2.4 Form of Election of Holder to Require Repurchase..................................26
SECTION 2.5 Form of Conversion Notice.........................................................27
SECTION 2.6 Form of Assignment................................................................28
SECTION 2.7 Securities Issuable in Global Form................................................29
ARTICLE III THE SECURITIES....................................................................................30
SECTION 3.1 Title and Terms...................................................................30
SECTION 3.2 Denominations.....................................................................30
SECTION 3.3 Execution, Authentication, Delivery and Dating....................................31
SECTION 3.4 Global Securities.................................................................31
SECTION 3.5 Registration, Registration of Transfer and Exchange...............................32
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities..................................34
SECTION 3.7 Payment of Interest; Interest Rights Preserved....................................35
SECTION 3.8 Persons Deemed Owners.............................................................36
SECTION 3.9 Cancellation......................................................................37
SECTION 3.10 Computation of Interest...........................................................37
SECTION 3.11 CUSIP Numbers.....................................................................37
ARTICLE IV SATISFACTION AND DISCHARGE.........................................................................38
SECTION 4.1 Satisfaction and Discharge of Indenture...........................................38
SECTION 4.2 Application of Trust Funds........................................................39
ARTICLE V REMEDIES............................................................................................39
SECTION 5.1 Events of Default.................................................................39
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment................................41
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee...................42
SECTION 5.4 Trustee May File Proofs of Claim..................................................43
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities. .....................43
SECTION 5.6 Application of Money Collected....................................................44
iii
SECTION 5.7 Limitation on Suits...............................................................44
SECTION 5.8 Unconditional Right of Holders to Receive Principal (Premium,
if any) and Interest............................................................45
SECTION 5.9 Restoration of Rights and Remedies................................................45
SECTION 5.10 Rights and Remedies Cumulative....................................................45
SECTION 5.11 Delay or Omission Not Waiver......................................................46
SECTION 5.12 Control by Holders of Securities..................................................46
SECTION 5.13 Waiver of Past Defaults...........................................................46
SECTION 5.14 Waiver of Usury, Stay or Extension Laws...........................................47
SECTION 5.15 Undertaking for Costs.............................................................47
SECTION 5.16 Notice of Default or Event of Default.............................................47
ARTICLE VI THE TRUSTEE........................................................................................48
SECTION 6.1 Notice of Defaults................................................................48
SECTION 6.2 Certain Duties and Responsibilities...............................................48
SECTION 6.3 Not Responsible for Recitals or Issuance of Securities............................49
SECTION 6.4 May Hold Securities...............................................................49
SECTION 6.5 Money Held in Trust...............................................................50
SECTION 6.6 Compensation and Reimbursement....................................................50
SECTION 6.7 Corporate Trustee Required; Eligibility...........................................51
SECTION 6.8 Resignation and Removal; Appointment of Successor.................................51
SECTION 6.9 Acceptance of Appointment by Successor............................................53
SECTION 6.10 Merger, Conversion, Consolidation or Succession to Business.......................53
SECTION 6.11 Appointment of Authenticating Agent...............................................54
SECTION 6.12 Preferential Collection of Claims Against Company.................................55
SECTION 6.13 Disqualification; Conflicting Interests...........................................55
SECTION 6.14 Certain Rights of Trustee.........................................................56
ARTICLE VII HOLDERS'LISTS AND REPORTS BY TRUSTEE AND COMPANY..................................................57
SECTION 7.1 The Company to Furnish Trustee Names and Addresses of Holders.....................57
SECTION 7.2 Reports by Trustee................................................................57
SECTION 7.3 Reports by Company................................................................57
SECTION 7.4 Preservation Of Information; Communications to Holders............................58
ARTICLE VIII CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE.................................................58
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms..............................58
SECTION 8.2 Successor Substituted.............................................................59
ARTICLE IX SUPPLEMENTAL INDENTURES............................................................................59
SECTION 9.1 Supplemental Indentures Without Consent of Holders................................59
SECTION 9.2 Supplemental Indentures with Consent of Holders...................................60
SECTION 9.3 Execution of Supplemental Indentures..............................................61
SECTION 9.4 Effect of Supplemental Indentures.................................................62
SECTION 9.5 Conformity with Trust Indenture Act...............................................62
iv
SECTION 9.6 Reference in Securities to Supplemental Indentures................................62
SECTION 9.7 Notice of Supplemental Indentures.................................................62
ARTICLE X COVENANTS...........................................................................................63
SECTION 10.1 Payment of Principal, Premium and Interest........................................63
SECTION 10.2 Maintenance of Office or Agency...................................................63
SECTION 10.3 Money for Securities Payments to Be Held in Trust.................................64
SECTION 10.4 Existence.........................................................................65
SECTION 10.5 Maintenance of Properties.........................................................65
SECTION 10.6 Payment of Taxes and Other Claims.................................................65
SECTION 10.7 Statement as to Compliance........................................................66
SECTION 10.8 Waiver of Certain Covenants.......................................................66
SECTION 10.9 Statement by Officers as to Default...............................................66
ARTICLE XI REDEMPTION OF SECURITIES...........................................................................66
SECTION 11.1 Right of Redemption...............................................................66
SECTION 11.2 Applicability of Article..........................................................67
SECTION 11.3 Election to Redeem; Notice to Trustee.............................................67
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed.................................67
SECTION 11.5 Notice of Redemption..............................................................67
SECTION 11.6 Deposit of Redemption Price.......................................................68
SECTION 11.7 Securities Payable on Redemption Date.............................................69
SECTION 11.8 Securities Redeemed in Part.......................................................69
SECTION 11.9 Conversion Arrangement on Call For Redemption.....................................69
ARTICLE XII PURCHASE OF SECURITIES AT THE OPTION
OF HOLDERS UPON THE CHANGE OF CONTROL.............................................................70
SECTION 12.1 Right to Require Repurchase.......................................................70
SECTION 12.2 Conditions to The Company's Election to Pay the Repurchase
Price in Common Stock...........................................................71
SECTION 12.3 Notices; Method of Exercising Repurchase Right, Etc...............................72
SECTION 12.4 Certain Definitions...............................................................75
SECTION 12.5 Consolidation, ▇▇▇▇▇▇, Etc................................................................76
ARTICLE XIII SUBORDINATION....................................................................................76
SECTION 13.1 Agreement to Subordinate..........................................................76
SECTION 13.2 Liquidation; Dissolution; Bankruptcy..............................................77
SECTION 13.3 No Payment in Certain Circumstances, Payment over of Proceeds
upon Dissolution, Etc...........................................................77
SECTION 13.4 Prior Payment of Senior Debt Upon Acceleration of Securities......................78
SECTION 13.5 When Distribution Must Be Paid Over...............................................79
SECTION 13.6 Reliance on Judicial Order or Certificate of Liquidating Agent....................79
SECTION 13.7 Subrogation.......................................................................79
SECTION 13.8 Relative Rights...................................................................79
v
SECTION 13.9 Subordination May Not Be Impaired By Company......................................80
SECTION 13.10 Distribution or Notice to Representative..........................................80
SECTION 13.11 Rights of Trustee and Paying Agent................................................80
SECTION 13.12 Notice to Trustee.................................................................80
SECTION 13.13 Payment Permitted If No Default...................................................81
SECTION 13.14 Trustee to Effectuate Subordination...............................................82
SECTION 13.15 Reliance by Holders of Senior Debt on Subordination Provisions....................82
SECTION 13.16 Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights................................................................82
SECTION 13.17 Article Applicable to Paying Agents...............................................82
SECTION 13.18 Determination of Certain Conversions and Repurchases as
Payments........................................................................83
ARTICLE XIV CONVERSION OF SECURITIES..........................................................................83
SECTION 14.1 Conversion Privilege And Conversion Rate..........................................83
SECTION 14.2 Exercise Of Conversion Privilege..................................................84
SECTION 14.3 Fractions Of Shares...............................................................84
SECTION 14.4 Adjustment Of Conversion Rate.....................................................85
SECTION 14.5 Notice Of Adjustments Of Conversion Rate..........................................92
SECTION 14.6 Notice Of Certain Corporate Action................................................93
SECTION 14.7 Company To Reserve Common Stock...................................................94
SECTION 14.8 Taxes On Conversions..............................................................94
SECTION 14.9 Covenant As To Common Stock.......................................................94
SECTION 14.10 Cancellation Of Converted Securities..............................................94
SECTION 14.11 Provisions In Case Of Consolidation, Merger Or Sale Of Assets.....................94
SECTION 14.12 Responsibility of Trustee for Conversion Provisions...............................95
ARTICLE XV MEETINGS OF HOLDERS OF SECURITIES..................................................................96
SECTION 15.1 Purposes For Which Meetings May Be Called.........................................96
SECTION 15.2 Call, Notice And Place Of Meetings................................................96
SECTION 15.3 Persons Entitled To Vote At Meetings..............................................97
SECTION 15.4 Quorum; Action....................................................................97
SECTION 15.5 Determination Of Voting Rights; Conduct And Adjournment Of
Meetings........................................................................98
SECTION 15.6 Counting Votes And Recording Action Of Meetings...................................98
vi
This Indenture (this "Indenture") is dated as of _________ __, 1999,
by and between Advanced Energy Industries, Inc., a Delaware corporation (the
"Company"), having its principal office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and State Street Bank and Trust Company of
California, N.A., a national banking association, as Trustee hereunder (the
"Trustee"), having its Corporate Trust Office (as defined below) at ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
The Company deems it necessary and advisable to issue a series of
debt securities designated as the [ ]% Convertible Subordinated Notes due
2006 (the "Securities") evidencing its unsecured subordinated indebtedness,
and has duly authorized the execution and delivery of this Indenture to
provide for the issuance of the Securities.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, that are deemed to be incorporated into this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligation of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION I.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
1
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Aggregate Cash Distribution Amount" has the meaning specified in
Section 14.4(5).
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.11 to act on behalf of the Trustee to authenticate
Securities.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the place of publication, customarily
published on each day that is a Business Day in the place of publication,
whether or not published on days that are not Business Days in the place of
publication, and of general circulation in each place in connection with
which the term is used or in the financial community of each such place.
Whenever successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any day that is a Business Day in the place
of publication.
"Board of Directors" means the board of directors of the Company or
any committee of that board duly authorized to act hereunder, as the case may
be.
"Board Resolution" means a copy of a resolution of the Company,
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, which is delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment, Place
of Conversion or any other location referred to in this Indenture or in the
Securities, means any day, other than a Saturday, Sunday or other day on
which banking institutions in that Place of Payment, Place of Conversion or
location are authorized or obligated by law, regulation or executive order to
close.
2
"Capital Stock" means with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) in equity of such Person, whether now
outstanding or issued after the Closing Date, including, without limitation,
all common stock and preferred stock.
"Change in Control" has the meaning specified in Section 12.4.
"Closing Price Per Share" has the meaning specified in Section 12.4.
"Commission" 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 execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Stock" means the Common Stock, par value $0.001 per share,
of the Company authorized at the date of this instrument as originally
executed. Subject to the provisions of Section 14.11, shares issuable on
conversion or repurchase of Securities shall include only shares of Common
Stock or shares of any class or classes of common stock resulting from any
reclassification or reclassifications thereof; provided, however, that if at
any time there shall be more than one such resulting class, the shares so
issuable on conversion of Securities shall include shares of all such
classes, and 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 Person named as the "Company" in the first
paragraph of this Indenture until a successor Company shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Company.
"Company Notice" has the meaning specified in Section 12.3.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of and on behalf of the Company by its
Chairman of the Board, its President or a Vice President, and by its Chief
Financial Officer, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary of the Company, and which is delivered to the Trustee.
"Constituent Person" has the meaning specified in Section 14.11.
"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article XIV. The Company has initially
appointed the Trustee as its Conversion Agent pursuant to Section 10.2 hereof.
3
"Conversion Price" shall equal $1,000 divided by the Conversion Rate
(rounded to the nearest cent).
"Conversion Rate" has the meaning specified in Section 14.1.
"Corporate Trust Office" means the corporate trust office of the
Trustee at which, at any particular time, the trust created by this Indenture
shall be administered, which office at the date hereof is located at ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: Corporate
Trust Department (Advanced Energy Industries, Inc.), except that for purposes
of Section 10.2 and all other references to a Corporate Trust Office in the
Borough of Manhattan, City of New York, such term shall mean the office or
agency of the Trustee in the Borough of Manhattan, the City of New York,
which office at the date hereof is located at State Street Bank and Trust
Company, N.A., ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: Corporate
Trust Department (Advanced Energy Industries, Inc.)
"Corporation" includes corporations, limited liability companies,
partnerships, joint stock companies, associations, companies and business and
real estate investment trusts.
"Debt" of the Company or any Subsidiary means any indebtedness of
the Company or any Subsidiary, whether or not contingent, in respect of (i)
borrowed money or evidenced by bonds, notes, debentures or similar
instruments, (ii) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned by the
Company or any Subsidiary, (iii) letters of credit or amounts representing
the balance deferred and unpaid of the purchase price of any property except
any such balance that constitutes an accrued expense or trade payable or (iv)
any lease of property by the Company or any Subsidiary as lessee which is
reflected on the Company's consolidated balance sheet as a capitalized lease
in accordance with GAAP, in the case of items of indebtedness under (i)
through (iii) above to the extent that any such items (other than letters of
credit) would appear as a liability on the Company's consolidated balance
sheet in accordance with GAAP, and also includes, to the extent not otherwise
included, any obligation by the Company or any Subsidiary to be liable for,
or to pay, as obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business), indebtedness of another
person (other than the Company or any Subsidiary) and all renewals,
extensions, refundings, deferrals, restructurings, amendments and
modifications of any such indebtedness, obligation or guarantee (it being
understood that "Debt" shall be deemed to be incurred by the Company and its
Subsidiaries on a consolidated basis whenever the Company and its
Subsidiaries on a consolidated basis shall create, assume, guarantee or
otherwise become liable in respect thereof); Debt of a Subsidiary of the
Company existing prior to the time it became a Subsidiary of the Company
shall be deemed to be incurred upon such Subsidiary's becoming a Subsidiary
of the Company; and Debt of a Person existing prior to a merger or
consolidation of such Person with the Company or any Subsidiary of the
Company in which such Person is the successor of the Company or such
Subsidiary shall be deemed to be incurred upon the consummation of such
merger or consolidation; provided, however, that the term "Debt" shall not
include any indebtedness that has been the subject of an "in substance"
defeasance in accordance with GAAP.
4
"Defaulted Interest" has the meaning specified in Section 3.7.
"Designated Senior Debt" means the Company's obligations under that
certain Loan and Security Agreement dated December 8, 1997, as now in effect
and as the same may be amended from time to time, by and among the Company as
Borrower, Silicon Valley Bank, as Servicing Agent and a Bank, and Bank of
Hawaii, as a Bank (such capitalized terms being understood to have the
meanings ascribed thereto in the Credit Agreement), and any particular Senior
Debt in which the instrument creating or evidencing the same or the
assumption or guarantee thereof (or related agreements or documents to which
the Company is a party) expressly provides that such indebtedness shall be
"Designated Senior Debt" for purposes of the Indenture (provided that such
instrument, agreement or other document may place limitations and conditions
on the right of such Senior Debt to exercise the rights of Designated Senior
Debt), in each case, including any amendments, replacements, supplements or
other modifications thereto, or any refinancings or extensions thereof, in
whole or in part.
"DTC" means The Depository Trust Company for so long as it shall be
a clearing agency registered under the Exchange Act, or such successor as the
Company shall designate from time to time in an Officers' Certificate
delivered to the Trustee.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Excess Amount" has the meaning specified in Section 14.4(5).
"Exchange Act" means the Securities Exchange Act of 1934 and any
successor statute thereto, in each case as amended from time to time, and the
rules and regulations of the Commission thereunder.
"Expiration Time" has the meaning specified in Section 14.4(6).
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent
basis; provided that, solely for purposes of any calculation required or
permitted hereunder, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Global Security" means a Security that is registered in the
Security Register in the name of DTC or a nominee thereof or a substitute
depositary or a nominee of such substitute depositary.
5
"Government Obligations" means securities which are (i) direct
obligations of the United States of America, for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America, the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on
or principal of the Government Obligation evidenced by such depository
receipt.
"Holder" means the Person in whose name such Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Securities.
"Maturity" when used with respect to any Security, means the date
on which the principal of (and premium, if any, on) such Security or an
installment of principal or premium becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, notice of redemption or repurchase, repurchase or otherwise,
and includes the Redemption Date.
"Notes" has the meaning specified in Section 2.1.
