EXHIBIT 99.1
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AMDOCS LIMITED,
AS ISSUER
AND
THE BANK OF NEW YORK,
AS TRUSTEE
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INDENTURE
DATED AS OF
MARCH 5, 2004
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0.50% CONVERTIBLE SENIOR NOTES DUE 2024
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS
Section 1.01. Definitions............................................................................1
ARTICLE 2 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01. Designation Amount And Issue Of Notes..................................................7
Section 2.02. Form of Notes..........................................................................8
Section 2.03. Date And Denomination Of Notes; Payments Of Interest...................................8
Section 2.04. Execution of Notes....................................................................10
Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer..............10
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes............................................16
Section 2.07. Temporary Notes.......................................................................17
Section 2.08. Cancellation of Notes.................................................................17
Section 2.09. CUSIP Numbers.........................................................................17
ARTICLE 3 REDEMPTION AND REPURCHASE OF NOTES
Section 3.01. Redemption of Notes...................................................................17
Section 3.02. Notice of Optional Redemption; Selection of Notes.....................................18
Section 3.03. Payment of Notes Called For Redemption by the Company.................................19
Section 3.04. [RESERVED]............................................................................20
Section 3.05. Repurchase at Option of Holders Upon a Designated Event...............................20
Section 3.06. Repurchase of Notes by the Company at Option of the Holder............................23
Section 3.07. Company Repurchase Notice.............................................................24
Section 3.08. Effect of Repurchase Notice...........................................................25
Section 3.09. Deposit of Repurchase Price...........................................................26
Section 3.10. Notes Repurchased in Part.............................................................26
Section 3.11. Repayment to the Company..............................................................26
Section 3.12. Conditions to the Company's Election to Pay the Designated Event
Repurchase Price or the Repurchase Price in Ordinary Shares...........................27
ARTICLE 4 [RESERVED]
ARTICLE 5 PARTICULAR COVENANTS OF THE COMPANY
Section 5.01. Payment of Principal and Interest.....................................................28
Section 5.02. Maintenance of Office or Agency.......................................................28
Section 5.03. Appointments to Fill Vacancies in Trustee's Office....................................28
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Section 5.04. Provisions as to Paying Agent.........................................................28
Section 5.05. Existence.............................................................................29
Section 5.06. Maintenance of Properties.............................................................30
Section 5.07. Payment of Taxes and Other Claims.....................................................30
Section 5.08. Rule 144A Information Requirement.....................................................30
Section 5.09. Stay, Extension and Usury Laws........................................................30
Section 5.10. Compliance Certificate................................................................31
Section 5.11. Additional Interest Notice............................................................31
ARTICLE 6 NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 6.01. Noteholders' Lists....................................................................31
Section 6.02. Preservation And Disclosure Of Lists..................................................32
Section 6.03. Reports By Trustee....................................................................32
Section 6.04. Reports by Company....................................................................32
ARTICLE 7 REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
Section 7.01. Events Of Default.....................................................................33
Section 7.02. Payments of Notes on Default; Suit Therefor...........................................35
Section 7.03. Application of Monies Collected By Trustee............................................36
Section 7.04. Proceedings by Noteholder.............................................................36
Section 7.05. Proceedings By Trustee................................................................37
Section 7.06. Remedies Cumulative And Continuing....................................................37
Section 7.07. Direction of Proceedings and Waiver of Defaults By Majority of Noteholders............38
Section 7.08. Notice of Defaults....................................................................38
Section 7.09. Undertaking To Pay Costs..............................................................38
ARTICLE 8 THE TRUSTEE
Section 8.01. Duties and Responsibilities of Trustee................................................39
Section 8.02. Reliance on Documents, Opinions, Etc..................................................40
Section 8.03. No Responsibility For Recitals, Etc...................................................41
Section 8.04. Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes..................41
Section 8.05. Monies to Be Held in Trust............................................................42
Section 8.06. Compensation and Expenses of Trustee..................................................42
Section 8.07. Officers' Certificate As Evidence.....................................................42
Section 8.08. Conflicting Interests of Trustee......................................................42
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Section 8.09. Eligibility of Trustee................................................................43
Section 8.10. Resignation or Removal of Trustee.....................................................43
Section 8.11. Acceptance by Successor Trustee.......................................................44
Section 8.12. Succession By Merger..................................................................44
Section 8.13. Preferential Collection of Claims.....................................................45
Section 8.14. Trustee's Application For Instructions From The Company...............................45
Section 8.15. Appointment of Co-Trustee.............................................................45
Section 8.16. Force Majeure.........................................................................46
ARTICLE 9 THE NOTEHOLDERS
Section 9.01. Action By Noteholders.................................................................47
Section 9.02. Proof of Execution by Noteholders.....................................................47
Section 9.03. Who Are Deemed Absolute Owners........................................................47
Section 9.04. Company-owned Notes Disregarded.......................................................47
Section 9.05. Revocation Of Consents, Future Holders Bound..........................................48
ARTICLE 10 MEETINGS OF NOTEHOLDERS
Section 10.01. Purpose Of Meetings...................................................................48
Section 10.02. Call Of Meetings By Trustee...........................................................48
Section 10.03. Call Of Meetings By Company Or Noteholders............................................49
Section 10.04. Qualifications For Voting.............................................................49
Section 10.05. Regulations...........................................................................49
Section 10.06. Voting................................................................................50
Section 10.07. No Delay Of Rights By Meeting.........................................................50
ARTICLE 11 SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Noteholders................................50
Section 11.02. Supplemental Indenture With Consent Of Noteholders....................................51
Section 11.03. Effect Of Supplemental Indenture......................................................52
Section 11.04. Notation On Notes.....................................................................53
Section 11.05. Evidence Of Compliance Of Supplemental Indenture To Be Furnished To Trustee...........53
ARTICLE 12 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.01. Company May Consolidate On Certain Terms..............................................53
Section 12.02. Successor To Be Substituted...........................................................53
Section 12.03. Opinion Of Counsel To Be Given To Trustee.............................................54
ARTICLE 13 SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01. Discharge Of Indenture................................................................54
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Section 13.02. Deposited Monies To Be Held In Trust By Trustee.......................................55
Section 13.03. Paying Agent To Repay Monies Held.....................................................55
Section 13.04. Return Of Unclaimed Monies............................................................55
Section 13.05. Reinstatement.........................................................................55
ARTICLE 14 IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture And Notes Solely Corporate Obligations......................................55
ARTICLE 15 CONVERSION OF NOTES
Section 15.01. Right To Convert......................................................................56
Section 15.02. Exercise Of Conversion Privilege; Issuance Of Ordinary Shares On Conversion...........58
Section 15.03. Cash Payments in Lieu of Fractional Shares............................................60
Section 15.04. Conversion Rate.......................................................................60
Section 15.05. Adjustment Of Conversion Rate.........................................................60
Section 15.06. Effect Of Reclassification, Consolidation, Merger or Sale.............................68
Section 15.07. Taxes On Shares Issued................................................................69
Section 15.08. Reservation of Shares, Shares to Be Fully Paid; Compliance With
Governmental Requirements; Listing of Ordinary Shares.................................69
Section 15.09. Responsibility Of Trustee.............................................................70
Section 15.10. Notice To Holders Prior To Certain Actions............................................70
Section 15.11. Shareholder Rights Plans..............................................................71
ARTICLE 16 MISCELLANEOUS PROVISIONS
Section 16.01. Provisions Binding On Company's Successors............................................71
Section 16.02. Official Acts By Successor Corporation................................................71
Section 16.03. Addresses For Notices, Etc............................................................71
Section 16.04. Governing Law.........................................................................72
Section 16.05. Evidence Of Compliance With Conditions Precedent, Certificates To Trustee.............72
Section 16.06. Legal Holidays........................................................................72
Section 16.07. Trust Indenture Act...................................................................72
Section 16.08. No Security Interest Created..........................................................73
Section 16.09. Benefits Of Indenture.................................................................73
Section 16.10. Table Of Contents, Headings, Etc......................................................73
Section 16.11. Authenticating Agent..................................................................73
Section 16.12. Execution In Counterparts.............................................................74
Section 16.13. Severability..........................................................................74
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Section 16.14. Submission to Jurisdiction; Appointment of Agent.....................................74
Exhibit A Form of Note.........................................................................A-1
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INDENTURE
INDENTURE dated as of March 5, 2004, between Amdocs Limited, a
company organized under the laws of the Island of Guernsey (hereinafter called
the "Company"), and The Bank of New York, a New York banking corporation, as
trustee hereunder (hereinafter called the "Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issuance from time to time of its 0.50% Convertible Senior
Notes due 2024 (hereinafter called the "Notes"), up to such aggregate principal
amount or amounts as may from time to time be authorized in accordance with the
terms of this Indenture, and to provide the terms and conditions upon which the
Notes are to be authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, the Notes, the certificate of authentication to be
borne by the Notes, a form of assignment, a form of Designated Event repurchase
notice, a form of repurchase notice and a form of conversion notice to be borne
by the Notes are to be substantially in the forms hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute this Indenture a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized,
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Notes are, and are to be, authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the Notes by
the holders thereof, the Company covenants and agrees with the Trustee for the
equal and proportionate benefit of the respective holders from time to time of
the Notes (except as otherwise provided below), as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section
1.01 (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture that are defined in the Trust
Indenture Act or which are by reference therein defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise
requires) shall have the respective meanings assigned to such terms in the Trust
Indenture Act and in the Securities Act as in force at the date of the execution
of this Indenture. The words "herein", "hereof", "hereunder" and words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other Subdivision. The terms defined in this Article include
the plural as well as the singular.
"Additional Interest" shall mean the Additional Interest
Amounts or the Liquidated Damages Amounts, as applicable, each as defined in
Section 2(e) of the Registration Rights Agreement.
"Additional Interest Notice" has the meaning specified in
Section 5.11.
"Adjustment Event" has the meaning specified in Section
15.05(l).
"Agent Members" has the meaning specified in Section 2.05(b).
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Board of Directors" means the Board of Directors of the
Company or a committee of such Board duly authorized to act for it hereunder.
"Business Day" means any day except a Saturday, Sunday or
legal holiday on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close.
"Closing Sale Price" of the Ordinary Shares on any date means
the closing sale price per share (or, if no closing sale price is reported, the
average of the closing bid and ask prices or, if more than one in either case,
the average of the average closing bid and the average closing ask prices) on
such date as reported in composite transactions for the principal United States
securities exchange on which Ordinary Shares are traded or, if the Ordinary
Shares are not listed on a United States national or regional securities
exchange, as reported by the Nasdaq National Market or by the National Quotation
Bureau Incorporated. In the absence of such quotations, the Company shall be
entitled to determine the Closing Sale Price on the basis it considers
appropriate, and such determination shall be conclusive for all purposes hereof.
The Closing Sale Price shall be determined without reference to extended or
after hours trading.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the corporation named as the "Company" in the
first paragraph of this Indenture, and, subject to the provisions of Article 12
and Section 15.06, shall include its successors and assigns.
"Company Repurchase Notice" has the meaning specified in
Section 3.07(b).
"Company Repurchase Notice Date" has the meaning specified in
Section 3.07(b).
"Conversion Date" has the meaning specified in Section 15.02.
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"Conversion Notice" has the meaning specified in Section
15.02.
"Conversion Price" as of any day will equal $1,000 divided by
the Conversion Rate as of such date and rounded to the nearest cent. The
Conversion Price shall initially be $43.12 per Ordinary Share.
"Conversion Rate" has the meaning specified in Section 15.04.
"Corporate Trust Office" or other similar term, means the
designated office of the Trustee at which at any particular time its corporate
trust business as it relates to this Indenture shall be administered, which
office is, at the date as of which this Indenture is dated, located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Current Market Price" has the meaning specified in Section
15.05(h).
"Custodian" means The Bank of New York, as custodian with
respect to the Notes in global form, or any successor entity thereto.
"Default" means any event that is, or after notice or passage
of time, or both, would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section
2.03.
"Depositary" means, the clearing agency registered under the
Exchange Act that is designated to act as the Depositary for the Global Notes.
The Depository Trust Company shall be the initial Depositary, until a successor
shall have been appointed and become such pursuant to the applicable provisions
of this Indenture, and thereafter, "Depositary" shall mean or include such
successor.
"Designated Event" shall mean any Fundamental Change or a
Termination of Trading.
"Designated Event Expiration Time" has the meaning specified
in Section 3.05(b).
"Designated Event Notice" has the meaning specified in Section
3.05(b).
"Designated Event Repurchase Date" has the meaning specified
in Section 3.05(a).
"Designated Event Repurchase Price" has the meaning specified
in Section 3.05(a).
"Determination Date" has the meaning specified in Section
15.05(l).
"Event of Default" means any event specified in Section 7.01
as an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as in effect from
time to time.
"Ex-Dividend Time" has the meaning specified in Section
15.01(b).
3
"Expiration Time" has the meaning specified in Section
15.05(f).
"Fair Market Value" has the meaning specified in Section
15.05(h).
"Fiscal Quarter" means, with respect to the Company, the
first, second, third and fourth quarter of any fiscal year ending on December
31, March 31, June 30 and September 30, respectively.
"Fundamental Change" means the occurrence of any transaction
or event (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or
otherwise) in connection with which all or substantially all of the Ordinary
Shares shall be exchanged for, converted into, acquired for or constitute solely
the right to receive, consideration that is not all or substantially all common
stock (or comparable equity security of a non-U.S. entity) that is, or which
will be upon consummation of or immediately following such transaction or event,
listed on a United States national securities exchange or approved (or, upon
consummation of or immediately following such transaction or event, which will
be approved) for quotation on the Nasdaq National Market or any similar United
States system of automated dissemination of quotations of securities prices.
"Global Note" has the meaning specified in Section 2.02.
"Indenture" means this instrument as originally executed or,
if amended or supplemented as herein provided, as so amended or supplemented.
"Initial Purchasers" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
(each an "Initial Purchaser").
"Interest" means, when used with reference to the Notes, any
interest payable under the terms of the Notes, including (i) Additional Amounts,
to the extent specified in the Note and (ii) Additional Interest, if any,
payable under the terms of the Registration Rights Agreement.
"Measurement Period" has the meaning specified in Section
15.01(a).
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc. (or its
successors).
"Non-electing share" has the meaning specified in Section
15.06.
"Note" or "Notes" means any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
"Noteholder" or "holder" as applied to any Note, or other
similar terms (but excluding the term "Beneficial Holder"), means any Person in
whose name at the time a particular Note is registered on the Note Registrar's
books.
"Note Register" has the meaning specified in Section 2.05.
"Note Registrar" has the meaning specified in Section 2.05.
"Notice Date" means the date of mailing of the notice of
redemption pursuant to Section 3.02.
