EXHIBIT 4.1
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THE BISYS GROUP, INC.
4% CONVERTIBLE SUBORDINATED NOTES DUE 2006
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INDENTURE
DATED AS OF MARCH 13, 2001
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CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION,
AS TRUSTEE
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TABLE OF CONTENTS
Page
Article 1 DEFINITIONS AND INCORPORATION BY REFERENCE.........................1
Section 1.1 Definitions.............................................1
Section 1.2 Other Definitions.......................................6
Section 1.3 Trust Indenture Act Provisions..........................7
Section 1.4 Rules of Construction...................................7
Article 2 THE SECURITIES.....................................................8
Section 2.1 Form and Dating.........................................8
Section 2.2 Execution and Authentication............................9
Section 2.3 Registrar, Paying agent and Conversion Agent............9
Section 2.4 Paying Agent To Hold Money in Trust....................10
Section 2.5 Security Holder Lists..................................10
Section 2.6 Transfer and Exchange..................................10
Section 2.7 Replacement Securities.................................11
Section 2.8 Outstanding Securities.................................12
Section 2.9 Treasury Securities....................................12
Section 2.10 Temporary Securities...................................12
Section 2.11 Cancellation...........................................13
Section 2.12 Additional Transfer and Exchange Requirements..........13
Section 2.13 CUSIP Numbers..........................................18
Article 3 REDEMPTION AND PURCHASES..........................................18
Section 3.1 Right To Redeem; Notice To Trustee.....................18
Section 3.2 Selection of Securities to be Redeemed.................18
Section 3.3 Notice of Redemption...................................19
Section 3.4 Effect of Notice of Redemption.........................19
Section 3.5 Deposit of Redemption Price............................20
Section 3.6 Securities Redeemed in Part............................20
Section 3.7 Conversion Arrangement on Call For Redemption..........20
Section 3.8 Purchase of Securities at Option of the
Holder Upon Change in Control........................21
Section 3.9 Effect of Change in Control Purchase Notice............23
Section 3.10 Deposit of Change in Control Purchase Price............24
Section 3.11 Securities Purchased in Part...........................24
Section 3.12 Compliance with Securities Laws Upon
Purchase of Securities...............................24
Section 3.13 Repayment to the Company...............................25
Article 4 CONVERSION........................................................25
Section 4.1 Conversion Privilege...................................25
Section 4.2 Conversion Procedure...................................25
Section 4.3 Fractional Shares......................................26
Section 4.4 Taxes on Conversion....................................27
Section 4.5 Company to Provide Stock...............................27
Section 4.6 Adjustment of Conversion Price.........................27
Section 4.7 No Adjustment..........................................31
Section 4.8 Adjustment for Tax Purposes............................31
Section 4.9 Notice of Adjustment...................................31
Section 4.10 Notice of Certain Transactions.........................31
Section 4.11 Effect of Reclassification, Consolidation, Merger
or Sale on Conversion Privilege......................32
Section 4.12 Trustee's Disclaimer...................................32
Section 4.13 Voluntary Reduction....................................33
Article 5 SUBORDINATION.....................................................33
Section 5.1 Agreement of Subordination.............................33
Section 5.2 Payments to Holders....................................33
Section 5.3 Subrogation of Securities..............................36
Section 5.4 Authorization to Effect Subordination..................36
Section 5.5 Notice to Trustee......................................37
Section 5.6 Trustee's Relation to Senior Indebtedness..............37
Section 5.7 No Impairment of Subordination.........................38
Section 5.8 Certain Conversions Deemed Payment.....................38
Section 5.9 Article Applicable to Paying Agents....................38
Section 5.10 Senior Indebtedness Entitled to Rely...................38
Article 6 COVENANTS.........................................................39
Section 6.1 Payment of Securities..................................39
Section 6.2 SEC Reports............................................39
Section 6.3 Compliance Certificates................................39
Section 6.4 Further Instruments and Acts...........................39
Section 6.5 Maintenance of Corporate Existence.....................40
Section 6.6 Rule 144A Information Requirement......................40
Section 6.7 Stay, Extension and Usury Laws.........................40
Section 6.8 Payment of Liquidated Damages..........................40
Article 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..............41
Section 7.1 Company May Consolidate, Etc., Only on
Certain Terms........................................41
Section 7.2 Successor Substituted..................................41
Article 8 DEFAULT AND REMEDIES..............................................41
Section 8.1 Events of Default......................................41
Section 8.2 Acceleration...........................................43
Section 8.3 Other Remedies.........................................43
Section 8.4 Waiver of Defaults and Events of Default...............43
Section 8.5 Control By Majority....................................43
Section 8.6 Limitations on Suits...................................44
Section 8.7 Rights of Holders to Receive Payment and
to Convert...........................................44
Section 8.8 Collection Suit By Trustee.............................44
Section 8.9 Trustee May File Proofs of Claim.......................44
Section 8.10 Priorities.............................................45
Section 8.11 Undertaking for Costs..................................45
Article 9 TRUSTEE...........................................................46
Section 9.1 Duties of Trustee......................................46
Section 9.2 Rights of Trustee......................................46
Section 9.3 Individual Rights of Trustee...........................47
Section 9.4 Trustee's Disclaimer...................................48
Section 9.5 Notice of Default or Events of Default.................48
Section 9.6 Reports By Trustee To Holders..........................48
Section 9.7 Compensation and Indemnity.............................48
Section 9.8 Replacement of Trustee.................................49
Section 9.9 Successor Trustee By Merger, Etc.......................50
Section 9.10 Eligibility; Disqualification..........................50
Section 9.11 Preferential Collection of Claims Against
Company..............................................50
Article 10 SATISFACTION AND DISCHARGE OF INDENTURE..........................50
Section 10.1 Satisfaction and Discharge of Indenture................50
Section 10.2 Application of Trust Money.............................51
Section 10.3 Repayment To Company...................................51
Section 10.4 Reinstatement..........................................51
Article 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS..............................52
Section 11.1 Without Consent of Holders.............................52
Section 11.2 With Consent of Holders................................52
Section 11.3 Compliance With Trust Indenture Act....................53
Section 11.4 Revocation and Effect of Consents......................53
Section 11.5 Notation on or Exchange of Securities..................53
Section 11.6 Trustee To Sign Amendments, Etc........................54
Article 12 MISCELLANEOUS....................................................54
Section 12.1 Trust Indenture Act Controls...........................54
Section 12.2 Notices................................................54
Section 12.3 Communications By Holders With Other
Holders..............................................55
Section 12.4 Certificate and Opinion as to Conditions
Precedent............................................55
Section 12.5 Record Date for Vote or Consent of
Securityholders......................................55
Section 12.6 Rules By Trustee, Paying Agent, Registrar
and Conversion Agent.................................56
Section 12.7 Legal Holidays.........................................56
Section 12.8 Governing Law..........................................56
Section 12.9 No Adverse Interpretation of Other Agreements..........56
Section 12.10 No Recourse Against Others.............................56
Section 12.11 Successors.............................................56
Section 12.12 Multiple Counterparts..................................56
Section 12.13 Separability...........................................56
Section 12.14 Table of Contents, Headings, Etc.......................56
CROSS-REFERENCE TABLE*
INDENTURE
TIA SECTION SECTION
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Section 310(a)(1).......................................... 9.10
(a)(2)............................................. 9.10
(a)(3)............................................. N.A.**
(a)(4)............................................. N.A.
(a)(5)............................................. 9.10
(b)................................................ 9.8; 9.10
(c)................................................ N.A.
Section 311(a)............................................. 9.11
(b)................................................ 9.11
(c)................................................ N.A.
Section 312(a)............................................. 2.5
(b)................................................ 12.3
(c)................................................ 12.3
Section 313(a)............................................. 9.6
(b)(1)............................................. N.A.
(b)(2)............................................. 9.6
(c)................................................ 9.6; 12.2
(d)................................................ 9.6
Section 314(a)............................................. 6.2; 6.3, 6.4;
12.2
(b)................................................ N.A.
(c)(1)............................................. 12.4(a)
(c)(2)............................................. 12.4(a)
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 12.4(b)
(f)................................................ N.A.
Section 315(a)............................................. 9.1(b)
(b)................................................ 9.5; 12.2
(c)................................................ 9.1(a)
(d)................................................ 9.1(c)
(e)................................................ 8.11
Section 316(a)(last sentence).............................. 2.9
(a)(1)(A).......................................... 8.5
(a)(1)(B).......................................... 8.4
(a)(2)............................................. N.A.
(b)................................................ 8.7
(c)................................................ 12.5
Section 317(a)(1).......................................... 8.8
(a)(2)............................................. 8.9
(b)................................................ 2.4
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* This Cross-Reference Table shall not, for any purpose, be
deemed a part of this Indenture.
** N.A. means Not Applicable.
THIS INDENTURE dated as of March 13, 2001 is between The BISYS
Group, Inc., a Delaware corporation (the "Company"), and Chase Manhattan
Trust Company, National Association, organized and existing under the laws
of the United States, as Trustee (the "Trustee"), having an office at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
In consideration of the premises and the purchase of the
Securities by the Holders thereof, both parties agree as follows for the
benefit of the other and for the equal and ratable benefit of the
registered Holders of the Company's 4% Convertible Subordinated Notes due
2006.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Affiliate" means, with respect to any specified person, 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 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.
"Agent" means any Registrar, Paying Agent or Conversion
Agent.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial ownership interests in a Global Security, the rules
and procedures of the Depositary that are applicable to such transfer or
exchange.
"Board of Directors" means the board of directors of the
Company or any authorized committee of the Board of Directors.
"Business Day" means each day that is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
but excluding any debt securities convertible into such equity.
"Cash" or "cash" means such coin or currency of the United
States as at any time of payment is legal tender for the payment of public
and private debts.
"Certificated Security" means a Security that is in
substantially the form attached hereto as Exhibit A and that does not
include the information or the schedule called for by footnotes 1, 3 and 4
thereof.
"Closing Price Per Share" means the closing price per share of
the Company's Common Stock determined in accordance with Section 4.6(d)
hereof.
"Common Stock" means the common stock of the Company, par value
$0.02 per share, as it exists on the date of this Indenture and any shares
of any class or classes of capital stock of the Company resulting from any
reclassification or reclassifications thereof and which have no preference
in respect of dividends or of amounts payable in the event of any voluntary
or involuntary liquidation, dissolution or winding-up of the Company and
which are not subject to redemption by the Company; provided, however, that
if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable on conversion of Securities
shall be substantially in the proportion which the total number of shares
of such class resulting from all such reclassifications bears to the total
number of shares of all such classes resulting from all such
reclassifications.
"Company" means the party named as such in this Indenture until
a successor replaces it pursuant to this Indenture, and thereafter means
the successor.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of this
Indenture is located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Institutional Trust Services, or at any other time at
such other address as the Trustee may designate from time to time by notice
to the Company; except that with respect to the delivery of Securities for
payment or registration of transfer or exchange "Corporate Trust Office"
means Chase Manhattan Trust Company, National Association, c/o Chase Bank
of Texas, N.A., ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"Credit Documents" means the Credit Agreement, dated as of June
30, 1999, among the Company, the lenders party thereto, The Chase Manhattan
Bank, Bank One, NA (formerly The First National Bank of Chicago), First
Union National Bank, and Fleet National Bank (formerly Fleet Bank, National
Association), as co-agents, and The Bank of New York, as administrative
agent, and BNY Capital Markets, Inc., as lead arranger and book manager,
and each agreement, instrument or other document executed or delivered in
connection therewith (as each may be amended, modified, extended,
supplemented, restated and/or replaced from time to time).
"Default" or "default" means, when used with respect to the
Securities, any event which is or, after notice or passage of time or both,
would be an Event of Default.
"Designated Senior Indebtedness" means (a) all Senior
Indebtedness under the Credit Documents, and (b) after payment in full in
cash of all Senior Indebtedness under the Credit Documents, any particular
Senior Indebtedness 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 Indebtedness" for purposes of this Indenture
(provided that such instrument, agreement or other document may place
limitations and conditions on the right of such Senior Indebtedness to
exercise the rights of Designated Senior Indebtedness), the aggregate
principal amount of which is equal to or greater than $50.0 million. If any
payment made to any holder of any Designated Senior Indebtedness or its
Representative with respect to such Designated Senior Indebtedness is
rescinded or must otherwise be returned by such holder or Representative
upon the insolvency, bankruptcy or reorganization of the Company or
otherwise, the reinstated Indebtedness of the Company arising as a result
of such rescission or return shall constitute Designated Senior
Indebtedness effective as of the date of such rescission or return.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as in effect
from time to time.
"Final Maturity Date" means March 15, 2006.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the date of this Indenture,
including those set forth in (1) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants, (2) the statements and pronouncements of the Financial
Accounting Standards Board, (3) such other statements by such other entity
as approved by a significant segment of the accounting profession and (4)
the rules and regulations of the SEC governing the inclusion of financial
statements (including pro forma financial statements) in registration
statements filed under the Securities Act and periodic reports required to
be filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements
from the accounting staff of the SEC.
"Global Security" means a permanent Global Security that is in
substantially the form attached hereto as Exhibit A and that includes the
information and schedule called for by footnotes 1, 3 and 4 thereof and
which is deposited with the Depositary or its custodian and registered in
the name of the Depositary or its nominee.
"Holder" or "Securityholder" means the person in whose name a
Security is registered on the Primary Registrar's books.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all indebtedness, obligations and other liabilities
(contingent or otherwise) of such Person for borrowed money (including
obligations of such Person in respect of overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate protection
agreements, and any loans or advances from banks, whether or not evidenced
by notes or similar instruments) or evidenced by credit or loan agreements,
bonds, debentures, notes or similar instruments (whether or not the
recourse of the lender is to the whole of the assets of such Person or to
only a portion thereof) (other than any trade accounts payable or other
accrued current expense incurred in the ordinary course of business in
connection with the obtaining of materials or services), (b) all
reimbursement obligations and other liabilities (contingent or otherwise)
of such Person with respect to letters of credit, bank guarantees or
bankers' acceptances, (c) all obligations and liabilities (contingent or
otherwise) of such Person (i) in respect of leases of such Person required,
in conformity with generally accepted accounting principles, to be
accounted for as capitalized lease obligations on the balance sheet of such
Person, (ii) as lessee under other leases for facilities equipment (and
related assets leased together therewith), whether or not capitalized,
entered into or leased for financing purposes (as determined by the
Company) or (iii) under any lease or related document (including a purchase
agreement) in connection with the lease of real property or improvements
(or any personal property included as part of any such lease) which
provides that such Person is contractually obligated to purchase or cause a
third party to purchase the leased property and thereby guarantee a minimum
residual value of the leased property to the lessor and the obligations of
such Person under such lease or related document to purchase or to cause a
third party to purchase such leased property (whether or not such lease
transaction is characterized as an operating lease or a capitalized lease
in accordance with generally accepted accounting principles), (d) all
obligations (contingent or otherwise) of such Person with respect to any
interest rate, currency or other swap, cap, floor or collar agreement,
hedge agreement, forward contract, or other similar instrument or foreign
currency hedge, exchange, purchase or similar instrument or agreement, (e)
all direct or indirect guaranties, agreements to be jointly liable or
similar agreements by such Person in respect of, and obligations or
liabilities (contingent or otherwise) of such Person to purchase or
otherwise acquire or otherwise assure a creditor against loss in respect
of, indebtedness, obligations or liabilities of another Person of the kind
described in clauses (a) through (d), (f) any indebtedness or other
obligations described in clauses (a) through (e) secured by any mortgage,
pledge, lien or other encumbrance existing on property which is owned or
held by such Person, regardless of whether the indebtedness or other
obligation secured thereby shall have been assumed by such Person, and (g)
any and all deferrals, renewals, extensions and refundings of, or
amendments, modifications or supplements to, any indebtedness, obligation
or liability of the kind described in clauses (a) through (f).
"Indenture" means this Indenture as amended or supplemented
from time to time pursuant to the terms of this Indenture.
"Liquidated Damages" has the meaning specified in Section 3(a)
of the Registration Rights Agreement. All references herein to interest
accrued or payable as of any date shall include any Liquidated Damages
accrued or payable as of such date as provided in the Registration Rights
Agreement.
"Officer" means the Chairman or any Co-Chairman of the Board,
any Vice Chairman of the Board, the Chief Executive Officer, the President,
any Vice President, the Chief Financial Officer, the Controller, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers; provided, however, that for purposes of Sections 4.11 and 6.3,
"Officers' Certificate" means a certificate signed by the principal
executive officer, principal financial officer or principal accounting
officer of the Company and by one other Officer.
"Opinion of Counsel" means a written opinion from legal
counsel. The counsel may be an employee of or counsel to the Company or the
Trustee.
"Person" or "person" means any individual, corporation,
partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
"Principal" or "principal" of a debt security, including the
Securities, means the principal of the security plus, when appropriate, the
premium, if any, on the security.
"Redemption Date" or "redemption date," when used with respect
to any Security to be redeemed, means the date fixed for such redemption
pursuant to this Indenture.
"Redemption Price" or "redemption price," when used with
respect to any Security to be redeemed, means the price fixed for such
redemption pursuant to this Indenture, as set forth in the form of Security
annexed as Exhibit A hereto.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of March 13, 2001, among the Company and
Bear, ▇▇▇▇▇▇▇ & Co. Inc. and Credit Suisse First Boston
Corporation, as initial purchasers.