"Notice of Default" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board of Directors, the Chief Executive Officer, the President, the
Chief Financial Officer of the Company or an Executive Vice President and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and which is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company and who shall be acceptable to the Trustee.
6
"Outstanding" when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or the
Security Registrar or delivered to the Trustee or Security Registrar for
cancellation;
(ii) Securities for whose payment, redemption or repurchase
money in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made; and
(iii) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, and for the purpose of making the calculations required by Trust
Indenture Act Section 313, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in making such
determination or calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Payment Blockage Notice" has the meaning specified in Section 13.3.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, real estate investment trust or government or
any agency or political subdivision thereof or other entity of any kind.
"Place of Conversion" has the meaning specified in Section 3.1.
7
"Place of Payment" means the place or places where the principal of
(and premium, if any) and interest on the Securities are payable as specified
as contemplated by Sections 3.1 and 10.2. Such term shall include the Company
if it shall act as its own Paying Agent.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Purchased Shares" has the meaning specified in Section 14.4(6).
"Purchasers" has the meaning specified in Section 11.9.
"Record Date" means any Regular Record Date on Special Record Date.
"Redemption Date" when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities means the date specified for that purpose as
contemplated by Section 3.1, whether or not a Business Day.
"Representative" means the (a) indenture trustee or other trustee,
agent or representative for any Senior Debt or (b) with respect to any Senior
Debt that does not have any such trustee, agent or other representative, (i)
in the case of such Senior Debt issued pursuant to an agreement providing for
voting arrangements as among the holders or owners of such Senior Debt, any
holder or owner of such Senior Debt acting with the consent of the required
persons necessary to bind such holders or owners of such Senior Debt and (ii)
in the case of all other such Senior Debt, the holder or owner of such Senior
Debt.
"Repurchase Date" when used with respect to any Security to be
repurchased at the option of the Holder, means the date fixed for such
repurchase specified in Section 12.1.
"Repurchase Price" when used with respect to any Security to be
repurchased at the option of the Holder, means the price at which it is to be
repurchased specified in Section 12.1.
"Responsible Officer" when used with respect to the Trustee, means any
officer in the Corporate Trust Office of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means,
8
with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of such officer's knowledge and
familiarity with the particular subject.
"RF Power" means RF Power Products, Inc., a New Jersey corporation,
or any other subsidiary of the Company who is the successor in interest to
the assets of RF Power Products, Inc.
"Secured Debt" means, without duplication, Debt that is secured by a
mortgage, trust deed, deed of trust, deed to secure Debt, security agreement,
pledge, conditional sale or other title retention agreement, capitalized
lease, or other like agreement granting or conveying security title to or a
security interest in real property or other tangible assets.
"Securities Act" means the Securities Act of 1933 and any successor
statute thereto, in each case as amended from time to time, and the rules and
regulations of the Commission thereunder.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means the principal of (and premium, if any) and
interest (including all interest accruing subsequent to the commencement of
any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in such proceeding) on, and
all fees and other amounts payable in connection with, the following, whether
absolute or contingent secured or unsecured, due or to become due, whether
outstanding at the date of execution of this Indenture or thereafter
incurred, created or assumed: (a) indebtedness of the Company evidenced by a
credit or loan agreement, note, bond, debenture or other written obligation,
(b) all obligations of the Company for money borrowed, (c) all obligations of
the Company evidenced by a note or similar instrument given in connection
with the acquisition of any businesses, properties or assets of any kind, (d)
obligations of the Company (i) as lessee under leases required to be
capitalized on the balance sheet of the lessee under GAAP and (ii) as lessee
under other leases for facilities, capital equipment or related assets,
whether or not capitalized, entered into or leased for financing purposes,
(e) all obligations of the Company under interest rate and currency swaps,
caps, floors, collars, hedge agreements, forward contracts or similar
agreements or arrangements, (f) all obligations of the Company with respect
to letters of credit, bankers' acceptances and similar facilities (including
reimbursement obligations with respect to the foregoing), (g) all obligations
of the Company issued or assumed as the deferred purchase price of property
or services (but excluding trade accounts payable and accrued liabilities),
(h) all obligations of the type referred to in clauses (a) through (g) above
of another Person, the payment of which, in either case, the Company has
assumed or guaranteed, or for which the Company is responsible or liable,
directly or indirectly, jointly or severally, as obligor, guarantor or
otherwise, or which is secured by a lien on the property of the Company, and
9
(i) renewals, extensions, modifications, replacements, restatements and
refundings of, or any indebtedness or obligation issued in exchange for, any
such indebtedness or obligation described in clauses (a) through (h) of this
paragraph; provided, however, that Senior Debt shall not include the
Securities or any such indebtedness or obligation if the terms of such
indebtedness or obligation (or the terms of the instrument under which, or
pursuant to which it is issued) expressly provide that such indebtedness or
obligation is not superior in right of payment to the Securities.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation
S-X, promulgated under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on
the Securities means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof, premium thereon or interest thereon, means
the date specified in such Security as the fixed date on which the principal
of such Security or such installment of principal, premium or interest is due
and payable.
"Subsidiary" means (a) a corporation at least a majority of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries of the Company or (b) a Person
(other than a corporation) in which the Company or one or more other
Subsidiaries, directly or indirectly, has at least a majority equity
ownership. For the purposes of this definition, "voting stock" means stock
having voting power for the election of directors, or persons performing
similar functions, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
"Third Party Expiration Time" has the meaning specified in Section
14.4(8).
"Third Party Purchased Shares" has the meaning specified in Section
14.4(8).
"Trading Day" means (i) if the Common Stock is quoted on the Nasdaq
National Market or any other system of automated dissemination of quotations
of securities prices, days on which trades may be effected through such
system, (ii) if the Common Stock is listed or admitted for trading on any
national or regional securities exchange, days on which such national or
regional securities exchange is open for business, or (iii) if the Common
Stock is not listed on a national or regional securities exchange or quoted
on the Nasdaq National Market or any other system of automated dissemination
of quotation of securities prices, days on which the Common Stock is traded
regular way in the over-the-counter market and for which a closing bid and a
closing asked price for the Common Stock are available.
"Triggering Event" has the meaning specified in Section 14.4(9).
10
"Trust Indenture Act" means the Trust Indenture Act of 1939, and the
rules and regulations thereunder, as in force at the date as of which this
Indenture was executed, provided, however, that in the event the Trust Indenture
Act of 1939 is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939, and the
rules and regulations thereunder, as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"United States" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
SECTION I.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate in form and substance satisfactory to the
Trustee stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel in form and substance satisfactory to the Trustee stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 10.9) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to enable
the individual to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
11
SECTION I.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the Opinion of Counsel,
certificate or representations with respect to the matters upon which his or her
certificate or opinion is based are erroneous. Any such Opinion of Counsel,
certificate or representations may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information as to such factual matters
is in the possession of the Company, unless such counsel or officer knows, or in
the exercise of reasonable care should know, that the certificate, opinion or
representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION I.4 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities, may be embodied in and evidenced by (1)
one or more instruments of substantially similar tenor signed by such Holders in
person or by agents duly appointed in writing or (2) the record of Holders of
Securities voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities duly called and
held in accordance with the provisions of Article XV. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments and records
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at such meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 6.14) conclusive in favor of the Trustee and the Company and any agent
of the Trustee or the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 15.6.
12
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other reasonable manner which the Trustee deems
sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, in or pursuant to an Officer's Certificate, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding the Trust
Indenture Act, Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION I.5 Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, or
13
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION I.6 Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Securities by the Company or the Trustee, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at such
Holder's address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders of Securities. Any notice mailed to a Holder in
the manner herein prescribed shall be deemed to have been given when such notice
is mailed.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification to Holders of Securities as shall be made with the approval of the
Trustee shall constitute a sufficient notification to such Holders for every
purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION I.7 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION I.8 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall be
binding on their successors and assigns, whether so expressed or not.
14
SECTION I.9 Separability Clause.
In case any provision in this Indenture or in any Security 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 I.10 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the Parties hereto, any Security Registrar,
any Paying Agent, any Authenticating Agent and their successors hereunder and
the Holders any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION I.11 No Personal Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or against
any past, present or future 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 by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION I.12 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
the principles of conflict of law.
SECTION I.13 Legal Holidays.
In any case where any Interest Payment Date, Repurchase Date,
Redemption Date, Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment or Place of Conversion, then
(notwithstanding any other provision of this Indenture or any Security other
than a provision in the Securities which specifically states that such provision
shall apply in lieu hereof), payment of interest or principal (and premium, if
any) need not be made at such Place of Payment or Place of Conversion on such
date, but may be made on the next succeeding Business Day at such Place of
Payment or Place of Conversion with the same force and effect as if made on the
Interest Payment Date, Repurchase Date or Redemption Date, or at the Stated
Maturity or Maturity, provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Repurchase
Date, Redemption Date, Stated Maturity or Maturity, as the case may be, so long
as payment is made on such succeeding Business Day.
15
SECTION I.14 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under the Trust Indenture Act to be
a part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION I.15 Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
ARTICLE II
SECURITIES FORM
SECTION II.1 Designation of Securities; Form Generally.
Pursuant to the terms hereof, the Company hereby creates a series of
its debt securities designated as the "[ ]% Convertible Subordinated Notes due
2006" (the "Notes"), which Notes shall be deemed "Securities" for all purposes
hereunder.
The Securities shall be in substantially the form set forth in this
Article, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange, the Internal Revenue Code of 1986, as amended, and
regulations thereunder (the "Code"), or as may, consistent herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. All Securities shall be in fully registered form, without
coupon.
The Trustee's certificates of authentication shall be in substantially
the form set forth in Section 2.3.
Conversion notices shall be substantially in the form set forth in
Section 2.4.
Repurchase notices shall be substantially in the form set forth in
Section 2.5.
Assignments shall be substantially in the form set forth in Section
2.6.
16
The Securities shall be printed, lithographed, typewritten or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any automated quotation system or securities
exchange (including on steel engraved borders if so required by any securities
exchange upon which the Securities may be listed) on which the Securities may be
quoted or listed, as the case may be, all as determined by the officers
executing such Securities, as evidenced by their execution thereof.
SECTION II.2 Form of Security.
[FORM OF NOTE FACE]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND
ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.
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.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE
INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.]
17
ADVANCED ENERGY INDUSTRIES, INC.
[ ]% CONVERTIBLE SUBORDINATED NOTE
DUE 2006
No. ________________ $_________________
CUSIP NO.
18
ADVANCED ENERGY INDUSTRIES, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company", which term includes any successor Person under the Indenture
referred to on the reverse hereof), for value received, hereby promises to
pay to _____________________, the principal sum of ________ United States
Dollars ($______ ) [if this Security is a Global Security, then insert -
(which principal amount may from time to time be increased or decreased to
such other principal amounts (which, taken together with the principal
amounts of all other Outstanding Notes, shall not exceed [ ] in the
aggregate at any time) by adjustments made on the records of the Trustee
hereinafter referred to in accordance with the Indenture)] on [ ], 2006
and to pay interest thereon, from [ ], 1999, or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or
duly provided for, semi-annually in arrears on [ ] and [ ] in each
year (each, an "Interest Payment Date"), commencing [ ], 2000, at
the rate of [ ]% per annum, until the principal hereof is due, and at the
rate of [ ]% per annum on any overdue principal and premium, if any, and, to
the extent permitted by law, on any overdue interest. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be the
[ ] or [ ](whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Company, notice whereof shall be given to Holders of Notes not less than 10
days prior to the Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any automated
quotation system or securities exchange on which the Notes may be quoted or
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. Payments of principal shall be made upon the
surrender of this Note at the Corporate Trust Office of the Trustee, or at
such other office or agency of the Company as may be designated by the
Company for such purpose, in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, by
Dollar check drawn on, or transfer to, a Dollar account. Payments of interest
on this Note may be made by Dollar check, drawn on a Dollar account, mailed
to the address of the Person entitled thereto as such address shall appear in
the Security Register, or, upon written application by the Holder to the
Security Registrar setting forth wire instructions not later than the
relevant Record Date, by transfer to a Dollar account; provided however, that
transfers to Dollar accounts will be made only to Holders of an aggregate
principal amount of Notes in excess of $2,000,000.
Except as specifically provided herein and in the Indenture, the
Company shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein.
19
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof or an Authenticating Agent by the
manual signature of one of their respective authorized signatories, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed and delivered under its corporate seal.
Advance Energy Industries, Inc.
[Corporate Seal]
By:
Name:
Title:
Attest:
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the [ ]% Convertible Subordinated Notes due 2006
referred to in the within-mentioned Indenture.
STATE STREET BANK AND
TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
By:
Authorized Signatory
[FORM OF REVERSE]
This Note is one of a duly authorized issue of securities of the
Company designated as its "[ ]% Convertible Subordinated Notes due 2006"
(herein called the "Notes"), limited in aggregate principal amount to
$[ ], issued and to be issued under an Indenture, dated as of
[ ], 1999 (herein called the "Indenture"), between the
Company and
20
State Street Bank and Trust Company of California, N.A., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Debt and the Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal amount of Notes
of any authorized denominations as requested by the Holder surrendering the
same upon surrender of the Note or Notes to be exchanged, at the Corporate
Trust Office of the Trustee. The Trustee upon such surrender by the Holder
will issue the new Notes in the requested denominations.
No sinking fund is provided for the Notes.
The Notes are subject to redemption at the option of the Company at
any time on or after [ ], 2002, in whole or in part, upon not less
than 30 nor more than 60 days' notice to the Holders prior to the Redemption
Date at the following Redemption Prices (expressed as percentages of the
principal amount) for the twelve-month period beginning on [ ] of
the following years:
YEAR REDEMPTION PRICE
---- ----------------
2002 [ ]%
2003 [ ]%
2004 [ ]%
2005 [ ]%
2006 [ ]%
and thereafter at a Redemption Price equal to 100% of the principal amount,
together, in each case, with accrued and unpaid interest to the Redemption Date;
provided, however, that interest installments on Notes whose Stated Maturity is
on or prior to such Redemption Date will be payable to the Holders of such
Notes, or one or more Predecessor Securities, of record at the close of business
on the relevant Record Dates referred to on the face hereof, all as provided in
the Indenture.
In the event of a redemption of the Notes, the Company will not be
required (a) to register the transfer or exchange of Notes for a period of 15
days immediately preceding the date notice is given identifying the serial
numbers of the Notes called for such redemption or (b) to register the transfer
or exchange of any Note, or portion thereof, called for redemption.