"Offer Expiration Time" has the meaning specified in Section
15.05(g).
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"Offeror Purchased Shares" has the meaning specified in
Section 15.05(g).
"Officers' Certificate", when used with respect to the
Company, means a certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the Chief Executive Officer, the President or any Vice
President (whether or not designated by a number or numbers or word or words
added before or after the title "Vice President") and the Treasurer or any
Assistant Treasurer, or the Secretary or Assistant Secretary of the Company.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company.
"Ordinary Shares" means the ordinary shares of any class of
the Company that has no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Company and that is not subject to redemption by the Company. Subject
to the provisions of Section 15.06, however, shares issuable on conversion of
Notes shall include only shares of the class designated as ordinary shares of
the Company at the date of this Indenture (namely, the Ordinary Shares, par
value (L0.01) or shares of any class or classes resulting from any
reclassification or reclassifications thereof and that have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and that are
not subject to redemption by the Company; provided that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable on conversion shall be substantially in the proportion that 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.
"Outstanding", when used with reference to Notes and subject
to the provisions of Section 9.04, means, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, (i) for the redemption of
which monies in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Company) or
(ii) which shall have been otherwise discharged in accordance with
Article 13;
(c) Notes in lieu of which, or in substitution for which,
other Notes shall have been authenticated and delivered pursuant to the
terms of Section 2.06; and
(d) Notes converted into Ordinary Shares pursuant to Article
15 and Notes deemed not outstanding pursuant to Article 3.
"Person" means a corporation, an association, a partnership, a
limited liability company, an individual, a joint venture, a joint stock
company, a trust, an unincorporated organization or a government or an agency or
a political subdivision thereof.
"Portal Market" means The Portal Market operated by the
National Association of Securities Dealers, Inc. or any successor thereto.
5
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note, and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.06 in exchange for a mutilated Note
or in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated lost, destroyed or stolen Note that it replaces.
"Purchased Shares" has the meaning specified in Section
15.05(f).
"Record Date" has the meaning specified in Section 15.05(h).
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March 5, 2004, between the Company and the Initial
Purchasers, as amended from time to time in accordance with its terms.
"Repurchase Date" has the meaning specified in Section 3.06.
"Repurchase Notice" has the meaning specified in Section 3.06.
"Repurchase Price" has the meaning specified in Section 3.06.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Securities" has the meaning specified in Section
2.05(c).
"Rule 144A" means Rule 144A as promulgated under the
Securities Act.
"Securities" has the meaning specified in Section 15.05(d).
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"Significant Subsidiary" means, as of any date of
determination, a Subsidiary of the Company that would constitute a "significant
subsidiary" as such term is defined under Rule 1-02(w) of Regulation S-X of the
Commission as in effect on the date of this Indenture.
"Standard & Poor's" means Standard & Poor's Rating Services
(or its successors).
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of capital stock or other equity interest entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other subsidiaries
of that Person (or a combination thereof) and (ii) any partnership (a) the sole
general partner or managing general partner of which is such Person or a
subsidiary of such Person or (b) the only general partners of which are such
Person or of one or more subsidiaries of such Person (or any combination
thereof).
6
"Termination of Trading" will be deemed to have occurred if
the Ordinary Shares (or other ordinary shares into which the Notes are then
convertible) is neither listed for trading on a United States national
securities exchange nor approved for trading on the Nasdaq National Market.
"Trading Day" has the meaning specified in Section 15.05(h).
"Trading Price" means, on any date, the average of the
secondary market bid quotations per $1,000 principal amount of Notes obtained by
the Trustee for $10,000,000 principal amount of Notes at approximately 3:30
p.m., New York City time, on such date from three independent nationally
recognized securities dealers selected by the Company; provided that if at least
three such bids cannot reasonably be obtained by the Trustee, but two such bids
are obtained, then the average of the two such bids shall be used, and if only
one such bid can reasonably be obtained by the Trustee, one bid shall be used;
provided further that if the Trustee cannot reasonably obtain at least one bid
for $10,000,000 principal amount of Notes from a nationally recognized
securities dealer, then the Trading Price per $1,000 principal amount of Notes
on such date shall be deemed to be less than 98% of the product of (a) the
Conversion Rate and (b) the Closing Sale Price on such date.
"Trigger Event" has the meaning specified in Section 15.05(d).
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as it was in force at the date of this Indenture, except as provided
in Sections 11.03 and 15.06; provided that if the Trust Indenture Act of 1939 is
amended after the date hereof, the term "Trust Indenture Act" shall mean, to the
extent required by such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means The Bank of New York and its successors and
any corporation resulting from or surviving any consolidation or merger to which
it or its successors may be a party and any successor trustee at the time
serving as successor trustee hereunder.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
Section 2.01. Designation Amount And Issue Of Notes. The Notes
shall be designated as "0.50% Convertible Senior Notes due 2024". The aggregate
principal amount of Notes that may be authenticated and delivered under this
Indenture is unlimited. The Company may, without the consent of the holders of
the Notes, from time to time, issue additional Notes under this Indenture with
the same terms and provisions and CUSIP numbers as the Notes hereby offered,
provided that no such additional Notes may be issued unless such Notes are
fungible with the Notes for United States federal income tax purposes.
The Notes upon the execution of this Indenture, or from time
to time thereafter, may be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver
said Notes to or upon the written order of the Company, signed by its Chairman
of the Board, Vice Chairman of the Board, Chief Executive Officer, President or
any Vice President (whether or not designated by a number or numbers or word or
words added before or after the title "Vice President"), the Treasurer or any
Assistant Treasurer or the Secretary or Assistant Secretary, without any further
action by the Company hereunder.
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Section 2.02. Form of Notes. The Notes and the Trustee's
certificate of authentication to be borne by such Notes shall be substantially
in the form set forth in Exhibit A. The terms and provisions contained in the
form of Note attached as Exhibit A hereto shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Any of the Notes may have such letters, numbers or other marks
of identification and such notations, legends, endorsements or changes as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. in order for the Notes to be
tradable on The Portal Market or as may be required for the Notes to be tradable
on any other market developed for trading of securities pursuant to Rule 144A or
as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed, or to conform to usage, or to indicate any special limitations or
restrictions to which any particular Notes are subject.
So long as the Notes are eligible for book-entry settlement
with the Depositary, or unless otherwise required by law, or otherwise
contemplated by Section 2.05(a), all of the Notes will be represented by one or
more Notes in global form registered in the name of the Depositary or the
nominee of the Depositary (a "Global Note"). The transfer and exchange of
beneficial interests in any such Global Note shall be effected through the
Depositary in accordance with this Indenture and the applicable procedures of
the Depositary. Except as provided in Section 2.05(a), beneficial owners of a
Global Note shall not be entitled to have certificates registered in their
names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered holders of such
Global Note.
Any Global Note shall represent such of the outstanding Notes
as shall be specified therein and shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be increased or reduced to reflect redemptions, repurchases,
conversions, transfers or exchanges permitted hereby. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in such manner and upon instructions
given by the holder of such Notes in accordance with this Indenture. Payment of
principal of and Interest on any Global Note shall be made to the holder of such
Note.
Section 2.03. Date And Denomination Of Notes; Payments Of
Interest. The Notes shall be issuable in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof. Each
Note shall be dated the date of its authentication and shall bear Interest from
the date specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be computed on the basis of a 360-day year comprised
of twelve 30-day months.
The Person in whose name any Note (or its Predecessor Note) is
registered on the Note Register at the close of business on any record date with
respect to any interest payment date shall be entitled to receive the Interest
payable on such interest payment date, except that the Interest payable upon
redemption or repurchase will be payable to the Person to whom principal
8
is payable pursuant to such redemption or repurchase (unless the redemption date
or the repurchase date, as the case may be, falls after a record date and on or
prior to the corresponding interest payment date, in which case accrued and
unpaid Interest to, but excluding, such redemption date or repurchase date shall
be payable on such interest payment date to the holders of such Notes registered
as such on the applicable record date).
Notwithstanding the foregoing, if any Note (or portion
thereof) is converted into Ordinary Shares during the period after a record date
for the payment of Interest to, but prior to the next succeeding interest
payment date and such Note (or portion thereof) has been called or tendered for
redemption on a redemption date which occurs during such period, the Company
shall not be required to pay interest on such interest payment date in respect
of any such Note (or portion thereof). Interest shall be payable at the office
of the Company maintained by the Company for such purposes in the Borough of
Manhattan, City of New York, which shall initially be an office or agency of the
Trustee. The Company shall pay Interest (i) on any Notes in certificated form by
check mailed to the address of the Person entitled thereto as it appears in the
Note Register (or upon written notice, by wire transfer in immediately available
funds, if such Person is entitled to Interest on aggregate principal in excess
of $2 million) or (ii) on any Global Note by wire transfer of immediately
available funds to the account of the Depositary or its nominee. The term
"record date" with respect to any interest payment date shall mean the March 1
or September 1 preceding the applicable March 15 or September 15 interest
payment date, respectively.
Any Interest on any Note that is payable, but is not
punctually paid or duly provided for, on any March 15 or September 15 (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
Noteholder on the relevant record date by virtue of his having been such
Noteholder, and such Defaulted Interest shall be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Notes (or their
respective Predecessor 27 9 Notes) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed payment
(which shall be not less than twenty-five (25) days after the receipt
by the Trustee of such notice, unless the Trustee shall consent to an
earlier date), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Company shall fix a special record
date for the payment of such Defaulted Interest which shall be not more
than fifteen (15) days and not less than ten (10) days prior to the
date of the proposed payment, and not less than ten (10) days after the
receipt by the Trustee of the notice of the proposed payment. The
Company shall promptly notify the Trustee of such special record date
and the Trustee, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first-class postage prepaid,
to each holder at his address as it appears in the Note Register, not
less than ten (10) days prior to such special record date. Notice of
the proposed payment of such Defaulted Interest and the special record
date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Notes (or their
9
respective Predecessor Notes) are registered at the close of business
on such special record date and shall no longer be payable pursuant to
the following clause (2) of this Section 2.03.
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange or automated quotation system
on which the Notes may be listed or designated for issuance, and upon
such notice as may be required by such exchange or automated quotation
system, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Section 2.04. Execution of Notes. The Notes shall be signed in
the name and on behalf of the Company by the manual or facsimile signature of
its Chairman of the Board, Vice Chairman of the Board, Chief Executive Officer,
President or any Vice President (whether or not designated by a number or
numbers or word or words added before or after the title "Vice President"). Only
such Notes as shall bear thereon a certificate of authentication substantially
in the form set forth on the form of Note attached as Exhibit A hereto, manually
executed by the Trustee (or an authenticating agent appointed by the Trustee as
provided by Section 16.11), shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee (or
such an authenticating agent) upon any Note executed by the Company shall be
conclusive evidence that the Note so authenticated has been duly authenticated
and delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any
of the Notes shall cease to be such officer before the Notes so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Notes nevertheless may be authenticated and delivered or disposed
of as though the person who signed such Notes had not ceased to be such officer
of the Company, and any Note may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Note, shall be the
proper officers of the Company, although at the date of the execution of this
Indenture any such person was not such an officer.
Section 2.05. Exchange and Registration of Transfer of Notes;
Restrictions on Transfer. (a) The Company shall cause to be kept at the
Corporate Trust Office a register (the register maintained in such office and in
any other office or agency of the Company designated pursuant to Section 5.02
being herein sometimes collectively referred to as the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Notes and of transfers of Notes. The Note
Register shall be in written form or in any form capable of being converted into
written form within a reasonably prompt period of time. The Trustee is hereby
appointed "Note Registrar" for the purpose of registering Notes and transfers of
Notes as herein provided. The Company may appoint one or more co-registrars in
accordance with Section 5.02.
Upon surrender for registration of transfer of any Note to the
Note Registrar or any co-registrar, and satisfaction of the requirements for
such transfer set forth in this Section 2.05, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denominations and of a
like aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture.
10
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Notes to be exchanged at any such office or agency maintained by the Company
pursuant to Section 5.02. Whenever any Notes are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Notes which the Noteholder making the exchange is entitled to receive bearing
registration numbers not contemporaneously outstanding.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
All Notes presented or surrendered for registration of
transfer or for exchange, redemption, repurchase or conversion shall (if so
required by the Company or the Note Registrar) be duly endorsed, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company, duly executed by the Noteholder thereof or his
attorney duly authorized in writing.
No service charge shall be made to any holder for any
registration of, transfer or exchange of Notes, but the Company may require
payment by the holder of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes.
Neither the Company nor the Trustee nor any Note Registrar
shall be required to exchange or register a transfer of (a) any Notes for a
period of fifteen (15) days next preceding any selection of Notes to be
redeemed, (b) any Notes or portions thereof called for redemption pursuant to
Section 3.02, (c) any Notes or portions thereof surrendered for conversion
pursuant to Article 15, (d) any Notes or portions thereof tendered for
repurchase (and not withdrawn) pursuant to Section 3.05 or (e) any Notes or
portions thereof tendered for repurchase (and not withdrawn) pursuant to Section
3.06.
(b) The following provisions shall apply only to Global
Notes:
(i) Each Global Note authenticated under this
Indenture shall be registered in the name of the Depositary or a
nominee thereof and delivered to such Depositary or a nominee thereof
or Custodian therefor, and each such Global Note shall constitute a
single Note for all purposes of this Indenture.
(ii) Notwithstanding any other provision in this
Indenture, no Global Note may be exchanged in whole or in part for
Notes registered, and no transfer of a Global Note in whole or in part
may be registered, in the name of any Person other than the Depositary
or a nominee thereof unless (A) the Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary for
such Global Note and a successor depositary has not been appointed by
the Company within ninety days or (ii) has ceased to be a clearing
agency registered under the Exchange Act and a successor depositary has
not been appointed by the Company within ninety days, (B) an Event of
Default has occurred and the maturity of the Notes shall have been
accelerated in accordance with Section 7.01 and any Noteholder shall
have given written notice to the Company requesting the issuance of
definitive Notes or (C) the Company, in its sole discretion, notifies
the Trustee in writing that it no longer wishes to have all the Notes
represented by Global Notes. Any Global Note exchanged pursuant to
clause (A) or (B) above shall be so exchanged in whole and not in part
and any Global Note exchanged
11
pursuant to clause (C) above may be exchanged in whole or from time to
time in part as directed by the Company. Any Note issued in exchange
for a Global Note or any portion thereof shall be a Global Note;
provided that any such Note so issued that is registered in the name of
a Person other than the Depositary or a nominee thereof shall not be a
Global Note.