"Representative" means (a) the indenture trustee or other
trustee, agent or representative for any Senior Indebtedness or (b) with
respect to any Senior Indebtedness that does not have any such trustee,
agent or other representative, (i) in the case of such Senior Indebtedness
issued pursuant to an agreement providing for voting arrangements as among
the holders or owners of such Senior Indebtedness, any holder or owner of
such Senior Indebtedness acting with the consent of the required persons
necessary to bind such holders or owners of such Senior Indebtedness and
(ii) in the case of all other such Senior Indebtedness, the holder or owner
of such Senior Indebtedness.
"Restricted Certificated Security" means a Certificated
Security which is a Transfer Restricted Security.
"Restricted Global Security" means a Global Security that is a
Transfer Restricted Security.
"Restricted Security" means a Restricted Certificated
Security or a Restricted Global Security.
"Rule 144" means Rule 144 under the Securities Act or any
successor to such Rule.
"Rule 144A" means Rule 144A under the Securities Act or any
successor to such Rule.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 4% Convertible Subordinated Notes due
2006 or any of them (each, a "Security"), as amended or supplemented from
time to time, that are issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as in effect from
time to time.
"Securities Custodian" means the Trustee, as custodian with
respect to the Securities in global form, or any successor thereto.
"Senior Indebtedness" means the principal of, premium, if any,
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 any such proceeding) and
rent payable on or in connection with, and all fees, costs, expenses and
other amounts accrued or due on or in connection with, Indebtedness of the
Company, whether outstanding on the date of this Indenture or thereafter
created, incurred, assumed, guaranteed or in effect guaranteed by the
Company (including all deferrals, renewals, extensions or refundings of, or
amendments, modifications or supplements to, the foregoing), unless in the
case of any particular Indebtedness the instrument creating or evidencing
the same or the assumption or guarantee thereof expressly provides that
such Indebtedness shall not be senior in right of payment to the Securities
or expressly provides that such Indebtedness is "pari passu" or "junior" to
the Securities. Notwithstanding the foregoing, the term Senior Indebtedness
shall not include any Indebtedness of the Company to any Subsidiary of the
Company. If any payment made to any holder of any Senior Indebtedness or
its Representative with respect to such Senior Indebtedness is rescinded or
must otherwise be returned by such holder or Representative upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, the
reinstated Indebtedness of the Company arising as a result of such
rescission or return shall constitute Senior Indebtedness effective as of
the date of such rescission or return.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of
the total voting power of shares of Capital Stock or other interests
(including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
managers, general partners or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) such Person; (ii) such Person
and one or more Subsidiaries of such Person; or (iii) one or more
Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939, as amended, as in
effect on the date of this Indenture, except as provided in Section 11.3,
and except to the extent any amendment to the Trust Indenture Act expressly
provides for application of the Trust Indenture Act as in effect on another
date.
"Trading Day" means, with respect to any security, each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not generally traded on the principal exchange or market in
which such security is traded.
"Trustee" means the party named as such in this Indenture until
a successor replaces it in accordance with the provisions of this
Indenture, and thereafter means the successor.
"Trust Officer" means, with respect to the Trustee, any officer
assigned to the Corporate Trust Office, and also, with respect to a
particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Unrestricted Certificated Security" means a Certificated
Security that is not a Transfer Restricted Security.
"Unrestricted Global Security" means a Global Security that is
not a Transfer Restricted Security.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof.
Section 1.2 Other Definitions.
Term Defined in Section
---- ------------------
"Agent Members"............................................. 2.1
"Bankruptcy Law"............................................ 8.1
"Change in Control"......................................... 3.8
"Change in Control Purchase Date"........................... 3.8
"Change in Control Purchase Notice"......................... 3.8
"Change in Control Purchase Price".......................... 3.8
"closing price"............................................. 4.6(d)
"Company Order"............................................. 2.2
"Conversion Agent".......................................... 2.3
"Conversion Date"........................................... 4.2
"Conversion Price".......................................... 4.6
"current market price"...................................... 4.6(d)
"Custodian"................................................. 8.1
"DTC"....................................................... 2.1
"Depositary"................................................ 2.1
"Determination Date"........................................ 4.6(c)
"Event of Default".......................................... 8.1
"Expiration Date"........................................... 4.6(c)
"Expiration Time"........................................... 4.6(c)
"Legal Holiday"............................................. 12.7
"NNM"....................................................... 4.6(d)
"Paying Agent".............................................. 2.3
"Payment Blockage Notice"................................... 5.2
"Primary Registrar"......................................... 2.3
"Purchase Agreement"........................................ 2.1
"Purchased Shares".......................................... 4.6(c)
"QIB"....................................................... 2.1
"Registrar"................................................. 2.3
"Transfer Certificate"...................................... 2.12
"Transfer Restricted Security".............................. 2.12
"Triggering Distribution"................................... 4.6(c)
"Unissued Shares"........................................... 3.8
Section 1.3 Trust Indenture Act Provisions.
Whenever this Indenture refers to a provision of the TIA, that
provision is incorporated by reference in and made a part of this
Indenture. The Indenture shall also include those provisions of the TIA
required to be included herein by the provisions of the Trust Indenture
Reform Act of 1990. The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and "obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined in the
TIA, defined by TIA reference to another statute or defined by any SEC rule
and not otherwise defined herein have the meanings assigned to them
therein.
Section 1.4 Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) words in the singular include the plural, and words in
the plural include the singular;
(iv) provisions apply to successive events and transactions;
(v) the term "merger" includes a statutory share exchange and
the term "merged" has a correlating meaning;
(vi) the masculine gender includes the feminine and the neuter;
(vii) references to agreements and other instruments include
subsequent amendments thereto; and
(viii) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE 2
THE SECURITIES
Section 2.1 Form and Dating.
The Securities and the Trustee's certificate of authentication
shall be substantially in the respective forms set forth in Exhibit A,
which Exhibit is incorporated in and made part of this Indenture. The
Securities may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Security shall be dated the date of its
authentication. The Securities are being offered and sold by the Company
pursuant to a Purchase Agreement, dated March 7, 2001 (the "Purchase
Agreement"), between the Company and Bear, ▇▇▇▇▇▇▇ & Co. Inc. and Credit
Suisse First Boston Corporation in transactions exempt from, or not subject
to, the registration requirements of the Securities Act.
(a) Restricted Global Securities. All of the Securities are
initially being offered and sold to qualified institutional buyers as
defined in Rule 144A (collectively, "QIBs" or individually, each a "QIB")
in reliance on Rule 144A under the Securities Act and shall be issued
initially in the form of one or more Restricted Global Securities, which
shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee, at its Corporate Trust Office, as
custodian for the depositary, The Depository Trust Company ("DTC") (such
depositary, or any successor thereto, being hereinafter referred to as the
"Depositary"), and registered in the name of its nominee, Cede & Co., duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Restricted Global Security
may from time to time be increased or decreased by adjustments made on the
records of the Securities Custodian as hereinafter provided, subject in
each case to compliance with the Applicable Procedures.
(b) Global Securities In General. Each Global Security shall
represent such of the outstanding Securities as shall be specified therein
and each shall provide that it shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions, purchases or conversions of such Securities. Any endorsement
of a Global Security to reflect the amount of any increase or decrease in
the amount of outstanding Securities represented thereby shall be made by
the Securities Custodian in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depositary or under any Global
Security, and the Depositary (including, for this purpose, its nominee) may
be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner and Holder of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
(A) prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or (B) impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Security.
(c) Certificated Securities. Certificated Securities shall be
issued only under the limited circumstances provided in Section 2.12(a)(1)
hereof.
Section 2.2 Execution and Authentication.
An Officer shall sign the Securities for the Company by manual
or facsimile signature attested by the manual or facsimile signature of the
Secretary or an Assistant Secretary of the Company. Typographic and other
minor errors or defects in any such facsimile signature shall not affect
the validity or enforceability of any Security which has been authenticated
and delivered by the Trustee.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities for original issue in the aggregate principal amount of up to
$250.0 million (plus up to an additional $50.0 million in aggregate
principal amount issuable upon the exercise of the option described in the
Purchase Agreement) upon receipt of a written order or orders of the
Company signed by an Officer of the Company (a "Company Order"). The
Company Order shall specify the amount of Securities to be authenticated,
shall provide that all such Securities will be represented by a Restricted
Global Security and the date on which each original issue of Securities is
to be authenticated. The aggregate principal amount of Securities
outstanding at any time may not exceed $300.0 million except as provided in
Section 2.7.
The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent shall have the same rights as an Agent
to deal with the Company or an Affiliate of the Company.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral
multiple thereof.
Section 2.3 Registrar, Paying agent and Conversion Agent.
The Company shall maintain one or more offices or agencies
where Securities may be presented for registration of transfer or for
exchange (each, a "Registrar"), one or more offices or agencies where
Securities may be presented for payment (each, a "Paying Agent"), one or
more offices or agencies where Securities may be presented for conversion
(each, a "Conversion Agent") and one or more offices or agencies where
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The Company will at all times maintain a
Paying Agent, Conversion Agent, Registrar and an office or agency where
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served in the Borough of Manhattan, the City of New
York. One of the Registrars (the "Primary Registrar") shall keep a register
of the Securities and of their transfer and exchange.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company
shall notify the Trustee of the name and address of any Agent not a party
to this Indenture. If the Company fails to maintain a Registrar, Paying
Agent, Conversion Agent or agent for service of notices and demands in any
place required by this Indenture, or fails to give the foregoing notice,
the Trustee shall act as such. The Company or any Affiliate of the Company
may act as Paying Agent (except for the purposes of Section 6.1 and Article
10).
The Company hereby initially designates the Trustee as Paying
Agent, Registrar, Custodian and Conversion Agent, and each of the Corporate
Trust Office of the Trustee and the office of the Trustee, c/o The Chase
Manhattan Bank, in the Borough of Manhattan, the City of New York (which
shall initially be located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: Institutional Trust Services), one such office or
agency of the Company for each of the aforesaid purposes.
Section 2.4 Paying Agent To Hold Money in Trust.
Prior to 11:00 a.m., New York City time, on each due date of
the principal of or interest, if any, on any Securities, the Company shall
deposit with a Paying Agent a sum sufficient to pay such principal or
interest, if any, so becoming due. Subject to Section 5.9, a Paying Agent
shall hold in trust for the benefit of Security holders or the Trustee all
money held by the Paying Agent for the payment of principal of or interest,
if any, on the Securities, and shall notify the Trustee of any default by
the Company (or any other obligor on the Securities) in making any such
payment. If the Company or an Affiliate of the Company acts as Paying
Agent, it shall, before 11:00 a.m., New York City time, on each due date of
the principal of or interest on any Securities, segregate the money and
hold it as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee, and the Trustee
may at any time during the continuance of any default, upon written request
to a Paying Agent, require such Paying Agent to forthwith pay to the
Trustee all sums so held in trust by such Paying Agent. Upon doing so, the
Paying Agent (other than the Company) shall have no further liability for
the money.
Section 2.5 Security Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names
and addresses of Security holders. If the Trustee is not the Primary
Registrar, the Company shall furnish to the Trustee on or before each
semiannual interest payment date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Securityholders.
Section 2.6 Transfer and Exchange.
(a) Subject to compliance with any applicable additional
requirements contained in Section 2.12, when a Security is presented to a
Registrar with a request to register a transfer thereof or to exchange such
Security for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the
exchange as requested; provided, however, that every Security presented or
surrendered for registration of transfer or exchange shall be duly endorsed
or accompanied by an assignment form and, if applicable, a transfer
certificate each in the form included in Exhibit A, and in form
satisfactory to the Registrar duly executed by the Holder thereof or its
attorney duly authorized in writing. To permit registration of transfers
and exchanges, upon surrender of any Security for registration of transfer
or exchange at an office or agency maintained pursuant to Section 2.3, the
Company shall execute and the Trustee shall authenticate Securities of a
like aggregate principal amount at the Registrar's request. Any exchange or
transfer shall be without charge, except that the Company or the Registrar
may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, and provided,
that this sentence shall not apply to any exchange pursuant to Section 2.7,
2.10, 2.12(a)(1), 3.6, 3.11, 4.2 (last paragraph) or 11.5.
Neither the Company, any Registrar nor the Trustee shall be
required to exchange or register a transfer of (a) any Securities for a
period of 15 days next preceding any mailing of a notice of Securities to
be redeemed, (b) any Securities or portions thereof selected or called for
redemption (except, in the case of redemption of a Security in part, the
portion not to be redeemed) or (c) any Securities or portions thereof in
respect of which a Change in Control Purchase Notice has been delivered and
not withdrawn by the Holder thereof (except, in the case of the purchase of
a Security in part, the portion not to be purchased).
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
(b) Any Registrar appointed pursuant to Section 2.3 hereof
shall provide to the Trustee such information as the Trustee may reasonably
require in connection with the delivery by such Registrar of Securities
upon transfer or exchange of Securities.
(c) Each Holder of a Security agrees to indemnify the Company,
the Registrar and the Trustee against any liability that may result from
the transfer, exchange or assignment of such Holder's Security in violation
of any provision of this Indenture and/or applicable United States federal
or state securities law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
or among Agent Members or other beneficial owners of interests in any
Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so
if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
Section 2.7 Replacement Securities.
If any mutilated Security is surrendered to the Company, a
Registrar or the Trustee, or the Company, a Registrar and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of
any Security, and there is delivered to the Company, the applicable
Registrar and the Trustee such Security or indemnity as will be required by
them to save each of them harmless, then, in the absence of notice to the
Company, such Registrar or the Trustee that such Security has been acquired
by a bona fide purchaser, the Company shall execute, and upon its written
request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, or is about to be
redeemed or purchased by the Company pursuant to Article 3, the Company in
its discretion may, instead of issuing a new Security, pay, redeem or
purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section 2.7,
the Company shall require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the reasonable fees and expenses
of the Trustee or the Registrar) in connection therewith.
Every new Security issued pursuant to this Section 2.7 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 benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section 2.7 are (to the extent lawful)
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.8 Outstanding Securities.
Securities outstanding at any time are all Securities
authenticated by the Trustee, except for those canceled by it, those
delivered to it for cancellation and those described in this Section 2.8 as
not outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases to
be outstanding unless the Company receives proof satisfactory to it that
the replaced Security is held by a bona fide purchaser.
If a Paying Agent (other than the Company or an Affiliate of
the Company) holds on a redemption date, a Change in Control Purchase Date
or the Final Maturity Date money sufficient to pay the principal of
(including premium, if any) and accrued interest on Securities (or portions
thereof) payable on that date, then on and after that date such Securities
(or portions thereof, as the case may be) cease to be outstanding and
interest on them ceases to accrue.
Subject to the restrictions contained in Section 2.9, a
Security does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security.
Section 2.9 Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any notice, direction, waiver or
consent, Securities owned by the Company or any other obligor on the
Securities or by any Affiliate of the Company or of such other obligor
shall be disregarded, except that, for purposes of determining whether the
Trustee shall be protected in relying on any such notice, direction, waiver
or consent, only Securities which a Trust Officer of the Trustee actually
knows are so owned shall be so disregarded. Securities so owned which have
been pledged in good faith shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to the Securities and that the pledgee is not the Company
or any other obligor on the Securities or any Affiliate of the Company or
of such other obligor.
Section 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the Company
may prepare and execute, and, upon receipt of a Company Order, the Trustee
shall authenticate and deliver, temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Company with the consent of the Trustee considers
appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate and deliver
definitive Securities in exchange for temporary Securities.
Section 2.11 Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar, the Paying Agent and the Conversion Agent
shall forward to the Trustee or its agent any Securities surrendered to
them for transfer, exchange, payment or conversion. The Trustee and no one
else shall cancel, in accordance with its standard procedures, all
Securities surrendered for transfer, exchange, redemption, payment,
conversion or cancellation and shall deliver the canceled Securities to the
Company. All Securities which are redeemed, purchased or otherwise acquired
by the Company or any of its Subsidiaries prior to the Final Maturity Date
shall be delivered to the Trustee for cancellation and the Company may not
hold or resell such Securities or issue any new Securities to replace any
such Securities or any Securities that any Holder has converted pursuant to
Article 4. Without limitation to the foregoing, any Securities acquired by
any investment bankers or other purchasers pursuant to Section 3.7 shall be
surrendered for conversion and thereafter cancelled, and may not be
reoffered, sold or otherwise transferred.
Section 2.12 Additional Transfer and Exchange Requirements.
(a) Transfer And Exchange Of Global Securities.
(1) Certificated Securities shall be issued in exchange
for interests in the Global Securities only if (x) the Depositary
notifies the Company that it is unwilling or unable to continue as
depositary for the Global Securities or if it at any time ceases to
be a "clearing agency" registered under the Exchange Act, if so
required by applicable law or regulation and a successor depositary
is not appointed by the Company within 90 days, or (y) an Event of
Default has occurred and is continuing. In either case, the Company
shall execute, and the Trustee shall, upon receipt of a Company Order
(which the Company agrees to delivery promptly), authenticate and
deliver Certificated Securities in an aggregate principal amount
equal to the principal amount of such Global Securities in exchange
therefor. Only Restricted Certificated Securities shall be issued in
exchange for beneficial interests in Restricted Global Securities,
and only Unrestricted Certificated Securities shall be issued in
exchange for beneficial interests in Unrestricted Global Securities.
Certificated Securities issued in exchange for beneficial interests
in Global Securities shall be registered in such names and shall be
in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver or cause to be
delivered such Certificated Securities to the persons in whose names
such Securities are so registered. Such exchange shall be effected in
accordance with the Applicable Procedures.