21
In any case where the due date for the payment of the principal of,
premium, if any, or interest on any Note or the last day on which a Holder of a
Note has a right to convert such Note shall be, at any Place of Payment or Place
of Conversion as the case may be, a day on which banking institutions at such
Place of Payment or Place of Conversion are authorized or obligated by law,
regulation or executive order to close, then payment of principal, premium, if
any, interest or delivery for conversion of such Note need not be made on or by
such date at such place but may be made on or by the next succeeding day at such
place which is not a day on which banking institutions are authorized or
obligated by law, regulation or executive order to close, with the same force
and effect as if made on the date for such payment or the date fixed for
redemption or repurchase, or by such last day for conversion, and no interest
shall accrue on the amount so payable for the period after such date.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Note is entitled, at such Holder's option, at any time
following the original issue date of the Notes and on or before the close of
business on the Business Day immediately preceding [ ], 2006, or in
case this Note or a portion hereof is called for redemption or the Holder
hereof has exercised his or her right to require the Company to repurchase
this Note or such portion hereof, then in respect of this Note until but
(unless the Company defaults in making the payment due upon redemption or
repurchase, as the case may be) not after, the close of business on Business
Day immediately preceding the Redemption Date or the Repurchase Date, as the
case may be, to convert this Note (or any portion of the principal amount
hereof that is an integral multiple of $1,000, provided that the unconverted
portion of such principal amount is $1,000 or any integral multiple of $1,000
in excess thereof) into fully paid and nonassessable shares of Common Stock
of the Company at an initial Conversion Rate of [ ] shares of Common Stock
for each $1,000 principal amount of Notes (or at the current adjusted
Conversion Rate if an adjustment has been made as provided in the Indenture,
including pursuant to Section 14.4(2)) by surrender of this Note, duly
endorsed or assigned to the Company or in blank and, in case such surrender
shall be made during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date (except if this Note or portion
thereof has been called for redemption on a Redemption Date or is
repurchasable on a Repurchase Date and the conversion rights of this Note, or
such portion thereof, would terminate during the period between such Regular
Record Date and the close of business on such Interest Payment Date), also
accompanied by payment in New York Clearing House or other funds acceptable
to the Company of an amount equal to the interest payable on such Interest
Payment Date on the principal amount of this Note then being converted, and
also the conversion notice hereon duly executed, to the Company at the
Corporate Trust Office of the Trustee, or at such other office or agency of
the Company, subject to any laws or regulations applicable thereto and
subject to the right of the Company to terminate the appointment of any
Conversion Agent (as defined below) as may be designated by it for such
purpose, in the Borough of Manhattan, The City of New York, or at such other
offices or agencies as the Company may designate (each a "Conversion Agent"),
provided, however, that if this Note or portion hereof has been called for
redemption on a Redemption Date or is repurchasable on a Repurchase Date and
the conversion rights of this Note, or such portion
22
thereof, would terminate during the period between such Regular Record Date
and the close of business on such Interest Payment Date, then the Holder of
this Note on such Regular Record Date will be entitled to receive the
interest accruing hereon from the Interest Payment Date next preceding the
date of such conversion to such succeeding Interest Payment Date and the
Holder of this Note who converts this Note or a portion hereof during such
period shall not be required to pay such interest upon surrender of this Note
for conversion. Subject to the provisions of the preceding sentence and, in
the case of a conversion after the close of business on the Regular Record
Date next preceding any Interest Payment Date and on or before the close of
business on such Interest Payment Date, to the right of the Holder of this
Note (or any Predecessor Security of record as of such Regular Record Date)
to receive the related installment of interest to the extent and under the
circumstances provided in the Indenture, no cash payment or adjustment is to
be made on conversion for interest accrued hereon from the Interest Payment
Date next preceding the day of conversion, or for dividends on the Common
Stock issued on conversion hereof. The Company shall thereafter deliver to
the Holder the fixed number of shares of Common Stock (together with any cash
adjustment, as provided in the Indenture) into which this Note is convertible
and such delivery will be deemed to satisfy the Company's obligation to pay
the principal amount of this Note. No fractions of shares or scrip
representing fractions of shares will be issued on conversion, but instead of
any fractional interest (calculated to the nearest 1/100th of a share) the
Company shall pay a cash adjustment as provided in the Indenture. The
Conversion Rate is subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain consolidations or
mergers to which the Company is a party (other than a consolidation or merger
that does not result in any reclassification, conversion, exchange or
cancellation of the Common Stock) or the conveyance, transfer, sale or lease
of all or substantially all of the property and assets of the Company, the
Indenture shall be amended, without the consent of any Holders of Notes, so
that this Note, if then Outstanding, will be convertible thereafter, during
the period this Note shall be convertible as specified above, only into the
kind and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, transfer, sale or lease by a holder of the
number of shares of Common Stock of the Company into which this Note could
have been converted immediately prior to such consolidation, merger,
conveyance, transfer, sale or lease (assuming such holder of Common Stock is
not a Constituent Person or an Affiliate of a Constituent Person, failed to
exercise any rights of election and received per share the kind and amount
received per share by a plurality of Non-electing Shares and further
assuming, if such consolidation, merger, conveyance, transfer, sale or lease
occurs prior to the original issue date of the Notes, that the Note was
convertible at the time of such occurrence at the Conversion Rate specified
above as adjusted from the issue date of such Note to such time as provided
in the Indenture). No adjustment in the Conversion Rate will be made until
such adjustment would require an increase or decrease of at least one percent
of such price, provided that any adjustment that would otherwise be made, but
for the application of the foregoing, will be carried forward and taken into
account in the computation of any subsequent adjustment.
If a Change in Control occurs, the Holder of this Note, at the Holder's
option, shall have the right, in accordance with the provisions of the
Indenture, to require the Company to repurchase this Note (or any portion of the
principal amount hereof that is equal to $1,000 or an
23
integral multiple of $1,000 in excess thereof) for cash at a Repurchase Price
equal to 100% of the principal amount thereof plus interest accrued to the
Repurchase Date. At the option of the Company, the Repurchase Price may be
paid in cash or, subject to the conditions provided in the Indenture, by
delivery of shares of Common Stock having a fair market value equal to the
Repurchase Price. For purposes of this paragraph, the fair market value of
shares of Common Stock shall be determined by the Company and shall be equal
to 95% of the average of the Closing Prices Per Share for the five
consecutive Trading Days immediately preceding and including the third
Trading Day prior to the Repurchase Date. Whenever in this Note there is a
reference, in any context, to the principal of any Note as of any time, such
reference shall be deemed to include reference to the Repurchase Price
payable in respect of such Note to the extent that such Repurchase Price is,
was or would be so payable at such time, and express mention of the
Repurchase Price in any provision of this Note shall not be construed as
excluding the Repurchase Price so payable in those provisions of this Note
when such express mention is not made; provided, however, that, for the
purposes of the second succeeding paragraph, such reference shall be deemed
to include reference to the Repurchase Price only to the extent the
Repurchase Price is payable in cash.
[The following paragraph shall appear in each Global Security:
In the event of a deposit or withdrawal of an interest in this Note,
including an exchange, transfer, redemption, repurchase or conversion of this
Note in part only, the Trustee, as custodian of the Depositary, shall make an
adjustment on its records to reflect such deposit or withdrawal in accordance
with the rules and procedures of The Depository Trust Company applicable to, and
as in effect at the time of, such transaction.]
[The following paragraph shall appear in each Note that is not a Global
Security:
In the event of redemption, repurchase or conversion of this Note in
part only, a new Note or Notes for the unredeemed, unrepurchased or unconverted
portion hereof will be issued in the name of the Holder hereof.]
The indebtedness evidenced by this Note is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full in cash of all Senior Debt of the Company, and this
Note is issued subject to such provisions of the Indenture with respect thereto.
Each Holder of this Note, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on such
▇▇▇▇▇▇'s behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee such
▇▇▇▇▇▇'s attorney-in-fact for any and all such purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Notes, together with accrued interest to the date of declaration, may be
declared due and payable in the manner and with the effect provided in the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable, together with accrued interest to the date of declaration,
24
and (ii) of interest on any overdue principal and, to the extent permitted by
applicable law, overdue interest, all of the Company's obligations in respect
of the payment of the principal of and interest on the Notes shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with either (a) the written consent of the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Notes, or (b) by the adoption of a resolution, at a meeting of
Holders of the Outstanding Notes at which a quorum is present, by the Holders of
at least 66-2/3% in aggregate principal amount of the Outstanding Notes
represented and entitled to vote at such meeting. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Outstanding Notes, on behalf of the Holders of all the Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued in
exchange therefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note or such other Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default, the Holders of not less
than 25% in principal amount of the Outstanding Notes shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
the Outstanding Notes a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Note for the enforcement of any payment of
principal hereof, premiums if any, or interest hereon on or after the respective
due dates expressed herein or for the enforcement of the right to convert this
Note as provided in the Indenture.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed or to convert this Note as provided in the
Indenture.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Security
Register upon surrender of this Note for registration of transfer at the
Corporate Trust Office of the Trustee or at such other office or agency of
the Company as may be designated by it for such purpose in the Borough of
Manhattan, The City of New York (which shall initially be an office or agency
of the Trustee), or at such other offices or agencies as the Company may
designate, duly endorsed by, or
25
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder thereof or
such ▇▇▇▇▇▇'s attorney duly authorized in writing, and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees by the
Security Registrar. No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to recover any tax or other governmental charge payable in
connection therewith.
Prior to due presentation of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name Note is registered, as the owner thereof for
all purposes, whether or not such Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse for the payment of the principal (and premium, if any)
or interest on this Note and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the
Company or any successor corporation, whether by virtue of any 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, by the acceptance hereof and as part of
consideration for the issue hereof.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAW.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT - Custodian
(Minor)
under Uniform Gifts to Minors Act
(State)
26
Additional abbreviations may also be used though not in the above
list.
SECTION II.3 Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the [___]% Convertible Subordinated Notes due 2006
referred to in the within-mentioned Indenture.
Dated:____________________________
State Street Bank and Trust Company
of California, N.A., as Trustee
By:_______________________________
Authorized Signatory
SECTION II.4 Form of Election of Holder to Require Repurchase.
(1 Pursuant to Article XII of the Indenture, the undersigned hereby
elects to have this Note repurchased by the Company.
27
(2 The undersigned hereby directs the Trustee or the Company to pay to
the undersigned an amount in cash or, at the Company's election, Common Stock
valued as set forth in the Indenture, equal to 100% of the principal amount to
be repurchased (as set forth below), plus interest accrued to the Repurchase
Date, as provided in the Indenture.
Dated:
Signature(s)
Signature(s) must be
guaranteed by an Eligible
Guarantor Institution with
membership in an approved
signature guarantee program
pursuant to Rule 17Ad-15
under the Securities
Exchange Act of 1934.
Signature Guaranteed
Principal amount to be repurchased (at least $1,000 or an integral multiple
$1,000 in excess thereof): _______________________________
Remaining principal amount following such repurchase
(not less than $1,000): _________________________________
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
SECTION II.5 Form of Conversion Notice.
28
The undersigned Holder of this Note hereby irrevocably exercises the
option to convert this Note, or any portion of the principal amount hereof
(which is $1,000 or an integral multiple of $1,000 in excess thereof, PROVIDED
that the unconverted portion of such principal amount is at least $1,000 or any
integral multiple of $1,000 in excess thereof) below designated, into shares of
Common Stock in accordance with the terms of the Indenture referred to in this
Note, and directs that such shares, together with a check in payment for any
fractional share and any Notes representing any unconverted principal amount
hereof, be delivered to and be registered in the name of the undersigned unless
a different name has been indicated below. If shares of Common Stock or Notes
are to be registered in the name of a Person other than the undersigned, (a) the
undersigned will pay all applicable transfer taxes payable with respect thereto
and (b) signature(s) must be guaranteed by an Eligible Guarantor Institution
with membership in an approved signature guarantee program pursuant to Rule
17Ad-15 under the Securities Exchange Act of 1934. Any amount required to be
paid by the undersigned on account of interest accompanies this Note.
Dated:______________________________
Signature(s)
If shares or Notes are to be registered in the name of a Person other than the
Holder, please print such Person's name and address:
Name
Address
Social Security or other Identification
Number, if any
Signature Guaranteed
If only a portion of the Notes is to be converted, please indicate:
1. Principal amount to be converted: $_____________
2. Principal amount and denomination of Notes representing
unconverted principal amount to be issued: $______________
($1,000 or any integral multiple of $1,000 in excess thereof,
provided that the unconverted portion of such principal amount
is at least $1,000 or any integral multiple of $1,000 in
excess thereof)
29
SECTION II.6 Form of Assignment.
For value received ________________ hereby sell(s), assign(s) and
transfer(s) unto ________________ (Please insert social security or other
identifying number of assignee) the within Note, and hereby irrevocably
constitutes and appoints ____________________ as attorney to transfer the said
Note on the books of the Company, with full power of substitution in the
premises.
Dated:
Signature(s)
Signature(s) must be
guaranteed by an Eligible
Guarantor Institution with
membership in an approved
signature guarantee program
pursuant to Rule 17Ad-15
under the Securities
Exchange Act of 1934.
SECTION II.7 Securities Issuable in Global Form.
The Securities initially will be represented by one or more notes in
registered, global form without interest coupons, referred to as global notes.
Any such Security shall represent Outstanding Securities and may provide that it
shall represent the aggregate amount of Outstanding Securities and that the
aggregate amount of Outstanding Securities may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 3.3
or 3.4. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 3.3 or 3.4 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 1.2 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.3 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.2 and need not be accompanied by an Opinion of
30
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 3.3.
Notwithstanding the provisions of Section 3.7, payment of principal
of (and premium, if any) and interest on any Security in permanent global
form shall be made to the Person or Persons specified therein.
ARTICLE III
THE SECURITIES
SECTION III.1 Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities shall be known and designated as the "[ ]%
Convertible Subordinated Notes due 2006" of the Company. Their Stated
Maturity shall be [ ], 2006 and they shall bear interest on their principal
amount from [ ], 1999, payable semi-annually in arrears on [ ] and [ ] in
each year, commencing [ ], 2000, at the rate of [ ]% per annum until the
principal thereof is due and at the rate of [ ]% per annum on any overdue
principal and, to the extent permitted by law, on any overdue interest;
provided, however, that payments shall only be made on a Business Day as
provided in Section 1.13.
The principal of, premium, if any, and interest on the Securities
shall be payable as provided in the form of Securities set forth in Section
2.2, and the Repurchase Price, whether payable in cash or in shares of Common
Stock, shall be payable at such places as are identified in the Company
Notice given pursuant to Section 12.3 (any city in which any Paying Agent is
located being herein called a "Place of Payment").
The Securities shall be redeemable at the option of the Company at
any time on or after [ ] 2002, in whole or in part, subject to the conditions
and as otherwise provided in Article XI and in the form of Security set forth
in Section 2.2.
The Securities shall be subject to repurchase by the Company at the
option of the Holders as provided in Article XII.
The Securities shall be subordinated in right of payment to Senior
Debt of the Company as provided in Article XIII.
The Securities shall be convertible as provided in Article XIV (any
city in which any Conversion Agent is located being herein called a "Place of
Conversion").
SECTION III.2 Denominations.
31
The Securities shall be issuable in minimum denominations of $1,000
and any integral multiple thereof.
SECTION III.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed by the Company's Chairman of the
Board, its Chief Executive Officer its President or one of its Executive Vice
Presidents, and attested by its Chief Financial Officer or its Secretary. The
signature of any of these officers on the Securities may be manual or
facsimile signatures and may be imprinted or otherwise reproduced on the
Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver the Securities, executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
3.9 together with a written statement (which need not comply with Section 1.2
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION III.4 Global Securities.
Any Global Security shall be exchangeable only as provided in this
paragraph. If the depositary for any permanent Global Security is DTC, then,
unless the terms of such Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Securities, a
Global Security may be transferred, in whole but not in part, only to a
nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such Global Security
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selected or approved by the Company or to a nominee of such successor to DTC.
If at any time DTC notifies the Company that it is unwilling or unable to
continue as depositary for the applicable Global Security or Securities or if
at any time DTC ceases to be a clearing agency registered under the Exchange
Act if so required by applicable law or regulation, the Company shall appoint
a successor depositary with respect to such Global Security or Securities. If
(x) a successor depositary for such Global Security or Securities is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such unwillingness, inability or ineligibility,
(y) an Event of Default has occurred and is continuing or any event which
after notice or lapse of time or both would be an Event of Default with
respect to such Security or Securities, or (z) the Company, in its sole
discretion, determines at any time that all Outstanding Securities (but not
less than all) issued or issuable in the form of one or more Global
Securities shall no longer be represented by such Global Security or
Securities, then the Company shall execute, and the Trustee shall
authenticate and deliver definitive Securities of like rank, tenor and terms
in definitive form in an aggregate principal amount equal to the principal
amount of such Global Security or Securities. If any beneficial owner of an
interest in a Global Security is otherwise entitled to exchange such interest
for Securities of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 3.1 and provided
that any applicable notice provided in the Global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
execute, and the Trustee shall authenticate and deliver definitive Securities
in aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such Global Security. On or after the earliest
date on which such interests may be so exchanged, such Global Security shall
be surrendered for exchange by DTC or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
selection of the Securities to be redeemed under Section 11.3 and ending at
the close of business on the day of the mailing of the relevant notice of
redemption. If a Security is issued in exchange for any portion of a Global
Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any special Record Date and the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of such Security, but will be payable on such Interest Payment
Date or proposed date for payment, as the case may be, only to the Person to
whom interest in respect of such portion of such Global Security is payable
in accordance with the provisions of this Indenture.
SECTION III.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register of the Securities (the register maintained in such office or in any
such office or agency of the Company in a Place of Payment being herein
sometimes referred to as the "Security Register") in which, subject to such
33
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Security
Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities on such
Security Register as herein provided. In the event that the Trustee shall
cease to be Security Registrar, it shall have the right to examine the
Security Register at all reasonable times.
Subject to the provisions of this Section 3.5, upon surrender for
registration of transfer of any Security at any office or agency of the
Company in a Place of Payment, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and
of a like aggregate principal amount, bearing a number not contemporaneously
outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 3.5, at the option of the
Holder, Securities may be exchanged for other Securities, of any authorized
denomination or denominations and of a like aggregate principal amount,
containing identical terms and provisions, upon surrender of the Securities
to be exchanged at any such office or agency. Whenever any such Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange or redemption shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or such ▇▇▇▇▇▇'s attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Sections 9.6, 11.8, 12.3(e), or any
supplemental indenture not involving any transfer and other than any stamp
and similar duties, if any, which may be imposed in connection with any such
transfer or exchange by the United States or any political subdivision
thereof or taxing authority thereof or therein, which shall be paid by the
Company.