(iii) Securities issued in exchange for a Global Note
or any portion thereof pursuant to clause (ii) above shall be issued in
definitive, fully registered form, without interest coupons, shall have
an aggregate principal amount equal to that of such Global Note or
portion thereof to be so exchanged, shall be registered in such names
and be in such authorized denominations as the Depositary shall
designate and shall bear any legends required hereunder. Any Global
Note to be exchanged in whole shall be surrendered by the Depositary to
the Trustee, as Note Registrar. With regard to any Global Note to be
exchanged in part, either such Global Note shall be so surrendered for
exchange or, if the Trustee is acting as Custodian for the Depositary
or its nominee with respect to such Global Note, the principal amount
thereof shall be reduced, by an amount equal to the portion thereof to
be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the
Trustee shall authenticate and make available for delivery the Note
issuable on such exchange to or upon the written order of the
Depositary or an authorized representative thereof.
(iv) In the event of the occurrence of any of the
events specified in clause (ii) above, the Company will promptly make
available to the Trustee a reasonable supply of certificated Notes in
definitive, fully registered form, without interest coupons.
(v) Neither any members of, or participants in, the
Depositary ("Agent Members") nor any other Persons on whose behalf
Agent Members may act shall have any rights under this Indenture with
respect to any Global Note registered in the name of the Depositary or
any nominee thereof, and the Depositary or such nominee, as the case
may be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and holder of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary
or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an
Agent Member may act, the operation of customary practices of such
Persons governing the exercise of the rights of a holder of any Note.
(vi) At such time as all interests in a Global Note
have been redeemed, repurchased, converted, canceled or exchanged for
Notes in certificated form, such Global Note shall, upon receipt
thereof, be canceled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the
Custodian. At any time prior to such cancellation, if any interest in a
Global Note is redeemed, repurchased, converted, canceled or exchanged
for Notes in certificated form, the principal amount of such Global
Note shall, in accordance with the standing procedures and instructions
existing between the Depositary and the Custodian, be appropriately
reduced, and an endorsement shall be made on such Global Note, by the
Trustee or the Custodian, at the direction of the Trustee, to reflect
such reduction.
12
(c) Every Note that bears or is required under this Section
2.05(c) to bear the legend set forth in this Section 2.05(c) (together with any
Ordinary Shares issued upon conversion of the Notes and required to bear the
legend set forth in Section 2.05(d), collectively, the "Restricted Securities")
shall be subject to the restrictions on transfer set forth in this Section
2.05(c) (including those set forth in the legend below) unless such restrictions
on transfer shall be waived by written consent of the Company, and the holder of
each such Restricted Security, by such Note holder's acceptance thereof, agrees
to be bound by all such restrictions on transfer. As used in this Section
2.05(c), the term "transfer" encompasses any sale, pledge, loan, transfer or
other disposition whatsoever of any Restricted Security or any interest therein.
Until the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor provision),
any certificate evidencing such Note (and all securities issued in exchange
therefor or substitution thereof, other than Ordinary Shares, if any, issued
upon conversion thereof, which shall bear the legend set forth in Section
2.05(d), if applicable) shall bear a legend in substantially the following form,
unless such Note has been sold pursuant to a registration statement that has
been declared effective under the Securities Act (and that continues to be
effective at the time of such transfer) or pursuant to Rule 144 under the
Securities Act or any similar provision then in force, or unless otherwise
agreed by the Company in writing, with written notice thereof to the Trustee:
THIS SECURITY AND THE ORDINARY SHARES ("ORDINARY SHARES") OF
AMDOCS LIMITED (THE "COMPANY") ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE
ORDINARY SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE RIGHTS OF THE COMPANY AND THE WITHIN MENTIONED TRUSTEE PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES WHERE REGISTRATION OR TRANSFER
OF THIS SECURITY IS REQUIRED, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE OTHER SIDE OF THIS SECURITY COMPLETED AND
13
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE THIS LEGEND WILL BE REMOVED AFTER THE
RESALE RESTRICTION TERMINATION DATE UPON THE REQUEST OF THE HOLDER AND THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY.
Any Note (or security issued in exchange or substitution therefor
other than Ordinary Shares) as to which such restrictions on transfer shall have
expired in accordance with their terms or as to conditions for removal of the
foregoing legend set forth therein have been satisfied may, upon surrender of
such Note for exchange to the Note Registrar in accordance with the provisions
of this Section 2.05, be exchanged for a new Note or Notes, of like tenor and
aggregate principal amount, which shall not bear the restrictive legend required
by this Section 2.05(c). If the Restricted Security surrendered for exchange is
represented by a Global Note bearing the legend set forth in this Section
2.05(c), the principal amount of the legended Global Note shall be reduced by
the appropriate principal amount and the principal amount of a Global Note
without the legend set forth in this Section 2.05(c) shall be increased by an
equal principal amount. If a Global Note without the legend set forth in this
Section 2.05(c) is not then outstanding, the Company shall execute and the
Trustee shall authenticate and deliver an unlegended Global Note to the
Depositary.
(d) Until the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision), any stock certificate representing Ordinary Shares issued upon
conversion of any Note shall bear a legend in substantially the following form,
unless such Ordinary Shares have been sold pursuant to a registration statement
that has been declared effective under the Securities Act (and that continues to
be effective at the time of such transfer) or pursuant to Rule 144 under the
Securities Act or any similar provision then in force, or such Ordinary Shares
have been issued upon conversion of Notes as to which the restrictions on
transfer set forth in Section 2.05(c) shall have expired or the conditions for
removal of the legend on such Notes have been satisfied, or unless otherwise
agreed by the Company in writing with written notice thereof to the transfer
agent:
THE ORDINARY SHARES ("ORDINARY SHARES") OF AMDOCS LIMITED (THE
"COMPANY") REPRESENTED BY THIS CERTIFICATE (THIS "SECURITY") HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THIS SECURITY MAY NOT
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
14
OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHTS
OF THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT, AND IN EACH
OF THE FOREGOING CASES WHERE REGISTRATION OR TRANSFER OF THIS SECURITY
IS REQUIRED, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE COMPANY AND THE TRANSFER AGENT FOR THE ORDINARY SHARES. THIS
LEGEND WILL BE REMOVED AFTER THE RESALE RESTRICTION TERMINATION DATE
UPON THE REQUEST OF THE HOLDER AND THE DELIVERY TO THE COMPANY AND THE
TRANSFER AGENT FOR THE ORDINARY SHARES OF AN OPINION OF COUNSEL,
CERTIFICATES AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY.
Any such Ordinary Shares as to which such restrictions on transfer
shall have expired in accordance with their terms or as to which the conditions
for removal of the foregoing legend set forth therein have been satisfied may,
upon surrender of the certificates representing such Ordinary Shares for
exchange in accordance with the procedures of the transfer agent for the
Ordinary Shares, be exchanged for a new certificate or certificates for a like
number of Ordinary Shares that shall not bear the restrictive legend required by
this Section 2.05(d).
(e) Any Note or Ordinary Share issued upon the conversion of a
Note that, prior to the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor provision),
is purchased or owned by the Company or any Affiliate thereof may not be resold
by the Company or such Affiliate unless registered under the Securities Act or
resold pursuant to an exemption from the registration requirements of the
Securities Act in a transaction that results in such Notes or Ordinary Shares,
as the case may be, no longer being "Restricted Securities" (as defined under
Rule 144).
(f) The Trustee shall have no responsibility or obligation to
any Agent Members or any other Person with respect to the accuracy of the books
or records, or the acts or omissions, of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Notes or with respect to the delivery to any Agent Member or other Person (other
than the Depositary) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Notes. All notices and
communications to be given to the Noteholder and all payments to be made to
Noteholders under the Notes shall be given or made only to or upon the order of
the registered Noteholders (which shall be the Depository or its nominee in the
case of a Global Note). The rights of beneficial owners in any Global Note shall
be exercised only through the Depository subject to the customary procedures of
the Depository. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depository with respect to its Agent Members.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable
15
law with respect to any transfer of any interest in any Note (including any
transfers between or among Agent Members in any Global Note) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes. In
case any Note shall become mutilated or be destroyed, lost or stolen, the
Company in its discretion may execute, and upon the Company's written request
the Trustee or an authenticating agent appointed by the Trustee shall
authenticate and make available for delivery, a new Note, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Note, or in lieu of and in substitution for the Note so destroyed, lost or
stolen. In every case, the applicant for a substituted Note shall furnish to the
Company, to the Trustee and, if applicable, to such authenticating agent such
security or indemnity as may be required by them to save each of them harmless
for any loss, liability, cost or expense caused by or connected with such
substitution, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or
theft of such Note and of the ownership thereof.
Following receipt by the Trustee or such authenticating agent,
as the case may be, of satisfactory security or indemnity and evidence, as
described in the preceding paragraph, the Trustee or such authenticating agent
may authenticate any such substituted Note and make available for delivery such
Note. Upon the issuance of any substituted Note, the Company may require the
payment by the holder of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note that has matured or is about to
mature or has been called for redemption or has been tendered for repurchase
upon a Designated Event (and not withdrawn) or has been surrendered for
repurchase on a Repurchase Date (and not withdrawn) or is to be converted into
Ordinary Shares shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Note, pay or authorize the payment
of or convert or authorize the conversion of the same (without surrender thereof
except in the case of a mutilated Note), as the case may be, if the applicant
for such payment or conversion shall furnish to the Company, to the Trustee and,
if applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or
expense caused by or in connection with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company, the
Trustee and, if applicable, any paying agent or conversion agent evidence to
their satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof.
Every substitute Note issued pursuant to the provisions of
this Section 2.06 by virtue of the fact that any Note is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Note shall be found at any time,
and shall be entitled to all the benefits of (but shall be subject to all the
limitations set forth in) this Indenture equally and proportionately with any
and all other Notes duly issued hereunder. To the extent permitted by law, all
Notes shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment or
conversion or redemption or repurchase of mutilated, destroyed, lost or stolen
Notes and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment or conversion or redemption or repurchase of
negotiable instruments or other securities without their surrender.
16
Section 2.07. Temporary Notes. Pending the preparation of
Notes in certificated form, the Company may execute and the Trustee or an
authenticating agent appointed by the Trustee shall, upon the written request of
the Company, authenticate and deliver temporary Notes (printed or lithographed).
Temporary Notes shall be issuable in any authorized denomination, and
substantially in the form of the Notes in certificated form, but with such
omissions, insertions and variations as may be appropriate for temporary Notes,
all as may be determined by the Company. Every such temporary Note shall be
executed by the Company and authenticated by the Trustee or such authenticating
agent upon the same conditions and in substantially the same manner, and with
the same effect, as the Notes in certificated form. Without unreasonable delay,
the Company will execute and deliver to the Trustee or such authenticating agent
Notes in certificated form and thereupon any or all temporary Notes may be
surrendered in exchange therefor, at each office or agency maintained by the
Company pursuant to Section 5.02 and the Trustee or such authenticating agent
shall authenticate and make available for delivery in exchange for such
temporary Notes an equal aggregate principal amount of Notes in certificated
form. Such exchange shall be made by the Company at its own expense and without
any charge therefor. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits and subject to the same limitations
under this Indenture as Notes in certificated form authenticated and delivered
hereunder.
Section 2.08. Cancellation of Notes. All Notes surrendered for
the purpose of payment, redemption, repurchase, conversion, exchange or
registration of transfer shall, if surrendered to the Company or any paying
agent or any Note Registrar or any conversion agent, be surrendered to the
Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be
promptly canceled by it, and no Notes shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall dispose of such canceled Notes in accordance with its customary
procedures. If the Company shall acquire any of the Notes, such acquisition
shall not operate as a redemption, repurchase or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
Section 2.09. CUSIP Numbers. The Company in issuing the Notes
may use CUSIP numbers (if then generally in use), and, if so, the Trustee shall
use CUSIP numbers in notices of redemption or repurchases as a convenience to
Noteholders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption or a repurchase and that reliance may be
placed only on the other identification numbers printed on the Notes, and any
such redemption or repurchase shall not be affected by any defect in or omission
of such numbers. The Company will promptly notify the Trustee of any change in
the CUSIP numbers.
ARTICLE 3
REDEMPTION AND REPURCHASE OF NOTES
Section 3.01. Redemption of Notes. The Company may not redeem
any Notes prior to March 20, 2009. At any time on or after March 20, 2009 and
prior to maturity, the Notes may be redeemed at the option of the Company, in
whole or in part, upon notice as set forth in Section 3.02, at a cash redemption
price equal to 100% of the principal amount of the Notes being redeemed,
together with accrued and unpaid Interest, if any, to, but excluding, the date
fixed for redemption; provided that if the redemption date falls after a record
date and on or prior to the corresponding interest payment date, then accrued
and unpaid Interest, if any, to, but excluding, the date fixed for redemption,
shall be paid on such interest payment date to the holders of record
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of such Notes on the applicable record date instead of the holders surrendering
such Notes for redemption on such date.
Section 3.02. Notice of Optional Redemption; Selection of
Notes. In case the Company shall desire to exercise the right to redeem all or,
as the case may be, any part of the Notes pursuant to Section 3.01, it shall fix
a date for redemption and it or, at its written request received by the Trustee
not fewer than forty-five (45) days prior (or such shorter period of time as may
be acceptable to the Trustee) to the date fixed for redemption, the Trustee in
the name of and at the expense of the Company, shall mail or cause to be mailed
a notice of such redemption not fewer than thirty (30) nor more than sixty (60)
days prior to the redemption date to each holder of Notes so to be redeemed as a
whole or in part at its last address as the same appears on the Note Register;
provided that if the Company shall give such notice, it shall also give written
notice of the redemption date to the Trustee. Such mailing shall be by first
class mail. The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Note designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Note. Concurrently with the mailing of any such notice
of redemption, the Company shall issue a press release announcing such
redemption, the form and content of which press release shall be determined by
the Company in its sole discretion. The failure to issue any such press release
or any defect therein shall not affect the validity of the redemption notice or
any of the proceedings for the redemption of any Note called for redemption.
Each such notice of redemption shall specify the aggregate
principal amount of Notes to be redeemed, the CUSIP number or numbers of the
Notes being redeemed, the date fixed for redemption (which shall be a Business
Day), the redemption price at which Notes are to be redeemed, the place or
places of payment, that payment will be made upon presentation and surrender of
such Notes, that Interest accrued to the date fixed for redemption will be paid
as specified in said notice, and that on and after said date Interest thereon or
on the portion thereof to be redeemed will cease to accrue. Such notice shall
also state the current Conversion Rate and the date on which the right to
convert such Notes or portions thereof into Ordinary Shares will expire. If
fewer than all the Notes are to be redeemed, the notice of redemption shall
identify the Notes to be redeemed (including CUSIP numbers, if any). In case any
Note is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that, on
and after the redemption date, upon surrender of such Note, a new Note or Notes
in principal amount equal to the unredeemed portion thereof will be issued.