(2) Notwithstanding any other provisions of this
Indenture other than the provisions set forth in Section 2.12(a)(1),
a Global Security may not be transferred as a whole except by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or
by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
(b) Transfer And Exchange Of Certificated Securities. In the
event that Certificated Securities are issued in exchange for beneficial
interests in Global Securities in accordance with Section 2.12(a)(1) of
this Indenture, on or after such event when Certificated Securities are
presented by a Holder to a Registrar with a request:
(x) to register the transfer of the Certificated
Securities to a person who will take delivery thereof in the form of
Certificated Securities only; or
(y) to exchange such Certificated Securities for an equal
principal amount of Certificated Securities of other authorized
denominations, such Registrar shall register the transfer or make the
exchange as requested;
provided, however, that the Certificated Securities
presented or surrendered for register of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the proviso to the first
paragraph of Section 2.6; and
(2) in the case of a Restricted Certificated Security,
such request shall be accompanied by the following additional
information and documents, as applicable:
(i) if such Restricted Certificated Security is
being delivered to the Registrar by a Holder for registration
in the name of such Holder, without transfer, or such
Restricted Certificated Security is being transferred to the
Company or a Subsidiary of the Company, a certification to that
effect from such Holder (in substantially the form set forth in
the Transfer Certificate);
(ii) if such Restricted Certificated Security is
being transferred to a person the Holder reasonably believes is
a QIB in accordance with Rule 144A or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from such Holder (in substantially
the form set forth in the Transfer Certificate); or
(iii) if such Restricted Certificated Security is
being transferred (i) pursuant to an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 or (ii) pursuant to an exemption from the
registration requirements of the Securities Act (other than
pursuant to Rule 144A or Rule 144) and as a result of which, in
the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security"
within the meaning of Rule 144, a certification to that effect
from the Holder (in substantially the form set forth in the
Transfer Certificate) and, if the Company or such Registrar so
requests, a customary opinion of counsel, certificates and
other information reasonably acceptable to the Company and such
Registrar to the effect that such transfer is in compliance
with the registration requirements of the Securities Act.
(c) Transfer of a Beneficial Interest in a Restricted Global
Security for a Beneficial Interest in an Unrestricted Global Security. Any
person having a beneficial interest in a Restricted Global Security may
upon request, subject to the Applicable Procedures, transfer such
beneficial interest to a person who is required or permitted to take
delivery thereof in the form of an Unrestricted Global Security. Upon
receipt by the Trustee of written instructions, or such other form of
instructions as is customary for the Depositary, from the Depositary or its
nominee on behalf of any person having a beneficial interest in a
Restricted Global Security and the following additional information and
documents in such form as is customary for the Depositary from the
Depositary or its nominee on behalf of the person having such beneficial
interest in the Restricted Global Security (all of which may be submitted
by facsimile or electronically):
(1) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certification to that effect from the transferor (in
substantially the form set forth in the Transfer Certificate); or
(2) if such beneficial interest is being transferred (i)
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 or (ii) pursuant to an
exemption from the registration requirements of the Securities Act
(other than pursuant to Rule 144A or Rule 144) and as a result of
which, in the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security" within
the meaning of Rule 144, a certification to that effect from the
transferor (in substantially the form set forth in the Transfer
Certificate) and, if the Company or the Trustee so requests, a
customary opinion of counsel, certificates and other information
reasonably acceptable to the Company and the Trustee to the effect
that such transfer is in compliance with the registration
requirements of the Securities Act, the Trustee, as a Registrar and
Securities Custodian, shall reduce or cause to be reduced the
aggregate principal amount of the Restricted Global Security by the
appropriate principal amount and shall increase or cause to be
increased the aggregate principal amount of the Unrestricted Global
Security by a like principal amount. Such transfer shall otherwise be
effected in accordance with the Applicable Procedures. If no
Unrestricted Global Security is then outstanding, the Company shall
execute and the Trustee shall, upon receipt of a Company Order (which
the Company agrees to deliver promptly), authenticate and deliver an
Unrestricted Global Security.
(d) Transfer of a Beneficial Interest in an Unrestricted Global
Security for a Beneficial Interest In a Restricted Global Security. Any
person having a beneficial interest in an Unrestricted Global Security may
upon request, subject to the Applicable Procedures, transfer such
beneficial interest to a person who is required or permitted to take
delivery thereof in the form of a Restricted Global Security (it being
understood that only QIBs may own beneficial interests in Restricted Global
Securities). Upon receipt by the Trustee of written instructions or such
other form of instructions as is customary for the Depositary, from the
Depositary or its nominee, on behalf of any person having a beneficial
interest in an Unrestricted Global Security and, in such form as is
customary for the Depositary, from the Depositary or its nominee on behalf
of the person having such beneficial interest in the Unrestricted Global
Security (all of which may be submitted by facsimile or electronically) a
certification from the transferor (in substantially the form set forth in
the Transfer Certificate) to the effect that such beneficial interest is
being transferred to a person that the transferor reasonably believes is a
QIB in accordance with Rule 144A. The Trustee, as a Registrar and
Securities Custodian, shall reduce or cause to be reduced the aggregate
principal amount of the Unrestricted Global Security by the appropriate
principal amount and shall increase or cause to be increased the aggregate
principal amount of the Restricted Global Security by a like principal
amount. Such transfer shall otherwise be effected in accordance with the
Applicable Procedures. If no Restricted Global Security is then
outstanding, the Company shall execute and the Trustee shall, upon receipt
of a Company Order (which the Company agrees to deliver promptly),
authenticate and deliver a Restricted Global Security.
(e) Transfers of Certificated Securities for Beneficial
Interest in Global Securities. In the event that Certificated Securities
are issued in exchange for beneficial interests in Global Securities and,
thereafter, the events or conditions specified in Section 2.12(a)(1) which
required such exchange shall cease to exist, the Company shall mail notice
to the Trustee and to the Holders stating that Holders may exchange
Certificated Securities for interests in Global Securities by complying
with the procedures set forth in this Indenture and briefly describing such
procedures and the events or circumstances requiring that such notice be
given. Thereafter, if Certificated Securities are presented by a Holder to
a Registrar with a request:
(x) to register the transfer of such Certificated
Securities to a person who will take delivery thereof in the form of
a beneficial interest in a Global Security, which request shall
specify whether such Global Security will be a Restricted Global
Security or an Unrestricted Global Security; or
(y) to exchange such Certificated Securities for an equal
principal amount of beneficial interests in a Global Security, which
beneficial interests will be owned by the Holder transferring such
Certificated Securities (provided that in the case of such an
exchange, Restricted Certificated Securities may be exchanged only
for Restricted Global Securities and Unrestricted Certificated
Securities may be exchanged only for Unrestricted Global Securities),
the Registrar shall register the transfer or make the exchange as
requested by canceling such Certificated Security and causing, or
directing the Securities Custodian to cause, the aggregate principal
amount of the applicable Global Security to be increased accordingly
and, if no such Global Security is then outstanding, the Company
shall issue and the Trustee shall authenticate and deliver a new
Global Security;
provided, however, that the Certificated Securities presented
or surrendered for registration of transfer or exchange:
(1) shall be duly endorsed or accompanied by a
written instrument of transfer in accordance with the proviso
to Section 2.6;
(2) in the case of a Restricted Certificated Security to
be transferred for a beneficial interest in an Unrestricted Global
Security, such request shall be accompanied by the following
additional information and documents, as applicable:
(i) if such Restricted Certificated Security is
being transferred pursuant to an effective registration
statement under the Securities Act, a certification to that
effect from such Holder (in substantially the form set forth in
the Transfer Certificate); or
(ii) if such Restricted Certificated Security is
being transferred pursuant to (i) an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 or (ii) pursuant to an exemption from the
registration requirements of the Securities Act (other than
pursuant to Rule 144A or Rule 144) and as a result of which, in
the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security"
within the meaning of Rule 144, a certification to that effect
from such Holder (in substantially the form set forth in the
Transfer Certificate), and, if the Company or the Registrar so
requests, a customary opinion of counsel, certificates and
other information reasonably acceptable to the Company and the
Trustee to the effect that such transfer is in compliance with
the registration requirements of the Securities Act;
(3) in the case of a Restricted Certificated Security to
be transferred or exchanged for a beneficial interest in a Restricted
Global Security, such request shall be accompanied by a certification
from such Holder (in substantially the form set forth in the Transfer
Certificate) to the effect that such Restricted Certificated Security
is being transferred to a person the Holder reasonably believes is a
QIB (which, in the case of an exchange, shall be such Holder) in
accordance with Rule 144A;
(4) in the case of an Unrestricted Certificated Security
to be transferred or exchanged for a beneficial interest in an
Unrestricted Global Security, such request need not be accompanied by
any additional information or documents; and
(5) in the case of an Unrestricted Certificated Security
to be transferred or exchanged for a beneficial interest in a
Restricted Global Security, such request shall be accompanied by a
certification from such Holder (in substantially the form set forth
in the Transfer Certificate) to the effect that such Unrestricted
Certificated Security is being transferred to a person the Holder
reasonably believes is a QIB (which, in the case of an exchange,
shall be such Holder) in accordance with Rule 144A.
(f) Legends.
(1) Except as permitted by the following paragraphs (2)
and (3), each Global Security and Certificated Security (and all
Securities issued in exchange therefor or upon registration of
transfer or replacement thereof) shall bear a legend in substantially
the form called for by footnote 2 to Exhibit A hereto (each a
"Transfer Restricted Security" for so long as it is required by this
Indenture to bear such legend). Each Transfer Restricted Security
shall have attached thereto a certificate (a "Transfer Certificate")
in substantially the form called for by footnote 5 to Exhibit A
hereto.
(2) Upon any sale or transfer of a Transfer Restricted
Security (w) after the expiration of the holding period applicable to
sales of the Securities under Rule 144(k) of the Securities Act, (x)
pursuant to Rule 144, (y) pursuant to an effective registration
statement under the Securities Act or (z) pursuant to any other
available exemption (other than Rule 144A) from the registration
requirements of the Securities Act and as a result of which, in the
case of a Security transferred pursuant to this clause (z), such
Security shall cease to be a "restricted security" within the meaning
of Rule 144:
(i) in the case of any Restricted Certificated
Security, any Registrar shall permit the Holder thereof to
exchange such Restricted Certificated Security for an
Unrestricted Certificated Security, or (under the circumstances
described in Section 2.12(e)) to transfer such Restricted
Certificated Security to a transferee who shall take such
Security in the form of a beneficial interest in an
Unrestricted Global Security, and in each case shall rescind
any restriction on the transfer of such Security; provided,
however, that the Holder of such Restricted Certificated
Security shall, in connection with such exchange or transfer,
comply with the other applicable provisions of this Section
2.12; and
(ii) in the case of any beneficial interest in a
Restricted Global Security, the Trustee shall permit the
beneficial owner thereof to transfer such beneficial interest
to a transferee who shall take such interest in the form of a
beneficial interest in an Unrestricted Global Security and
shall rescind any restriction on transfer of such beneficial
interest; provided, that such Unrestricted Global Security
shall continue to be subject to the provisions of Section
2.12(a)(2); and provided, further, that the owner of such
beneficial interest shall, in connection with such transfer,
comply with the other applicable provisions of this Section
2.12.
(3) Upon the exchange, registration of transfer or
replacement of Securities not bearing the legend described in
paragraph (1) above, the Company shall execute, and the Trustee shall
authenticate and deliver Securities that do not bear such legend and
that do not have a Transfer Certificate attached thereto.
(4) After the expiration of the holding period pursuant
to Rule 144(k) of the Securities Act, the Company may with the
consent of the Holder of a Restricted Global Security or Restricted
Certificated Security, remove any restriction of transfer on such
Security, and the Company shall execute, and the Trustee shall
authenticate and deliver Securities that do not bear such legend and
that do not have a Transfer Certificate attached thereto.
(g) Transfers to the Company. Nothing in this Indenture or in
the Securities shall prohibit the sale or other transfer of any Securities
(including beneficial interests in Global Securities) to the Company or any
of its Subsidiaries, which Securities shall thereupon be cancelled in
accordance with Section 2.11.
Section 2.13 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption or purchase 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 or purchase and that reliance
may be placed only on the other identification numbers printed on the
Securities, and any such redemption or purchase shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3
REDEMPTION AND PURCHASES
Section 3.1 Right to Redeem; Notice to Trustee.
The Securities may be redeemed at the election of the Company,
as a whole or from time to time in part, at any time on or after March 20,
2004, on at least 20 days and no more than 60 days notice at the redemption
prices specified in paragraph 5 of the form of Security attached hereto as
Exhibit A, together with accrued interest up to but not including the
Redemption Date; provided that if the Redemption Date is an interest
payment date, interest will be payable to the Holders in whose name the
Securities are registered at the close of business on the relevant record
dates for payment of such interest.
If the Company elects to redeem Securities pursuant to this
Section 3.1 and paragraph 5 of the Securities, it shall notify the Trustee
in writing, at the earlier of the time the Company notifies the Holders of
such redemption or 45 days prior to the redemption date as fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), of
the redemption date and the principal amount of Securities to be redeemed.
If fewer than all of the Securities are to be redeemed, the record date
relating to such redemption shall be selected by the Company and given to
the Trustee, which record date shall not be less than ten days after the
date of notice to the Trustee.
Section 3.2 Selection of Securities to be Redeemed.
If less than all of the Securities are to be redeemed, the
Trustee shall, not more than 60 days prior to the redemption date, select
the Securities to be redeemed. The Trustee shall make the selection from
the Securities outstanding and not previously called for redemption, by
lot. Securities in denominations of $1,000 may only be redeemed in whole.
The Trustee may select for redemption portions (equal to $1,000 or any
multiple thereof) of the principal of Securities that have denominations
larger than $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption.
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 to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed shall be
treated by the Trustee as outstanding for the purpose of such selection.
Section 3.3 Notice of Redemption.
At least 20 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a notice of redemption
to each Holder of Securities to be redeemed at such Holder's address as it
appears on the Primary Registrar's books.
The notice shall identify the Securities (including CUSIP
numbers) to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the then current Conversion Price;
(4) the name and address of each Paying Agent and Conversion
Agent;
(5) that Securities called for redemption must be presented and
surrendered to a Paying Agent to collect the redemption price;
(6) that Holders who wish to convert Securities must surrender
such Securities for conversion no later than the close of business on the
second Business Day immediately preceding the redemption date and must
satisfy the other requirements in paragraph 8 of the Securities;
(7) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption shall cease accruing
on and after the redemption date and the only remaining right of the Holder
shall be to receive payment of the redemption price, plus accrued interest,
if any upon presentation and surrender to a Paying Agent of the Securities;
and
(8) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after the
redemption date, upon presentation and surrender of such Security, a new
Security or Securities in aggregate principal amount equal to the
unredeemed portion thereof will be issued.
If any of the Securities to be redeemed is in the form of a
Global Security, then the Company shall modify such notice to the extent
necessary to accord with the procedures of the Depositary applicable to
redemptions. At the Company's written request, which request shall (i) be
irrevocable once given and (ii) set forth all relevant information required
by clauses (1) through (8) of the preceding paragraph, the Trustee shall
give the notice of redemption in the Company's name and at the Company's
expense.
Section 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the
redemption price stated in the notice, together with accrued interest, if
any, except for Securities that are converted in accordance with the
provisions of Article 4. Upon presentation and surrender to a Paying Agent,
Securities called for redemption shall be paid at the redemption price,
plus accrued interest up to but not including the redemption date; provided
if the redemption date is an interest payment date, interest will be
payable to the Holders in whose names the Securities are registered at the
close of business on the relevant record dates for payment of such
interest.
Section 3.5 Deposit of Redemption Price.
The Company, prior to 11:00 a.m. New York City time, on the
Redemption Date, shall deposit with a Paying Agent (or, if the Company acts
as Paying Agent, shall segregate and hold in trust) money sufficient to pay
the redemption price of and accrued interest on all Securities to be
redeemed on that date, other than Securities or portions thereof called for
redemption on that date which have been delivered by the Company to the
Trustee for cancellation or have been converted. The Paying Agent shall
return to the Company any money not required for that purpose because of
the conversion of Securities pursuant to Article 4 or, if such money is
then held by the Company in trust and is not required for such purpose, it
shall be discharged from the trust.
Section 3.6 Securities Redeemed in Part.
Upon presentation and surrender of a Security that is redeemed
in part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
Section 3.7 Conversion Arrangement on Call For Redemption.
In connection with any redemption of Securities, the Company
may arrange for the purchase and conversion of any Securities called for
redemption by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to a Paying Agent (other
than the Company or any of its Affiliates) in trust for the Holders, on or
before 11:00 a.m. New York City time on the Redemption Date, an amount
that, together with any amounts deposited with such Paying Agent by the
Company for the redemption of such Securities, is not less than the
Redemption Price, together with interest accrued to, but not including, the
Redemption Date, of such Securities. Notwithstanding anything to the
contrary contained in this Article 3, the obligation of the Company to pay
the Redemption Price of such Securities, including all accrued interest,
shall be deemed to be satisfied and discharged to the extent such amount is
so paid by such purchasers; provided, however, that nothing in this Section
3.7 shall relieve the Company of its obligation to pay the Redemption
Price, plus accrued interest to but excluding the relevant redemption date,
on Securities called for redemption. If such an agreement with one or more
investment banks or other purchasers is entered into, any Securities called
for redemption and not surrendered for conversion by the Holders thereof
prior to the relevant redemption date may, at the option of the Company
upon written notice to the Trustee, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article 4)
surrendered by such purchasers for conversion, all as of 11:00 a.m. New
York City time on the Redemption Date, subject to payment of the above
amount as aforesaid. The Paying Agent shall hold and pay to the Holders
whose Securities are selected for redemption any such amount paid to it for
purchase in the same manner as it would money deposited with it by the
Company for the redemption of Securities. Without the Paying Agent'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
Paying Agent as set forth in this Indenture, and the Company agrees to
indemnify the Paying Agent 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 incurred by
the Paying Agent 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.