The Company, or the Trustee, as applicable, shall not be required
(i) to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period beginning
at the opening of business 15 days before selection of the
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Securities to be redeemed under Section 11.3 and ending at the close of
business on the day of the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed, or (iii) to issue,
register the transfer of or exchange any Security which has been surrendered
for repurchase at the option of the Holder, except the portion, if any, of
such Security not to be so repaid.
SECTION III.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee or the
Company, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them or any agent of
either of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding.
Notwithstanding the provisions of the previous two paragraphs, in
case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may pay such
Security, instead of issuing a new Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge (other than any stamp and similar duties, if any, which
may be imposed in connection therewith by the United States or any political
subdivision thereof or taxing authority thereof or therein, which shall be
paid by the Company) that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
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The provisions of this Section are 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 III.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such purpose
pursuant to Section 10.2; provided, however, that, except as otherwise
provided below with respect to Global Securities, each installment of
interest on any Security may at the Company's option be paid by (i) mailing a
check for such interest, payable to or upon the written order of the Person
entitled thereto pursuant to Section 3.8, to the address of such Person as it
appears on the Security Register or (ii) upon written order of the Person
entitled thereto pursuant to Section 3.8 setting forth instructions not later
than the Regular Record Date for such interest, by transfer to an account
maintained by the payee located inside the United States.
Every Global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC for the purpose of permitting
DTC to credit the interest received by it in respect of such Global Security
to the accounts of the beneficial owners thereof and that all payments with
respect to such Global Security shall be made by wire transfer of immediately
available funds.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
Holder thereof on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company at its
election in each case, as provided in clause (1) or (2) below:
(1 The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment (which shall not be less than 20 days after such
notice is received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
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the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities at such Holder's address as it
appears in the Security Register not less than 10 days prior to such Special
Record Date. If the sole registered Holder of the Securities is not DTC, then
the Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each place of payment, but such publications shall
not be a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2 The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the requirements
of any automated quotation system or securities exchange on which such
Securities may be listed or quoted, and upon such notice as may be required
by such quotation system or exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Security which is converted after any Regular
Record Date and prior to the next succeeding Interest Payment Date (other
than any Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion, and
such interest(whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record
Date.
SECTION III.8 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 as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any), and (subject to Sections 3.5 and 3.7) interest on, such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and none
of the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security,
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
or other authorization furnished by any depositary, as a Holder, with respect
to such Global Security or (b) impair, as between such depositary and owners
of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such Global Security.
SECTION III.9 Cancellation.
All Securities surrendered for payment, redemption or repurchase at
the option of the Holder, registration of transfer or exchange or conversion
shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee, and any such Securities and Securities surrendered directly to
the Trustee for any such purpose shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee
(or to any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled
by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same
are surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Trustee shall be returned to the Company
or disposed of by the Trustee in accordance with its customary practices as
directed by a Company Order.
SECTION III.10 Computation of Interest.
Interest on the Securities (including, without limitation, any
interest on overdue interest) shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
SECTION III.11 CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers (if then
generally in use) in addition to serial numbers, and, if so, the Trustee
shall use CUSIP numbers in addition to serial numbers in notices of
redemption as a convenience to Holders; provided 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
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such
38
redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the
CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION IV.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to (i) rights of registration of transfer and exchange,
right of conversion and the Company's right of optional redemption, (ii)
substitution of apparently mutilated, destroyed, lost or stolen Securities,
(iii) rights of Holders to receive payment of principal of and premium, if
any, and interest (including, without limitation, interest on overdue
interest) on the Securities, (iv) rights, obligations and immunities of the
Trustee under this Indenture, (v) rights of the Holders as beneficiaries of
this Indenture with respect to any property deposited with the Trustee
payable to all or any of them) and the Trustee, upon receipt of a Company
Order, and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when,
(1) either
(A) all Securities of theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.6, and
(ii) Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
(B) all Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds
(immediately available to the Holders in the case of clause (a)) in trust for
the purpose an amount in cash sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for
39
principal (and premium, if any) and interest (including, without limitation,
interest on overdue interest) to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company, including, without limitation, the payment of all fees
and expenses of the Trustee, its agents and counsel; and
(3) 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; and
(4) the Trustee shall have received such other documents and assurances
as the Trustee shall have reasonably requested.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee and any predecessor Trustee
under Section 6.6, the obligations of the Company to any Authenticating Agent
under Section 6.11 and, if money shall have been deposited with and held by
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive such satisfaction and discharge.
SECTION IV.2 Application of Trust Funds.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and
premium, if any), and any interest for whose payment such money has deposited
with or received by the Trustee, but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE V
REMEDIES
SECTION V.1 Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether
or not it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
40
(1) default in the payment of any interest on any Security when such
interest becomes due and payable, and continuance of such default for a
period of 30 days, whether or not such payment is prohibited by the
subordination provisions contained in Article XIII hereof; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security when it becomes due and payable at its Maturity, whether or
not such payment is prohibited by the subordination provisions contained in
Article XIII hereof; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified mail
to the Company, by the Trustee or to the Company, and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(4) (a) a default under any evidence of Debt of the Company or RF
Power under any mortgage, indenture, agreement or other instrument of the
Company or RF Power under which there may be issued or by which there may be
secured any Debt of the Company or by any Subsidiary, whether such Debt now
exists or shall hereafter be created, which default shall constitute a
failure to pay an aggregate amount of principal, premium or interest
exceeding $10,000,000 when due and payable after the expiration of any
applicable grace period with respect thereto and (b) any event of default as
defined in any mortgage, indenture, agreement or other instrument of the
Company or RF Power evidencing Debt in an aggregate amount of principal,
premium or interest exceeding $10,000,000 becoming or being declared due and
payable before the date on which it would otherwise have become due and
payable, without such Debt having been discharged, or such acceleration
having been annulled, within 30 days after there has been given, by
registered or certified mail to the Company, by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (a)
a decree or order for relief in respect of the Company or RF Power in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (b) a decree
or order adjudging the Company or RF Power a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or RF Power under
any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or RF Power or of any substantial part of the property of either, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
41
(6) the commencement by the Company or RF Power of a voluntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by either to the entry of
a decree or order for relief in respect of the Company or RF Power in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
either, or the filing by either of a petition or answer or consent seeking
reorganization or similar relief under any applicable Federal or State law,
or the consent by either to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or RF Power or
of any substantial part of the property of either, or the making by either of
an assignment for the benefit of creditors, or the admission by either in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company or RF Power in furtherance of
any such action; or
(7) failure by the Company to give a Company Notice in accordance
within Article XII hereof, whether or not such notice is prohibited by the
subordination provisions contained in Article XIII hereof.
SECTION V.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Sections 5.1(5) or 5.1(6)) occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities may declare the principal and premium (if any) of
all the Securities to be due and payable immediately, by a notice in writing
to the Company, (and to the Trustee if given by the Holders), and upon any
such declaration such principal and premium (if any) or specified portion
thereof shall become immediately due and payable. If an Event of Default
specified in Sections 5.1(5) or 5.1(6) occurs, the principal of, and premium,
if any, and accrued interest on all Securities shall, subject to the
provisions of Article XIII or the subordination provisions of any
supplemental indenture, ipso facto become immediately due and payable without
any declaration or other Act of the Holders or any act on the part of the
Trustee.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders
of a majority in principal amount of the Outstanding Securities, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue interest on all Outstanding
Securities,
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(b) the principal of (and premium, if any, on) any
Outstanding Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates borne
by or provided for in such Securities,
(c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates borne by or provided for
in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
(2) all Events of Default, other than the nonpayment of the
principal of (or premium, if any, on) or interest on Securities which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.13; and
(3) such rescission and annulment would not conflict with any
judgment or decree issued in appropriate judicial proceedings regarding the
payment by the Trustee to the Holders of the amounts referred to in Section
5.2(1).
No such rescission and annulment shall affect any subsequent default
or Event of Default or impair any right consequent thereon.
SECTION V.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at its Maturity, then the Company will, upon demand
of the Trustee, pay to the Trustee, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal (and premium, if any) and interest, with interest upon any overdue
principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of
interest, at the rate or rates borne by or provided for in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company, or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
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If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of
the Holders of Securities by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION V.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities, of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and take such other actions and to file such 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 of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities 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 and any
predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security 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 of a Security in
any such proceeding; provided, however, that the Trustee may, on behalf of
such Holders, vote for the election of a trustee in bankruptcy or similar
procedures.
SECTION V.5 Trustee May Enforce Claims Without Possession of Securities.
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All rights of action and claims under this Indenture or any of the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section
6.6, be for the ratable benefit of the Holders of the Securities in respect
of which such judgment has been recovered.
SECTION V.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.6;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities for principal (and premium, if any) and interest payable,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the aggregate amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or any other Person or Persons entitled thereto.
SECTION V.7 Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered and, if requested,
provided to the Trustee indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities to be incurred in compliance with
such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer and, if requested, the provision of indemnity, has failed
to institute any such proceeding; and
(5) 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 principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION V.8 Unconditional Right of Holders to Receive Principal (Premium, if
any) and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Sections 3.5 and 3.7) interest on such Security or payment on the respective
Stated Maturity expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or Repurchase Date, as may be the case)
and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION V.9 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, the Company, the Trustee and the Holders of Securities shall, subject
to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION V.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
46
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION V.11 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 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 of Securities, as the case may be.
SECTION V.12 Control by Holders of Securities.
The Holders of not less than a majority in principal amount of the
Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities not
joining therein.
In the event that the Trustee takes any action or follows any
direction pursuant to this Indenture, the Trustee shall be entitled to
indemnity reasonably satisfactory to it against any loss or expense caused by
taking such action or following such direction.
SECTION V.13 Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except a
default:
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security.
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The Company shall deliver to the Trustee an Officers' Certificate
stating that the requisite percentage of Holders have consented to such
waiver and attaching copies of such consents. Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture; but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
SECTION V.14 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION V.15 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by such ▇▇▇▇▇▇'s acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of any undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security on or after the respective
Stated Maturity expressed in such Security (or, in the case of redemption or
repurchase, on or after the Redemption Date or Repurchase Date, as may be the
case).
SECTION V.16 Notice of Default or Event of Default.
The Company shall deliver to the Trustee, as soon as possible and in
any event within 10 days after an officer of the Company becomes aware of the
occurrence of any Event of Default or any event which, with notice or the
lapse of time or both, would constitute an Event of Default, an Officers'
Certificate setting forth the details of such Event of Default or default and
the action which the Company proposes to take with respect thereto.
ARTICLE VI
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THE TRUSTEE
SECTION VI.1 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder, the
Trustee shall transmit in the manner and to the extent provided in Trust
Indenture Act Section 313(c) and Section 1.6 hereof, notice of such default
hereunder actually known to a Responsible Officer of the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any)
or interest on any Security, the Trustee shall be protected in withholding
such notice if and so long as Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of
the Holders of the Securities; and provided further that in the case of any
default or breach of the character specified in Section 5.1(3), no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION VI.2 Certain Duties and Responsibilities.
(a) If an Event of Default has occurred and is continuing, the
Trustee will exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in such exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations will be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which are specifically required to be furnished to the Trustee by any
of the provisions hereof, the Trustee will examine the certificates and
opinions to determine whether or not, on their face, they appear to
conform to the requirements of this Indenture.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own gross negligent action, its own gross
negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 6.2;
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(ii) the Trustee will not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Trustee will not be liable with respect to any
action it takes or omits to take in good faith in accordance with the
direction received by it pursuant to Section 6.2 of the Holders of a
majority in principal amount of the Outstanding Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or when exercising any other trust or power
conferred upon the Trustee under this Indenture; and
(iv) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any or its duties hereunder or in the
exercise of any of its rights or powers hereunder if it has reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not herein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to clauses
(i), (ii), (iii) and (iv) of paragraph (c) of this Section 6.2.
SECTION VI.3 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of
the Company and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION VI.4 May Hold Securities.
The Trustee, any Paying Agent, Conversion Agent, Security Registrar,
Authenticating Agent or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.12 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee, Paying Agent,
Conversion Agent, Security Registrar, Authenticating Agent or such other
agent.
SECTION VI.5 Money Held in Trust.
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Money held by the Trustee in trust hereunder 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 money received by it hereunder except
as otherwise agreed with the Company in writing.
SECTION VI.6 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder as agreed with the Company in
writing (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee and
their agents for, and to hold it harmless against, any loss, liability,
claim, damage or expense (including reasonable attorneys' fees and expenses)
incurred without negligence or bad faith on its own part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of enforcing this Indenture
(including this Section 6.6), defending itself against any claim (whether
asserted by a Holder, the Company or otherwise) or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(5) or Section 5.1(6), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency
or other similar law.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (or premium, if any) or
interest on particular Securities. The Trustee's right to receive payment of
any amounts due under this Section 6.6 shall not be subordinate to any other
liability or Debt of the Company (even though the Securities may be so
subordinated).
The provisions of this Section shall survive the termination of this
Indenture, the resignation and removal of any Trustee, the discharge of the
Company's obligations hereunder
51
and any rejection or termination under any applicable Federal or State
bankruptcy, insolvency or other similar laws.
SECTION VI.7 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under the Trust Indenture Act and shall have (or,
in the case of a subsidiary of a bank holding company, its corporate parent
shall have) a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by Federal or State authority and in good
standing under the laws of the United States or of any State or the District
of Columbia. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial
or District of Columbia 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. Except as
otherwise provided in Section 6.13, if at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article. The Trustee or an Affiliate of the Trustee shall maintain an
established place of business in the Borough of Manhattan, the City of New
York.
SECTION VI.8 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.9.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the Outstanding Securities delivered to the
Trustee and the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the Trustee who is being removed may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Section 6.13 after written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at least six months,
or
52
(2) the Trustee shall cease to be eligible under Section
6.7 and shall fail to resign after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee, or (ii) subject to
Section 5.15, any Holder of a Security who has been a bona fide Holder of a
Security for at least six months may, on behalf of such 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.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapacity, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance or such
appointment, become the successor Trustee and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee shall
have been so appointed by the Company or the Holders of Securities and
accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security for at least six
months may, on behalf of such ▇▇▇▇▇▇ and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) So long as no Event of Default or event which is, or after
notice or lapse of time, or both, could become, an Event of Default shall
have occurred and be continuing, and except with respect to a Trustee
appointed by or at the request of the Holders of Securities pursuant to
subsection (e) of this Section, if the Company shall have delivered to the
Trustee (i) a Board Resolution appointing a successor Trustee, effective as
of a date specified therein, and (ii) an instrument accepting such
appointment, effective as of such date, by such successor Trustee in
accordance with Section 6.9, the Trustee shall be deemed to have resigned as
contemplated in subsection (b) of this Section, the successor Trustee shall
be deemed to have been appointed by the Company pursuant to subsection (e) of
this Section and such appointment shall be deemed to have been accepted as
contemplated in Section 6.9, all as of the date specified in such Board
Resolution, and all other provisions of this Section and Section 6.9 shall be
applicable to such resignation, appointment and acceptance except to the
extent inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee in the
manner provided for notices to the
53
Holders of Securities in Section 1.6. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
SECTION VI.9 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and 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 request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of all sums then
owing to the Trustee pursuant to Section 6.6 , 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 nevertheless to its claim, if any, provided for in
Section 6.6.
(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 paragraph (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.
SECTION VI.10 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including the administration of the trust created by
this Indenture), shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. 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. In case any Securities shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities, in either its own name or that of
its predecessor Trustee, with the full force and effect which this Indenture
provides for the certificate of authentication of the Trustee.
SECTION VI.11 Appointment of Authenticating Agent.
54
The Trustee may appoint an Authenticating Agent or Agents reasonably
acceptable to the Company with respect to the Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon exchange, registration of transfer or partial redemption or, repurchase
thereof, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the
United States or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having (or, in the case of a
subsidiary of a bank holding company, its corporate parent shall have) a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or the requirements of Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to all or substantially
all of the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent (including the
authenticating agency contemplated by this Indenture), provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or further act on the part of the Trustee or
the Authenticating Agent.
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An Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be reasonably acceptable to the
Company and shall give notice of such appointment to all Holders of
Securities in the manner set forth in Section 1.6. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent
herein. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment is made pursuant to this Section, the Securities
may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the [ ]% Convertible Subordinated Notes due 2006
referred to in the within-mentioned Indenture.
Dated: ___________________________
State Street Bank and Trust Company
of California, N.A., as Trustee
By:_____________________
as Authenticating Agent
By:______________________
Authorized Signatory
SECTION VI.12 Preferential Collection of Claims Against Company.