On or prior to the redemption date specified in the notice of
redemption given as provided in this Section 3.02, the Company will deposit with
the Trustee or with one or more paying agents (or, if the Company is acting as
its own paying agent, set aside, segregate and hold in trust as provided in
Section 5.04) an amount of money in immediately available funds sufficient to
redeem on the redemption date all the Notes (or portions thereof) so called for
redemption (other than those theretofore surrendered for conversion into
Ordinary Shares) at the appropriate redemption price, together with accrued and
unpaid Interest to, but excluding, the redemption date; provided that if such
payment is made on the redemption date it must be received by the Trustee or
paying agent, as the case may be, by 10:00 a.m. New York City time on such date.
The Company shall be entitled to retain any interest, yield or gain on amounts
deposited with the Trustee or any paying agent pursuant to this Section 3.02 in
excess of amounts required hereunder to pay the redemption price and accrued and
unpaid Interest to, but excluding, the redemption date. If any Note called for
redemption is converted pursuant hereto prior to such redemption date, any money
deposited with the Trustee or any paying agent or so segregated and
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held in trust for the redemption of such Note shall be paid to the Company, or,
if then held by the Company, shall be discharged from such trust. Whenever any
Notes are to be redeemed, the Company will give the Trustee written notice in
the form of an Officers' Certificate not fewer than forty-five (45) days (or
such shorter period of time as may be acceptable to the Trustee) prior to the
redemption date as to the aggregate principal amount of Notes to be redeemed.
If less than all of the outstanding Notes are to be redeemed,
the Trustee shall select the Notes or portions thereof of the Global Note or the
Notes in certificated form to be redeemed (in principal amounts of $1,000 or
multiples thereof) by lot, on a pro rata basis or by another method the Trustee
deems fair and appropriate. If any Note selected for partial redemption is
submitted for conversion in part after such selection, the portion of such Note
submitted for conversion shall be deemed (so far as may be possible) to be the
portion to be selected for redemption. The Notes (or portions thereof) so
selected shall be deemed duly selected for redemption for all purposes hereof,
notwithstanding that any such Note is submitted for conversion in part before
the mailing of the notice of redemption.
Upon any redemption of less than all of the outstanding Notes,
the Company and the Trustee may (but need not), solely for purposes of
determining the pro rata allocation among such Notes as are unconverted and
outstanding at the time of redemption, treat as outstanding any Notes
surrendered for conversion during the period of fifteen (15) days next preceding
the mailing of a notice of redemption and may (but need not) treat as
outstanding any Note authenticated and delivered during such period in exchange
for the unconverted portion of any Note converted in part during such period.
Section 3.03. Payment of Notes Called For Redemption by the
Company. If notice of redemption has been given as provided in Section 3.02, the
Notes or portion of Notes with respect to which such notice has been given
shall, unless converted into Ordinary Shares pursuant to the terms hereof,
become due and payable on the date fixed for redemption and at the place or
places stated in such notice at the applicable redemption price, together with
Interest accrued and unpaid to (but excluding) the redemption date, and on and
after said date (unless the Company shall default in the payment of such Notes
at the redemption price, together with Interest accrued and unpaid to said date)
Interest on the Notes or portion of Notes so called for redemption shall cease
to accrue and, after the close of business on the Business Day immediately
preceding the redemption date (unless the Company shall default in the payment
of such Notes at the redemption price, together with Interest accrued and unpaid
to said date) such Notes shall cease to be convertible into Ordinary Shares and,
except as provided in Section 8.05 and Section 13.04, to be entitled to any
benefit or security under this Indenture, and the holders thereof shall have no
right in respect of such Notes except the right to receive the redemption price
thereof and unpaid Interest to (but excluding) the redemption date. On
presentation and surrender of such Notes at a place of payment in said notice
specified, the said Notes or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with
Interest accrued and unpaid thereon to, but excluding, the redemption date;
provided that if the redemption date falls after a record date and on or prior
the corresponding interest payment date, then accrued and unpaid Interest, if
any, to, but excluding, the date fixed for redemption shall be paid on such
interest payment date to the holders of record of such Notes on the applicable
record date instead of the holders surrendering such Notes for redemption on
such date.
Upon presentation of any Note redeemed in part only, the
Company shall execute and the Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Company, a new Note or
Notes, of authorized denominations, in principal amount equal to the unredeemed
portion of the Notes so presented.
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Notwithstanding the foregoing, the Trustee shall not redeem
any Notes or mail any notice of redemption during the continuance of a default
in payment of Interest on the Notes or if the principal amount of the Notes has
been accelerated. Without duplication with Section 7.02 hereof, if any Note
called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest
from the redemption date at a rate equal to 1% per annum plus the rate borne by
the Note and such Note shall remain convertible into Ordinary Shares until the
principal and Interest shall have been paid or duly provided for.
Section 3.04. [RESERVED]
Section 3.05. Repurchase at Option of Holders Upon a
Designated Event. (a) If there shall occur a Designated Event at any time prior
to maturity of the Notes, then each Noteholder shall have the right, at such
holder's option, to require the Company to repurchase all of such holder's
Notes, or any portion thereof that is a multiple of $1,000 principal amount, as
of the date (the "Designated Event Repurchase Date") specified by the Company
that is not less than twenty (20) Business Days nor more than thirty-five (35)
Business Days after the date of the Designated Event Notice (as defined in
Section 3.05(b)) with respect to such Designated Event at a repurchase price
equal to 100% of the principal amount thereof, together with accrued and unpaid
Interest, if any, to, but excluding, the Designated Event Repurchase Date (the
"Designated Event Repurchase Price"); provided that if such Designated Event
Repurchase Date falls after a record date and on or prior the corresponding
interest payment date, then accrued and unpaid Interest, if any, to, but
excluding the Designated Event Repurchase Date shall be paid on such interest
payment date to the holders of record of the Notes on the applicable record date
instead of the holders surrendering the Notes for repurchase on such date and
provided further that no Notes may be repurchased by the Company pursuant to
this Section 3.05 if the principal amount of Notes has been accelerated and such
acceleration has not been rescinded on or prior to the Designated Event
Repurchase Date. Repurchases of Notes under this Section 3.05 shall be made, at
the option of the holder thereof, upon:
(i) delivery to the Trustee (or other paying
agent appointed by the Company) by a holder of a duly completed notice
(the "Designated Event Repurchase Notice") in the form set forth on the
reverse of the Note prior to the close of business on the Designated
Event Repurchase Date; and
(ii) delivery or book-entry transfer of the
Notes to the Trustee (or other paying agent appointed by the Company)
at any time after delivery of the Designated Event Repurchase Notice
(together with all necessary endorsements) at the Corporate Trust
Office of the Trustee (or other paying agent appointed by the Company)
in the Borough of Manhattan as provided in Section 5.02, such delivery
being a condition to receipt by the holder of the repurchase price
therefor; provided that such repurchase price shall be so paid pursuant
to this Section 3.05 only if the Note so delivered to the Trustee (or
other paying agent appointed by the Company) shall conform in all
respects to the description thereof in the related Designated Event
Repurchase Notice.
The Company shall purchase from the holder thereof, pursuant
to this Section 3.05, a portion of a Note, if the principal amount of such
portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture
that apply to the purchase of all of a Note also apply to the purchase of such
portion of such Note.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.05 shall be consummated by the delivery of the
consideration to be received by the
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holder promptly following the later of the Designated Event Repurchase Date and
the time of the book-entry transfer or delivery of the Note.
Notwithstanding anything herein to the contrary, any holder
delivering to the Trustee (or other paying agent appointed by the Company) the
Designated Event Repurchase Notice contemplated by this Section 3.05 shall have
the right to withdraw such Designated Event Repurchase Notice at any time prior
to the close of business on the Designated Event Repurchase Date by delivery of
a written notice of withdrawal to the Trustee (or other paying agent appointed
by the Company) in accordance with Section 3.05(c) below.
The Trustee (or other paying agent appointed by the Company)
shall promptly notify the Company of the receipt by it of any Designated Event
Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the fifteenth day after the
occurrence of a Designated Event, the Company or at its written request (which
must be received by the Trustee at least five (5) Business Days prior to the
date the Trustee is requested to give notice as described below, unless the
Trustee shall agree in writing to a shorter period), the Trustee, in the name of
and at the expense of the Company, shall mail or cause to be mailed to all
holders of record on the date of the Designated Event a notice (the "Designated
Event Notice") of the occurrence of such Designated Event and of the repurchase
right at the option of the holders arising as a result thereof. Such notice
shall be mailed in the manner and with the effect set forth in the first
paragraph of Section 3.02 (without regard for the time limits set forth
therein). If the Company shall give such notice, the Company shall also deliver
a copy of the Designated Event Notice to the Trustee at such time as it is
mailed to Noteholders. Concurrently with the mailing of any Designated Event
Notice, the Company shall issue a press release announcing such Designated Event
referred to in the Designated Event Notice, the form and content of which press
release shall be determined by the Company in its sole discretion. The failure
to issue any such press release or any defect therein shall not affect the
validity of the Designated Event Notice or any proceedings for the repurchase of
any Note which any Noteholder may elect to have the Company repurchase as
provided in this Section 3.05.
Each Designated Event Notice shall specify the circumstances
constituting the Designated Event, the Designated Event Repurchase Date, the
price at which the Company shall be obligated to repurchase Notes, that the
holder must exercise the repurchase right on or prior to the close of business
on the Designated Event Repurchase Date (the "Designated Event Expiration
Time"), that the holder shall have the right to withdraw any Notes surrendered
prior to the Designated Event Expiration Time, a description of the procedure
that a Noteholder must follow to exercise such repurchase right and to withdraw
any surrendered Notes, the place or places where the holder is to surrender such
holder's Notes, the amount of Interest accrued and unpaid, if any, on each Note
to the Designated Event Repurchase Date and the CUSIP number or numbers of the
Notes (if then generally in use) and include a form of Designated Event
Repurchase Notice. The Designated Event Notice shall indicate whether the
Company has elected to pay the Designated Event Repurchase Price in whole or in
part by delivery of Ordinary Shares or common equity of the Company's parent, if
applicable, as well as the method by which the Company determined the fair
market value of the Ordinary Shares and shall specify the percentage of the
Designated Event Repurchase Price to be paid in cash, if any, and the percentage
of the Designated Event Repurchase Price to be paid in Ordinary Shares or common
equity of the Company's parent.
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No failure of the Company to give the foregoing notices and no
defect therein shall limit the Noteholders' repurchase rights or affect the
validity of the proceedings for the repurchase of the Notes pursuant to this
Section 3.05.
(c) A Designated Event Repurchase Notice may be
withdrawn by means of a written notice of withdrawal delivered to the office of
the Trustee (or other paying agent appointed by the Company) in accordance with
the Designated Event Repurchase Notice at any time prior to the close of
business on the Designated Event Repurchase Date, specifying:
(i) the certificate number, if any, of the
Note in respect of which such notice of withdrawal is being submitted,
or the appropriate Depositary information if the Note in respect of
which such notice of withdrawal is being submitted is represented by a
Global Note,
(ii) the principal amount of the Note with
respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such
Note that remains subject to the original Designated Event Repurchase
Notice and that has been or will be delivered for purchase by the
Company.
(d) On or prior to the Designated Event Repurchase
Date, the Company will deposit with the Trustee (or other paying agent appointed
by the Company or if the Company is acting as its own paying agent, set aside,
segregate and hold in trust as provided in Section 5.04) an amount of money
sufficient to repurchase on the Designated Event Repurchase Date all the Notes
to be repurchased on such date at the appropriate repurchase price, together
with accrued and unpaid Interest to, but excluding, the Designated Event
Repurchase Date; provided that if such payment is made on the Designated Event
Repurchase Date it must be received by the Trustee or paying agent, as the case
may be, by 10:00 a.m. New York City time, on such date. Subject to receipt of
funds and/or Notes by the Trustee (or other paying agent appointed by the
Company), payment for Notes surrendered for repurchase (and not withdrawn) prior
to the Designated Event Expiration Time will be made promptly (but in no event
more than five (5) Business Days) following the later of (x) the Designated
Event Repurchase Date with respect to such Note (provided the holder has
satisfied the conditions in Section 3.05) and (y) the time of delivery of such
Note to the Trustee (or other paying agent appointed by the Company) by the
holder thereof in the manner required by Section 3.05 by mailing checks for the
amount payable to the holders of such Notes entitled thereto as they shall
appear in the Note Register.
If the Trustee (or other paying agent appointed by the
Company) holds money sufficient to repurchase on the Designated Event Repurchase
Date all the Notes or portions thereof that are to be purchased as of the
Designated Event Repurchase Date, then on or after the Business Day following
the Designated Event Repurchase Date (i) the Notes will cease to be outstanding,
(ii) Interest on the Notes will cease to accrue, and (iii) all other rights of
the holders of such Notes will terminate, whether or not book-entry transfer of
the Notes has been made or the Notes have been delivered to the Trustee or
paying agent, other than the right to receive the repurchase price upon delivery
of the Notes.
(e) In the case of a reclassification, change,
consolidation, merger, combination, sale or conveyance to which Section 15.06
applies, in which the Ordinary Shares of the Company are changed or exchanged as
a result into the right to receive stock, securities or other property or assets
(including cash), which includes Ordinary Shares of the Company or
22
common equity of another Person that is, or upon issuance will be, traded on a
United States national securities exchange or approved for trading on an
established automated over-the-counter trading market in the United States and
such shares constitute at the time such change or exchange becomes effective in
excess of 50% of the aggregate Fair Market Value of such stock, securities or
other property or assets (including cash) (as determined by the Company, which
determination shall be conclusive and binding), then the Person formed by such
consolidation or resulting from such merger or that acquires such assets, as the
case may be, shall execute and deliver to the Trustee a supplemental indenture
(accompanied by an Opinion of Counsel that such supplemental indenture complies
with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture) modifying the provisions of this Indenture relating to
the right of holders of the Notes to cause the Company to repurchase the Notes
following a Designated Event, including without limitation the applicable
provisions of this Section 3.05 and the definitions of Ordinary Shares and
Designated Event, as appropriate, as determined in good faith by the Company
(which determination shall be conclusive and binding), to make such provisions
apply to such other Person if different from the Company and the common equity
issued by such Person (in lieu of the Company and the Ordinary Shares of the
Company).
(f) The Company will comply with the provisions of
Rule 13e-4 and any other tender offer rules under the Exchange Act (including,
without limitation, filing a Schedule TO or other schedule) to the extent then
applicable in connection with the repurchase rights of the holders of Notes in
the event of a Designated Event.