Section 3.8 Purchase of Securities at Option of the Holder Upon
Change in Control.
(a) If at any time that Securities remain outstanding there
shall occur a Change in Control, Securities shall be purchased by the
Company at the option of the Holders thereof as of the date that is 30
Business Days after the occurrence of the Change in Control (the "Change in
Control Purchase Date") at a purchase price equal to the principal amount
of the Securities, plus accrued and unpaid interest to, but excluding, the
Change in Control Purchase Date (the "Change in Control Purchase Price"),
subject to satisfaction by or on behalf of any Holder of the requirements
set forth in subsection (c) of this Section 3.8.
A "Change in Control" shall be deemed to have occurred if any
of the following occurs after the date hereof:
(1) any "person" or "group" (as such terms are defined
below) is or becomes the "beneficial owner" (as defined below),
directly or indirectly, of shares of Voting Stock of the Company
representing 50% or more of the total voting power of all outstanding
classes of Voting Stock of the Company or has the power, directly or
indirectly, to elect a majority of the members of the Board of
Directors of the Company; or
(2) the Company consolidates with, or merges with or
into, another Person or the Company sells, assigns, conveys,
transfers, leases or otherwise disposes of all or substantially all
of the assets of the Company, or any Person consolidates with, or
merges with or into, the Company, in any such event other than
pursuant to a transaction in which the Persons that "beneficially
owned" (as defined below), directly or indirectly, shares of Voting
Stock of the Company immediately prior to such transaction
"beneficially own" (as defined below), directly or indirectly, shares
of Voting Stock of the Company representing at least a majority of
the total voting power of all outstanding classes of Voting Stock of
the surviving or transferee Person; or
(3) there shall occur the liquidation or dissolution of
the Company.
For the purpose of the definition of "Change in Control", (i)
"person" and "group" have the meanings given such terms under Section 13(d)
and 14(d) of the Exchange Act or any successor provision to either of the
foregoing, and the term "group" includes any group acting for the purpose
of acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act (or any successor provision thereto),
(ii) a "beneficial owner" shall be determined in accordance with Rule 13d-3
under the Exchange Act, as in effect on the date of this Indenture, except
that the number of shares of Voting Stock of the Company shall be deemed to
include, in addition to all outstanding shares of Voting Stock of the
Company and Unissued Shares deemed to be held by the "person" or "group"
(as such terms are defined above) or other Person with respect to which the
Change in Control determination is being made, all Unissued Shares deemed
to be held by all other Persons, and (iii) the terms "beneficially owned"
and "beneficially own" shall have meanings correlative to that of
"beneficial owner". The term "Unissued Shares" means shares of Voting Stock
not outstanding that are subject to options, warrants, rights to purchase
or conversion privileges exercisable within 60 days of the date of
determination of a Change in Control.
Notwithstanding anything to the contrary set forth in this
Section 3.8, a Change in Control will not be deemed to have occurred if
either:
(4) the closing price (determined in accordance with
Section 4.6(d) of this Indenture) of the Common Stock for any five
Trading Days within:
(i) the period of the ten Trading Days 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 resulting solely from a Change in Control under
Section 3.8(a)(1); or
(ii) the period of the ten Trading Days immediately
preceding the Change in Control, in the case of a Change in
Control resulting from a Change in Control under Section
3.8(a)(2) or (3),
is at least equal to 105% of the Conversion Price
in effect on such Trading Day; or
(5) in the case of a merger or consolidation, all of the
consideration excluding cash payments for fractional shares in the
merger or consolidation constituting the Change in Control consists
of common stock traded on a United States national securities
exchange or quoted on the Nasdaq National Market (or which will be so
traded or quoted when issued or exchanged in connection with such
Change In Control) and as a result of such transaction or
transactions the Securities become convertible solely into such
common stock.
(b) Within 10 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of the Change in Control
to the Trustee (and the Paying Agent if the Trustee is not then acting as
Paying Agent) and to each Holder (and to beneficial owners as required by
applicable law). The notice shall include the form of a Change in Control
Purchase Notice to be completed by the Holder and shall state:
(1) the date of such Change in Control and, briefly, the
events causing such Change in Control;
(2) the date by which the Change in Control Purchase
Notice pursuant to this Section 3.8 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) briefly, the conversion rights of the Securities;
(6) the name and address of each Paying Agent and
Conversion Agent;
(7) the Conversion Price and any adjustments thereto;
(8) that Securities as to which a Change in Control
Purchase Notice has been given may be converted into Common Stock
pursuant to Article 4 of this Indenture only to the extent that the
Change in Control Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(9) the procedures that the Holder must follow to
exercise rights under this Section 3.8;
(10) the procedures for withdrawing a Change in Control
Purchase Notice, including a form of notice of withdrawal; and
(11) that the Holder must satisfy the requirements set
forth in the Securities in order to convert the Securities.
If any of the Securities is in the form of a Global Security,
then the Company shall modify such notice to the extent necessary to accord
with the procedures of the Depositary applicable to the repurchase of
Global Securities.
(c) A Holder may exercise its rights specified in subsection
(a) of this Section 3.8 upon delivery of a written notice (which shall be
in substantially the form included in Exhibit A hereto and which may be
delivered by letter, overnight courier, hand delivery, facsimile
transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in accordance
with the Depositary's customary procedures) of the exercise of such rights
(a "Change in Control Purchase Notice") to any Paying Agent at any time
prior to the close of business on the Business Day next preceding the
Change in Control Purchase Date.
The delivery of such Security to any Paying Agent (together
with all necessary endorsements) at the office of such Paying Agent shall
be a condition to the receipt by the Holder of the Change in Control
Purchase Price therefor.
The Company shall purchase from the Holder thereof, pursuant to
this Section 3.8, a portion of a Security if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of the
Indenture that apply to the purchase of all of a Security pursuant to
Sections 3.8 through 3.13 also apply to the purchase of such portion of
such Security.
Notwithstanding anything herein to the contrary, any Holder
delivering to a Paying Agent the Change in Control Purchase Notice
contemplated by this subsection (c) shall have the right to withdraw such
Change in Control Purchase Notice in whole or in a portion thereof that is
a principal amount of $1,000 or in an integral multiple thereof at any time
prior to the close of business on the Business Day next preceding the
Change in Control Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.9.
A Paying Agent shall promptly notify the Company of the receipt
by it of any Change in Control Purchase Notice or written withdrawal
thereof.
Anything herein to the contrary notwithstanding, in the case of
Global Securities, any Change in Control Purchase Notice may be delivered
or withdrawn and such Securities may be surrendered or delivered for
purchase in accordance with the Applicable Procedures as in effect from
time to time.
Section 3.9 Effect of Change in Control Purchase Notice.
Upon receipt by any Paying Agent of the Change in Control
Purchase Notice specified in Section 3.8(c), the Holder of the Security in
respect of which such Change in Control Purchase Notice was given shall
(unless such Change in Control Purchase Notice is withdrawn as specified
below) thereafter be entitled to receive the Change in Control Purchase
Price with respect to such Security. Such Change in Control Purchase Price
shall be paid to such Holder promptly following the later of (a) the Change
in Control Purchase Date with respect to such Security (provided the
conditions in Section 3.8(c) have been satisfied) and (b) the time of
delivery of such Security to a Paying Agent by the Holder thereof in the
manner required by Section 3.8(c). Securities in respect of which a Change
in Control Purchase Notice has been given by the Holder thereof may not be
converted into shares of Common Stock on or after the date of the delivery
of such Change in Control Purchase Notice unless such Change in Control
Purchase Notice has first been validly withdrawn.
A Change in Control Purchase Notice may be withdrawn by means
of a written notice (which may be delivered by letter, overnight courier,
hand delivery, facsimile transmission or in any other written form and, in
the case of Global Securities, may be delivered electronically or by other
means in accordance with the Depositary's customary procedures) of
withdrawal delivered by the Holder to a Paying Agent at any time prior to
the close of business on the Business Day immediately preceding the Change
in Control Purchase Date, specifying the principal amount of the Security
or portion thereof (which must be a principal amount of $1,000 or an
integral multiple of $1,000 in excess thereof) with respect to which such
notice of withdrawal is being submitted.
Section 3.10 Deposit of Change in Control Purchase Price.
On or before 11:00 a.m. New York City time on the Change in
Control Purchase Date, the Company shall deposit with the Trustee or with a
Paying Agent (other than the Company or an Affiliate of the Company) an
amount of money (in immediately available funds if deposited on such
Business Day) sufficient to pay the aggregate Change in Control Purchase
Price of all the Securities or portions thereof that are to be purchased as
of such Change in Control Purchase Date. The manner in which the deposit
required by this Section 3.10 is made by the Company shall be at the option
of the Company, provided that such deposit shall be made in a manner such
that the Trustee or a Paying Agent shall have immediately available funds
on the Change in Control Purchase Date.
If a Paying Agent holds, in accordance with the terms hereof,
money sufficient to pay the Change in Control Purchase Price of any
Security for which a Change in Control Purchase Notice has been tendered
and not withdrawn in accordance with this Indenture then, on the Change in
Control Purchase Date, such Security will cease to be outstanding and the
rights of the Holder in respect thereof shall terminate (other than the
right to receive the Change in Control Purchase Price as aforesaid). The
Company shall publicly announce the principal amount of Securities
purchased as a result of such Change in Control on or as soon as
practicable after the Change in Control Purchase Date.
Section 3.11 Securities Purchased in Part.
Any Security that is to be purchased only in part shall be
surrendered at the office of a Paying Agent and promptly after the Change
in Control Purchase Date 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 such authorized denomination or
denominations as may be requested by such Holder, in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount
of the Security so surrendered that is not purchased.
Section 3.12 Compliance with Securities Laws Upon Purchase of Securities.
In connection with any offer to purchase or purchase of
Securities under Section 3.8, the Company shall (a) comply with Rule 13e-4
and Rule 14e-1 (or any successor to either such Rule), if applicable, under
the Exchange Act, (b) file the related Schedule TO (or any successor or
similar schedule, form or report) if required under the Exchange Act, and
(c) otherwise comply with all federal and state securities laws in
connection with such offer to purchase or purchase of Securities, all so as
to permit the rights of the Holders and obligations of the Company under
Sections 3.8 through 3.11 to be exercised in the time and in the manner
specified therein.
Section 3.13 Repayment to the Company.
To the extent that the aggregate amount of cash deposited by
the Company pursuant to Section 3.10 exceeds the aggregate Change in
Control Purchase Price together with interest, if any, thereon of the
Securities or portions thereof that the Company is obligated to purchase,
then promptly after the Change in Control Purchase Date the Trustee or a
Paying Agent, as the case may be, shall return any such excess cash to the
Company.
ARTICLE 4
CONVERSION
Section 4.1 Conversion Privilege.
Subject to the further provisions of this Section 4.1, a Holder
of a Security may convert the principal amount of such Security (or any
portion thereof equal to $1,000 or any integral multiple of $1,000 in
excess thereof) into Common Stock at any time prior to the close of
business on the Final Maturity Date, at the Conversion Price then in
effect; provided, however, that, if such Security is called for redemption
or submitted or presented for purchase pursuant to Article 3, such
conversion right shall terminate at the close of business on the second
Business Day immediately preceding the redemption date or Change in Control
Purchase Date, as the case may be, for such Security or such earlier date
as the Holder presents such Security for redemption or for purchase (unless
the Company shall default in making the redemption payment or Change in
Control Purchase Price payment when due, in which case the conversion right
shall terminate at the close of business on the date such default is cured
and such Security is redeemed or purchased, as the case may be). If such
Security is submitted or presented for purchase pursuant to Article 3 and
is then subsequently withdrawn, such conversion right shall no longer be
terminated, and the Holder of such Security may convert such Security
pursuant to this Section 4.1. The number of shares of Common Stock issuable
upon conversion of a Security shall be determined by dividing the principal
amount of the Security or portion thereof surrendered for conversion by the
Conversion Price in effect on the Conversion Date. The initial Conversion
Price is set forth in paragraph 8 of the Securities and is subject to
adjustment as provided in this Article 4.
Provisions of this Indenture that apply to conversion of all of
a Security also apply to conversion of a portion of a Security.
A Security in respect of which a Holder has delivered a Change
in Control Purchase Notice pursuant to Section 3.8(c) exercising the option
of such Holder to require the Company to purchase such Security may be
converted only if such Change in Control Purchase Notice is withdrawn by a
written notice of withdrawal delivered to a Paying Agent prior to the close
of business on the Business Day immediately preceding the Change in Control
Purchase Date in accordance with Section 3.9.
A Holder of Securities is not entitled to any rights of a
holder of Common Stock until such Holder has converted its Securities to
Common Stock, and only to the extent such Securities are deemed to have
been converted into Common Stock pursuant to this Article 4.
Section 4.2 Conversion Procedure.
To convert a Security, a Holder must (a) complete and manually
sign the conversion notice on the back of the Security and deliver such
notice to a Conversion Agent, (b) surrender the Security to a Conversion
Agent, (c) furnish appropriate endorsements and transfer documents if
required by a Registrar or a Conversion Agent, and (d) pay any transfer or
similar tax, if required. The date on which the Holder satisfies all of
those requirements is the "Conversion Date." As soon as practicable after
the Conversion Date, the Company shall deliver to the Holder through a
Conversion Agent a certificate for the number of whole shares of Common
Stock issuable upon the conversion and cash in lieu of any fractional
shares pursuant to Section 4.3. Anything herein to the contrary
notwithstanding, in the case of Global Securities, conversion notices may
be delivered and such Securities may be surrendered for conversion in
accordance with the Applicable Procedures as in effect from time to time.
The person in whose name the Common Stock certificate is
registered shall be deemed to be a stockholder of record on the Conversion
Date; provided, however, that no surrender of a Security on any date when
the stock transfer books of the Company shall be closed shall be effective
to constitute the person or persons entitled to receive the shares of
Common Stock upon such conversion as the record holder or holders of such
shares of Common Stock on such date, but such surrender shall be effective
to constitute the person or persons entitled to receive such shares of
Common Stock as the record holder or holders thereof for all purposes at
the close of business on the next succeeding day on which such stock
transfer books are open; provided, further, that such conversion shall be
at the Conversion Price in effect on the Conversion Date as if the stock
transfer books of the Company had not been closed. Upon conversion of a
Security, such person shall no longer be a Holder of such Security. No
payment or adjustment will be made for dividends or distributions on shares
of Common Stock issued upon conversion of a Security.
Securities so surrendered for conversion (in whole or in part)
during the period from the close of business on any regular record date to
the opening of business on the next succeeding interest payment date
(excluding Securities or portions thereof called for redemption on a
Redemption Date during the period beginning at the close of business on a
regular record date and ending at the opening of business on the first
Business Day after the next succeeding interest payment date, or if such
interest payment date is not a Business Day, the second such Business Day)
shall also be accompanied by payment in funds acceptable to the Company of
an amount equal to the interest payable on such interest payment date on
the principal amount of such Security then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such Security, subject to the provisions of this Indenture
relating to the payment of defaulted interest by the Company. Except as
otherwise provided in this Section 4.2, no payment or adjustment will be
made for accrued interest on a converted Security. If the Company defaults
in the payment of interest payable on such interest payment date, the
Company shall promptly repay such funds to such Holder.
Nothing in this Section shall affect the right of a Holder in
whose name any Security is registered at the close of business on a record
date to receive the interest payable on such Security on the related
interest payment date in accordance with the terms of this Indenture and
the Securities. If a Holder converts more than one Security at the same
time, the number of shares of Common Stock issuable upon the conversion
shall be based on the aggregate principal amount of Securities converted.
Upon surrender of a Security that is converted in part, the
Company shall execute, and the Trustee shall authenticate and deliver to
the Holder, a new Security equal in principal amount to the unconverted
portion of the Security surrendered.
Section 4.3 Fractional Shares.
The Company will not issue fractional shares of Common Stock
upon conversion of Securities. In lieu thereof, the Company will pay an
amount in cash based upon the current market price (determined as set forth
in Section 4.6(d)) of the Common Stock on the Trading Day immediately prior
to the Conversion Date.
Section 4.4 Taxes on Conversion.
If a Holder converts a Security, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of
shares of Common Stock upon such conversion. However, the Holder shall pay
any such tax which is due because the Holder requests the shares to be
issued in a name other than the Holder's name. The Conversion Agent may
refuse to deliver the certificate representing the Common Stock being
issued in a name other than the Holder's name until the Conversion Agent
receives a sum sufficient to pay any tax which will be due because the
shares are to be issued in a name other than the Holder's name. Nothing
herein shall preclude any tax withholding required by law or regulation.
Section 4.5 Company to Provide Stock.
The Company shall, prior to issuance of any Securities
hereunder, and from time to time as may be necessary, reserve, out of its
authorized but unissued Common Stock, a sufficient number of shares of
Common Stock to permit the conversion of all outstanding Securities into
shares of Common Stock.