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 Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
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SECTION VI.13 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION VI.14 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(1) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security to the Trustee for authentication and delivery
pursuant to Section 3.3 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officers' Certificate or an Opinion of
Counsel;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall
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be entitled to examine the books, records and premises of the Company
personally or by agent or attorney;
(7) 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; and
(8) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION VII.1 The Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular
Record Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Securities as of such Regular
Record Date, and
(b) at such other times as the Trustee may request in
Writing, within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished,
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION VII.2 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided by the
Trust Indenture Act. Reports required pursuant to the Trust Indenture Act
Section 313(a), if any, will be transmitted annually.
(b) A copy of each such report shall, at the time of such
transmission to Holder, be filed with the Commission and the Company. The
Company will notify the Trustee, in writing, if and when the Securities are
listed on any stock exchange.
SECTION VII.3 Reports by Company.
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The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, if any,
and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 15 days after the same is so required to be
filed with the Commission.
SECTION VII.4 Preservation Of Information; Communications to Holders.
(1) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar if the Trustee is acting in such capacity. The Trustee may
destroy any list furnished to it as provided in Section 7.1 upon receipt of a
new list so furnished.
(2) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act and other applicable law.
(3) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company, the Trustee
or any agent of any of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION VIII.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company (1) shall not consolidate with or merge into any other
Person or, directly or indirectly, convey, transfer, sell, lease or otherwise
dispose of its properties and assets as an entirety or substantially as an
entirety to any Person, and (2) shall not permit any Person to consolidate or
merge with or into the Company or convey, transfer, sell, lease or otherwise
dispose of such Person's properties and assets as an entirety or
substantially as an entirety to the Company, unless:
(a) the Person formed by such consolidation or into or with which
the Company is merged or the Person which acquires by conveyance, transfer or
sale, or which leases or otherwise acquires, the properties and assets of the
Company as an entirety or substantially as an entirety (i) shall be a
corporation, limited liability company, partnership or trust, (ii) shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and (iii) shall
expressly assume, by an indenture supplemental hereto,
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executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer, sale, lease or other disposition 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, together with any documents required by Section 9.3.
SECTION VIII.2 Successor Substituted.
Upon any consolidation by the Company with, or merger by the Company
into, any other Person or any conveyance, transfer, sale, lease or other
disposition of the properties and assets of the Company as an entirety or
substantially as an entirety as described in Section 8.1, the Person
resulting from such consolidation or into which the Company is merged or to
which such conveyance, transfer, sale, lease or other disposition is made,
will succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor (if still in existence) will be
released from its obligations and covenants under this Indenture and the
Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION IX.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants and obligations of the
Company herein and in the Securities as permitted by Article VIII; or
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(2) to add to the covenants of the Company for the benefit of the
Holders of the Securities or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of the Securities provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies available
to the Trustee upon such default or may limit the right of the Holders of a
majority in aggregate principal amount of the Securities to waive such
default; or
(4) to secure the Securities; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor ▇▇▇▇▇▇▇; or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or 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 as the Company and the Trustee may deem necessary or desirable;
provided that any such action shall not adversely affect the interests of the
Holders of Securities in any material respect; or
(7) subject to Section 13.15, to make any change in Article XIII that
would limit or terminate the benefits to any holder of Senior Debt under such
Article; or
(8) to comply with the requirements of the Trust Indenture Act; or
(9) to make any change that does not adversely affect the legal rights
under this Indenture of any Holder of Securities; or
(10) to change any Place of Payment to another location within the same
city provided that the Company delivers notice of such change to the Holders
prior to such change of Place of Payment; or
(11) to add a guarantor of the Securities.
SECTION IX.2 Supplemental Indentures with Consent of Holders.
With either (i) the consent of the Holders of not less than a
majority in principal amount of all Outstanding Securities by the Act of said
Holders delivered to the Company and the Trustee, or (ii) by the adoption of
a resolution, at a meeting of Holders of the Outstanding Securities at which
a quorum is present, by the Holders of at least 66-2/3% in aggregate
principal amount of the Outstanding Securities represented at such meeting,
the Company, when
61
authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if any,
on) or any installment of principal of or interest on, any Security; or reduce
the principal amount thereof or the rate or amount of interest thereon, or any
premium payable upon the redemption or mandatory repurchase thereof, or
adversely affect any right of repurchase at the option of the Holder of any
Security, or change the city of any Place of Payment where, or the currency in
which, the principal of or any premium or the interest on any Security is
payable, including any payment of the Redemption Price or Repurchase Price in
respect of such Security or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof, (or, in
the case of redemption or repurchase at the option of the Holder, on or after
the Redemption Date or the Repurchase Date, as the case may be), or
(2) reduce the requirements of Section 15.4 for quorum or voting or the
percentage in principal amount of the Outstanding Securities, the consent of
whose Holders is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver with respect to such Outstanding
Securities (or compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Sections 5.13 or
10.8, except to increase the required percentage to effect such action or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) release any guarantors from their guarantees of the Securities, or,
except as contemplated in any supplemental indenture, make any change in a
guarantee of a Security that would adversely affect the interests of the
Holders, or
(5) adversely affect the right of a Holder of a Security to require the
Company to repurchase any Note other than as provided in Article XII, or
(6) adversely affect the right of a Holder of a Security to require the
Company to convert any Note other than as provided in Article XIV, or
(7) modify the obligation of the Company to maintain an office or
agency in the Borough of Manhattan, the City of New York, pursuant to Section
10.2.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION IX.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and subject to Section 6.2 shall be fully protected in relying upon, an
Officer's Certificate and an Opinion of Counsel, each stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture, is
in compliance with Article IX, constitutes the legal, valid and binding
obligation of the Company, enforceable in accordance with its terms (subject to
customary exceptions) and that all conditions precedent to the execution of such
supplemental indenture have been fulfilled. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION IX.4 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.
SECTION IX.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION IX.6 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION IX.7 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Article IX, the Company
shall give notice thereof to the
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Holders of each Outstanding Security affected, in the manner provided for in
Section 1.6, setting forth in general terms the substance of such
supplemental indenture.
ARTICLE X
COVENANTS
SECTION X.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Holders of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities in accordance with the terms thereof. The
Company will deposit or cause to be deposited with the Trustee, no later than
the opening of business on the date of the Stated Maturity of any Security or no
later than the opening of business on the due date for any installment of
interest, all payments so due, which payments shall be in immediately available
funds on the date of such Stated Maturity or due date, as the case may be.
SECTION X.2 Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment an office or agency
where Securities may be presented or surrendered for payment or conversion,
where Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of each such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive all such presentations, surrenders, notices and
demands.
The Company may from time to time designate one or more other offices
or agencies where Securities may be presented or surrendered for any or all of
such purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in accordance with the
requirements set forth above for Securities for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. The
Company hereby designates as a Place of Payment for Securities the office or
agency of the Company in the Borough of Manhattan, The City of New York, and
initially appoints State Street Bank and Trust Company, N.A., an Affiliate of
the Trustee, at its Corporate Trust Office in such city as Paying Agent,
Security Registrar and Conversion Agent and as its agent to receive all such
presentations, surrenders, notices and demands.
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SECTION X.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any) or interest
on, the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, no later than the opening of business on each due date of
the principal of (and premium, if any) or interest on, any Securities, deposit
with a Paying Agent a sum in immediately available funds sufficient to pay the
principal (and premium, if any) or interest, so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal (and
premium, if any) or interest and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument satisfactory to the Trustee in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any such payment of principal (and
premium, if any) or interest;
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and liabilities of
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (and premium, if any) or interest on any
Security and remaining unclaimed for two years after such
65
principal (and premium, if any) and interest has become due and payable shall
be paid to the Company upon Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment of such principal of (and premium, if any) or interest on any
Security, without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
an Authorized Newspaper, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION X.4 Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any right or franchise if the Board of
Directors determines that the preservation thereof is no longer desirable in the
conduct of the business of the Company and the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION X.5 Maintenance of Properties.
The Company will cause all of the properties of itself and of each
Subsidiary used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, the Company and its Subsidiaries shall not be
prevented from discontinuing the operation and maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business and not disadvantageous in any material respect
to the Holders.
SECTION X.6 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary; and (3) all stamps and
similar duties, if any, which may be imposed by the United States or any
political subdivision thereof or taxing authority thereof or therein in
connection with the issuance, transfer, exchange or conversion of any Securities
or with respect to this Indenture; provided, however, that, in the
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case of clauses (1) and (2) that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings.
SECTION X.7 Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a brief certificate in the form of an Officers' Certificate
from its chief executive officer, chief operating officer, or principal
accounting officer as to his or her best knowledge of the Company's compliance
with all conditions and covenants under this Indenture and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof.
For purposes of this Section 10.7, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION X.8 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.4 (other than with respect
to the existence of the Company (subject to Article VII)), 10.5 and 10.6,
inclusive (other than a covenant or condition which under Article IX cannot be
modified or amended without the consent of the Holder of each Outstanding
Security affected), if before or after the time for such compliance the Holders
of at least a majority in principal amount of all outstanding Securities, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee or any Paying Agent or Conversion Agent in
respect of any such term, provision or condition shall remain in full force and
effect.
SECTION X.9 Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as possible and in
any event within 10 days after an officer of Company becomes aware of the
occurrence of any Event of Default or any event which, with notice or the lapse
of time or both, would constitute an Event of Default, an Officers' Certificate
setting forth the details of such Event of Default or Default and the action
which the Company proposes to take with respect thereto.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION XI.1 Right of Redemption.
The Securities may be redeemed in accordance with the provisions of the
form of Securities set forth in Section 2.2.
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SECTION XI.2 Applicability of Article.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of the Securities or this Indenture,
shall be made in accordance with such provision and this Article XI.
SECTION XI.3 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of less than all of the Securities, the Company shall, at least
45 but not more than 60 days prior to the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of the Securities to be redeemed.
SECTION XI.4 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 30 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by lot or by such other method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities or any
integral multiple thereof) of the principal amount of Securities of a
denomination larger than the minimum authorized denomination therefor.
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 which 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. The Trustee shall
promptly notify the Company and the Security Registrar (if other than itself) in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION XI.5 Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6, not less than 30 days nor more than 60 days prior to the Redemption Date to
each Holder of Securities to be redeemed at such Holder's address appearing in
the Security Register and such notice shall be irrevocable.
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All notices of redemption shall include a description of the Securities
and shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 11.7, if any,
(3) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the principal amount) of
the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 11.7, if any,
will become due and payable upon each such Security, or the portion thereof, to
be redeemed and that interest thereon shall cease to accrue on and after said
date,
(6) the Place or Places of Payment where such Securities maturing after
the Redemption Date, are to be surrendered for payment of the Redemption Price
and accrued interest, if any, or for conversion,
(7) the CUSIP number of such Security, if any, and
(8) the then existing Conversion Rate, the date and time when the
option to convert such Securities to be redeemed shall expire and the places
where such Securities may be surrendered for conversion.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION XI.6 Deposit of Redemption Price.
At least one Business Day prior to any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money sufficient to pay on the Redemption Date the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof which
are to be redeemed on that date other than any Securities called for redemption
on that date which have been converted prior to the date of such deposit.
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SECTION XI.7 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest in which case the Securities to be redeemed shall continue to bear
interest at the default rate of interest, if any) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest, if any, to the Redemption Date; provided,
however, that installments of interest on Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption as a result of the failure by the Company to
fund such redemption, the principal of (and premium, if any) and, to the extent
permitted by applicable law, accrued interest on such Security shall, until
paid, bear interest from the Redemption Date at a rate of [ ]% per annum and
such Security shall remain convertible until the full Redemption Price and
accrued interest shall have been paid or duly provided for.
SECTION XI.8 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or such
▇▇▇▇▇▇'s attorney duly authorized in writing) and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge a new Security or Securities of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
SECTION XI.9 Conversion Arrangement on Call For Redemption.
In connection with any redemption of the Securities, the Company may
arrange for the purchase and conversion of any Securities by an agreement with
one or more investment bankers or other purchasers (the "Purchasers") to
purchase such Securities by paying to the Trustee in trust for the Holders, on
or before the Redemption Date, an amount not less than the applicable Redemption
Price, together with interest accrued and unpaid to the Redemption Date, of such
Securities. Notwithstanding anything to the contrary contained in this Article
XI, the obligation of the Company to pay the Redemption Price, together with
interest accrued and unpaid to the Redemption Date, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
Purchasers. If such an agreement is entered into (a copy of which shall be filed
with the Trustee prior to the close of business on the Business Day immediately
prior to the
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Redemption Date), any Securities called for redemption that are not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, and consistent
with any agreement or agreements with such Purchasers, to be acquired by such
Purchasers from such Holders and (notwithstanding anything to the contrary
contained in this Article XI) surrendered by such Purchasers for conversion,
all as of immediately prior to the close of business on the Redemption Date
(and the right to convert any such Securities shall be extended through such
time), subject to payment of the above amount as aforesaid. At the direction
of the Company, the Trustee shall hold and dispose of any such amount paid to
it by the Purchasers to the Holders in the same manner as it would monies
deposited with it by the Company for the redemption of Securities. Without
the Trustee's prior written consent, no arrangement between the Company and
such Purchasers for the purchase and conversion of any Securities shall
increase or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such
arrangement for the purchase and conversion of any Securities between the
Company and such Purchasers, including the costs and expenses, including
reasonable legal fees, incurred by the Trustee in the defense of any claim or
liability arising out of or in connection with the exercise or performance of
any of its powers, duties, responsibilities or obligations under this
Indenture.
ARTICLE XII
REPURCHASE OF SECURITIES AT THE OPTION
OF HOLDERS UPON THE CHANGE OF CONTROL
SECTION XII.1 Right to Require Repurchase.
In the event that a Change in Control (as hereinafter defined) shall
occur, then each Holder shall have the right, at the Holder's option, but
subject to the provisions of Section 12.2., to require the Company to
repurchase, and upon the exercise of such right the Company shall repurchase,
all of such Holder's Securities not theretofore called for redemption, or any
portion of the principal amount thereof that is equal to $1,000 or any
integral multiple of $1,000 in excess thereof (provided that no single
Securities may be repurchased in part unless the portion of the principal
amount of such Securities to be Outstanding after such repurchase is equal to
$1,000 or integral multiples of $1,000 in excess thereof), on the date (the
"Repurchase Date") that is 45 days after the date of the Company Notice at a
purchase price equal to 100% of the principal amount of the Securities to be
repurchased plus interest accrued to the Repurchase Date (the "Repurchase
Price"); provided, however, that installments of interest on Securities whose
Stated Maturity is on or prior to the Repurchase Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such on the relevant Record Date according to their terms and the
provisions of Section 3.7. Such right to require the repurchase of the
Securities shall not continue after a discharge of the Company from its
obligations with respect to the Securities in accordance with the provision
of Article IV unless a Change in Control shall have occurred prior to such
discharge. At the option of the Company, the
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Repurchase Price may be paid in cash or, subject to the fulfillment by the
Company of the conditions set forth Section 12.2, by delivery of shares of
Common Stock having a fair market value equal to the Repurchase Price.
Whenever in this Indenture (including Sections 2.2, 3.1, 5.1(2) and 5.8)
there is a reference, in any context, to the principal of any Securities as
of any time, such reference shall be deemed to include reference to the
Repurchase Price payable in respect of such Securities to the extent that
such Repurchase Price is, was or would be so payable at such time, and
express mention of the Repurchase Price in any provision of this Indenture
shall not be construed as excluding the Repurchase Price in those provisions
of this Indenture when such express mention is not made; provided, however,
that for the purposes of Article XIV such reference shall be deemed to
include reference to the Repurchase Price only to the extent the Repurchase
Price is payable in cash.
SECTION XII.2 Conditions to The Company's Election to Pay the Repurchase
Price in Common Stock.