Section 3.06. Repurchase of Notes by the Company at Option of
the Holder. Unless the Company has elected to redeem all of the Notes in
accordance with Section 3.01, Notes not theretofore called for redemption shall
be purchased by the Company pursuant to the terms of the Notes at the option of
the holder on March 15 of 2009, 2014 and 2019 (each, a "Repurchase Date") at a
repurchase price of 100% of the principal amount, plus any accrued and unpaid
Interest to, but excluding, the Repurchase Date (the "Repurchase Price"),
subject to the provisions of Section 3.07(a); provided that no Notes may be
repurchased by the Company pursuant to this Section 3.06 if the principal amount
of the Notes has been accelerated and such acceleration has not been rescinded
on or prior to the Repurchase Date. Repurchases of Notes under this Section 3.06
shall be made, at the option of the holder thereof, upon:
(a) delivery to the Trustee (or other paying agent
appointed by the Company) by a holder of a duly completed notice (the
"Repurchase Notice") in the form set forth on the reverse of the Note during the
period beginning at any time from the opening of business on the date that is
twenty (20) Business Days prior to the Repurchase Date until the close of
business on the Repurchase Date; and
(b) delivery or book-entry transfer of the Notes to
the Trustee (or other paying agent appointed by the Company) at any time after
delivery of the Repurchase Notice (together with all necessary endorsements) at
the Corporate Trust Office of the Trustee (or other paying agent appointed by
the Company) in the Borough of Manhattan as provided in Section 5.02, such
delivery being a condition to receipt by the holder of the repurchase price
therefor; provided that such repurchase price shall be so paid pursuant to this
Section 3.06 only if the Note so delivered to the Trustee (or other paying agent
appointed by the Company) shall conform in all respects to the description
thereof in the related Repurchase Notice.
The Company shall purchase from the holder thereof, pursuant
to this Section 3.06, a portion of a Note, if the principal amount of such
portion is $1,000 or a whole multiple of
23
$1,000. Provisions of this Indenture that apply to the purchase of all of a Note
also apply to the purchase of such portion of such Note.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.06 shall be consummated by the delivery of the
consideration to be received by the holder promptly following the later of the
Repurchase Date and the time of the book-entry transfer or delivery of the Note.
Notwithstanding anything herein to the contrary, any holder
delivering to the Trustee (or other paying agent appointed by the Company) a
Repurchase Notice contemplated by this Section 3.06 shall have the right to
withdraw such Repurchase Notice at any time prior to the close of business on
the Repurchase Date by delivery of a written notice of withdrawal to the Trustee
(or other paying agent appointed by the Company) in accordance with Section
3.08.
The Trustee (or other paying agent appointed by the Company)
shall promptly notify the Company of the receipt by it of any Repurchase Notice
or written notice of withdrawal thereof.
Section 3.07. Company Repurchase Notice.
(a) The Notes to be repurchased on any Repurchase
Date pursuant to Section 3.06 will be paid for in cash, or at the option of the
Company, subject to the satisfaction by the Company of the conditions set forth
in Section 3.12, by delivery of Ordinary Shares, or a combination thereof.
Unless the Company has elected to redeem all of the Notes in
accordance with Section 3.01, at least three Business Days before the Company
Repurchase Notice Date, the Company shall deliver an Officers' Certificate to
the Trustee specifying:
(i) the information required by Section
3.07(b) in the Company Repurchase Notice, and
(ii) whether the Company desires the Trustee
to give the Company Repurchase Notice required by Section 3.07(b).
(b) Unless the Company has elected to redeem all of
the Notes in accordance with Section 3.01, in connection with any repurchase of
Notes, the Company shall, no less than 20 Business Days prior to the Repurchase
Date (the "Company Repurchase Notice Date"), give notice to holders of Notes not
theretofore called for redemption at their addresses shown in the Note Register
setting forth information specified in this Section 3.07(b) (the "Company
Repurchase Notice"). The Company will also give notice to beneficial owners as
required by applicable law.
The Company Repurchase Notice shall:
(1) state the repurchase price and the
Repurchase Date to which the Company Repurchase Notice relates;
(2) include a form of Repurchase Notice;
24
(3) state the name and address of the
Trustee (or other paying agent appointed by the Company);
(4) state that Notes must be surrendered to
the Trustee (or other paying agent appointed by the Company) to collect
the repurchase price;
(5) if the Notes are then convertible, state
that Notes as to which a Repurchase Notice has been given may be
converted only if the Repurchase Notice is withdrawn in accordance with
the terms of this Indenture; and
(6) state the CUSIP number of the Notes; and
(7) state whether the Company has elected,
pursuant to Section 3.12, to pay the Repurchase Price in whole or in
part by delivery of Ordinary Shares. In the event that the Company has
elected to pay any portion of the Repurchase Price by delivery of
Ordinary Shares, such notice shall also specify the method by which the
Company is required to calculate the market price of the Ordinary
Shares, the procedures that holders must follow to require the Company
to repurchase the Notes, the percentage of the Repurchase Price to be
paid in cash, if any, and the percentage of the Repurchase Price to be
paid in Ordinary Shares.
The Company Repurchase Notice may be given by the Company or,
at the Company's request, the Trustee shall give such Company Repurchase Notice
in the Company's name and at the Company's expense.
(c) The Company will comply with the provisions of
Rule 13e-4 and any other tender offer rules under the Exchange Act (including,
without limitation, filing a Schedule TO or other schedule) to the extent then
applicable in connection with the repurchase rights of the holders of Notes.
Section 3.08. Effect of Repurchase Notice. Upon receipt by the
Trustee (or other paying agent appointed by the Company) of the Repurchase
Notice specified in Section 3.06, the holder of the Note in respect of which
such Repurchase Notice was given shall (unless such Repurchase Notice is validly
withdrawn) thereafter be entitled to receive solely the Repurchase Price with
respect to such Note. Such Repurchase Price shall be paid to such holder,
subject to receipt of funds and/or Notes by the Trustee (or other paying agent
appointed by the Company), promptly following the later of (x) the Repurchase
Date with respect to such Note (provided the holder has satisfied the conditions
in Section 3.06) and (y) the time of delivery of such Note to the Trustee (or
other paying agent appointed by the Company) by the holder thereof in the manner
required by Section 3.06. Notes in respect of which a Repurchase Notice has been
given by the holder thereof may not be converted pursuant to Article 15 hereof
on or after the date of the delivery of such Repurchase Notice unless such
Repurchase Notice has first been validly withdrawn.
A Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Trustee (or other paying
agent appointed by the Company) in accordance with the Repurchase Notice at any
time prior to the close of business on the Repurchase Date, specifying:
(a) the certificate number, if any, of the Note in
respect of which such notice of withdrawal is being submitted, or the
appropriate Depositary information if the
25
Note in respect of which such notice of withdrawal is being submitted is
represented by a Global Note,
(b) the principal amount of the Note with respect to
which such notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Note which
remains subject to the original Repurchase Notice and which has been or will be
delivered for repurchase by the Company.
Section 3.09. Deposit of Repurchase Price. (a) Prior to 10:00
a.m. (New York City Time) on the Repurchase Date, the Company shall deposit with
the Trustee (or other paying agent appointed by the Company; or, if the Company
or a Subsidiary or an Affiliate of either of them is acting as the paying agent,
shall segregate and hold in trust as provided in Section 5.04) an amount of cash
(in immediately available funds if deposited on such Business Day), sufficient
to pay the aggregate repurchase price of all the Notes or portions thereof that
are to be repurchased as of the Repurchase Date.
(b) If the Trustee or other paying agent appointed by
the Company, or the Company or a Subsidiary or Affiliate of either of them, if
such entity is acting as the paying agent, holds cash sufficient to pay the
aggregate repurchase price of all the Notes, or portions thereof that are to be
repurchased as of the Repurchase Date, on or after the Repurchase Date (i) the
Notes will cease to be outstanding, (ii) Interest on the Notes will cease to
accrue, and (iii) all other rights of the holders of such Notes will terminate,
whether or not book-entry transfer of the Notes has been made or the Notes have
been delivered to the Trustee or paying agent, other than the right to receive
the repurchase price upon delivery of the Notes.
Section 3.10. Notes Repurchased in Part. Upon presentation of
any Note repurchased pursuant to Section 3.05 or 3.06, as the case may be, only
in part, the Company shall execute and the Trustee shall authenticate and make
available for delivery to the holder thereof, at the expense of the Company, a
new Note or Notes, of any authorized denomination, in aggregate principal amount
equal to the unrepurchased portion of the Notes presented.
Section 3.11. Repayment to the Company. The Trustee (or other
paying agent appointed by the Company) shall return to the Company any cash or
money that remains unclaimed as provided in Section 13.04, together with
interest, if any, thereon, held by them for the payment of the repurchase price
pursuant to Section 3.05 or 3.06, as the case may be; provided that to the
extent that the aggregate amount of cash or money deposited by the Company
pursuant to Section 3.05(d) or Section 3.09, as the case may be, exceeds the
aggregate repurchase price of the Notes or portions thereof which the Company is
obligated to purchase as of the Designated Event Repurchase Date or the
Repurchase Date, as the case may be, then, unless otherwise agreed in writing
with the Company, promptly after the Business Day following the Designated Event
Repurchase Date or the Repurchase Date, as the case may be, the Trustee shall
return any such excess to the Company together with interest, if any, thereon.
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Section 3.12. Conditions to the Company's Election to Pay the
Designated Event Repurchase Price or the Repurchase Price in Ordinary Shares.
The Company may elect to pay the Designated Event Repurchase
Price or the Repurchase Price in whole or in part by delivery of Ordinary Shares
pursuant to Sections 3.05 and 3.06, respectively, if and only if the following
conditions and terms shall have been satisfied:
(1) The Ordinary Shares deliverable shall have a fair market value as
of the Designated Event Repurchase Date or the Repurchase Date, as applicable,
of not less than the Designated Event Repurchase Price or the Repurchase Price,
respectively, after deducting any cash payments, if any, by the Company for such
Designated Event Repurchase Price or Repurchase Price, as applicable. For
purposes of Sections 3.05 and 3.06 and this Section 3.12, the fair market value
of Ordinary Shares shall be determined by the Company and shall be equal to 100%
of the average of the Closing Sale Prices of the Ordinary Shares for the five
consecutive Trading Days immediately preceding and including the third Trading
Day prior to the Designated Event Repurchase Date or Repurchase Date, as
applicable;
(2) The Designated Event Repurchase Price or the Repurchase Price, as
applicable, shall be paid only in cash to a Holder in the event any Ordinary
Shares to be issued upon repurchase of Securities owned by such Holder hereunder
(i) require registration under any federal securities law before such shares may
be freely transferable without being subject to any transfer restrictions under
the Securities Act upon repurchase and if such registration is not completed or
does not become effective prior to the Designated Event Repurchase Date or the
Repurchase Date, as applicable, and/or (ii) require registration with or
approval of any governmental authority under any state law or any other federal
law before such shares may be validly issued or delivered upon repurchase and if
such registration is not completed or does not become effective or such approval
is not obtained prior to the Designated Event Repurchase Date or the Repurchase
Date, as applicable;
(3) Payment of the Designated Event Repurchase Price or the Repurchase
Price, as applicable, may not be made in Ordinary Shares unless such shares are,
or shall have been, approved for listing on the New York Stock Exchange or
listed on a national securities exchange or quoted on the Nasdaq National
Market, in each case, prior to the Designated Event Repurchase Date or the
Repurchase Date, as applicable; and
(4) All Ordinary Shares that may be issued upon repurchase of
Securities will be issued out of the Company's authorized but unissued Ordinary
Shares or Ordinary Shares held in Treasury and will, upon issuance, be duly and
validly issued and fully paid and non-assessable and free of any preemptive or
similar rights.
Upon a Designated Event of the type set forth in Section 3.05(e), the
Company may elect to pay the Designated Event Repurchase Price in whole or in
part by delivery of common equity of the Company's parent if the conditions
contained in this Section 3.12 are satisfied with respect to such common equity
as if it were Ordinary Shares hereunder.
If any of the conditions set forth in this Section 3.12 is not
satisfied in accordance with the terms thereof, the Designated Event Repurchase
Price or the Repurchase Price, as applicable, shall be paid by the Company only
in cash. The Company may, at any time, irrevocably relinquish its right to pay
the Designated Event Repurchase Price or the Repurchase Price, as applicable, by
delivery of Ordinary Shares by entering into a supplemental indenture with the
Trustee as provided in Section 11.01(d).
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ARTICLE 4
[RESERVED]
ARTICLE 5
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01. Payment of Principal and Interest. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of (including the redemption price upon redemption or the
repurchase price upon repurchase, in each case pursuant to Article 3) and
Interest, on each of the Notes at the places, at the respective times and in the
manner provided herein and in the Notes.
Section 5.02. Maintenance of Office or Agency. The Company
will maintain an office or agency in the Borough of Manhattan, The City of New
York, where the Notes may be surrendered for registration of transfer or
exchange or for presentation for payment or for conversion, redemption or
repurchase and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency not designated or appointed by the Trustee. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office or the
corporate trust office of the Trustee in The Borough of Manhattan which office
is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
The Company may also from time to time designate co-registrars
and one or more offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations. The Company will give prompt written notice of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby initially designates the Trustee as paying
agent, Note Registrar, Custodian and conversion agent and each of the Corporate
Trust Office and the office of agency of the Trustee in The Borough of
Manhattan, shall be considered as one such office or agency of the Company for
each of the aforesaid purposes.
So long as the Trustee is the Note Registrar, the Trustee
agrees to mail, or cause to be mailed, the notices set forth in Section 8.10(a)
and the third paragraph of Section 8.11. If co-registrars have been appointed in
accordance with this Section, the Trustee shall mail such notices only to the
Company and the holders of Notes it can identify from its records.
Section 5.03. Appointments to Fill Vacancies in Trustee's
Office
The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section 8.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
Section 5.04. Provisions as to Paying Agent. (a) If the
Company shall appoint a paying agent other than the Trustee, or if the Trustee
shall appoint such a paying agent, the
28
Company will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 5.04:
(1) that it will hold all sums held by it as
such agent for the payment of the principal of or Interest on the Notes
(whether such sums have been paid to it by the Company or by any other
obligor on the Notes) in trust for the benefit of the holders of the
Notes;
(2) that it will give the Trustee notice of
any failure by the Company (or by any other obligor on the Notes) to
make any payment of the principal of or Interest on the Notes when the
same shall be due and payable; and
(3) that at any time during the continuance
of an Event of Default, upon request of the Trustee, it will forthwith
pay to the Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal
or Interest on the Notes, deposit with the paying agent a sum (in funds which
are immediately available on the due date for such payment) sufficient to pay
such principal or Interest, and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of any failure to take such action;
provided that if such deposit is made on the due date, such deposit shall be
received by the paying agent by 10:00 a.m. New York City time, on such date.