All shares of Common Stock delivered upon conversion of the
Securities shall be newly issued shares, shall be duly authorized, validly
issued, fully paid and nonassessable and shall be free from preemptive
rights and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all federal
and state securities laws regulating the offer and delivery of shares of
Common Stock upon conversion of Securities, if any, and will list or cause
to have quoted such shares of Common Stock on each national securities
exchange or on the Nasdaq National Market or other over-the-counter market
or such other market on which the Common Stock is then listed or quoted;
provided, however, that if rules of such automated quotation system or
exchange permit the Company to defer the listing of such Common Stock until
the first conversion of the Notes into Common Stock in accordance with the
provisions of this Indenture, the Company covenants to list such Common
Stock issuable upon conversion of the Notes in accordance with the
requirements of such automated quotation system or exchange at such time.
Section 4.6 Adjustment of Conversion Price.
The conversion price as stated in paragraph 8 of the Securities
(the "Conversion Price") shall be adjusted from time to time by the Company
as follows:
(a) In case the Company shall (i) pay a dividend on its Common
Stock in shares of Common Stock (including the Announced Split (as defined
below)), (ii) make a distribution on its Common Stock in shares of Common
Stock, (iii) subdivide its outstanding Common Stock into a greater number
of shares, or (iv) combine its outstanding Common Stock into a smaller
number of shares, the Conversion Price in effect immediately prior thereto
shall be adjusted so that the Holder of any Security thereafter surrendered
for conversion shall be entitled to receive that number of shares of Common
Stock which it would have owned had such Security been converted
immediately prior to the happening of such event. An adjustment made
pursuant to this subsection (a) shall become effective immediately after
the record date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of subdivision
or combination.
(b) In case the Company shall issue rights or warrants to all
or substantially all holders of its Common Stock entitling them (for a
period commencing no earlier than the record date described below and
expiring not more than 60 days after such record date) to subscribe for or
purchase shares of Common Stock (or securities convertible into Common
Stock) at a price per share (or having a conversion price per share) less
than the current market price per share of Common Stock (as determined in
accordance with subsection (d) of this Section 4.6) on the record date for
the determination of stockholders entitled to receive such rights or
warrants, the Conversion Price in effect immediately prior thereto shall be
adjusted so that the same shall equal the price determined by multiplying
the Conversion Price in effect immediately prior to such record date by a
fraction of which the numerator shall be the number of shares of Common
Stock outstanding on such record date plus the number of shares which the
aggregate offering price of the total number of shares of Common Stock so
offered (or the aggregate conversion price of the convertible securities so
offered, which shall be determined by multiplying the number of shares of
Common Stock issuable upon conversion of such convertible securities by the
conversion price per share of Common Stock pursuant to the terms of such
convertible securities) would purchase at the current market price per
share (as defined in subsection (d) of this Section 4.6) of Common Stock on
such record date, and of which the denominator shall be the number of
shares of Common Stock outstanding on such record date plus the number of
additional shares of Common Stock offered (or into which the convertible
securities so offered are convertible). Such adjustment shall be made
successively whenever any such rights or warrants are issued, and shall
become effective immediately after such record date. If at the end of the
period during which such rights or warrants are exercisable not all rights
or warrants shall have been exercised, the adjusted Conversion Price shall
be immediately readjusted to what it would have been based upon the number
of additional shares of Common Stock actually issued (or the number of
shares of Common Stock issuable upon conversion of convertible securities
actually issued).
(c) In case the Company shall distribute to all or
substantially all holders of its Common Stock any shares of capital stock
of the Company (other than Common Stock), evidences of indebtedness or
other non-cash assets (including securities of any person other than the
Company but excluding (1) dividends or distributions paid exclusively in
cash or (2) dividends or distributions referred to in subsection (a) of
this Section 4.6), or shall distribute to all or substantially all holders
of its Common Stock rights or warrants to subscribe for or purchase any of
its securities (excluding those rights and warrants referred to in
subsection (b) of this Section 4.6), then in each such case the Conversion
Price shall be adjusted so that the same shall equal the price determined
by multiplying the current Conversion Price by a fraction of which the
numerator shall be the current market price per share (as defined in
subsection (d) of this Section 4.6) of the Common Stock on the record date
mentioned below less the fair market value on such record date (as
determined by the Board of Directors, whose determination shall be
conclusive evidence of such fair market value and which shall be evidenced
by an Officers' Certificate delivered to the Trustee) of the portion of the
capital stock, evidences of indebtedness or other non-cash assets so
distributed or of such rights or warrants applicable to one share of Common
Stock (determined on the basis of the number of shares of Common Stock
outstanding on the record date), and of which the denominator shall be the
current market price per share (as defined in subsection (d) of this
Section 4.6) of the Common Stock on such record date. Such adjustment shall
be made successively whenever any such distribution is made and shall
become effective immediately after the record date for the determination of
shareholders entitled to receive such distribution.
(1) In case the Company shall, by dividend or otherwise,
at any time distribute (a "Triggering Distribution") to all or
substantially all holders of its Common Stock cash in an aggregate
amount that, together with the aggregate amount of (A) any cash and
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence thereof and which shall be
evidenced by an Officers' Certificate delivered to the Trustee) of
any other consideration payable in respect of any tender offer by the
Company or a Subsidiary of the Company for Common Stock consummated
within the 12 months preceding the date of payment of the Triggering
Distribution and in respect of which no Conversion Price adjustment
pursuant to this Section 4.6 has been made and (B) all other cash
distributions to all or substantially all holders of its Common Stock
made within the 12 months preceding the date of payment of the
Triggering Distribution and in respect of which no Conversion Price
adjustment pursuant to this Section 4.6 has been made, exceeds an
amount equal to 10.0% of the product of the current market price per
share of Common Stock (as determined in accordance with subsection
(d) of this Section 4.6) on the Business Day (the "Determination
Date") immediately preceding the day on which such Triggering
Distribution is declared by the Company multiplied by the number of
shares of Common Stock outstanding on the Determination Date
(excluding shares held in the treasury of the Company), the
Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying such Conversion Price in effect
immediately prior to the Determination Date by a fraction of which
the numerator shall be the current market price per share of the
Common Stock (as determined in accordance with subsection (d) of this
Section 4.6) on the Determination Date less the sum of the aggregate
amount of cash and the aggregate fair market value (determined as
aforesaid in this Section 4.6(c)(1)) of any such other consideration
so distributed, paid or payable within such 12 months (including,
without limitation, the Triggering Distribution) applicable to one
share of Common Stock (determined on the basis of the number of
shares of Common Stock outstanding on the Determination Date) and the
denominator shall be such current market price per share of the
Common Stock (as determined in accordance with subsection (d) of this
Section 4.6) on the Determination Date, such reduction to become
effective immediately prior to the opening of business on the day
following the date on which the Triggering Distribution is paid.
(2) In case any tender offer made by the Company or any
of its Subsidiaries for Common Stock shall expire and such tender
offer (as amended upon the expiration thereof) shall involve the
payment of aggregate consideration in an amount (determined as the
sum of the aggregate amount of cash consideration and the aggregate
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence thereof and which shall be
evidenced by an Officers' Certificate delivered to the Trustee
thereof) of any other consideration) that, together with the
aggregate amount of (A) any cash and the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive evidence thereof and which shall be evidenced by an
Officers' Certificate delivered to the Trustee) of any other
consideration payable in respect of any other tender offers by the
Company or any Subsidiary of the Company for Common Stock consummated
within the 12 months preceding the date of the Expiration Date (as
defined below) and in respect of which no Conversion Price adjustment
pursuant to this Section 4.6 has been made and (B) all cash
distributions to all or substantially all holders of its Common Stock
made within the 12 months preceding the Expiration Date and in
respect of which no Conversion Price adjustment pursuant to this
Section 4.6 has been made, exceeds an amount equal to 10.0% of the
product of the current market price per share of Common Stock (as
determined in accordance with subsection (d) of this Section 4.6) as
of the last date (the "Expiration Date") tenders could have been made
pursuant to such tender offer (as it may be amended) (the last time
at which such tenders could have been made on the Expiration Date is
hereinafter sometimes called the "Expiration Time") multiplied by the
number of shares of Common Stock outstanding (including tendered
shares but excluding any shares held in the treasury of the Company)
at the Expiration Time, then, immediately prior to the opening of
business on the day after the Expiration Date, the Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to close
of business on the Expiration Date by a fraction of which the
numerator shall be the product of the number of shares of Common
Stock outstanding (including tendered shares but excluding any shares
held in the treasury of the Company) at the Expiration Time
multiplied by the current market price per share of the Common Stock
(as determined in accordance with subsection (d) of this Section 4.6)
on the Trading Day next succeeding the Expiration Date and the
denominator shall be the sum of (x) the aggregate consideration
(determined as aforesaid) payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender
offer) of all shares 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") and (y) the
product of the number of shares of Common Stock outstanding (less any
Purchased Shares and excluding any shares held in the treasury of the
Company) at the Expiration Time and the current market price per
share of Common Stock (as determined in accordance with subsection
(d) of this Section 4.6) on the Trading Day next succeeding the
Expiration Date, such reduction to become effective immediately prior
to the opening of business on the day following the Expiration Date.
In the event that the Company is obligated to purchase shares
pursuant to any such tender offer, but the Company is permanently
prevented by applicable law from effecting any or all such purchases
or any or all such purchases are rescinded, the Conversion Price
shall again be adjusted to be the Conversion Price which would have
been in effect based upon the number of shares actually purchased. If
the application of this Section 4.6(c)(2) to any tender offer would
result in an increase in the Conversion Price, no adjustment shall be
made for such tender offer under this Section 4.6(c)(2).
(3) For purposes of this Section 4.6(c), the term "tender
offer" shall mean and include both tender offers and exchange offers,
all references to "purchases" of shares in tender offers (and all
similar references) shall mean and include both the purchase of
shares in tender offers and the acquisition of shares pursuant to
exchange offers, and all references to "tendered shares" (and all
similar references) shall mean and include shares tendered in both
tender offers and exchange offers.
(d) For the purpose of any computation under subsections (b),
(c) and (d) of this Section 4.6, 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 30 consecutive Trading Days commencing 45 Trading
Days before (i) the Determination Date or the Expiration Date, as the case
may be, with respect to distributions or tender offers under subsection (c)
of this Section 4.6 or (ii) the record date with respect to distributions,
issuances or other events requiring such computation under subsection (b)
or (c) of this Section 4.6. The closing price for each day shall be the
last reported sales price or, in case no such reported sale takes place on
such date, the average of the reported closing bid and asked prices in
either case on the Nasdaq National Market (the "NNM") or, if the Common
Stock is not listed or admitted to trading on the NNM, on the principal
national securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading on the NNM or
any national securities exchange, the last reported sales price of the
Common Stock as quoted on NASDAQ or, in case no reported sales takes place,
the average of the closing bid and asked prices as quoted on NASDAQ or any
comparable system or, if the Common Stock is not quoted on NASDAQ or any
comparable system, the closing sales price or, in case no reported sale
takes place, the average of the closing bid and asked prices, as furnished
by any two members of the National Association of Securities Dealers, Inc.
selected from time to time by the Company for that purpose. If no such
prices are available, the current market price per share shall be the fair
value of a share of Common Stock as determined by the Board of Directors
(which shall be evidenced by an Officers' Certificate delivered to the
Trustee).
(e) In any case in which this Section 4.6 shall require that an
adjustment be made following a record date or a Determination Date or
Expiration Date, as the case may be, established for purposes of this
Section 4.6, the Company may elect to defer (but only until five Business
Days following the filing by the Company with the Trustee of the
certificate described in Section 4.9) issuing to the Holder of any Security
converted after such record date or Determination Date or Expiration Date
the shares of Common Stock and other capital stock of the Company issuable
upon such conversion over and above the shares of Common Stock and other
capital stock of the Company issuable upon such conversion only on the
basis of the Conversion Price prior to adjustment; and, in lieu of the
shares the issuance of which is so deferred, the Company shall issue or
cause its transfer agents to issue due bills or other appropriate evidence
prepared by the Company of the right to receive such shares. If any
distribution in respect of which an adjustment to the Conversion Price is
required to be made as of the record date or Determination Date or
Expiration Date therefor is not thereafter made or paid by the Company for
any reason, the Conversion Price shall be readjusted to the Conversion
Price which would then be in effect if such record date had not been fixed
or such effective date or Determination Date or Expiration Date had not
occurred.
Section 4.7 No Adjustment.
No adjustment in the Conversion Price shall be required unless
the adjustment would require an increase or decrease of at least 1% in the
Conversion Price as last adjusted; provided, however, that any adjustments
which by reason of this Section 4.7 are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article 4 shall be made to the nearest cent or to
the nearest one-hundredth of a share, as the case may be.
No adjustment need be made for issuances of Common Stock
pursuant to a Company plan for reinvestment of dividends or interest or for
a change in the par value or a change to no par value of the Common Stock.
To the extent that the Securities become convertible into the
right to receive cash, no adjustment need be made thereafter as to the
cash. Interest will not accrue on the cash.
Section 4.8 Adjustment for Tax Purposes.
The Company shall be entitled to make such reductions in the
Conversion Price, in addition to those required by Section 4.6, as it in
its discretion shall determine to be advisable in order that any stock
dividends, subdivisions of shares, distributions of rights to purchase
stock or securities or distributions of securities convertible into or
exchangeable for stock hereafter made by the Company to its stockholders
shall not be taxable.
Section 4.9 Notice of Adjustment.
Whenever the Conversion Price or conversion privilege is
adjusted, the Company shall promptly mail to Securityholders a notice of
the adjustment and file with the Trustee an Officers' Certificate briefly
stating the facts requiring the adjustment and the manner of computing it.
Unless and until the Trustee shall receive an Officers' Certificate setting
forth an adjustment of the Conversion Price, the Trustee may assume without
inquiry that the Conversion Price has not been adjusted and that the last
Conversion Price of which it has knowledge remains in effect.
Section 4.10 Notice of Certain Transactions.
In the event that:
(1) the Company takes any action which would require an
adjustment in the Conversion Price;
(2) the Company consolidates or merges with, or transfers all
or substantially all of its property and assets to, another corporation and
shareholders of the Company must approve the transaction; or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a
notice stating the proposed record or effective date, as the case may be.
The Company shall mail the notice at least ten days before such date.
Failure to mail such notice or any defect therein shall not affect the
validity of any transaction referred to in clause (1), (2) or (3) of this
Section 4.10.
Section 4.11 Effect of Reclassification, Consolidation, Merger
or Sale on Conversion Privilege.
If any of the following shall occur, namely: (a) any
reclassification or change of shares of Common Stock issuable upon
conversion of the Securities (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of
a subdivision or combination, or any other change for which an adjustment
is provided in Section 4.6); (b) any consolidation or merger or combination
to which the Company is a party other than a merger in which the Company is
the continuing corporation and which does not result in any
reclassification of, or change (other than in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination) in, outstanding shares of Common Stock; or (c)
any sale or conveyance as an entirety or substantially as an entirety of
the property and assets of the Company, directly or indirectly, to any
person, then the Company, or such successor, purchasing or transferee
corporation, as the case may be, shall, as a condition precedent to such
reclassification, change, combination, consolidation, merger, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding shall have the
right to convert such Security into the kind and amount of shares of stock
and other securities and property (including cash) receivable upon such
reclassification, change, combination, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock deliverable
upon conversion of such Security immediately prior to such
reclassification, change, combination, consolidation, merger, sale or
conveyance. Such supplemental indenture shall provide for adjustments of
the Conversion Price which shall be as nearly equivalent as may be
practicable to the adjustments of the Conversion Price provided for in this
Article 4. If, in the case of any such consolidation, merger, combination,
sale or conveyance, the stock or other securities and property (including
cash) receivable thereupon by a holder of Common Stock include shares of
stock or other securities and property of a person other than the
successor, purchasing or transferee corporation, as the case may be, in
such consolidation, merger, combination, sale or conveyance, then such
supplemental indenture shall also be executed by such other person and
shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors shall reasonably
consider necessary by reason of the foregoing. The provisions of this
Section 4.11 shall similarly apply to successive reclassifications,
changes, combinations, consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 4.11, the Company shall promptly file with the
Trustee (x) an Officers' Certificate briefly stating the reasons therefor,
the kind or amount of shares of stock or other securities or property
(including cash) receivable by Holders of the Securities upon the
conversion of their Securities after any such reclassification, change,
combination, consolidation, merger, sale or conveyance, any adjustment to
be made with respect thereto and that all conditions precedent have been
complied with and (y) an Opinion of Counsel that all conditions precedent
have been complied with, and shall promptly mail notice thereof to all
Holders.
Section 4.12 Trustee's Disclaimer.
The Trustee shall have no duty to determine when an adjustment
under this Article 4 should be made, how it should be made or what such
adjustment should be, but may accept as conclusive evidence of that fact or
the correctness of any such adjustment, and shall be protected in relying
upon, an Officers' Certificate including the Officers' Certificate with
respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 4.9. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company's
failure to comply with any provisions of this Article 4.
The Trustee shall not be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
executed pursuant to Section 4.11, but may accept as conclusive evidence of
the correctness thereof, and shall be fully protected in relying upon, the
Officers' Certificate with respect thereto which the Company is obligated
to file with the Trustee pursuant to Section 4.11.
Section 4.13 Voluntary Reduction.
The Company from time to time may reduce the Conversion Price
by any amount for any period of time if the period is at least 20 days and
if the reduction is irrevocable during the period if the Board of Directors
determines that such reduction would be in the best interest of the Company
and the Company provides 15 days prior notice of any reduction in the
Conversion Price; provided, however, that in no event may the Company
reduce the Conversion Price to be less than the par value of a share of
Common Stock.
ARTICLE 5
SUBORDINATION
Section 5.1 Agreement of Subordination.