The Company may elect to pay the Repurchase Price by delivery of
shares of Common Stock pursuant to Section 12.1 if and only if the following
conditions shall have been satisfied:
(1) The shares of Common Stock deliverable in payment of the
Repurchase Price shall have a fair market value as of the Repurchase Date of
not less than the Repurchase Price. For purposes of Section 12.1 and this
Section 12.2, the fair market value of shares of Common Stock shall be
determined by the Company and shall be equal to 95% of the average of the
Closing Prices Per Share of the Common Stock for the five consecutive Trading
Days immediately preceding and including the third Trading Day prior to the
Repurchase Date;
(2) The shares of Common Stock to be issued upon repurchase of
Securities hereunder (i) shall not require registration under any federal
securities law before such shares may be freely transferable without being
subject to any transfer restrictions under the Securities Act upon repurchase
or, if such registration is required, such registration shall be completed
and shall become effective prior to the Repurchase Date, and (ii) shall not
require registration with or approval of any governmental authority under any
state law or any other federal law before such shares may be validly issued
or delivered upon repurchase or if such registration is required or such
approval must be obtained, such registration shall be completed or such
approval shall be obtained prior to the Repurchase Date;
(3) The shares of Common Stock to be issued upon repurchase of
Securities hereunder are, or shall have been, approved for quotation on the
Nasdaq National Market or listed on a national securities exchange, in any
case, prior to the Repurchase Date; and
(4) All shares of Common Stock which may be issued upon repurchase
of Securities will be issued out of the Company's authorized but unissued
Common Stock and, will upon issue, be duly and validly issued and fully paid
and non-assessable and free of any preemptive or similar rights.
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If all of the conditions set forth in this Section 12.2 are not
satisfied in accordance with the terms thereof, the Repurchase Price shall be
paid by the Company only in cash.
SECTION XII.3 Notices; Method of Exercising Repurchase Right, Etc.
(a) Unless the Company shall have theretofore called for redemption
all of the Outstanding Securities, on or before the 30th day after the
occurrence of a Change in Control, the Company or, at the request and expense
of the Company on or before the 30th day after such occurrence, the Trustee,
shall give to all Holders of Securities, in the manner provided in Section
1.6 notice (the "Company Notice") of the occurrence of the Change of Control
and of the repurchase right set forth herein arising as a result thereof. The
Company shall also deliver a copy of such Company Notice to the Trustee.
Each notice of a repurchase right shall state:
(i) the Repurchase Date,
(ii) the date by which the repurchase right must be
exercised pursuant to Section 12.3(b),
(iii) the Repurchase Price, and whether the Repurchase
Price shall be paid by the Company in cash or by delivery of shares of Common
Stock,
(iv) a description of the procedure which a Holder must
follow to exercise a repurchase right, and the place or places where such
Securities, are to be surrendered for payment of the Repurchase Price and
accrued interest, if any, to the Repurchase Date,
(v) that on the Repurchase Date the Repurchase Price,
and accrued and unpaid interest, if any, will become due and payable upon
each such Securities designated by the Holder to be repurchased, and that
interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Rate then in effect, the date on
which the right to convert the principal amount of the Securities to be
repurchased will terminate and the place or places where such Securities may
be surrendered for conversion, and
(vii) the place or places that the Securities certificate
with the Election of Holder to Require Repurchase as specified in Section 2.2
shall be delivered.
No failure of the Company to give the foregoing notices or
defect therein shall limit any Holder's right to exercise a repurchase right
or affect the validity of the proceedings for the repurchase of Securities.
If any of the foregoing provisions or other provisions of
this Article VIII are inconsistent with applicable law, such law shall govern.
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(b) To exercise a repurchase right, a Holder shall deliver to the
Trustee on or before the 30th day after the date of the Company Notice (i)
written notice of the Holder's exercise of such right, which notice shall set
forth the name of the Holder, the principal amount of the Securities to be
repurchased (and, if any Securities is to repurchased in part, the serial
number thereof, the portion of the principal amount thereof to be repurchased
and the name of the Person in which the portion thereof to remain Outstanding
after such repurchase is to be registered) and a statement that an election
to exercise the repurchase right is being made thereby, and, in the event
that the Repurchase Price shall be paid in shares of Common Stock, the name
or names (with addresses) in which the certificate or certificates for shares
of Common Stock shall be issued, and (ii) the Securities with respect to
which the repurchase right is being exercised. Such written notice shall be
irrevocable, except that the right of the Holder to convert the Securities
with respect to which the repurchase right is being exercised shall continue
until the close of business on the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid to the
Trustee the Repurchase Price in cash or shares of Common Stock, as provided
above, for payment to the Holder on the Repurchase Date or, if shares of
Common Stock are to be paid, as promptly after the Repurchase Date as
practicable, together with accrued and unpaid interest to the Repurchase Date
payable with respect to the Securities as to which the repurchase right has
been exercised; provided, however, that installments of interest that mature
on or prior to the Repurchase Date shall be payable in cash to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Regular Record Date. The Company
covenants that, if the Repurchase Price is to be paid in cash, at least one
Business Day prior to the Repayment Date it will deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.3) an amount of money
sufficient to pay the principal of, and (except if the Repayment Date shall
be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such Repayment Date.
(d) If any Securities (or portion thereof) surrendered for
repurchase shall not be so paid on the Repurchase Date, the principal amount
of such Securities (or portion thereof, as the case may be) shall, until
paid, bear interest to the extent permitted by applicable law from the
Repurchase Date at the rate of [ ]% per annum, and each Securities shall
remain convertible into Common Stock until the principal of such Securities
(or portion thereof, as the case may be) shall have been paid or duly
provided for.
(e) Any Securities which is to be repurchased only in part shall be
surrendered to the Trustee (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or such
▇▇▇▇▇▇'s attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and make available for delivery to the
Holder of such Securities without service charge, a new Security or
Securities, containing identical terms and
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conditions, each in an authorized denomination in aggregate principal amount
equal to and in exchange for the unrepurchased portion of the principal of
the Securities so surrendered.
(f) Any issuance of shares of Common Stock in respect of the
Repurchase Price shall be deemed to have been effected immediately prior to
the close of business on the Repurchase Date and the Person or Persons in
whose name or names any certificate or certificates for shares of Common
Stock shall be issuable upon such repurchase shall be deemed to have become
on the Repurchase Date the holder or holders of record of the shares
represented thereby; provided, however, that any surrender for repurchase on
a date when the stock transfer books of the Company shall be closed shall
constitute the Person or Persons in whose name or names the certificate or
certificates for such shares are to be issued as the record holder or holders
thereof for all purposes at the opening of business on the next succeeding
day on which such stock transfer books are open. No payment or adjustment
shall be made for dividends or distributions on any Common Stock issued upon
repurchase of any Securities declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of
Securities. If more than one Security shall be repurchased from the same
Holder and the Repurchase Price shall be payable in shares of Common Stock,
the number of full shares which shall be issuable upon such repurchase shall
be computed on the basis of the aggregate principal amount of the Securities
so repurchased. Instead of any fractional share of Common Stock which would
otherwise be issuable on the repurchase of any Securities or Securities, the
Company will deliver to the applicable Holder its check for the current
market value of such fractional share. The current market value of a fraction
of a share is determined by multiplying the current market price of a full
share by the fraction, and rounding the result to the nearest cent. For
purposes of this Section, the current market price of a share of Common Stock
is the Closing Price Per Share of the Common Stock on the Trading Day
immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common
Stock on repurchase of Securities shall be made without charge to the Holder
of Securities being repurchased for such certificates or for any tax or duty
in respect of the issuance or delivery of such certificates or the Securities
represented thereby; provided, however, that the Company shall not be
required to pay any tax or duty which may be payable in respect of (i) income
of the Holder or (ii) any transfer involved in the issuance or delivery of
certificates for shares of Common Stock in a name other than that of the
Holder of the Securities being repurchased, and no such issuance or delivery
shall be made unless and until the Person requesting such issuance or
delivery has paid to the Company the amount of any such tax or duty or has
established, to the satisfaction of the Company, that such tax or duty has
been paid.
(i) All Securities delivered for repurchase shall be delivered to
the Trustee to be canceled at the direction of the Trustee, which shall
dispose of the same as provided in Section 3.9.
SECTION XII.4 Certain Definitions.
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For purposes of this Article XII,
(1) the term "beneficial owner" shall be determined in accordance
with Rule 13d-3, as in effect on the date of the original execution of this
Indenture, promulgated by the Commission pursuant to the Exchange Act;
(2) a "Change in Control" shall be deemed to have occurred at the
time, after the original issuance of the Securities, of:
(i) the acquisition by any Person (including any
syndicate or group deemed to be a "person" under Section 13(d)(3) of the
Exchange Act as in effect on the date of the original execution of this
Indenture) of beneficial ownership, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of transactions,
of shares of Capital Stock of the Company entitling such person to exercise
50% or more of the total voting power of all shares of Capital Stock of the
Company entitled to vote generally in the elections of directors (or persons
holding a similar function), other than any such acquisition by the Company,
any subsidiary of the Company or any employee benefit plan of the Company; or
(ii) any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into the
Company, or any conveyance, sale, transfer, lease or other disposition of all
or substantially all of the assets of the Company to another Person (other
than (a) any such transaction (x) which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares
of Capital Stock of the Company and (y) pursuant to which the holders of the
Common Stock immediately prior to such transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total voting power of
all shares of Capital Stock entitled to vote generally in the election of
directors (or persons holding a similar function) of the continuing or
surviving corporation immediately after such transaction and (b) any merger
which is effected solely to change the jurisdiction of incorporation of the
Company and results in a reclassification, conversion or exchange of
outstanding shares of Common Stock into solely shares of common stock of the
surviving entity);
provided, however, that a Change in Control shall not be deemed to have
occurred if the Closing Sales Price Per Share of the Common Stock for any
five Trading Days within the period of 10 consecutive Trading Days ending
immediately after the later of the Change in Control or the public
announcement of the Change in Control (in the case of a Change in Control
under clause (i) above) or the period of 10 consecutive Trading Days ending
immediately before the Change in Control (in the case of a Change in Control
under clause (ii) above) shall equal or exceed 105% of the Conversion Price
of the Securities in effect on each such Trading Day; and
(3) the term "Closing Price Per Share" means, with respect to the
Common Stock, for any day, (i) the last reported sale price regular way on
the Nasdaq National Market or, (ii) if the Common Stock is not listed on the
Nasdaq National Market, the last reported sale price
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regular way per share or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices regular way, in
either case, on the principal national securities exchange on which the
Common Stock is listed or admitted to trading, or (iii) if the Common Stock
is not quoted on the Nasdaq National Market or listed or admitted to trading
on any national securities exchange, the average of the closing bid prices in
the over-the-counter market as furnished by any Nasdaq National Market member
firm selected from time to time by the Company for that purpose.
SECTION XII.5 Consolidation, Merger, Etc.
In the case of any consolidation, merger, conveyance, sale, transfer
or lease of all or substantially all of the assets of the Company to which
Section 14.11 applies, in which the Common Stock of the Company is changed or
exchanged as a result into the right to receive shares of stock and other
securities or property or assets (including cash) which includes shares of
Common Stock of the Company or common stock of another Person that are, or
upon issuance will be, traded on a United States national securities exchange
or approved for trading on an established automated over-the-counter trading
market in the United States and such shares constitute at the time such
change or exchange becomes effective in excess of 50% of the aggregate fair
market value of such shares of stock and other securities, property and
assets (including cash) (as determined by the Company, which determination
shall be conclusive and binding), then the Person formed by such
consolidation or resulting from such merger or combination or which acquires
the properties or assets (including cash) of the Company, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture (which
shall comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture) modifying the provisions of this
Indenture relating to the right of Holders to cause the Company to repurchase
the Securities following a Change in Control, including without limitation
the applicable provisions of this Article XII and the definitions of the
Common Stock and Change in Control, as appropriate, and such other related
definitions set forth herein and in the Indenture as determined in good faith
by the Company (which determination shall be conclusive and binding), to make
such provisions apply in the event of a subsequent Change of Control to the
common stock and the issuer thereof if different from the Company and Common
Stock of the Company (in lieu of the Company and the Common Stock of the
Company).
ARTICLE XIII
SUBORDINATION
SECTION XIII.1 Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Security agrees,
that the indebtedness evidenced by the Securities is subordinated in right of
payment, to the extent and in the manner provided in this Article, to the
prior payment in full in cash of all Senior Debt and that the subordination
is for the benefit of the holders of Senior Debt.
SECTION XIII.2 Liquidation; Dissolution; Bankruptcy.
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Upon any distribution to creditors of the Company in a liquidation
or dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property:
(1) Senior Debt shall be entitled to receive payment in full in cash
of the principal of (and premium, if any) and interest (including all
interest accruing after the commencement of any such bankruptcy or similar
proceeding) to the date of payment on the Senior Debt before Holders shall be
entitled to receive any payment of principal of or interest on Securities;
(2) until the Senior Debt is paid in full in cash, any distribution
to which Holders would be entitled but for this Article shall be made to
holders of Senior Debt as their interests may appear, except that Holders may
receive securities that are subordinated in right of payment to Senior Debt
to at least the same extent as the Securities; and
(3) the Trustee is entitled to rely upon an order or decree of a
court of competent jurisdiction or a certificate of a bankruptcy trustee or
other similar official for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of Senior Debt and other
Company debt, the amount thereof or payable thereon and all other pertinent
facts relating to the Trustee's obligations under this Article XIII.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person upon the terms and conditions
set forth in Article VIII shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or into which the Company
is merged or which acquires by conveyance, transfer, lease, sale or other
disposition such properties and assets as an entirety or substantially as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article VIII.
SECTION XIII.3 No Payment in Certain Circumstances, Payment over of Proceeds
No payment shall be made with respect to the principal of, or
premium, if any, or interest on the Securities (including, but not limited
to, the Redemption Price with respect to the Securities to be called for
redemption in accordance with Article XI or the Repurchase Price with respect
to Securities submitted for repurchase in accordance with Article XII),
except payments and distributions made by the Trustee as permitted by Section
13.11, if:
(i) a default in the payment of principal, premium, if
any, or interest (including a default under any repurchase or redemption
obligation) or other amounts with respect to any Senior Debt occurs and is
continuing (or, in the case of Senior Debt for which there is a period of
grace, in the event of such a default that continues beyond the period of
grace,
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if any, specified in the instrument, agreement or lease evidencing such
Senior Debt) unless and until such default shall have been cured or waived or
shall have ceased to exist; or
(ii) a default, other than a payment default, on any
Designated Senior Debt occurs and is continuing that then permits holders of
such Designated Senior Debt to accelerate its maturity and the Trustee
receives a notice of the default (a "Payment Blockage Notice") from a holder
of such Designated Senior Debt or any other person entitled to give such
notice under this Indenture.
If the Trustee receives any Payment Blockage Notice pursuant to
clause (ii) above, no subsequent Payment Blockage Notice shall be effective
for purposes of this Section unless and until (A) at least 365 days shall
have elapsed since the initial effectiveness of the immediately prior Payment
Blockage Notice, and (B) all scheduled payments of principal, premium, if
any, and interest on the Securities that have come due have been paid in full
in cash. No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or be made,
the basis for a subsequent Payment Blockage Notice.
The Company may and shall resume payments on and distributions in
respect of the Securities upon the earlier of:
(1) In the case of default referred to in clause (i) above, the date
upon which the default is cured or waived or ceases to exist, or
(2) in the case of a default referred to in clause (ii) above, the
earlier of the date on which the nonpayment default is cured or waived or 179
days after the date on which the Trustee receives the Payment Blockage
Notice, if the maturity of such Designated Senior Debt has not been
accelerated,
unless this Article otherwise prohibits the payment or distribution at the
time of such payment or distribution.
SECTION XIII.4 Prior Payment of Senior Debt Upon Acceleration of Securities.
In the event of the acceleration of the principal on the Securities
because of an Event of Default, no payment or distribution shall be made to
the Trustee or any holder of Securities in respect of the principal of,
premium, if any, or interest on the Securities (including, but not limited
to, the Redemption Price with respect to the Securities called for redemption
in accordance with Article XI or the Repurchase Price with respect to the
Securities submitted for repurchase in accordance with Article XII), except
payments and distributions made by the Trustee as permitted by this Article,
until all Senior Debt has been paid in full in cash or other payment
satisfactory to the holders of Senior Debt or such acceleration is rescinded
in accordance with the terms of this Indenture.
SECTION XIII.5 When Distribution Must Be Paid Over.
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If a distribution is made to Holders that because of this Article
should not have been made to them, the Holders who receive the distribution
shall hold it in trust for holders of Senior Debt and pay it over to them as
their interests may appear.
SECTION XIII.6 Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Section 6.2,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Debt and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION XIII.7 Subrogation.
Subject to the payment in full of all Senior Debt, the Holders of
the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Debt pursuant to the
provisions of this Article to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of (and premium, if any)
and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt
of any cash, property or securities to which the Holders of the Securities or
the Trustee would be entitled except for the provisions of this Article, and
no payments over pursuant to the provisions of this Article to the holders of
Senior Debt by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt and the Holders of
the Securities, be deemed to be a payment or distribution by the Company to
or on account of the Senior Debt.
SECTION XIII.8 Relative Rights.