(b) If the Company shall act as its own paying agent, it will,
on or before each due date of the principal of or Interest on the Notes, set
aside, segregate and hold in trust for the benefit of the holders of the Notes a
sum sufficient to pay such principal or Interest so becoming due and will
promptly notify the Trustee of any failure to take such action and of any
failure by the Company (or any other obligor under the Notes) to make any
payment of the principal of or Interest on the Notes when the same shall become
due and payable.
(c) Anything in this Section 5.04 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by the Company or any
paying agent hereunder as required by this Section 5.04, such sums to be held by
the Trustee upon the trusts herein contained and upon such payment by the
Company or any paying agent to the Trustee, the Company or such paying agent
shall be released from all further liability with respect to such sums.
(d) Anything in this Section 5.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section
5.04 is subject to Sections 13.03 and 13.04.
The Trustee shall not be responsible for the actions of any
other paying agents (including the Company if acting as its own paying agent)
and shall have no control of any funds held by such other paying agents.
Section 5.05. Existence. Subject to Article 12, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence and rights (charter and statutory); provided that
the Company shall not be required to preserve any such right if the Company
shall determine that the preservation thereof is no longer desirable in
29
the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Noteholders.
Section 5.06. Maintenance of Properties. The Company will
cause all properties used or useful in the conduct of its business or the
business of any Significant Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided that nothing in
this Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business or the business of any
Significant Subsidiary and not disadvantageous in any material respect to the
Noteholders.
Section 5.07. Payment of Taxes and Other Claims. The Company
will pay or discharge, or cause to be paid or discharged, before the same may
become delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Significant Subsidiary or upon the income,
profits or property of the Company or any Significant Subsidiary, (ii) all
claims for labor, materials and supplies that, if unpaid, might by law become a
lien or charge upon the property of the Company or any Significant Subsidiary
and (iii) all stamp taxes and other duties, if any, that may be imposed by the
United States or any political subdivision thereof or therein in connection with
the issuance, transfer, exchange, conversion, redemption or repurchase of any
Notes or with respect to this Indenture; provided that, in the case of clauses
(i) and (ii), the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim (A) if the
failure to do so will not, in the aggregate, have a material adverse impact on
the Company, or (B) if the amount, applicability or validity is being contested
in good faith by appropriate proceedings.
Section 5.08. Rule 144A Information Requirement. Within the
period prior to the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision), the
Company covenants and agrees that it shall, during any period in which it is not
subject to Section 13 or 15(d) under the Exchange Act, make available to any
holder or beneficial holder of Notes or any Ordinary Shares issued upon
conversion thereof that continue to be Restricted Securities in connection with
any sale thereof and any prospective purchaser of Notes or such Ordinary Shares
designated by such holder or beneficial holder, the information required
pursuant to Rule 144A(d)(4) under the Securities Act upon the request of any
holder or beneficial holder of the Notes or such Ordinary Shares and it will
take such further action as any holder or beneficial holder of such Notes or
such Ordinary Shares may reasonably request, all to the extent required from
time to time to enable such holder or beneficial holder to sell its Notes or
Ordinary Shares 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 Notes or such Ordinary Shares, the Company will deliver to such holder a
written statement as to whether it has complied with such requirements.
Section 5.09. 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 that would
prohibit or forgive the Company from paying all or any portion of the principal
of or Interest on the Notes as contemplated herein, wherever enacted, now or at
any time
30
hereafter in force, or that 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 5.10. Compliance Certificate. The Company shall
deliver to the Trustee, within one hundred twenty (120) days after the end of
each fiscal year of the Company, a certificate signed by either the principal
executive officer, principal financial officer or principal accounting officer
of the Company, stating whether or not to the best knowledge of the signatory
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the Company
shall be in default, specifying all such defaults and the nature and the status
thereof of which the signatory may have knowledge. The first such certificate to
be delivered by the Company pursuant to this Section 5.10 shall be for the
fiscal year ending September 30, 2004.
The Company will promptly deliver to the Trustee, forthwith
upon becoming aware of (i) any default in the performance or observance of any
covenant, agreement or condition contained in this Indenture, or (ii) any Event
of Default, an Officers' Certificate specifying with particularity such Default
or Event of Default and further stating what action the Company has taken, is
taking or proposes to take with respect thereto.
Any notice required to be given under this Section 5.10 shall
be delivered to a Responsible Officer of the Trustee at its Corporate Trust
Office.
Section 5.11. Additional Interest Notice. In the event that
the Company is required to pay Additional Interest to holders of Notes pursuant
to the Registration Rights Agreement, the Company will provide written notice
("Additional Interest Notice") to the Trustee of the Company's obligation to pay
Additional Interest no later than fifteen (15) days prior to the proposed
payment date for the Additional Interest, and the Additional Interest Notice
shall set forth the amount of Additional Interest to be paid by the Company on
such payment date. The Trustee shall not at any time be under any duty or
responsibility to any holder of Notes to determine the Additional Interest, or
with respect to the nature, extent or calculation of the amount of Additional
Interest when made, or with respect to the method employed in such calculation
of the Additional Interest.
ARTICLE 6
NOTEHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 6.01. Noteholders' Lists. The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee,
semiannually, not more than fifteen (15) days after each March 1 and September 1
in each year beginning with September 1, 2004, and at such other times as the
Trustee may request in writing, within thirty (30) days after receipt by the
Company of any such request (or such lesser time as the Trustee may reasonably
request in order to enable it to timely provide any notice to be provided by it
hereunder), a list in such form as the Trustee may reasonably require of the
names and addresses of the holders of Notes as of a date not more than fifteen
(15) days (or such other date as the Trustee may reasonably request in order to
so provide any such notices) prior to the time such information is furnished,
except that no
31
such list need be furnished by the Company to the Trustee so long as the Trustee
is acting as the sole Note Registrar.
Section 6.02. Preservation And Disclosure Of Lists. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Notes contained in
the most recent list furnished to it as provided in Section 6.01 or maintained
by the Trustee in its capacity as Note Registrar or co-registrar in respect of
the Notes, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.
(b) The rights of Noteholders to communicate with
other holders of Notes with respect to their rights under this Indenture or
under the Notes, and the corresponding rights and duties of the Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Noteholder, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of holders of Notes made
pursuant to the Trust Indenture Act.
Section 6.03. Reports By Trustee. (a) Within sixty (60) days
after May 15 of each year commencing with the year 2004, the Trustee shall
transmit to holders of Notes such reports dated as of May 15 of the year in
which such reports are made concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. In the event that no events have
occurred under the applicable sections of the Trust Indenture Act, the Trustee
shall be under no duty or obligation to provide such reports.
(b) A copy of such report shall, at the time of such
transmission to holders of Notes, be filed by the Trustee with each stock
exchange and automated quotation system upon which the Notes are listed (if
applicable) and with the Company. The Company will promptly notify the Trustee
in writing when the Notes are listed on any stock exchange or automated
quotation system or delisted therefrom.
Section 6.04. Reports by Company. The Company shall file with
the Trustee (and the Commission if the Indenture becomes qualified under the
Trust Indenture Act), and transmit to holders of Notes, such information,
documents and other reports and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act, whether or not the Notes are governed by such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within fifteen (15) days after the same is so required to
be filed with the Commission. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on an Officers' Certificates).
32
ARTICLE 7
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON AN EVENT OF DEFAULT
Section 7.01. Events Of Default. In case one or more of the
following Events of Default (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) shall have occurred and
be continuing:
(a) default in the payment of any installment of
Interest upon any of the Notes as and when the same shall become due and
payable, and continuance of such default for a period of thirty (30) days; or
(b) default in the payment of the principal of any of
the Notes as and when the same shall become due and payable either at maturity
or in connection with any redemption, repurchase or otherwise, in each case
pursuant to Article 3; or
(c) default in the Company's obligation to provide a
Designated Event Notice upon a Designated Event as provided in Section 3.05; or
(d) failure on the part of the Company duly to
observe or perform any other of the covenants or agreements on the part of the
Company in the Notes or in this Indenture (other than a covenant or agreement a
default in whose performance or whose breach is elsewhere in this Section 7.01
specifically dealt with) continued for a period of sixty (60) days after the
date on which written notice of such failure, requiring the Company to remedy
the same, shall have been given to the Company by the Trustee, or the Company
and a Responsible Officer of the Trustee by the holders of at least twenty-five
percent (25%) in aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 9.04; or
(e) the Company shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to the Company or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, or shall consent to any such
relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against the Company, or shall
make a general assignment for the benefit of creditors; or
(f) an involuntary case or other proceeding shall be
commenced against the Company seeking liquidation, reorganization or other
relief with respect to the Company or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of the
Company or any substantial part of the property of the Company, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of sixty (60) consecutive days; or
(g) any indebtedness under any bonds, debentures,
notes or other evidences of indebtedness for money borrowed by the Company or
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or
33
evidenced any indebtedness for money borrowed by the Company (an "Instrument"),
or any guaranty by the Company for indebtedness for money borrowed by any
Subsidiary of the Company, with a principal amount then outstanding in excess of
U.S. $50,000,000, whether such indebtedness now exists or shall hereafter be
created, is not paid at final maturity of any Instrument (either at its stated
maturity or upon acceleration thereof), and such indebtedness is not discharged,
or such acceleration is not rescinded or annulled, within a period of thirty
(30) days after there shall have been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the holders of
at least twenty-five percent (25%) in aggregate principal amount of the Notes at
the time outstanding determined in accordance with Section 9.04, a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such default to be cured or waived or
such acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(h) the failure by the Company to deliver any
Ordinary Shares deliverable upon conversion of the Notes within the time period
required hereunder, which such failure continues for a period of five (5) days;
then, and in each and every such case (other than an Event of Default specified
in Section 7.01(e) or 7.01(f)), unless the principal of all of the Notes shall
have already become due and payable, either the Trustee or the holders of not
less than twenty-five percent (25%) in aggregate principal amount of the Notes
then outstanding hereunder determined in accordance with Section 9.04, by notice
in writing to the Company (and to the Trustee if given by Noteholders), may
declare the principal of on all the Notes and the Interest accrued and unpaid
thereon to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Notes contained to the contrary notwithstanding. If an Event
of Default specified in Section 7.01(e) or 7.01(f) occurs, the principal of all
the Notes and the Interest accrued and unpaid thereon shall be immediately and
automatically due and payable without necessity of further action. This
provision, however, is subject to the conditions that if, at any time after the
principal of the Notes shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
Interest upon all Notes and the principal of any and all Notes that shall have
become due otherwise than by acceleration (with interest on overdue installments
of Interest (to the extent that payment of such interest is enforceable under
applicable law) and on such principal at the rate borne by the Notes, to the
date of such payment or deposit) and amounts due to the Trustee pursuant to
Section 8.06, and if any and all defaults under this Indenture, other than the
nonpayment of principal of and accrued and unpaid Interest on Notes that shall
have become due by acceleration, shall have been cured or waived pursuant to
Section 7.07, then and in every such case the holders of a majority in aggregate
principal amount of the Notes then outstanding, by written notice to the Company
and to the Trustee, may waive all Defaults or Events of Default and rescind and
annul such declaration and its consequences; but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent Default or Event of
Default, or shall impair any right consequent thereon. The Company shall notify
in writing a Responsible Officer of the Trustee, promptly upon becoming aware
thereof, of any Event of Default.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such waiver or rescission and annulment or for any other
reason or shall have been determined adversely to the Trustee, then and in every
such case, subject to any orders entered in such proceedings, the Company, the
holders of Notes, and the Trustee shall be restored respectively to their
several
34
positions and rights hereunder, and all rights, remedies and powers of the
Company, the holders of Notes, and the Trustee shall continue as though no such
proceeding had been taken.
Section 7.02. Payments of Notes on Default; Suit Therefor. The
Company covenants that (a) in case default shall be made in the payment of any
installment of Interest upon any of the Notes as and when the same shall become
due and payable, and such default shall have continued for a period of thirty
(30) days, or (b) in case default s hall be made in the payment of the principal
of any of the Notes as and when the same shall have become due and payable,
whether at maturity of the Notes or in connection with any redemption, by or
under this Indenture declaration or otherwise, then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the
Notes, the whole amount that then shall have become due and payable on all such
Notes for principal or Interest, as the case may be, with interest upon the
overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of Interest at
the rate borne by the Notes, plus 1% and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all other amounts due the Trustee under Section 8.06. Until such
demand by the Trustee, the Company may pay the principal of and Interest on the
Notes to the registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any actions or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor on the Notes and collect in the manner provided by law out of the
property of the Company or any other obligor on the Notes wherever situated the
monies adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor on the Notes under
Title 11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of the Company or
such other obligor, or in the case of any other judicial proceedings relative to
the Company or such other obligor upon the Notes, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section 7.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal
and Interest owing and unpaid in respect of the Notes, and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
of the Noteholders allowed in such judicial proceedings relative to the Company
or any other obligor on the Notes, its or their creditors, or its or their
property, and to collect and receive any monies or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of any amounts due the Trustee under Section 8.06, and to take any other action
with respect to such claims, including participating as a member of any official
committee of creditors, as it reasonably deems necessary or advisable, and,
unless prohibited by law or applicable regulations, and any receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, custodian or similar
official is hereby authorized by each of the Noteholders to make such payments
to the Trustee, and, in the event that the Trustee shall consent to the making
of such payments directly
35
to the Noteholders, to pay to the Trustee any amount due it for reasonable
compensation, expenses, advances and disbursements, including counsel fees and
expenses incurred by it up to the date of such distribution. To the extent that
such payment of reasonable compensation, expenses, advances and disbursements
out of the estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any
and all distributions, dividends, monies, securities and other property which
the holders of the Notes may be entitled to receive in such proceedings, whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the holders of the Notes.
In any proceedings brought by the Trustee (and in any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Notes, and it shall not be necessary to make any holders of
the Notes parties to any such proceedings.
Section 7.03. Application of Monies Collected By Trustee. Any
monies collected by the Trustee pursuant to this Article 7 shall be applied in
the order following, at the date or dates fixed by the Trustee for the
distribution of such monies, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 8.06;
SECOND: In case the principal of the outstanding Notes shall
not have become due and be unpaid, to the payment of Interest on the
Notes in default in the order of the maturity of the installments of
such Interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of Interest at
the rate borne by the Notes, such payments to be made ratably to the
Persons entitled thereto;
THIRD: In case the principal of the outstanding Notes shall
have become due, by declaration or otherwise, and be unpaid to the
payment of the whole amount then owing and unpaid upon the Notes for
principal and Interest, with Interest on the overdue principal and (to
the extent that such Interest has been collected by the Trustee) upon
overdue installments of Interest at the rate borne by the Notes, and in
case such monies shall be insufficient to pay in full the whole amounts
so due and unpaid upon the Notes, then to the payment of such principal
and Interest without preference or priority of principal over Interest,
or of Interest over principal or of any installment of Interest over
any other installment of Interest, or of any Note over any other Note,
ratably to the aggregate of such principal and accrued and unpaid
Interest; and
FOURTH: To the payment of the remainder, if any, to the
Company.