The Company covenants and agrees, and each Holder of Securities
issued hereunder by its acceptance thereof likewise covenants and agrees,
that all Securities shall be issued subject to the provisions of this
Article 5; and each Person holding any Security, whether upon original
issue or upon transfer, assignment or exchange thereof, accepts and agrees
to be bound by such provisions.
The payment of the principal of, premium, if any, and interest
(including Liquidated Damages, if any) on all Securities (including, but
not limited to, the redemption price with respect to the Securities called
for redemption or the Change in Control Purchase Price with respect to the
Securities subject to purchase in accordance with Article 3 as provided in
this Indenture) issued hereunder, and any other payment with respect to the
Securities, shall, to the extent and in the manner hereinafter set forth,
be subordinated and subject in right of payment to the prior payment in
full in cash or payment satisfactory to the holders of Senior Indebtedness
of all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article 5 shall prevent the occurrence of
any default or Event of Default hereunder.
Section 5.2 Payments to Holders.
No payment shall be made with respect to the principal of, or
premium, if any, or interest (including Liquidated Damages, if any) on the
Securities (including, but not limited to, the redemption price with
respect to the Securities to be called for redemption or the Change in
Control Purchase Price with respect to the Securities subject to purchase
in accordance with Article 3 as provided in this Indenture or any other
purchase or acquisition with respect to the Securities), or any other
payment with respect to the Securities, except payments and distributions
made by the Trustee as permitted by the first or second paragraph of
Section 5.5, if:
(i) a default in the payment of principal, premium, interest,
rent or other obligations due on any Designated Senior Indebtedness occurs
and is continuing (or, in the case of Designated Senior Indebtedness for
which there is a period of grace, in the event of such a default that
continues beyond the period of grace, if any, specified in the instrument
or lease evidencing such Designated Senior Indebtedness), unless and until
such default shall have been cured or waived or shall have ceased to exist;
or
(ii) a default, other than a default referred to in clause (i)
of this Section 5.2, on a Designated Senior Indebtedness occurs and is
continuing that then permits holders of such Designated Senior Indebtedness
to accelerate its maturity and the Trustee receives a notice of the default
(a "Payment Blockage Notice") from a Representative or holder of Designated
Senior Indebtedness.
Subject to the provisions of Section 5.5, 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 at least 365 days shall have elapsed since the
initial effectiveness of the immediately prior Payment Blockage Notice. No
nonpayment default that existed or was continuing on the date of delivery
of any Payment Blockage Notice to the Trustee (unless such default was
waived, cured or otherwise ceased to exist and thereafter subsequently
reoccurred) 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:
(a) the date upon which the default is cured or waived or
ceases to exist, or
(b) in the case of a default referred to in clause (ii) above,
179 days pass after a Payment Blockage Notice is received, unless this
Article 5 otherwise prohibits the payment or distribution at the time of
such payment or distribution.
Upon any payment by the Company, or distribution of assets of
the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or liquidation
or reorganization of the Company (whether voluntary or involuntary) or in
bankruptcy, insolvency, receivership or similar proceedings, all amounts
due or to become due upon all Senior Indebtedness shall first be paid in
full in cash, or other payments satisfactory to the holders of Senior
Indebtedness, before any payment is made on account of the principal of,
premium, if any, or interest (including Liquidated Damages, if any) on the
Securities (including, but not limited to, the redemption price with
respect to the Securities called for redemption or the Change in Control
Purchase Price with respect to the Securities subject to purchase in
accordance with Article 3 as provided in this Indenture, but excluding
payments made pursuant to Article 10 from monies deposited with the Trustee
pursuant thereto prior to commencement of proceedings for such dissolution,
winding-up, liquidation or reorganization), or any other payment with
respect to the Securities; and upon any such dissolution or winding-up or
liquidation or reorganization of the Company or bankruptcy, insolvency,
receivership or other proceeding, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders of the Securities or the
Trustee would be entitled, except for the provision of this Article 5,
shall (except as aforesaid) be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making
such payment or distribution, or by the Holders of the Securities or by the
Trustee under this Indenture if received by them or it, directly to the
holders of Senior Indebtedness (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness held by such holders, or as
otherwise required by law or a court order) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary
to pay all Senior Indebtedness in full in cash, or other payment
satisfactory to the holders of Senior Indebtedness, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the Holders of
the Securities or to the Trustee.
For purposes of this Article 5, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article 5 with respect to the Securities to the payment of all Senior
Indebtedness which may at the time be outstanding; provided that (i) the
Senior Indebtedness is assumed by the new corporation, if any, resulting
from any reorganization or readjustment, and (ii) the rights of the holders
of Senior Indebtedness (other than leases which are not assumed by the
Company or the new corporation, as the case may be) are not, without the
consent of such Holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article 7 shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section
5.2 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in
Article 7.
In the event of the acceleration of 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 (including Liquidated Damages, if any) on the
Securities (including, but not limited to, the redemption price with
respect to the Securities called for redemption or the Change in Control
Purchase Price with respect to the Securities subject to purchase in
accordance with Article 3 as provided in this Indenture), except payments
and distributions made by the Trustee as permitted by the first or second
paragraph of Section 5.5, until all Senior Indebtedness has been paid in
full in cash or other payment satisfactory to the holders of Senior
Indebtedness or such acceleration is rescinded in accordance with the terms
of this Indenture. If payment of the Securities is accelerated because of
an Event of Default, the Company shall promptly notify holders of Senior
Indebtedness of such acceleration.
In the event that, notwithstanding the foregoing provisions,
any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (including, without
limitation, by way of setoff or otherwise), prohibited by the foregoing,
shall be received by the Trustee or the Holders of the Securities before
all Senior Indebtedness is paid in full, in cash or other payment
satisfactory to the holders of Senior Indebtedness, or provision is made
for such payment thereof in accordance with its terms in cash or other
payment satisfactory to the holders of Senior Indebtedness, such payment or
distribution shall be held in trust for the benefit of and shall be paid
over or delivered to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all
Senior Indebtedness in full, in cash or other payment satisfactory to the
holders of Senior Indebtedness, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness.
Nothing in this Section 5.2 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 9.7. This Section 5.2
shall be subject to the further provisions of Section 5.5.
Section 5.3 Subrogation of Securities.
Subject to the payment in full, in cash or other payment
satisfactory to the holders of Senior Indebtedness, of all Senior
Indebtedness, the rights of the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the
holders of such Senior Indebtedness pursuant to the provisions of this
Article 5 (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to other indebtedness of
the Company to substantially the same extent as the Securities are
subordinated and is entitled to like rights of subrogation) to the rights
of the holders of Senior Indebtedness to receive payments or distributions
of cash, property or securities of the Company applicable to the Senior
Indebtedness until the principal, premium, if any, and interest (including
Liquidated Damages, if any) on the Securities, and any other obligation
with respect to the Securities, shall be paid in full in cash or other
payment satisfactory to the holders of Senior Indebtedness; and, for the
purposes of such subrogation, no payments or distributions to the holders
of the Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article 5, and no payment over pursuant to the
provisions of this Article 5, to or for the benefit of the holders of
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as
between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment
by the Company to or on account of the Senior Indebtedness; and no payments
or distributions of cash, property or securities to or for the benefit of
the Holders of the Securities pursuant to the subrogation provisions of
this Article 5, which would otherwise have been paid to the holders of
Senior Indebtedness shall be deemed to be a payment by the Company to or
for the account of the Securities. It is understood that the provisions of
this Article 5 are and are intended solely for the purposes of defining the
relative rights of the Holders of the Securities, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article 5 or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness, and
the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and
when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article 5 of the holders of
Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article 5, the Trustee, subject to the provisions of
Section 9.1, and the Holders of the Securities shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in
which such bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of
the Securities, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable
thereon and all other facts pertinent thereto or to this Article 5.
Section 5.4 Authorization to Effect Subordination.
Each Holder of a Security by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
as provided in this Article 5 and appoints the Trustee to act as the
Holder's attorney-in-fact for any and all such purposes. If the Trustee
does not file a proper proof of claim or proof of debt in the form required
in any proceeding referred to in Section 5.3 hereof at least 30 days before
the expiration of the time to file such claim, the holders of any Senior
Indebtedness or their representatives are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Securities.
Section 5.5 Notice to Trustee.
The Company shall give prompt written notice in the form of an
Officers' Certificate to a Trust Officer of the Trustee and to any Paying
Agent of any fact known to the Company which would prohibit the making of
any payment of monies to or by the Trustee or any Paying Agent in respect
of the Securities pursuant to the provisions of this Article 5.
Notwithstanding the provisions of this Article 5 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 of
monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article 5, unless and until a Trust Officer of the
Trustee shall have received written notice thereof at the Corporate Trust
Office from the Company (in the form of an Officers' Certificate) or a
Representative or a Holder or Holders of Senior Indebtedness or from any
trustee thereof; and before the receipt of any such written notice, the
Trustee, shall be entitled in all respects to assume that no such facts
exist; provided that if on a date not fewer than one Business Day prior to
the date upon which by the terms hereof any such monies may become payable
for any purpose (including, without limitation, the payment of the
principal of, or premium, if any, or interest on any Security) the Trustee
shall not have received, with respect to such monies, the notice provided
for in this Section 5.5, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may
be received by it on or after such prior date. Notwithstanding anything in
this Article 5 to the contrary, nothing shall prevent any payment by the
Trustee to the Holders of monies deposited with it pursuant to Article 10,
and any such payment shall not be subject to the provisions of Article 5.
The Trustee, subject to the provisions of Section 9.1, shall be
entitled to rely on the delivery to it of a written notice by a
Representative or a person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a Representative or a holder of Senior
Indebtedness or a trustee on behalf of any such holder or holders. 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
Indebtedness to participate in any payment or distribution pursuant to this
Article 5, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 5, 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 5.6 Trustee's Relation to Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article 5 in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder
of Senior Indebtedness, and nothing in Section 9.11 or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 5, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and, subject to the provisions of Section 9.1, the Trustee
shall not be liable to any holder of Senior Indebtedness if it shall pay
over or deliver to Holders of Securities, the Company or any other person
money or assets to which any holder of Senior Indebtedness shall be
entitled by virtue of this Article 5 or otherwise.
Section 5.7 No Impairment of Subordination.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Section 5.8 Certain Conversions Deemed Payment.
For the purposes of this Article 5 only, (1) the issuance and
delivery of junior securities upon conversion of Securities in accordance
with Article 4 shall not be deemed to constitute a payment or distribution
on account of the principal of (or premium, if any) or interest on
Securities or on account of the purchase or other acquisition of
Securities, and (2) the payment, issuance or delivery of cash (except in
satisfaction of fractional shares pursuant to Section 4.3), property or
securities (other than junior securities) upon conversion of a Security
shall be deemed to constitute payment on account of the principal of such
Security. For the purposes of this Section 5.8, the term "junior
securities" means (a) shares of any stock of any class of the Company, or
(b) securities of the Company which are subordinated in right of payment to
all Senior Indebtedness 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 5 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 Indebtedness and the Holders,
the right, which is absolute and unconditional, of the Holder of any
Security to convert such Security in accordance with Article 4.
Section 5.9 Article Applicable to Paying Agents.
If 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 (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 the first paragraph of Section 5.5 shall not apply
to the Company or any Affiliate of the Company if it or such Affiliate acts
as Paying Agent.
Section 5.10 Senior Indebtedness Entitled to Rely.
The holders of Senior Indebtedness (including, without
limitation, Designated Senior Indebtedness) and their representatives shall
have the right to rely upon this Article 5, and no provision contained
herein may be amended, supplemented or otherwise modified without the prior
written consent of such holders or their representatives in accordance with
the documents governing the terms of such Senior Indebtedness.
ARTICLE 6
COVENANTS
Section 6.1 Payment of Securities.
The Company shall promptly make all payments in respect of the
Securities on the dates and in the manner provided in the Securities and
this Indenture. An installment of principal or interest or Liquidated
Damages, if any, shall be considered paid on the date it is due if the
Paying Agent (other than the Company) holds by 11:00 a.m., New York City
time, on that date money, deposited by the Company or an Affiliate thereof,
sufficient to pay the installment. The Company shall, to the fullest extent
permitted by law, pay interest on overdue principal (including premium, if
any) and overdue installments of interest at the rate borne by the
Securities per annum.
Payment of the principal of (and premium, if any) and any
interest on the Securities shall be made at the Corporate Trust Office of
the Trustee in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address appears in the Register; provided further that a
Holder with an aggregate principal amount in excess of $2,000,000 will be
paid by wire transfer in immediately available funds at the election of
such Holder.
Section 6.2 SEC Reports.
The Company shall file all reports and other information and
documents which it is required to file with the SEC pursuant to Section 13
or 15(d) of the Exchange Act, and within 15 days after it files them with
the SEC, the Company shall file copies of all such reports, information and
other documents with the Trustee.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
Section 6.3 Compliance Certificates.
The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company (beginning with the fiscal year
ending June 30, 2001), an Officers' Certificate as to the signer's
knowledge of the Company's compliance with all conditions and covenants on
its part contained in this Indenture and stating whether or not the signer
knows of any default or Event of Default. If such signer knows of such a
default or Event of Default, the Officers' Certificate shall describe the
default or Event of Default and the efforts to remedy the same. For the
purposes of this Section 6.3, compliance shall be determined without regard
to any grace period or requirement of notice provided pursuant to the terms
of this Indenture.
Section 6.4 Further Instruments and Acts.
Upon request of the Trustee, the Company will execute and
deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes
of this Indenture.
Section 6.5 Maintenance of Corporate Existence.
Subject to Article 7, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence.
Section 6.6 Rule 144A Information Requirement.
Within the period prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or
any successor provision), the Company covenants and agrees that it shall,
during any period in which it is not subject to Section 13 or 15(d) under
the Exchange Act, make available to any Holder or beneficial holder of
Securities or any Common Stock issued upon conversion thereof which
continue to be Restricted Securities in connection with any sale thereof
and any prospective purchaser of Securities or such Common Stock designated
by such Holder or beneficial holder, the information required pursuant to
Rule 144A(d)(4) under the Securities Act upon the request of any Holder or
beneficial holder of the Securities or such Common Stock and it will take
such further action as any Holder or beneficial holder of such Securities
or such Common Stock may reasonably request, all to the extent required
from time to time to enable such Holder or beneficial holder to sell its
Securities or Common Stock without registration under the Securities Act
within the limitation of the exemption provided by Rule 144A, as such Rule
may be amended from time to time. Upon the request of any Holder or any
beneficial holder of the Securities or such Common Stock, the Company will
deliver to such Holder a written statement as to whether it has complied
with such requirements.
Section 6.7 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law or other law which would prohibit or forgive the Company from
paying all or any portion of the principal of, premium, if any, or interest
(including Liquidated Damages, if any) on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which
may affect the covenants or the performance of this Indenture, and the
Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not, by
resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 6.8 Payment of Liquidated Damages.
If Liquidated Damages are payable by the Company pursuant to
the Registration Rights Agreement, the Company shall deliver to the Trustee
a certificate to that effect stating (i) the amount of such Liquidated
Damages that is payable and (ii) the date on which such Liquidated Damages
are payable. Unless and until a Trust Officer of the Trustee receives such
a certificate, the Trustee may assume without inquiry that no such
Liquidated Damages are payable. If the Company has paid Liquidated Damages
directly to the Persons entitled to it, the Company shall deliver to the
Trustee a certificate setting forth the particulars of such payment.
ARTICLE 7
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 7.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person (in a transaction in which the Company is not the surviving
corporation) or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge into
another Person (in a transaction in which the Company is not the surviving
corporation) or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation,
limited liability company, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium 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 and the conversion rights shall
be provided for in accordance with Article 4, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee,
by the Person (if other than the Company) formed by such consolidation or
into which the Company shall have been merged or by the Person which shall
have acquired the Company's assets;
(2) 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
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 7.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in
accordance with Section 7.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE 8
DEFAULT AND REMEDIES
Section 8.1 Events of Default.
An "Event of Default" shall occur if:
(1) the Company defaults in the payment of any interest or
Liquidated Damages, if any, payable to all holders of Registrable
Securities (as defined in the Registration Rights Agreement) on any
Security when the same becomes due and payable and the default continues
for a period of 30 days, whether or not such payment shall be prohibited by
the provisions of Article 5 hereof;
(2) the Company defaults in the payment of any principal of
(including, without limitation, any premium, if any, on) any Security when
the same becomes due and payable (whether at maturity, upon redemption, on
a Change of Control Purchase Date or otherwise), whether or not such
payment shall be prohibited by the provisions of Article 5 hereof;
(3) the Company fails to comply with any of its other
agreements contained in the Securities or this Indenture and the default
continues for the period and after the notice specified below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against
it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property; or
(iv) makes a general assignment for the benefit of its
creditors; or
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary
case or proceeding;
(ii) appoints a Custodian of the Company or for all or
substantially all of the property of the Company; or
(iii) orders the liquidation of the Company;
and in each case the order or decree remains unstayed and in
effect for 60 days.
The term "Bankruptcy Law" means Title 11 of the United States
Code (or any successor thereto) or any similar federal or state law for the
relief of debtors. The term "Custodian" means any receiver, trustee,
assignee, liquidator, sequestrator or similar official under any Bankruptcy
Law.
A default under clause (3) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding notify the
Company and the Trustee, of the default, and the Company does not cure the
default within 60 days after receipt of such notice. The notice given
pursuant to this Section 8.1 must specify the default, demand that it be
remedied and state that the notice is a "Notice of Default." When any
default under this Section 8.1 is cured, it ceases.
The Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a Trust
Officer at the Corporate Trust Office of the Trustee by the Company, a
Paying Agent, any Holder or any agent of any Holder.