This Article XIII defines, and is intended solely to define, the
relative rights of Holders of Securities and holders of Senior Debt. Nothing
contained in this Indenture or the Securities shall:
(1) impair, as between the Company and Holders of Securities, the
obligation of the Company, which is absolute and unconditional, to pay
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms;
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(2) affect the relative rights against the Company of Holders of
Securities and creditors of the Company other than holders of Senior Debt; or
(3) prevent the Trustee or any Holder of any Security from
exercising its available remedies upon the occurrence of a default or an
Event of Default, subject to the rights of holders of Senior Debt to receive
cash, property and securities otherwise payable to Holders of Securities.
If the Company fails because of this Article to pay principal of,
premium, if any, or interest on a Security as and when the same shall become
due and payable, the failure is still a default.
SECTION XIII.9 Subordination May Not Be Impaired By Company.
No right of any holder of Senior Debt to enforce the subordination
of the indebtedness evidenced by the Securities shall be impaired by any act
or failure to act by the Company or by its failure to comply with this
Indenture.
SECTION XIII.10 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders
of Senior Debt, the distribution may be made and the notice given to their
Representative.
SECTION XIII.11 Rights of Trustee and Paying Agent.
The Trustee or any Paying Agent may continue to make payments on the
Securities until it receives written notice of facts that would cause a
payment of principal of or interest on the Securities to violate the Article.
Only the Company, a Representative or a Holder of an issue of Senior Debt
that has no Representative may give the written notice.
The Trustee has no fiduciary duty to the holders of Senior Debt
other than as created under this Indenture. The Trustee in its individual or
any other capacity may hold Senior Debt with the same rights it would have if
it were not Trustee.
The Company's obligation to pay, and the Company's payment of, the
Trustee's fees pursuant to Section 6.6 are excluded from the operation of
this Article XIII.
SECTION XIII.12 Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in
respect of the Securities,
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unless and until a Responsible Officer of the Trustee shall have received
written notice thereof from the Company or a Representative or a holder of
Senior Debt (including, without limitation, a holder of Designated Senior
Debt) and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 6.14, shall be entitled in all respects
to assume that no such facts exist; provided, however, that if a Responsible
Officer of the Trustee shall not have received the notice provided for in
this Section 13.12 at least two Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (and premium, if any) or
interest on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by a Responsible Offer of the Trustee less than two Business Days
prior to such date.
Notwithstanding anything in this Article XIII to the contrary,
nothing shall prevent any payment by the Trustee to the Holders of monies
deposited with it pursuant to Section 4.1, and any such payment shall not be
subject to the provisions of Sections 13.2, 13.3 and 13.4.
Subject to the provisions of Section 6.14, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a Representative or a holder of Senior Debt
(including, without limitation, a holder of Designated Senior Debt) to
establish that such notice has been given by a Representative or a holder of
Senior Debt (including, without limitation, a holder of Designated Senior
Debt). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held
by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION XIII.13 Payment Permitted If No Default.
Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Securities shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation
or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding referred to in Section 13.2, during the circumstance referred to
in the first paragraph of Section 13.3 or under the conditions described in
Section 13.4 hereof, from making payments at any time of principal of (and
premium, if any) or interest on the Securities (including, but not limited
to, the Redemption Price with respect to the Securities called for redemption
in accordance with Article XI or the Repurchase Price with respect to the
Securities submitted for repurchase in accordance with Article XII), or (b)
the application by the Trustee of any money deposited with it hereunder to
the payment of or on account of the principal of (and premium, if any) or
interest on the Securities (including, but not limited to, the Redemption
Price with respect
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to the Securities called for redemption in accordance with Article XI or the
Repurchase Price with respect to the Securities submitted for repurchase in
accordance with Article XII) or the retention of such payment by the Holders,
if, at the time of such application by the Trustee, it did not have knowledge
that such payment would have been prohibited by the provisions of this
Article.
SECTION XIII.14 Trustee to Effectuate Subordination.
Each Holder of a Securities by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION XIII.15 Reliance by Holders of Senior Debt on Subordination
Provisions.
Each Holder by accepting a Securities acknowledges and agrees that
the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Debt, whether
such Senior Debt was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such
Senior Debt and such holder of Senior Debt shall be deemed conclusively to
have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Debt, and no amendment or
modification of the provisions contained herein shall diminish the rights of
such holders of Senior Debt unless such holders shall have agreed in writing
thereto.
SECTION XIII.16 Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.6 hereof.
SECTION XIII.17 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 13.16 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION XIII.18 Determination of Certain Conversions and Repurchases as
Payments.
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For the purposes of this Article only, (a) the issuance and delivery
of junior securities upon (i) conversion of Securities in accordance with
Article XIV or (ii) the repurchase of Securities in accordance with Article
VIII, shall not be deemed to constitute a payment or distribution on account
of the principal of, or premium or interest on, Securities or on account of
the purchase or other acquisition of the Securities, and (b) the payment,
issuance or delivery of cash (except in satisfaction of fractional shares
pursuant to Section 14.3), property or securities (other than junior
securities) upon conversion of a Securities shall be deemed to constitute
payment on account of the principal of such Securities. For the purposes of
this Section, the term "junior securities" means (i) shares of any stock of
any class of the Company and securities into which the Securities are
convertible pursuant to Article XIV or the terms of the Securities and (ii)
securities of the Company which are subordinated in right of payment to all
Senior Debt which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall impair, as among the Company, its creditors other
than holders of Senior Debt and the Holders of the Securities, the right,
which is absolute and unconditional, of the Holder of any Securities to
convert such Securities in accordance with Article XIV or to exchange such
Securities for Common Stock in accordance with Article XII if the Company
elects to satisfy the obligations under Article XII by the delivery of Common
Stock.
ARTICLE XIV
CONVERSION OF SECURITIES
SECTION XIV.1 Conversion Privilege And Conversion Rate.
Subject to and upon compliance with the provisions of this Article,
at the option of the Holder thereof, any Security or any portion of the
principal amount thereof which is $1,000 or an integral multiple of $1,000
may be converted at the principal amount thereof, or of such portion thereof,
into fully paid and nonassessable shares (calculated as to each conversion to
the nearest 1/100 of a share) of Common Stock of the Company, at the
Conversion Rate, determined as hereinafter provided, in effect at the time of
conversion. Such conversion right shall commence at anytime following the
original issue date of the Securities and expire at the close of business on
the Business Day immediately preceding the date of Maturity of such
Securities. In case a Security or portion thereof is called for redemption
(or delivered for repurchase, if applicable), such conversion right in
respect of the Security or portion so called shall expire at the close of
business on the Business Day immediately preceding the Redemption Date or
Repurchase Date, if applicable, unless the Company defaults in making the
payment due upon redemption or repurchase, if applicable. The rate at which
shares of Common Stock shall be delivered upon conversion (the "Conversion
Rate") shall be initially ___________ shares of Common Stock for each $1,000
principal amount of the Securities. The Conversion Rate shall be adjusted in
certain instances as provided in this Article XIV.
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SECTION XIV.2 Exercise Of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed in
blank or assigned to the Company at any office or agency of the Company,
maintained for that purpose pursuant to Section 10.2 accompanied by a duly
signed notice of conversion substantially in the form set forth in Section
2.4 stating that the Holder elects to convert such Security or, if less than
the entire principal amount thereof is to be converted, the portion thereof
to be converted. Securities surrendered for conversion during the period from
the close of business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(except in the case of Securities or portions thereof which have been called
for redemption or are eligible to be delivered for repurchase, the conversion
rights of which would terminate between such Regular Record Date and the
close of business on such Interest Payment Date) be accompanied by payment in
New York Clearing House funds or other funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of Securities being surrendered for conversion. Except as
provided in the preceding sentence and subject to the last paragraph of
Section 3.7, no payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities surrendered for conversion
or on account of any dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior
to the close of business on the day of surrender of such Securities for
conversion in accordance with the foregoing provisions, and at such time the
rights of the Holders of such Securities as Holders shall cease, and the
Person or Persons entitled to receive the Common Stock issuable upon
conversion shall be treated for all purposes as the record holder or holders
of such Common Stock at such time. As promptly as practicable on or after the
conversion date, the Company shall issue and shall deliver to the Trustee a
certificate or certificates for the number of full shares of Common Stock
issuable upon conversion, together with payment in lieu of any fraction of a
share, as provided in Section 14.3. Such certificate or certificates shall be
sent by the Trustee, if applicable, to the Conversion Agent for delivery to
the Person or Persons entitled to receive the Common Stock. In the case of
any Security which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities
of authorized denominations in aggregate principal amount equal to the
unconverted portion of the principal amount of such Security.
SECTION XIV.3 Fractions Of Shares.
No fractional shares of Common Stock shall be issued upon conversion
of any Security or Securities. If more than one Security shall be surrendered
for conversion at one time by the same Holder, the number of full shares
which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities (or specified
portions thereof) so surrendered. Instead of any fractional share of Common
Stock which would otherwise be issuable upon conversion of any Security or
Securities (or specified portions thereof), the
85
Company will deliver to the applicable Holder its check for the current
market value of such fractional share. The current market value of a fraction
of a share is determined by multiplying the current market price of a full
share by the fraction, and rounding the result to the nearest cent. For
purposes of this Section, the current market price of a share of Common Stock
is the Closing Price Per Share of the Common Stock on the Trading Day
immediately preceding the date of conversion.
SECTION XIV.4 Adjustment Of Conversion Rate.
The Conversion Rate shall be subject to adjustment from time to time
as follows:
(1) In case the Company shall pay or make a dividend or other
distribution on any class of Capital Stock of the Company payable in shares
of Common Stock, the Conversion Rate in effect at the opening of business on
the day following the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution shall be increased by
dividing such Conversion Rate by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination and the denominator shall be the sum of
such number of shares and the total number of shares constituting such
dividend or other distribution, such increase to become effective immediately
prior to the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (1), the number of shares
of Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(2) Subject to paragraph 9 of this Section 14.4, in case the Company
shall issue rights, options or warrants to all holders of its Common Stock
(other than any rights, options or warrants that by their terms will also be
issued to any Holder upon conversion of a Security into Common Stock without
any action required by the Company or any other person) entitling them to
subscribe for or purchase shares of Common Stock at a price per share less
than the current market price per share (determined as provided in paragraph
(10) of this Section 14.4) of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights, options or
warrants, the Conversion Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by
dividing such Conversion Rate by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of Common
Stock which the aggregate of the offering price of the total number of shares
of Common Stock so offered for subscription or purchase would purchase at
such current market price per share and the denominator shall be the number
of shares of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common Stock so
offered for subscription or purchase, such increase to become effective
immediately prior to the opening of business on the day following the date
fixed for such determination. For the purposes of this paragraph (2), the
number of shares of Common Stock at
86
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not
issue any rights, options or warrants in respect of shares of Common Stock
held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Rate in
effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased, and,
conversely, in case outstanding shares of Common Stock shall be combined into
a smaller number of shares of Common Stock, the Conversion Rate in effect at
the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately reduced, such
reduction or increase, as the case may be, to become effective immediately
prior to the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock, shares of any class of its Capital Stock,
evidences of its indebtedness, cash or other assets (including securities,
but excluding (a) any rights, options or warrants referred to in paragraph
(2) of this Section, (b) any dividend or distribution paid exclusively in
cash, (c) any dividend or distribution referred to in paragraph (1) of this
Section and (d) any distributions referred to in paragraph (5) of this
Section), the Conversion Rate shall be adjusted so that the same shall equal
the price determined by dividing the Conversion Rate in effect immediately
prior to the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a fraction of which the
numerator shall be the current market price per share (determined as provided
in paragraph (10) of this Section) of the Common Stock on the date fixed for
such determination less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described in
a Board Resolution filed with the Trustee) of the portion of the assets,
shares of Capital Stock or evidences of indebtedness so distributed
applicable to one share of Common Stock and the denominator shall be such
current market price per share of the Common Stock, such adjustment to become
effective immediately prior to the opening of business on the day following
the date fixed for the determination of stockholders entitled to receive such
distribution.
(5) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock cash (excluding any cash that is
distributed upon a merger or consolidation to which Section 14.11 applies or
as part of a distribution referred to in paragraph (4) of this Section other
than those referenced in the first parenthetical contained therein) in an
aggregate amount that, combined together with:
(a) the aggregate amount of any other distributions to all
holders of its Common Stock made exclusively in cash within the 12 months
preceding the date of payment of such distribution and in respect of which no
adjustment pursuant to this paragraph (5) has been made, and
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(b) the aggregate of any cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee) of
consideration payable in respect of any tender offer by the Company or any of
its subsidiaries for all or any portion of the Common Stock concluded within
the 12 months preceding the date of payment of such distribution and in
respect of which no adjustment pursuant to paragraph (6) of this Section has
been made (the amount of such cash distribution together with the amounts
described in clauses (a) and (b) above being referred to herein as the
"Aggregate Cash Distribution Amount"),
exceeds 10% of the product of (i) the current market price per share of the
Common Stock on the date for the determination of holders of shares of Common
Stock entitled to receive such distribution, times (ii) the number of shares
of Common Stock outstanding on such date (the amount by which the Aggregate
Cash Distribution Amount exceeds 10% of the product of the amounts described
in clauses (i) and (ii) above being referred to herein as the "Excess
Amount"), then, and in each such case, immediately after the close of
business on such date for determination, the Conversion Rate shall be
increased in accordance with the following formula:
EA
----
AC = CR ) M - / / O / /
--------------
/ / M / /
Where:
AC = the adjusted Conversion Rate.
CR = the Conversion Rate in effect immediately prior to the
close of business on the date fixed for determination of the
stockholders entitled to receive the applicable distribution.
M = the current market price per share (determined as provided
in paragraph (10) of this Section) of the Common Stock on the
date fixed for determination of the stockholders entitled to
receive the applicable distribution.
EA = the Excess Amount.
O = the number of shares of Common Stock outstanding on the
date fixed for determination of the stockholders entitled to
receive the distribution.
(6) In case a tender offer made by the Company or any Subsidiary for
all or any portion of the Common Stock shall expire and such tender offer (as
amended upon the expiration thereof) shall require the payment to
stockholders (based on the acceptance (up to any maximum specified in the
terms of the tender offer) of Purchased Shares (as defined below)) of an
aggregate consideration having a fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described in
a Board Resolution filed with the Trustee) that combined together with:
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(a) the aggregate of the cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee), as of
the expiration of such tender offer, of consideration payable in respect of
any other tender offer, by the Company or any Subsidiary for all or any
portion of the Common Stock expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no adjustment
pursuant to this paragraph (6) has been made, and
(b) the aggregate amount of any distributions to all
holders of the Company's Common Stock made exclusively in cash within 12
months preceding the expiration of such tender offer and in respect of which
no adjustment pursuant to paragraph (5) of this Section has been made,
exceeds 10% of the product of (i) the current market price per share of the
Common Stock (determined as provided in paragraph (10) of this Section) as of
the last time (the "Expiration Time") tenders could have been made pursuant
to such tender offer (as it may be amended), times (ii) the number of shares
of Common Stock outstanding (including any tendered shares) on the Expiration
Time, then, and in each such case, immediately prior to the opening of
business on the day after the date of the Expiration Time, the Conversion
Rate shall be reduced in accordance with the following formula:
AC = CR ) (M X O) - C
-----------
/ / M x (O - TS) / /
Where:
AC = the adjusted Conversion Rate.
CR = the Conversion Rate immediately prior to close of
business on the date of the Expiration Time.
M = the current market price per share of the Common Stock
(determined as provided in paragraph (10) of this Section) on
the date of the Expiration Time.
O = the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time.
C = the amount of cash plus the fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution filed
with the Trustee) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased
Shares.
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TS = the number of all shares of Common Stock validly tendered
and not withdrawn as of the Expiration Time (the shares deemed
so accepted up to any such maximum, being referred to as the
"Purchased Shares").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 14.11 applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification
shall be deemed to be "the date fixed for the determination of stockholders
entitled to receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (4) of this Section), and (b)
a subdivision or combination, as the case may be, of the number of shares of
Common Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the day upon
which such subdivision becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day upon which
such subdivision or combination becomes effective" within the meaning of
paragraph (3) of this Section).
(8) In case a tender offer made by a Person other than the Company,
any Subsidiary of the Company for an amount which increases the offeror's
ownership of Common Stock to more than 25% of the Common Stock outstanding
and shall involve payment by such Person of consideration per share of Common
Stock having a fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board Resolution
as filed with the Trustee) as of the last time (the "Third Party Expiration
Time") tenders could have been made pursuant to such tender offer (as it may
be amended) that exceeds the current market price of the Common Stock on the
Trading Day next succeeding the Third Party Expiration Time, and in which, as
of the Third Party Expiration Time, the Board of Directors is not
recommending rejection of the offer, the Conversion Rate shall be adjusted in
accordance with the following formula:
AC = CR ) (M1 X O)
----------------
/ / C+ (O1 x M1) / /
Where:
AC = the adjusted Conversion Rate.