Section 7.04. Proceedings by Noteholder. No holder of any Note
shall have any right by virtue of or by reference to any provision of this
Indenture to institute any suit, action
36
or proceeding in equity or at law upon or under or with respect to this
Indenture, or for the appointment of a receiver, trustee, liquidator, custodian
or other similar official, or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof, as hereinbefore provided, and unless also the
holders of not less than twenty-five percent (25%) in aggregate principal amount
of the Notes then outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such indemnity reasonably
satisfactory to the Trustee as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for sixty (60)
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding and
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 7.07; it being understood and intended, and being
expressly covenanted by the taker and holder of every Note with every other
taker and holder and the Trustee, that no one or more holders of Notes shall
have any right in any manner whatever by virtue of or by reference to any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Notes, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Notes (except as otherwise provided herein).
For the protection and enforcement of this Section 7.04 each and every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provision of this Indenture and any
provision of any Note, the right of any holder of any Note to receive payment of
the principal of (including the redemption price upon redemption pursuant to
Article 7), and accrued and unpaid Interest on such Note, on or after the
respective due dates expressed in such Note or in the event of redemption, or to
institute suit for the enforcement of any such payment on or after such
respective dates against the Company shall not be impaired or affected without
the consent of such holder.
Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, in its own behalf and for its own
benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of conversion as provided herein.
Section 7.05. Proceedings By Trustee. In case of an Event of Default,
the Trustee may, in its discretion, proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial proceedings as are
necessary to protect and enforce any of such rights, either by suit in equity or
by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
Section 7.06. Remedies Cumulative And Continuing. Except as provided
in Section 2.06, all powers and remedies given by this Article 7 to the Trustee
or to the Noteholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the holders of the Notes, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any holder of any of the Notes to exercise any right or power accruing
upon any Default or Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such
default or any acquiescence therein, and, subject to the provisions of
37
Section 7.04, every power and remedy given by this Article 7 or by law to the
Trustee or to the Noteholders may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the Noteholders.
Section 7.07. Direction of Proceedings and Waiver of Defaults By
Majority of Noteholders. The holders of a majority in aggregate principal amount
of the Notes at the time outstanding determined in accordance with Section 9.04
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee; provided that (a) such direction shall not be in
conflict with any rule of law or with this Indenture, (b) the Trustee may take
any other action that is not inconsistent with such direction, (c) the Trustee
may decline to take any action that would benefit some Noteholder to the
detriment of other Noteholders and (d) the Trustee may decline to take any
action that would involve the Trustee in personal liability. The holders of a
majority in aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 9.04 may, on behalf of the holders of all
of the Notes, waive any past Default or Event of Default hereunder and its
consequences except (i) a default in the payment of Interest on, or the
principal of, the Notes, (ii) a failure by the Company to convert any Notes into
Ordinary Shares, (iii) a default in the payment of the redemption price pursuant
to Article 3, (iv) a default in the payment of the repurchase price pursuant to
Article 3 or (v) a default in respect of a covenant or provisions hereof that
under Article 11 cannot be modified or amended without the consent of the
holders of each or all Notes then outstanding or affected thereby. Upon any such
waiver, the Company, the Trustee and the holders of the Notes shall be restored
to their former positions and rights hereunder; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon. Whenever any Default or Event of Default hereunder shall
have been waived as permitted by this Section 7.07, said Default or Event of
Default shall for all purposes of the Notes and this Indenture be deemed to have
been cured and to be not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
Section 7.08. Notice of Defaults. The Trustee shall, within ninety
(90) days after a Responsible Officer of the Trustee has actual knowledge of the
occurrence of a default, mail to all Noteholders, as the names and addresses of
such holders appear upon the Note Register, notice of all defaults known to a
Responsible Officer, unless such defaults shall have been cured or waived before
the giving of such notice; provided that except in the case of default in the
payment of the principal of or Interest on any of the Notes, the Trustee shall
be protected in withholding such notice if and so long as a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Noteholders.
Section 7.09. Undertaking To Pay Costs. All parties to this Indenture
agree, and each holder of any Note by his acceptance thereof shall be deemed to
have agreed, that any court may, in its discretion, require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided that the provisions of this Section 7.09
(to the extent permitted by law) shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than ten percent in principal amount of the Notes
at the time outstanding determined in accordance with Section 9.04, or to any
suit instituted by any Noteholder for the enforcement of the payment of
38
the principal of or Interest on any Note on or after the due date expressed in
such Note or to any suit for the enforcement of the right to convert any Note in
accordance with the provisions of Article 15.
ARTICLE 8
THE TRUSTEE
Section 8.01. Duties and Responsibilities of Trustee. The Trustee,
prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (that has not been cured or waived), the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default that may have occurred:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture and the Trust
Indenture Act, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Indenture and no implied covenants, duties or obligations shall be
read into this Indenture and the Trust Indenture Act against the Trustee;
and
(ii) in the absence of bad faith and willful misconduct on
the part of the Trustee, the Trustee may conclusively rely as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but, in the case of any such
certificates or opinions that by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to the
requirements of this Indenture but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the Trustee, unless
the Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the written
direction of the holders of not less than a majority in principal amount of the
Notes at the time outstanding determined as provided in Section 9.04 relating to
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture;
39
(d) whether or not therein provided, every provision of this
Indenture relating to the conduct or affecting the liability of, or affording
protection to, the Trustee shall be subject to the provisions of this Section;
(e) the Trustee shall not be liable in respect of any payment (as
to the correctness of amount, entitlement to receive or any other matters
relating to payment) or notice effected by the Company or any paying agent or
any records maintained by any co-registrar with respect to the Notes;
(f) if any party fails to deliver a notice relating to an event
the fact of which, pursuant to this Indenture, requires notice to be sent to the
Trustee, the Trustee may conclusively rely on its failure to receive such notice
as reason to act as if no such event occurred; and
(g) the Trustee shall not be deemed to have knowledge of any
Event of Default hereunder unless it shall have been notified in writing of such
Event of Default by the Company or the holders of at least 10% in aggregate
principal amount of the Notes.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 8.02. Reliance on Documents, Opinions, Etc. Except as
otherwise provided in Section 8.01:
(a) the Trustee may conclusively rely and shall be protected in
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon or other paper or
document (whether in its original or facsimile form) believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel of its own selection and
any advice or opinion of counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in accordance with such advice or opinion of counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby;
40
(e) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Trustee may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the expense of the Company and shall incur
no liability of any kind by reason of such inquiry or investigation;
(f) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder;
(g) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(h) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder;
(i) in no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action;
(j) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and
(k) any permissive right or authority granted to the Trustee
shall not be construed as a mandatory duty.
Section 8.03. No Responsibility For Recitals, Etc. The recitals
contained herein and in the Notes (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with the provisions of this Indenture.
Section 8.04. Trustee, Paying Agents, Conversion Agents or Registrar
May Own Notes. The Trustee, any paying agent, any conversion agent or Note
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Notes with the same rights it would have if it were not Trustee,
paying agent, conversion agent or Note Registrar.
41
Section 8.05. Monies to Be Held in Trust. Subject to the provisions of
Section 13.04, all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
may be agreed in writing from time to time by the Company and the Trustee.
Section 8.06. Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) as mutually agreed
to from time to time in writing between the Company and the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all Persons not regularly in its employ) except any such expense, disbursement
or advance as shall be determined to have been caused by its own negligence or
willful misconduct. The Company also covenants to indemnify the Trustee and any
predecessor Trustee (or any officer, director or employee of the Trustee), in
any capacity under this Indenture and its agents and any authenticating agent
for, and to hold them harmless against, any and all loss, liability, damage,
claim or expense including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or willful misconduct on the part of the
Trustee or such officers, directors, employees and agent or authenticating
agent, as the case may be, and arising out of or in connection with the
acceptance or administration of this trust or in any other capacity hereunder,
including the costs and expenses of defending themselves against any claim
(whether asserted by the Company, any holder or any other Person) of liability
in the premises. The obligations of the Company under this Section 8.06 to
compensate or indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall be secured by a lien prior to that of
the Notes upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular Notes.
The obligation of the Company under this Section shall survive the satisfaction
and discharge of this Indenture.
When the Trustee and its agents and any authenticating agent incur
expenses or render services after an Event of Default specified in Section
7.01(e) or (f) with respect to the Company occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency or similar laws.
Section 8.07. Officers' Certificate As Evidence. Except as otherwise
provided in Section 8.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of bad faith or willful misconduct on the part
of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee.
Section 8.08. Conflicting Interests of Trustee. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall (i) eliminate such interest within 90 days, (ii) apply to
the Commission for permission to continue as trustee or (iii) resign, in each
case to the extent and in the manner provided by, and subject to the provisions
of, the Trust Indenture Act and this Indenture.
42
Section 8.09. Eligibility of Trustee. There shall at all times be a
Trustee hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000 (or if such Person is a member of a bank holding company system, its
bank holding company shall have a combined capital and surplus of at least
$50,000,000). If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 8.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 8.10. Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written notice
of such resignation to the Company and to the holders of Notes. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment sixty (60) days after the
mailing of such notice of resignation to the Noteholders, the resigning Trustee
may, upon ten (10) Business Days' notice to the Company and the Noteholders,
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor trustee, or, if any Noteholder who has been a
bona fide holder of a Note or Notes for at least six (6) months may, subject to
the provisions of Section 7.09, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with Section 8.08 after
written request therefor by the Company or by any Noteholder who has been a
bona fide holder of a Note or Notes for at least six (6) months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.09 and shall fail to resign after written
request therefor by the Company or by any such Noteholder; or
(iii) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 7.09, any Noteholder who has been a bona fide holder of a
Note or Notes for at least six (6) months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee; provided that
if no successor Trustee shall have been appointed and have accepted appointment
sixty (60) days after either the Company or the
43
Noteholders has removed the Trustee, or the Trustee resigns, the Trustee so
removed may petition, at the expense of the Company, any court of competent
jurisdiction for an appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Notes at the time outstanding may at any time remove the Trustee and
nominate a successor trustee which shall be deemed appointed as successor
trustee unless, within ten (10) days after notice to the Company of such
nomination, the Company objects thereto, in which case the Trustee so removed or
any Noteholder, or if such Trustee so removed or any Noteholder fails to act,
the Company, upon the terms and conditions and otherwise as in Section 8.10(a)
provided, may petition any court of competent jurisdiction for an appointment of
a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section 8.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.11.
(e) Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 8.06 shall continue for
the benefit of the retiring Trustee.
Section 8.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 8.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amount then due it pursuant to the provisions of Section
8.06, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by
such trustee as such, except for funds held in trust for the benefit of holders
of particular Notes, to secure any amounts then due it pursuant to the
provisions of Section 8.06.
No successor trustee shall accept appointment as provided in this
Section 8.11 unless, at the time of such acceptance, such successor trustee
shall be qualified under the provisions of Section 8.08 and be eligible under
the provisions of Section 8.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.11, the Company (or the former trustee, at the written direction
of the Company) shall mail or cause to be mailed notice of the succession of
such trustee hereunder to the holders of Notes at their addresses as they shall
appear on the Note Register. If the Company fails to mail such notice within ten
(10) days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.
Section 8.12. Succession By Merger. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any
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corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including any trust created by this Indenture), shall
be the successor to the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
in the case of any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, such corporation shall be qualified
under the provisions of Section 8.08 and eligible under the provisions of
Section 8.09.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee or authenticating agent appointed
by such predecessor trustee, and deliver such Notes so authenticated; and in
case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or any authenticating agent appointed by such successor
trustee may authenticate such Notes in the name of the successor trustee; and in
all such cases such certificates shall have the full force that is provided in
the Notes or in this Indenture; provided that the right to adopt the certificate
of authentication of any predecessor Trustee or authenticate Notes in the name
of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 8.13. Preferential Collection of Claims. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Notes), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company (or any
such other obligor).
Section 8.14. Trustee's Application For Instructions From The Company.
Any application by the Trustee for written instructions from the Company (other
than with regard to any action proposed to be taken or omitted to be taken by
the Trustee that affects the rights of the holders of the Notes under this
Indenture) may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three (3) Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Trustee shall have received
written instructions in response to such application specifying the action to be
taken or omitted.
Section 8.15. Appointment of Co-Trustee. It is the purpose of this
Indenture that there shall be no violation of any law of any jurisdiction
denying or restricting the right of banking corporations or associations to
transact business as trustee in such jurisdiction. It is recognized that in case
of litigation under this Indenture, and in particular in case of the enforcement
thereof on default, or in the case the Trustee deems that by reason of any
present or future law of any jurisdiction it may not exercise any of the powers,
rights or remedies herein granted to the Trustee or hold title to the
properties, in trust, as herein granted or take any action which may be
desirable or necessary in connection therewith, it may be necessary that the
Trustee appoint an individual or institution as a separate or co-trustee. The
following provisions of this Section are adopted to these ends.
In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action,
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immunity, estate, title, interest and lien expressed or intended by this
Indenture to be exercised by or vested in or conveyed to the Trustee with
respect thereto shall be exercisable by and vest in such separate or co-trustee
but only to the extent necessary to enable such separate or co-trustee to
exercise such powers, rights and remedies, and only to the extent that the
Trustee by the laws of any jurisdiction is incapable of exercising such powers,
rights and remedies and every covenant and obligation necessary to the exercise
thereof by such separate or co-trustee shall run to and be enforceable by either
of them.
Should any instrument in writing from the Company be required by the
separate or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to it such properties, rights, powers, trusts, duties
and obligations, any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Company; provided, that if an Event
of Default shall have occurred and be continuing, if the Company does not
execute any such instrument within fifteen (15) days after request therefor, the
Trustee shall be empowered as an attorney-in-fact for the Company to execute any
such instrument in the Company's name and stead. In case any separate or
co-trustee or a successor to either shall die, become incapable of acting,
resign or be removed, all the estates, properties, rights, powers, trusts,
duties and obligations of such separate or co-trustee, so far as permitted by
law, shall vest in and be exercised by the Trustee until the appointment of a
new trustee or successor to such separate or co-trustee.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights and powers, conferred or imposed upon the
Trustee shall be conferred or imposed upon and may be exercised or
performed by such separate trustee or co-trustee; and
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Article.