Section 8.2 Acceleration.
If an Event of Default (other than an Event of Default
specified in clause (4) or (5) of Section 8.1) occurs and is continuing,
the Trustee may, by notice to the Company, or the Holders of at least 25%
in aggregate principal amount of the Securities then outstanding may, by
notice to the Company and the Trustee, declare all unpaid principal on the
Securities then outstanding (if not then due and payable) to be due and
payable upon any such declaration, and the same shall become and be
immediately due and payable. If an Event of Default specified in clause (4)
or (5) of Section 8.1 occurs, all unpaid principal of the Securities then
outstanding shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holder. The Holders of a majority in aggregate principal amount of the
Securities then outstanding by notice to the Trustee may rescind an
acceleration and its consequences if (a) all existing Events of Default,
other than the nonpayment of the principal of the Securities which has
become due solely by such declaration of acceleration, have been cured or
waived; (b) to the extent the payment of such interest is lawful, interest
(calculated at the rate per annum borne by the Securities) on overdue
installments of interest and overdue principal, which has become due
otherwise than by such declaration of acceleration, has been paid; (c) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; and (d) all payments due to the Trustee and any
predecessor Trustee under Section 9.7 have been made. No such rescission
shall affect any subsequent default or impair any right consequent thereto.
Section 8.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may, but shall not be obligated to, pursue any available remedy by
proceeding at law or in equity to collect the payment of the principal of
or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
Section 8.4 Waiver of Defaults and Events of Default.
Subject to Sections 8.7 and 11.2, the Holders of a majority in
principal amount of the Securities then outstanding by notice to the
Trustee may waive an existing default or Event of Default and its
consequence, except a default or Event of Default in the payment of the
principal of or interest on any Security, a failure by the Company to
convert any Securities into Common Stock or any default or Event of Default
in respect of any provision of this Indenture or the Securities which,
under Section 11.2, cannot be modified or amended without the consent of
the Holder of each Security affected. When a default or Event of Default is
waived, it is cured and ceases.
Section 8.5 Control By Majority.
The Holders of a majority in principal amount of the Securities
then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Holder or the
Trustee, or that may involve the Trustee in personal liability unless the
Trustee is offered indemnity satisfactory to it; provided, however, that
the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 8.6 Limitations on Suits.
A Holder may not pursue any remedy with respect to this
Indenture or the Securities (except actions for payment of overdue
principal or interest or for the conversion of the Securities pursuant to
Article 4) unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee reasonable
indemnity to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; 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 Securities then outstanding.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
such other Securityholder.
Section 8.7 Rights of Holders to Receive Payment and to Convert.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of the principal of
and interest on the Security, on or after the respective due dates
expressed in the Security and this Indenture, to convert such Security in
accordance with Article 4 and to bring suit for the enforcement of any such
payment on or after such respective dates or the right to convert, is
absolute and unconditional and shall not be impaired or affected without
the consent of the Holder.
Section 8.8 Collection Suit By Trustee.
If an Event of Default in the payment of principal or interest
specified in clause (1) or (2) of Section 8.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the Company or another obligor on the Securities for the
whole amount of principal and accrued interest remaining unpaid, together
with, to the extent that payment of such interest is lawful, interest on
overdue principal and on overdue installments of interest, in each case at
the rate per annum borne by the Securities and 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.
Section 8.9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor on the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any money or other
property payable or deliverable on any such claims and to distribute the
same, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 9.7, and to the extent that such payment of the reasonable
compensation, expenses, disbursements and advances in any such proceedings
shall be denied for any reason, payment of the same shall be secured by a
lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other property which the Holders may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to, or on behalf
of any Holder, to authorize, accept or adopt any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 8.10 Priorities.
If the Trustee collects any money pursuant to this Article 8,
it shall pay out the money in the following order:
First, to the Trustee for amounts due under Section 9.7;
Second, to the holders of Senior Indebtedness to the extent
required by Article 5;
Third, to Holders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Fourth, to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 8.10.
Section 8.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 8.11 does not
apply to a suit made by the Trustee, a suit by a Holder pursuant to Section
8.7, or a suit by Holders of more than 10% in principal amount of the
Securities then outstanding.
ARTICLE 9
TRUSTEE
Section 9.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no others; and
(2) 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. The Trustee, however, shall examine any
certificates and opinions which by any provision hereof are
specifically required to be delivered to the Trustee to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of
subsection (b) of this Section 9.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 8.5.
(d) 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 of its duties hereunder or in the exercise of any of
its rights or powers unless the Trustee shall have received adequate
indemnity in its opinion against potential costs and liabilities incurred
by it relating thereto.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to subsections (a), (b), (c) and (d) of this
Section 9.1.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 9.2 Rights of Trustee.
Subject to Section 9.1:
(a) The Trustee may rely conclusively on any document believed
by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 12.4(b). The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Certificate or
Opinion.
(c) The Trustee may act through its agents and shall not be
responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be full
and complete authorization and protection in respect of any such action
taken, omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction.
(g) 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, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation.
(h) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer of the Trustee has
actual knowledge thereof or unless written notice from the Company or the
Holders of at least 25% of the Securities of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office,
and such notice references the Securities and this Indenture.
(i) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder.
Section 9.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company
or an Affiliate of the Company with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 9.10 and 9.11.
Section 9.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable
for the Company's use of the proceeds from the Securities, and it shall not
be responsible for any statement in the Securities other than its
certificate of authentication.
Section 9.5 Notice of Default or Events of Default.
If a default or an Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the default or Event of Default within 90 days
after it occurs. However, the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding notice is in the interests of Securityholders, except in the
case of a default or an Event of Default in payment of the principal of or
interest on any Security.
Section 9.6 Reports By Trustee To Holders.
If such report is required by TIA Section 313, within 60 days
after each May 15, beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report
dated as of such May 15 that complies with TIA Section 313(a). The Trustee
also shall comply with TIA Section 313(b)(2) and (c).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the SEC and
each stock exchange, if any, on which the Securities are listed. The
Company shall notify the Trustee whenever the Securities become listed on
any stock exchange or listed or admitted to trading on any quotation system
and any changes in the stock exchanges or quotation systems on which the
Securities are listed or admitted to trading and of any delisting thereof.
Section 9.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation (as agreed to from time to time by the Company and the Trustee
in writing) for its services (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust). The Company shall reimburse the Trustee upon request for
all reasonable, actual disbursements, expenses and advances incurred or
made by it. Such expenses may include the reasonable, actual compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee or any predecessor
Trustee (which for purposes of this Section 9.7 shall include its officers,
directors, employees and agents) for, and hold it harmless against, any and
all loss, liability or expense including taxes (other than taxes based
upon, measured by or determined by the income of the Trustee), (including
reasonable legal fees and expenses) incurred by it in connection with the
acceptance or administration of its duties under this Indenture or any
action or failure to act as authorized or within the discretion or rights
or powers conferred upon the Trustee hereunder including the reasonable
costs and expenses of the Trustee and its counsel in defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity. The Company need not pay for any settlement
without its written consent, which shall not be unreasonably withheld.
The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it resulting from
its gross negligence or bad faith.
To secure the Company's payment obligations in this Section
9.7, the Trustee shall have a senior claim to which the Securities are
hereby made subordinate on all money or property held or collected by the
Trustee, except such money or property held in trust to pay the principal
of and interest on the Securities. The obligations of the Company under
this Section 9.7 shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (4) or (5) of Section 8.1 occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law. The provisions of this
Section shall survive the termination of this Indenture.
Section 9.8 Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders
of a majority in principal amount of the Securities then outstanding may
remove the Trustee by so notifying the Trustee and may, with the Company's
written consent, appoint a successor Trustee. The Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 9.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. The resignation or removal of a Trustee shall not be
effective until a successor Trustee shall have delivered the written
acceptance of its appointment as described below.
If a successor Trustee does not take office within 45 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of 10% in principal amount of the Securities then
outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee at the expense of the Company.
If the Trustee fails to comply with Section 9.10, any Holder
may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee and be released from its obligations
(exclusive of any liabilities that the retiring Trustee may have incurred
while acting as Trustee) hereunder, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture.
A successor Trustee shall mail notice of its succession to each Holder.
A retiring Trustee shall not be liable for the acts or
omissions of any successor Trustee after its succession.
Notwithstanding replacement of the Trustee pursuant to this
Section 9.8, the Company's obligations under Section 9.7 shall continue for
the benefit of the retiring Trustee.
Section 9.9 Successor Trustee By Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets (including
the administration of this Indenture) to, another corporation, the
resulting, surviving or transferee corporation, without any further act,
shall be the successor Trustee, provided such transferee corporation shall
qualify and be eligible under Section 9.10. Such successor Trustee shall
promptly mail notice of its succession to the Company and each Holder.
Section 9.10 Eligibility; Disqualification.
The Trustee shall always satisfy the requirements of paragraphs
(1), (2) and (5) of TIA Section 310(a). The Trustee (or its parent holding
company) shall have a combined capital and surplus of at least $50,000,000.
If at any time the Trustee shall cease to satisfy any such requirements, it
shall resign immediately in the manner and with the effect specified in
this Article 9. The Trustee shall be subject to the provisions of TIA
Section 310(b). Nothing herein shall prevent the Trustee from filing with
the SEC the application referred to in the penultimate paragraph of TIA
Section 310(b).
Section 9.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE
Section 10.1 Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or exchange
of Securities herein expressly provided for and except as further provided
below), and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture, when
(1) either
(i) all Securities 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
2.7 and (ii) Securities for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company as provided
in Section 10.3) have been delivered to the Trustee for cancellation;
or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at the Final
Maturity Date within one year, or
(iii) 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 clause (i), (ii) or
(iii) above, has irrevocably deposited or caused to be
irrevocably deposited with the Trustee or a Paying Agent (other
than the Company or any of its Affiliates) as trust funds in
trust for the purpose cash in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the
Final Maturity Date 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; 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.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 9.7
shall survive and, if money shall have been deposited with the Trustee
pursuant to clause (1) of this Section, the provisions of Sections 2.3,
2.4, 2.5, 2.6, 2.7, 2.12, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13 and 12.5,
Article 4, the last paragraph of Section 6.2 and this Article 10, shall
survive until the Securities have been paid in full.
Section 10.2 Application of Trust Money.
Subject to the provisions of Section 10.3, the Trustee or a
Paying Agent shall hold in trust, for the benefit of the Holders, all money
deposited with it pursuant to Section 10.1 and shall apply the deposited
money in accordance with this Indenture and the Securities to the payment
of the principal of and interest on the Securities. Money so held in trust
shall not be subject to the subordination provisions of Article 5.
Section 10.3 Repayment To Company.
The Trustee and each Paying Agent shall promptly pay to the
Company upon request any excess money (i) deposited with them pursuant to
Section 10.1 and (ii) held by them at any time.
The Trustee and each Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest
that remains unclaimed for two years after a right to such money has
matured; provided, however, that the Trustee or such Paying Agent, before
being required to make any such payment, may at the expense of the Company
cause to be mailed to each Holder entitled to such money notice that such
money remains unclaimed and that after a date specified therein, which
shall be at least 30 days from the date of such mailing, any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to money must look to the Company
for payment as general creditors.
Section 10.4 Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money
in accordance with Section 10.2 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to
Section 10.1 until such time as the Trustee or such Paying Agent is
permitted to apply all such money in accordance with Section 10.2;
provided, however, that if the Company has made any payment of the
principal of or interest on any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the
Holders of such Securities to receive any such payment from the money held
by the Trustee or such Paying Agent.
ARTICLE 11
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 11.1 Without Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture or the Securities without notice to or consent of any
Securityholder:
(a) to comply with Sections 4.11 and 7.1;
(b) to cure any ambiguity, defect or inconsistency;
(c) to make any other change that does not adversely effect the
rights of any Securityholder;
(d) to comply with the provisions of the TIA; or
(e) to appoint a successor Trustee.
Section 11.2 With Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture or the Securities with the written consent of the Holders of at
least a majority in aggregate principal amount of the Securities then
outstanding. The Holders of at least a majority in aggregate principal
amount of the Securities then outstanding may waive compliance in a
particular instance by the Company with any provision of this Indenture or
the Securities without notice to any Securityholder. However,
notwithstanding the foregoing but subject to Section 11.4, without the
written consent of each Securityholder affected, an amendment, supplement
or waiver, including a waiver pursuant to Section 8.4, may not:
(a) extend the stated maturity of the principal of, or interest
on, any Security;
(b) reduce the principal amount of, or any premium or interest
on, any Security;
(c) reduce the amount of principal payable upon acceleration of
the maturity of any Security;
(d) change the place or currency of payment of principal of, or
any premium or interest on, any Security;
(e) impair the right to institute suit for the enforcement of
any payment on, or with respect to, any Security;
(f) adversely affect the right of Holders to convert Securities
other than as provided in or under Section 4 of this Indenture;
(g) reduce the percentage of the aggregate principal amount of
the outstanding Securities whose Holders must consent to a modification or
amendment;
(h) reduce the percentage of the aggregate principal amount of
the outstanding Securities necessary for the waiver of compliance with
certain provisions of this Indenture or the waiver of certain defaults
under this Indenture; and
(i) modify any of the provisions of this Section or Section
8.4, except to increase any such percentage or to provide that certain
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby.
It shall not be necessary for the consent of the Holders under
this Section 11.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section
11.2 becomes effective, the Company shall mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver.
Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amendment, supplement or waiver. An amendment or supplement under this
Section 11.2 or under Section 11.1 may not make any change that adversely
affects the rights under Article 5 of any holder of an issue of Senior
Indebtedness unless the holders of that issue, pursuant to its terms,
consent to the change.
Section 11.3 Compliance With Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as in effect at the date of such
amendment or supplement.
Section 11.4 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the
consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to its Security or portion of a Security
if the Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any
of clauses (a) through (j) of Section 11.2. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented
to it and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security.
Section 11.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it
to the Trustee. The Trustee may place an appropriate notation on the
Security about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms.
Section 11.6 Trustee To Sign Amendments, Etc.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 11 if the amendment or supplemental
indenture does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, in its sole
discretion, but need not sign it. In signing or refusing to sign such
amendment or supplemental indenture, the Trustee shall be entitled to
receive and, subject to Section 9.1, shall be fully protected in relying
upon, an Opinion of Counsel stating that such amendment or supplemental
indenture is authorized or permitted by this Indenture. The Company may not
sign an amendment or supplemental indenture until the Board of Directors
approves it.
ARTICLE 12
MISCELLANEOUS
Section 12.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by any of Sections 310 to 317, inclusive,
of the TIA through operation of Section 318(c) thereof, such imposed duties
shall control.
Section 12.2 Notices.
Any notice, request or communication shall be given in writing
and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows: If to the Company:
The BISYS Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Trustee:
Chase Manhattan Trust Company, National Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
Such notices or communications shall be effective when
received.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be
mailed by first-class mail to it at its address shown on the register kept
by the Primary Registrar.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication to a Securityholder is mailed
in the manner provided above, it is duly given, whether or not the
addressee receives it.
Section 12.3 Communications By Holders With Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, the Registrar and
any other person shall have the protection of TIA Section 312(c).
Section 12.4 Certificate and Opinion as to Conditions Precedent.
(a) Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall furnish
to the Trustee at the request of the Trustee:
(1) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent (including any covenants,
compliance with which constitutes a condition precedent), if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent (including any covenants,
compliance with which constitutes a condition precedent) have been
complied with.
(b) Each Officers' Certificate and Opinion of Counsel with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that the person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of
public officials.
Section 12.5 Record Date for Vote or Consent of Securityholders.
The Company (or, in the event deposits have been made pursuant
to Section 10.1, the Trustee) may set a record date for purposes of
determining the identity of Holders entitled to vote or consent to any
action by vote or consent authorized or permitted under this Indenture,
which record date shall not be more than thirty (30) days prior to the date
of the commencement of solicitation of such action. Notwithstanding the
provisions of Section 11.4, if a record date is fixed, those persons who
were Holders of Securities at the close of business on such record date (or
their duly designated proxies), and only those persons, shall be entitled
to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be Holders after
such record date.
Section 12.6 Rules By Trustee, Paying Agent, Registrar and Conversion Agent.
The Trustee may make reasonable rules (not inconsistent with
the terms of this Indenture) for action by or at a meeting of Holders. Any
Registrar, Paying Agent or Conversion Agent may make reasonable rules for
its functions.
Section 12.7 Legal Holidays.
A "Legal Holiday" is a Saturday, Sunday or a day on which state
or federally chartered banking institutions in New York, New York and the
state in which the Corporate Trust Office is located are not required to be
open. If a payment date is a Legal Holiday, payment shall be made on the
next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal
Holiday, the record shall not be affected.
Section 12.8 Governing Law.
This Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York, without
regard to principles of conflicts of laws.
Section 12.9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary of the Company. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 12.10 No Recourse Against Others.
All liability described in paragraph 18 of the Securities of
any director, officer, employee or shareholder, as such, of the Company is
waived and released.
Section 12.11 Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 12.12 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them
together represent the same agreement.
Section 12.13 Separability.
In case any provisions in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 12.14 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands as of the date and year first above written.
THE BISYS GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. Dell
---------------------------------
Name: ▇▇▇▇▇ ▇. Dell
Title: Executive Vice President
CHASE MANHATTAN TRUST
COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
[FORM OF FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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 THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE
AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.]1
[THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT
OF 1933 (THE "SECURITIES ACT"), AND THIS SECURITY AND THE SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.]2
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (III)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.]2
[THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A
REGISTRATION RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO
BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS
AGREEMENT.]2
---------------
1 This paragraph should be included only if the Security is a Global Security.
2 These paragraphs to be included only if the Security is a Transfer
Restricted Security.