CR = the Conversion Rate immediately prior to close of
business on the date of the Third Party Expiration Time.
M1 = the current market price per share of the Common Stock
(determined as provided in paragraph (10) of this Section) on
the date next succeeding the Third Party Expiration Time.
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O = the number of shares of Common Stock outstanding
(including any tendered shares) on the Third Party Expiration
Time.
O1 = the number of shares of Common Stock outstanding (less
any Third Party Purchased Shares, as defined below)
outstanding on the Third Party Expiration Time.
C = the amount of cash plus the fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution as
filed with the Trustee) of the aggregate consideration payable
to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Third Party
Purchased Shares.
The number of all shares of Common Stock validly tendered and not withdrawn
as of the Third Party Expiration Time and deemed accepted up to any such
maximum, is herein referred to as the "Third Party Purchased Shares." In the
event that such Person is obligated to purchase shares pursuant to any such
tender or exchange offer, but such Person is permanently prevented by
applicable law form effecting any such purchases or all such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion
Rate which would then be in effect if such tender or exchange offer had not
been made. Notwithstanding the foregoing, the adjustment described in this
Section 14.4(8) shall not be made if, as of the Expiration Time, the offering
documents with respect to such offer disclose a plan or intention to cause
the Company to engage in any transaction described in Article VIII.
(9) In case the Company shall issue rights, options or warrants to
all holders of the Common Stock entitling the holders thereof to subscribe
for or purchase shares of Common Stock (either initially or under certain
circumstances), which rights, options or warrants (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and
(iii) are also issued in respect of future issuances of Common Stock, in each
case in clauses (i) through (iii) until the occurrence of a specified event
or events ("Trigger Event"), shall for purposes of this Section 14.4 not be
deemed issued or distributed until the occurrence of the earliest Trigger
Event, whereupon such rights, options and warrants shall be deemed to have
been distributed and an appropriate adjustment (if any is required) to the
Conversion Rate shall be made under this Section 14.4. If any such rights,
options or warrants, including any such existing rights, options or warrants
distributed prior to the date of this Indenture are subject to subsequent
events, upon the occurrence of each of which such rights, options or warrants
shall become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the occurrence of each such event shall be
deemed to be such date of distribution and record date with respect to new
rights, options or warrants (and a termination or expiration of the existing
rights, options or warrants without exercise by the holder thereof). In
addition, in the event of any distribution (or deemed distribution) of
rights, options or warrants, or any Trigger Event with respect thereto, that
was counted for purposes of calculating a distribution amount for which an
adjustment to the Conversion Rate under this Section 14.4 was made, (a) in
the case of any such rights, options or warrant which shall all have been
redeemed or repurchased without exercise by any holders
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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, options or warrants (assuming such holder
had retained such rights, options or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (b) in the case of
such rights, options or warrants which shall have expired or been terminated
without exercise by any holders thereof, the Conversion Rate shall be
readjusted as if such rights, options and warrants had not been issued.
(10) For the purpose of any computation under paragraphs (2), (4),
(5), (6) and (8) of this Section, the current market price per share of
Common Stock on any date shall be deemed to be the average of the daily
closing prices for the five consecutive Trading Days selected by the Company
commencing not more than 10 Trading Days before, and ending not later than
the earlier of the day in question and the day before the "ex" date with
request to the issuance or distribution requiring such computation. The
closing price for each day shall be the last reported sales price regular way
or, in case no such reported sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case on the
Nasdaq National Market Exchange or, if the Common Stock is not quoted on the
Nasdaq National Market, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if the Common
Stock is not listed or admitted to trading on any national securities
exchange or quoted on the Nasdaq National Market, the average of the closing
bid and asked prices in the over-the-counter market as furnished by any New
York Stock Exchange member firm selected from time to time by the Company for
that purpose. For purposes of this paragraph, the term ">ex= date", when used
with respect to any issuance or distribution, means the first date on which
the Common Stock trades regular way on such exchange or in such market
without the right to receive such issuance or distribution.
(11) No adjustment in the Conversion Rate shall be required unless
such adjustment (plus any adjustments not previously made by reason of this
paragraph (11)) would require an increase or decrease of at least 1% in such
rate; provided, however, that any adjustments which by reason of this
paragraph (11) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this
paragraph (11) shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
(12) The Company may make such increases in the Conversion Rate, in
addition to those required by this Section, as it considers to be advisable
in order to avoid or diminish any income tax to any holders of shares of
Common Stock resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes or for any other reasons. The Company
shall have the power to resolve any ambiguity or correct any error in this
paragraph (12) and its actions in so doing shall, absent manifest error, be
final and conclusive.
(13) To the extent permitted by applicable law, the Company from
time to time may increase the Conversion Rate by any amount for any period of
time if the period is at least 20
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days, the increase is irrevocable during such period, and the Board of
Directors shall have made a determination that such increase would be in the
best interests of the Company, which determination shall be conclusive;
provided, however, that no such increase shall be taken into account for
purposes of determining whether the Closing Price Per Share of the Common
Stock exceeds the Conversion Price by 105% in connection with an event which
would otherwise be a Change of Control. Whenever the Conversion Rate is
increased pursuant to the preceding sentence, the Company shall give notice
of the increase to the Holders in the manner provided in Section 1.6 at least
15 days prior to the date the increased Conversion Rate takes effect, and
such notice shall state the increased Conversion Rate and the period during
which it will be in effect.
SECTION XIV.5 Notice Of Adjustments Of Conversion Rate.
Whenever the Conversion Rate is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Rate in
accordance with Section 14.4 and shall prepare an Officers' Certificate, one
of the signatories of which shall be the Treasurer or Chief Financial Officer
of the Company, setting forth the adjusted Conversion Rate and showing in
reasonable detail the calculation of the adjusted Conversion Rate and the
facts upon which such adjustment is based, and such certificate shall
promptly be filed with the Trustee and with each Conversion Agent and at each
office or agency maintained for the purpose of conversion of Securities
pursuant to Section 10.2; and
(2) a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall forthwith be prepared, and
as soon as practicable after it is prepared, such notice shall be mailed by
the Company to all Holders in accordance with Section 1.6.
Unless and until a Responsible Officer of the Trustee shall receive
an Officers' Certificate setting forth an adjusted Conversion Rate, the
Trustee may assume without inquiry that no adjustment has been made and that
the last Conversion Rate of which it has notice remains in effect.
SECTION XIV.6 Notice Of Certain Corporate Action.
In case:
(1) the Company shall declare a dividend (or any other distribution)
on its Common Stock payable (a) otherwise than exclusively in cash or (b)
exclusively in cash in an amount that would require any adjustment pursuant
to Section 14.4;
(2) the Company shall authorize the granting to the holders of its
Common Stock of rights, options or warrants to subscribe for or purchase any
shares of Capital Stock of any class or of any other rights;
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(3) of any reclassification of the Common Stock of the Company, or
of any consolidation, merger or share exchange to which the Company is a
party and for which approval of any stockholders of the Company is required,
or of the conveyance, lease, sale, transfer or other disposition of all or
substantially all of the assets of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 10.2, and
shall cause to be mailed to all Holders in accordance with Section 1.6, at
least 20 days (or 10 days in any case specified in clause (1) or (2) above)
prior to the applicable record or effective date hereinafter specified, a
notice stating (x) the date on which a record is to betaken for the purpose
of such dividend, distribution, rights, options or warrants, or, if a record
is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights, options or
warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, share exchange, conveyance, lease,
sale, transfer, disposition, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, conveyance, lease,
sale, transfer, disposition, dissolution, liquidation or winding up. Neither
the failure to give such notice nor any defect therein shall affect the
legality or validity of the proceedings described in clauses (1) through (4)
of this Section 14.6. If at the time the Trustee shall not be the Conversion
Agent, a copy of such notice shall also forthwith be filed by the Company
with the Trustee.
The Company shall cause to be filed at the Corporate Trust Office
and each office or agency maintained for the purpose of conversion of
Securities pursuant to Section 10.2, and shall cause to be provided to all
Holders in accordance with Section 1.6, notice of any tender offer by the
Company or any Subsidiary for all or any portion of the Common Stock at or
about the time that such notice of tender offer is provided to the public
generally.
SECTION XIV.7 Company To Reserve Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive or similar rights, out of its authorized but unissued Common
Stock, for the purpose of effecting the conversion of Securities, the full
number of shares of Common Stock then issuable upon the conversion of all
Outstanding Securities.
SECTION XIV.8 Taxes On Conversions.
Except as provided in the next sentence, the Company will pay any
and all taxes or duties that may be payable in respect of the issue or
delivery of shares of Common Stock on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any tax or
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duty which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the Holder of
the Security or Securities to be converted, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to
the Company the amount of any such tax or duty, or has established to the
satisfaction of the Company that such tax or duty has been paid.
SECTION XIV.9 Covenant As To Common Stock.
The Company agrees that all shares of Common Stock which may be
issued upon conversion of Securities will, upon issuance, have been duly
authorized and validly issued and will be fully paid and nonassessable and,
except as provided in Section 14.8, the Company will pay all taxes, liens and
charges with respect to the issue thereof.
SECTION XIV.10 Cancellation Of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee or its agent to be canceled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 3.9.
SECTION XIV.11 Provisions In Case Of Consolidation, Merger Or Sale Of Assets.
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company
(other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock of
the Company) or any conveyance, lease, sale, transfer or other disposition of
all or substantially all of the assets of the Company, the Person formed by
such consolidation or resulting from such merger or to which acquires such
assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
Outstanding shall, without the consent of the Holders, have the right
thereafter, to convert each Security into the kind and amount of securities,
cash and other property receivable upon such consolidation, merger,
conveyance, lease, sale, transfer or other disposition by a holder of the
number of shares of Common Stock of the Company into which such Security
might have been converted immediately prior to such consolidation, merger,
conveyance, lease, sale, transfer or other disposition, assuming such holder
of Common Stock of the Company (i) is not a Person with which the Company
consolidated or into which the Company merged or which merged into the
Company or to which such sale, conveyance, lease, transfer or other
disposition was made, as the case may be ("Constituent Person"), or an
Affiliate of a Constituent Person and (ii) failed to exercise his or her
rights of election, if any, as to the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, conveyance, lease,
sale, transfer or other disposition (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation,
merger, conveyance, lease, sale, transfer or other disposition is not the
same for each share of Common Stock of the Company held immediately prior to
such consolidation, merger, conveyance, lease, sale, transfer or other
disposition by other than a Constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not
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have been exercised ("Non-electing Share"), then for the purpose of this
Section the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, conveyance, lease, sale, transfer or other
disposition by the holder of each Non-electing Share shall be deemed to be
the kind and amount so receivable per share by a plurality of the holders of
the Non-electing Shares), and assuming, if such consolidation, merger,
conveyance, lease, sale, transfer or other disposition is prior to the date
upon which the Securities first become convertible, that the Securities were
convertible at the time of such consolidation, merger, conveyance, lease,
sale, transfer or other disposition at the initial Conversion Rate specified
in Section 14.1 as adjusted from the date of the issuance of the applicable
Securities to such time pursuant to Section 14.4. Such supplemental indenture
shall provide for adjustments which, for events subsequent to the effective
date of such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section shall similarly apply to successive
consolidations, mergers, conveyances, leases, sales, transfers or other
dispositions.
Neither the Trustee nor any Conversion Agent shall be under any duty
or responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during normal business
hours, and shall not be deemed to have knowledge of any adjustment in the
Conversion Rate unless and until a Responsible Officer of the Trustee shall
have received such a certificate. Until a Responsible Officer of the Trustee
receives such a certificate, the Trustee and each Conversion Agent may assume
without inquiry that the last Conversion Rate of which the Trustee has
knowledge of remains in effect.
SECTION XIV.12 Responsibility of Trustee for Conversion Provisions.
The Trustee, subject to the provisions of Section 6.2, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of Securities to determine whether any facts exist which may
require any adjustment of the Conversion Rate, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed, herein or in any supplemental indenture provided to be employed, in
making the same, or whether a supplemental indenture need be entered into.
Neither the Trustee, subject to the provisions of Section 6.2, nor any
Conversion Agent shall be accountable with respect to the validity or value
(or the kind or amount) of any Common Stock, or of any other securities or
property or cash, which may at any time be issued or delivered upon the
conversion of any Security; and it or they do not make any representation
with respect thereto. Neither the Trustee, subject to the provisions of
Section 6.2, nor any Conversion Agent shall be responsible for any failure of
the Company to make or calculate any cash payment or to issue, transfer or
deliver any shares of Common Stock or share certificates or other securities
or property or cash upon the surrender of any Security for the purpose of
conversion; and the Trustee, subject to the provisions of Section 6.2, and
any Conversion Agent shall not be responsible for any failure of the Company
to comply with any of the covenants of the Company contained in this Article.
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ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
SECTION XV.1 Purposes For Which Meetings May Be Called.
A meeting of Holders of Securities may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of
Securities.
SECTION XV.2 Call, Notice And Place Of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities for any purpose specified in Section 15.1, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine. Notice of every meeting of Holders of Securities,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
Securities shall have requested the Trustee to call a meeting of the Holders
of Securities for any purpose specified in Section 15.1, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting
within 21 days after receipt of such request or shall not thereafter proceed
to cause the meeting to be held as provided herein, then the Company or the
Holders of Securities in the amount specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City of New
York, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in paragraph (a) of this Section.
SECTION XV.3 Persons Entitled To Vote At Meetings.
To be entitled to vote at any meeting of Holders of Securities, a
Person shall be (i) a Holder of one or more Outstanding Securities, or (ii) a
Person appointed by an instrument in writing as proxy for a Holder or Holders
of one or more Outstanding Securities by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION XV.4 Quorum; Action.
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The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities shall constitute a quorum. In the
absence of a uqorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of
Securities, be dissolved. In any other case, the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting (subject to
repeated applications of this sentence). Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 15.2(a), except that
such notice need be given only once not less than five days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening
of an adjourned meeting shall state expressly the percentage of the principal
amount of the Outstanding Securities which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum, the Persons entitled to vote 25% in
principal amount of the Outstanding Securities at the time shall constitute a
quorum for the taking of any action set forth in the notice of the original
meeting.
At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to Section 9.2 and except to the extent Section 10.8
requires a different vote) shall be effectively passed and decided if passed
or decided by the lesser of (i) the Holders of not less than a majority in
principal amount of Outstanding Securities and (ii) the Persons entitled to
vote not less than 66-2/3% in principal amount of Outstanding Securities
represented and entitled to vote at such meeting.
Any resolution passed or decisions taken at any meeting of Holders
of Securities duly held in accordance with this Section shall be binding on
all the Holders of Securities whether or not present or represented at the
meeting. The Trustee shall, in the name and at the expense of the Company,
notify all the Holders of Securities of any such resolutions or decisions
pursuant to Section 1.6.
SECTION XV.5 Determination Of Voting Rights; Conduct And Adjournment Of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of
Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 1.4 and the
appointment of any proxy shall be proved in the manner specified in Section
1.4 or by having the signature of the Person executing the proxy guaranteed
by any bank, broker or other eligible institution participating in a
recognized medallion signature guarantee program.
98
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be the Trustee) of the meeting, unless the
meeting shall have been called by the Company or by Holders of Securities as
provided in Section 15.2(a), in which case the Company or the Holders of
Securities calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities represented at the
meeting.
(c) At any meeting, each Holder of a Security or proxy shall be
entitled to one vote for each $1,000 principal amount of Securities held or
represented by such Holder; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder
of a Security or proxy.
(d) Any meeting of Holders of Securities duly called pursuant to
Section 15.2 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities represented at the meeting, and the meeting may be held as so
adjourned without further notice.
SECTION XV.6 Counting Votes And Recording Action Of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy
and the principal amounts at Stated Maturity and serial numbers of the
Outstanding Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record, at least in duplicate, of the
proceedings of each meeting of Holders of Securities shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more Persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 15.2 and, if applicable, Section
15.4. Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
**********
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
ADVANCED ENERGY INDUSTRIES, INC.
By:____________________________
Name:
Title: Chief Executive Officer, President or
Executive Vice President
[SEAL]
Attest:
By:
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A., as Trustee
By:____________________________
Name:
Title:
[SEAL]
Attest:
By:
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