THE BISYS GROUP, INC.
CUSIP: 055 472 AA2 R-____________
4% CONVERTIBLE SUBORDINATED NOTES DUE 2006
The BISYS Group, Inc., a Delaware corporation (the "Company",
which term shall include any successor corporation under the Indenture
referred to on the reverse hereof), promises to pay to
__________________________, or registered assigns, the principal sum of
_____________________________ Dollars ($__________) on March 15, 2006 [or
such greater or lesser amount as is indicated on the Schedule of Exchanges
of Notes on the other side of this Note].3
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
This Note is convertible as specified on the other side of this
Note. Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
THE BISYS GROUP, INC.
By:
---------------------------------
Name:
Title
Attest:
By:
---------------------------------
Name:
Title:
Dated:
------------------------
Trustee's Certificate of Authentication: This is one of the
Securities referred to in the within-mentioned Indenture.
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
--------------------------------
Authorized Signatory
By:
---------------------------------
----------------------
3 This phrase should be included only if the Security is a Global Security.
[FORM OF REVERSE SIDE OF SECURITY]
THE BISYS GROUP, INC.
4% CONVERTIBLE SUBORDINATED NOTES DUE 2006
1. INTEREST
The BISYS Group, Inc. a Delaware corporation (the "Company",
which term shall include any successor corporation under the Indenture
hereinafter referred to), promises to pay interest on the principal amount
of this Note at the rate of 4% per annum. The Company shall pay interest
semiannually on March 15 and September 15 of each year, commencing
September 15, 2001. Interest on the Notes shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
March 13, 2001; provided, however, that if there is not an existing default
in the payment of interest and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding interest
payment date, interest shall accrue from such interest payment date.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Any reference herein to interest accrued or payable as of any date
shall include any Liquidated Damages accrued or payable on such date as
provided in the Registration Rights Agreement.
2. METHOD OF PAYMENT
The Company shall pay interest on this Note (except defaulted
interest) to the person who is the Holder of this Note at the close of
business on March 1 or September 1, as the case may be, next preceding the
related interest payment date. The Holder must surrender this Note to a
Paying Agent to collect payment of principal. The Company will pay
principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. The
Company may, however, pay principal and interest in respect of any
Certificated Security by check or wire payable in such money; provided,
however, that a Holder with an aggregate principal amount in excess of
$2,000,000 will be paid by wire transfer in immediately available funds at
the election of such Holder. The Company may mail an interest check to the
Holder's registered address. Notwithstanding the foregoing, so long as this
Note is registered in the name of a Depositary or its nominee, all payments
hereon shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee.
3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT
Initially, Chase Manhattan Trust Company, National Association,
(the "Trustee," which term shall include any successor trustee under the
Indenture hereinafter referred to) will act as Paying Agent, Registrar and
Conversion Agent. The Company may change any Paying Agent, Registrar or
Conversion Agent without notice to the Holder. The Company or any of its
Subsidiaries may, subject to certain limitations set forth in the
Indenture, act as Paying Agent or Registrar.
4. INDENTURE, LIMITATIONS
This Note is one of a duly authorized issue of Securities of
the Company designated as its 4% Convertible Subordinated Notes due March
15, 2006 (the "Notes"), issued under an Indenture dated as of March 13,
2001 (together with any supplemental indentures thereto, the "Indenture"),
between the Company and the Trustee. The terms of this Note include those
stated in the Indenture and those required by or made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended, as in effect
on the date of the Indenture. This Note is subject to all such terms, and
the Holder of this Note is referred to the Indenture and said Act for a
statement of them.
The Notes are subordinated unsecured obligations of the Company
limited to $300.0 million aggregate principal amount, subject to Section
2.2 of the Indenture. The Indenture does not limit other debt of the
Company, secured or unsecured, including Senior Indebtedness.
5. OPTIONAL REDEMPTION
The Notes are subject to redemption, at any time on or after
March 20, 2004, on at least 20 days and no more than 60 days notice, in
whole or in part, at the election of the Company. The Redemption Prices
(expressed as percentages of the principal amount) are as follows for Notes
redeemed during the periods set forth below:
PERIOD REDEMPTION PRICE
------ ----------------
March 20, 2004 through March 14, 2005................. 101.000%
March 15, 2005 and thereafter......................... 100.000%
in each case together with accrued interest up to but not including the
Redemption Date; provided that if the redemption date is an interest
payment date, interest will be payable to the Holders in whose names the
Notes are registered at the close of business on the relevant record dates.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at
least 20 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part, but only in whole
multiples of $1,000. On and after the Redemption Date, subject to the
deposit with the Paying Agent of funds sufficient to pay the Redemption
Price plus accrued interest, if any, accrued to, but excluding, the
Redemption Date, interest shall cease to accrue on Notes or portions of
them called for redemption.
7. PURCHASE OF NOTES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
At the option of the Holder and subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase
all or any part specified by the Holder (so long as the principal amount of
such part is $1,000 or an integral multiple of $1,000 in excess thereof) of
the Notes held by such Holder on the date that is 30 Business Days after
the occurrence of a Change in Control, at a purchase price equal to 100% of
the principal amount thereof together with accrued interest up to, but
excluding, the Change in Control Purchase Date. The Holder shall have the
right to withdraw any Change in Control Purchase Notice (in whole or in a
portion thereof that is $1,000 or an integral multiple of $1,000 in excess
thereof) at any time prior to the close of business on the Business Day
next preceding the Change in Control Purchase Date by delivering a written
notice of withdrawal to the Paying Agent in accordance with the terms of
the Indenture.
8. CONVERSION
A Holder of a Note may convert the principal amount of such
Note (or any portion thereof equal to $1,000 or any integral multiple of
$1,000 in excess thereof) into shares of Common Stock at any time prior to
the close of business on March 15, 2006; provided, however, that if the
Note is called for redemption or subject to purchase upon a Change in
Control, the conversion right will terminate at the close of business on
the Business Day immediately preceding the redemption date or the Change in
Control Purchase Date, as the case may be, for such Note or such earlier
date as the Holder presents such Note for redemption or purchase (unless
the Company shall default in making the redemption payment or Change in
Control Purchase Price, as the case may be, when due, in which case the
conversion right shall terminate at the close of business on the date such
default is cured and such Note is redeemed or purchased).
The initial Conversion Price is $66.7875 per share, subject to
adjustment under certain circumstances. The number of shares of Common
Stock issuable upon conversion of a Note is determined by dividing the
principal amount of the Note or portion thereof converted by the Conversion
Price in effect on the Conversion Date. No fractional shares will be issued
upon conversion; in lieu thereof, an amount will be paid in cash based upon
the closing price (as defined in the Indenture) of the Common Stock on the
Trading Day immediately prior to the Conversion Date.
To convert a Note, a Holder must (a) complete and manually sign
the conversion notice set forth below and deliver such notice to a
Conversion Agent, (b) surrender the Note to a Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by a Registrar
or a Conversion Agent, and (d) pay any transfer or similar tax, if
required. Notes so surrendered for conversion (in whole or in part) during
the period from the close of business on any regular record date to the
opening of business on the next succeeding interest payment date (excluding
Notes or portions thereof called for redemption or subject to purchase upon
a Change in Control on a Redemption Date or Change in Control Purchase
Date, as the case may be, during the period beginning at the close of
business on a regular record date and ending at the opening of business on
the first Business Day after the next succeeding interest payment date, or
if such interest payment date is not a Business Day, the second such
Business Day) shall also be accompanied by payment in funds acceptable to
the Company of an amount equal to the interest payable on such interest
payment date on the principal amount of such Note then being converted, and
such interest shall be payable to such registered Holder notwithstanding
the conversion of such Note, subject to the provisions of this Indenture
relating to the payment of defaulted interest by the Company. If the
Company defaults in the payment of interest payable on such interest
payment date, the Company shall promptly repay such funds to such Holder. A
Holder may convert a portion of a Note equal to $1,000 or any integral
multiple thereof.
A Note in respect of which a Holder had delivered a Change in
Control Purchase Notice exercising the option of such Holder to require the
Company to purchase such Note may be converted only if the Change in
Control Purchase Notice is withdrawn in accordance with the terms of the
Indenture.
9. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Notes called for redemption, unless surrendered for
conversion before the close of business on the Business Day immediately
preceding the Redemption Date, may be deemed to be purchased from the
Holders of such Notes at an amount not less than the Redemption Price,
together with accrued interest, if any, to, but not including, the
Redemption Date, by one or more investment bankers or other purchasers who
may agree with the Company to purchase such Notes from the Holders, to
convert them into Common Stock of the Company and to make payment for such
Notes to the Paying Agent in trust for such Holders.
10. SUBORDINATION
The indebtedness evidenced by the Notes is, to the extent and
in the manner provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full in cash of all Senior Indebtedness.
Any Holder by accepting this Note agrees to and shall be bound by such
subordination provisions and authorizes the Trustee to give them effect. In
addition to all other rights of Senior Indebtedness described in the
Indenture, the Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions irrespective
of any amendment, modification or waiver of any terms of any instrument
relating to the Senior Indebtedness or any extension or renewal of the
Senior Indebtedness.
11. DENOMINATIONS, TRANSFER, EXCHANGE
The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. A Holder may
register the transfer of or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any
taxes or other governmental charges that may be imposed in relation thereto
by law or permitted by the Indenture.
12. PERSONS DEEMED OWNERS
The Holder of a Note may be treated as the owner of it for all
purposes.
13. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Company at its written request. After that, Holders entitled to
money must look to the Company for payment.
14. AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding, and an existing
default or Event of Default and its consequence or compliance with any
provision of the Indenture or the Notes may be waived in a particular
instance with the consent of the Holders of a majority in principal amount
of the Notes then outstanding. Without the consent of or notice to any
Holder, the Company and the Trustee may amend or supplement the Indenture
or the Notes to, among other things, cure any ambiguity, defect or
inconsistency or make any other change that does not adversely affect the
rights of any Holder.
15. SUCCESSOR CORPORATION
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture in accordance with the terms
and conditions of the Indenture, the predecessor corporation will (except
in certain circumstances specified in the Indenture) be released from those
obligations.
16. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default includes: (i) default
for 30 days in payment of any interest on any Notes; (ii) default in
payment of any principal (including, without limitation, any premium, if
any) on the Notes when due; (iii) failure by the Company for 60 days after
notice to it to comply with any of its other agreements contained in the
Indenture or the Notes; and (iv) certain events of bankruptcy, insolvency
or reorganization of the Company. If an Event of Default (other than as a
result of certain events of bankruptcy, insolvency or reorganization of the
Company) occurs and is continuing, the Trustee or the Holders of at least
25% in principal amount of the Notes then outstanding may declare all
unpaid principal to the date of acceleration on the Notes then outstanding
to be due and payable immediately, all as and to the extent provided in the
Indenture. If an Event of Default occurs as a result of certain events of
bankruptcy, insolvency or reorganization of the Company, unpaid principal
of the Notes then outstanding shall become due and payable immediately
without any declaration or other act on the part of the Trustee or any
Holder, all as and to the extent provided in the Indenture. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of a
majority in principal amount of the Notes then outstanding may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold
from Holders notice of any continuing default (except a default in payment
of principal or interest) if it determines that withholding notice is in
their interests. The Company is required to file periodic reports with the
Trustee as to the absence of default.
17. TRUSTEE DEALINGS WITH THE COMPANY
Chase Manhattan Trust Company, National Association, the
Trustee under the Indenture, in its individual or any other capacity, may
make loans to, accept deposits from and perform services for the Company or
an Affiliate of the Company, and may otherwise deal with the Company or an
Affiliate of the Company, as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Notes or the Indenture nor for any claim based on, in respect of
or by reason of such obligations or their creation. The Holder of this Note
by accepting this Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of this Note.
19. AUTHENTICATION
This Note shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on
the other side of this Note.
20. ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and
not as tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to
Minors Act).
All terms defined in the Indenture and used in this Note but
not specifically defined herein are defined in the Indenture and are used
herein as so defined.
21. INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this Note
and the Indenture, the provisions of the Indenture shall control. This Note
shall be governed by, and construed in accordance with, the laws of the
State of New York, without regard to principles of conflicts of law.
The Company will furnish to any Holder, upon written request
and without charge, a copy of the Indenture. Requests may be made to: The
BISYS Group, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Associate General Counsel.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
-----------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
-----------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
Date:
------------------- ------------------------------------
(Sign exactly as your name appears
on the other side of this Note)
*Signature guaranteed by:
By:
---------------------------------------
* The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guaranty programs: (i)
the Securities Transfer Agent Medallion Program (STAMP); (ii) the New
York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange
Medallion Program (SEMP); or (iv) such other guaranty program
acceptable to the Trustee.
CONVERSION NOTICE
To convert this Note into Common Stock of the Company, check the
box: ( )
To convert only part of this Note, state the principal amount to be
converted (must be $1,000 or a multiple of $1,000): $____________.
If you want the stock certificate made out in another person's name, fill
in the form below:
----------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
Your Signature:
Date:
------------------- ------------------------------------
(Sign exactly as your name appears
on the other side of this Note)
*Signature guaranteed by:
By:
-------------------------
* The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guaranty programs: (i)
the Securities Transfer Agent Medallion Program (STAMP); (ii) the New
York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange
Medallion Program (SEMP); or (iv) such other guaranty program
acceptable to the Trustee.
OPTION TO ELECT REPURCHASE UPON A CHANGE OF CONTROL
To: The BISYS Group, Inc.
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from The BISYS Group, Inc. (the "Company")
as to the occurrence of a Change in Control with respect to the Company and
requests and instructs the Company to redeem the entire principal amount of
this Security, or the portion thereof (which is $1,000 or an integral
multiple thereof) below designated, in accordance with the terms of the
Indenture referred to in this Security at the Change in Control Purchase
Price, together with accrued interest to, but excluding, such date, to the
registered Holder hereof.
Dated:
--------------------------- ------------------------------
------------------------------
Signature(s)
Signature(s) must be
guaranteed by a qualified
guarantor institution with
membership in an approved
signature guarantee program
pursuant to Rule 17Ad-15
under the Securities
Exchange Act of 1934.
------------------------------
Signature Guaranty
Principal amount to be redeemed
(in an integral multiple of
$1,000, if less than all):
-----------------------------------
NOTICE: The signature to the foregoing Election must correspond to the Name
as written upon the face of this Security in every particular, without
alteration or any change whatsoever.
SCHEDULE OF EXCHANGES OF NOTES(4)
The following exchanges, redemptions, repurchases or conversions of a
part of this global Note have been made:
PRINCIPAL AMOUNT OF
THIS GLOBAL NOTE
FOLLOWING SUCH AUTHORIZED AMOUNT OF DECREASE AMOUNT OF INCREASE
DECREASE DATE OF SIGNATORY OF IN PRINCIPAL IN PRINCIPAL
EXCHANGE (OR SECURITIES AMOUNT OF THIS AMOUNT OF THIS
INCREASE) CUSTODIAN GLOBAL NOTE GLOBAL NOTE
------------------- ------------- ------------------ ------------------
----------------
4 This schedule should be included only if the Security is a Global Security.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF TRANSFER RESTRICTED SECURITIES5
Re: 4% Convertible Subordinated Notes due 2006 (the "Notes") of
The BISYS Group, Inc.
This certificate relates to $_______ principal amount of
Notes owned in (check applicable box)
( ) book-entry or ( ) definitive form by ____________________ (the
"Transferor").
The Transferor has requested a Registrar or the Trustee to exchange
or register the transfer of such Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with
transfer restrictions relating to the Notes as provided in Section 2.12 of
the Indenture dated as of March 13, 2001 between The BISYS Group, Inc. and
Chase Manhattan Trust Company, National Association (the "Indenture"), and
the transfer of such Note is being made pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act") (check applicable box) or the transfer or exchange, as
the case may be, of such Note does not require registration under the
Securities Act because (check applicable box):
( ) Such Note is being transferred pursuant to an effective registration
statement under the Securities Act.
( ) Such Note is being acquired for the Transferor's own account,
without transfer.
( ) Such Note is being transferred to the Company or a Subsidiary (as
defined in the Indenture) of the Company.
( ) Such Note is being transferred to a person the Transferor reasonably
believes is a "qualified institutional buyer" (as defined in Rule
144A or any successor provision thereto ("Rule 144A") under the
Securities Act) that is purchasing for its own account or for the
account of a "qualified institutional buyer", in each case to whom
notice has been given that the transfer is being made in reliance on
such Rule 144A, and in each case in reliance on Rule 144A.
( ) Such Note is being transferred pursuant to and in compliance with an
exemption from the registration requirements under the Securities Act
in accordance with Rule 144 (or any successor thereto) ("Rule 144")
under the Securities Act.
( ) Such Note is being transferred pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act
(other than an exemption referred to above) and as a result of which
such Note will, upon such transfer, cease to be a "restricted
security" within the meaning of Rule 144 under the Securities Act.
The Transferor acknowledges and agrees that, if the transferee will
hold any such Notes in the form of beneficial interests in a global Note
which is a "restricted security" within the meaning of Rule 144 under the
Securities Act, then such transfer can only be made pursuant to Rule 144A
under the Securities Act and such transferee must be a "qualified
institutional buyer" (as defined in Rule 144A).
Date:
------------------------- ----------------------------------
(Insert Name of Transferor)
-----------------
5 This certificate should only be included if this Security is a Transfer
Restricted Security.