Any separate trustee or co-trustee may at any time appoint the Trustee
as its agent or attorney-in-fact with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.16. Force Majeure. In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its
obligations under this Indenture arising out of or caused by, directly or
indirectly, forces beyond its reasonable control, including without limitation
strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of god, and interruptions,
loss or malfunctions of utilities, communications or computer (software or
hardware) services.
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ARTICLE 9
THE NOTEHOLDERS
Section 9.01. Action By Noteholders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Noteholders
in person or by agent or proxy appointed in writing, or (b) by the record of the
holders of Notes voting in favor thereof at any meeting of Noteholders duly
called and held in accordance with the provisions of Article 10, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Noteholders. Whenever the Company or the Trustee solicits the taking
of any action by the holders of the Notes, the Company or the Trustee may fix in
advance of such solicitation, a date as the record date for determining holders
entitled to take such action. The record date shall be not more than fifteen
(15) days prior to the date of commencement of solicitation of such action.
Section 9.02. Proof of Execution by Noteholders. Subject to the
provisions of Sections 8.01, 8.02 and 10.05, proof of the execution of any
instrument by a Noteholder or its agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the registry of such Notes or by a
certificate of the Note Registrar.
The record of any Noteholders' meeting shall be proved in the manner
provided in Section 10.06.
Section 9.03. Who Are Deemed Absolute Owners. The Company, the
Trustee, any paying agent, any conversion agent and any Note Registrar may deem
the Person in whose name such Note shall be registered upon the Note Register to
be, and may treat it as, the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by any Person other than the Company or any Note Registrar)
for the purpose of receiving payment of or on account of the principal of and
Interest on such Note, for conversion of such Note and for all other purposes;
and neither the Company nor the Trustee nor any paying agent nor any conversion
agent nor any Note Registrar shall be affected by any notice to the contrary.
All such payments so made to any holder for the time being, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for monies payable upon any such Note.
Section 9.04. Company-owned Notes Disregarded. In determining whether
the holders of the requisite aggregate principal amount of Notes have concurred
in any direction, consent, waiver or other action under this Indenture, Notes
that are owned by the Company or any other obligor on the Notes or any Affiliate
of the Company or any other obligor on the Notes shall be disregarded and deemed
not to be outstanding for the purpose of any such determination; provided that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent, waiver or other action, only Notes which
a Responsible Officer knows are so owned shall be so disregarded. Notes so owned
that have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 9.04 if the pledgee shall establish to the satisfaction
of the Trustee the pledgee's right to vote such Notes and that the
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pledgee is not the Company, any other obligor on the Notes or any Affiliate of
the Company or any such other obligor. In the case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Notes, if any, known by the Company to be owned or held by or for the
account of any of the above described Persons, and, subject to Section 8.01, the
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Notes not
listed therein are outstanding for the purpose of any such determination.
Section 9.05. Revocation Of Consents, Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 9.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note that is shown by the evidence
to be included in the Notes the holders of which have consented to such action
may, by filing written notice with the Trustee at its Corporate Trust Office and
upon proof of holding as provided in Section 9.02, revoke such action so far as
concerns such Note. Except as aforesaid, any such action taken by the holder of
any Note shall be conclusive and binding upon such holder and upon all future
holders and owners of such Note and of any Notes issued in exchange or
substitution therefor, irrespective of whether any notation in regard thereto is
made upon such Note or any Note issued in exchange or substitution therefor.
ARTICLE 10
MEETINGS OF NOTEHOLDERS
Section 10.01. Purpose Of Meetings. A meeting of Noteholders may be
called at any time and from time to time pursuant to the provisions of this
Article 10 for any of the following purposes:
(1) to give any notice to the Company or to the Trustee or
to give any directions to the Trustee permitted under this Indenture, or to
consent to the waiving of any Default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by
Noteholders pursuant to any of the provisions of Article 7;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article 8;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section 11.02;
or
(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of the
Notes under any other provision of this Indenture or under applicable law.
Section 10.02. Call Of Meetings By Trustee. The Trustee may at any
time call a meeting of Noteholders to take any action specified in Section
10.01, to be held at such time and at such place as the Trustee shall determine.
Notice of every meeting of the Noteholders, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting and the establishment of any record date pursuant to Section 9.01, shall
be mailed to holders of Notes at their addresses as they shall appear on the
Note Register. Such notice shall also be mailed to the Company. Such
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notices shall be mailed not less than twenty (20) nor more than ninety (90) days
prior to the date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the
holders of all Notes then outstanding are present in person or by proxy or if
notice is waived before or after the meeting by the holders of all Notes
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
Section 10.03. Call Of Meetings By Company Or Noteholders. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least ten percent (10%) in aggregate principal amount of the Notes
then outstanding, shall have requested the Trustee to call a meeting of
Noteholders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within twenty (20) days after receipt of such request,
then the Company or such Noteholders may determine the time and the place for
such meeting and may call such meeting to take any action authorized in Section
10.01, by mailing notice thereof as provided in Section 10.02.
Section 10.04. Qualifications For Voting. To be entitled to vote at
any meeting of Noteholders a person shall (a) be a holder of one or more Notes
on the record date pertaining to such meeting or (b) be a person appointed by an
instrument in writing as proxy by a holder of one or more Notes on the record
date pertaining to such meeting. The only persons who shall be entitled to be
present or to speak at any meeting of Noteholders shall be the persons entitled
to vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
Section 10.05. Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 10.03, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Notes represented at the meeting and entitled to vote
at the meeting.
Subject to the provisions of Section 9.04, at any meeting each
Noteholder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him; provided that no vote
shall be cast or counted at any meeting in respect of any Note challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Notes held by him or instruments in writing as aforesaid duly designating him as
the proxy to vote on behalf of other Noteholders. Any meeting of Noteholders
duly called pursuant to the provisions of Section 10.02 or 10.03 may be
adjourned from time to time by the holders of a majority of the aggregate
principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
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Section 10.06. Voting. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballot on which shall be subscribed
the signatures of the holders of Notes or of their representatives by proxy and
the outstanding principal amount of the Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Noteholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 10.02. The record shall show the principal amount of the
Notes voting in favor of or against any resolution. The record shall be signed
and verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 10.07. No Delay Of Rights By Meeting. Nothing contained in
this Article 10 shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Noteholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the
Noteholders under any of the provisions of this Indenture or of the Notes.
ARTICLE 11
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Noteholders.
The Company, when authorized by the resolutions of the Board of Directors, and
the Trustee may, from time to time, and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to make provision with respect to the conversion rights of
the holders of Notes pursuant to the requirements of Section 15.06 and the
repurchase obligations of the Company pursuant to the requirements of Section
3.05(e);
(b) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Notes, any property or assets;
(c) to evidence the succession of another Person to the Company,
or successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company pursuant to Article 12;
(d) to add to the covenants of the Company such further
covenants, restrictions or conditions as the Board of Directors and the Trustee
shall consider to be for the benefit of the holders of Notes, to relinquish the
right of the Company to pay the Designated Event Repurchase Price or the
Repurchase Price by delivery of Ordinary Shares pursuant to Sections 3.05 and
3.06, respectively, and to make the occurrence, or the occurrence and
50
continuance, of a default in any such additional covenants, restrictions or
conditions a default or an Event of Default permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set forth;
provided that in respect of any such additional covenant, restriction or
condition, such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default;
(e) to provide for the issuance under this Indenture of Notes in
coupon form (including Notes registrable as to principal only) and to provide
for exchangeability of such Notes with the Notes issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture that may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to matters or
questions arising under this Indenture that shall not materially adversely
affect the interests of the holders of the Notes;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes;
(h) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualifications of
this Indenture under the Trust Indenture Act, or under any similar federal
statute hereafter enacted; or
(i) to increase, from time to time, the per annum interest rate
on the Notes for any period.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture, the Trustee
shall join with the Company in the execution of any such supplemental indenture,
and is hereby authorized to make any further appropriate agreements and
stipulations that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder; provided that the Trustee
shall not be obligated to, but may in its discretion, enter into any
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 11.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Notes at the time outstanding, notwithstanding any
of the provisions of Section 11.02.
Notwithstanding any other provision of the Indenture or the Notes, the
Registration Rights Agreement and the obligation to pay Additional Interest
thereunder may only be amended, modified or waived only in accordance with the
provisions of the Registration Rights Agreement.
Section 11.02. Supplemental Indenture With Consent Of Noteholders.
With the consent (evidenced as provided in Article 9) of the holders of at least
a majority in aggregate principal amount of the Notes at the time outstanding,
the Company, when authorized by the resolutions of the Board of Directors, and
the Trustee may, from time to time and at any time,
51
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or any supplemental indenture or of modifying in
any manner the rights of the holders of the Notes; provided that no such
supplemental indenture shall (i) extend the fixed maturity of any Note, or
reduce the rate or extend the time of payment of Interest thereon, or reduce the
principal amount thereof or reduce any amount payable on redemption or
repurchase thereof, or change the obligation of the Company to repurchase any
Note at the option of a Noteholder on a Repurchase Date in a manner adverse to
the holders of Notes, or change the obligation of the Company to repurchase any
Note upon the happening of a Designated Event in a manner adverse to the holders
of Notes, or impair the right of any Noteholder to institute suit for the
payment thereof, or make the principal thereof or Interest thereon payable in
any coin or currency other than that provided in the Notes, or impair the right
to convert the Notes into Ordinary Shares or reduce the number of Ordinary
Shares or any other property receivable by a Noteholder upon conversion subject
to the terms set forth herein, including Section 15.06, in each case, without
the consent of the holder of each Note so affected, reduce the quorum of voting
requirements hereunder, or modify any of the provisions of this Section 11.02 or
Section 7.07, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the holder of each Note so affected, or change any obligation of the
Company to maintain an office or agency in the places and for the purposes set
forth in Section 5.02 or reduce the quorum or voting requirements set forth in
Article 10 or (ii) reduce the aforesaid percentage of Notes, the holders of
which are required to consent to any such supplemental indenture, without the
consent of the holders of all Notes then outstanding.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Noteholders under
this Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 11.03. Effect Of Supplemental Indenture. Any supplemental
indenture executed pursuant to the provisions of this Article 11 shall comply
with the Trust Indenture Act, as then in effect, provided that this Section
11.03 shall not require such supplemental indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is
in fact required under the terms of the Trust Indenture Act or the Indenture has
been qualified under the Trust Indenture Act, nor shall it constitute any
admission or acknowledgment by any party to such supplemental indenture that any
such qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act or the Indenture has been
qualified under the Trust Indenture Act. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 11, this Indenture shall be
and be deemed to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Notes shall
thereafter be determined, exercised and enforced hereunder, subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
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Section 11.04. Notation On Notes. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article 11 may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may, at the Company's expense, be
prepared and executed by the Company, authenticated by the Trustee (or an
authenticating agent duly appointed by the Trustee pursuant to Section 16.11)
and delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.
Section 11.05. Evidence Of Compliance Of Supplemental Indenture To Be
Furnished To Trustee. Prior to entering into any supplemental indenture, the
Trustee shall be provided with an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
hereto complies with the requirements of this Article 11 and is otherwise
authorized or permitted by this Indenture.
ARTICLE 12
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.01. Company May Consolidate On Certain Terms. Subject to
the provisions of Section 12.02, the Company shall not consolidate or merge with
or into any other Person or Persons (whether or not affiliated with the
Company), nor shall the Company or its successor or successors be a party or
parties to successive consolidations or mergers, nor shall the Company sell,
convey, transfer or lease the property and assets of the Company substantially
as an entirety, to any other Person (whether or not affiliated with the
Company), unless: (i) the Company is the surviving Person, or the resulting,
surviving or transferee Person is a Person organized and existing under the laws
of the Island of Guernsey, the United States of America, any state thereof or
the District of Columbia or any other country (including its political
subdivisions) that on the issue date is a member of the Organization for
Economic Cooperation and Development or any other country whose legal and
jurisprudential system is principally based on, or substantially similar to,
English common law so long as the location of that entity in such common law
country would not adversely affect the rights of Noteholders; (ii) upon any such
consolidation, merger, sale, conveyance, transfer or lease, the due and punctual
payment of the principal of and Interest on all of the Notes, according to their
tenor and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company, shall
be expressly assumed, by supplemental indenture satisfactory in form and
substance to the Trustee, executed and delivered to the Trustee by the Person
(if other than the Company and other than a Person who is a successor to the
Company's obligations hereunder and under the Note by operation of law) formed
by such consolidation, or into which the Company shall have been merged, or by
the Person that shall have acquired or leased such property, and such
supplemental indenture shall provide for the applicable conversion rights set
forth in Section 15.06; and (iii) immediately after giving effect to the
transaction described above, no Event of Default, and no event that, after
notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing.
Section 12.02. Successor To Be Substituted. In case of any such
consolidation, merger, sale, conveyance, transfer or lease and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and Interest on all of the Notes and the
due and punctual performance of all of the covenants and conditions of this
Indenture to be
53
performed by the Company, such successor Person shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the party of this first part. Such successor Person thereupon may cause to be
signed, and may issue either in its own name or in the name of Amdocs Limited,
any or all of the Notes issuable hereunder that theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such
successor Person instead of the Company and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver, or cause to be authenticated and delivered, any Notes that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Notes that such successor Person
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Notes so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Notes theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Notes had
been issued at the date of the execution hereof. In the event of any such
consolidation, merger, sale, conveyance, transfer or lease, the Person named as
the "Company" in the first paragraph of this Indenture or any successor that
shall thereafter have become such in the manner prescribed in this Article 12
may be dissolved, wound up and liquidated at any time thereafter and such Person
shall be released from its liabilities as obligor and maker of the Notes and
from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance, transfer
or lease, such changes in phraseology and form (but not in substance) may be
made in the Notes thereafter to be issued as may be appropriate.
Section 12.03. Opinion Of Counsel To Be Given To Trustee. The Trustee
shall receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
lease and any such assumption complies with the provisions of this Article 12.
ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01. Discharge Of Indenture. When (a) the Company shall
deliver to the Trustee for cancellation all Notes theretofore authenticated
(other than any Notes that have been destroyed, lost or stolen and in lieu of or
in substitution for which other Notes shall have been authenticated and
delivered) and not theretofore canceled, or (b) all the Notes not theretofore
canceled or delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
deposit with the Trustee, in trust, funds sufficient to pay at maturity or upon
redemption of all of the Notes (other than any Notes that shall have been
mutilated, destroyed, lost or stolen and in lieu of or in substitution for which
other Notes shall have been authenticated and delivered) not theretofore
canceled or delivered to the Trustee for cancellation, including principal and
Interest due or to become due to such date of maturity or redemption date, as
the case may be, accompanied by a verification report, as to the sufficiency of
the deposited amount, from an independent certified accountant or other
financial professional satisfactory to the Trustee, and if the Company shall
also pay or cause to be paid all other sums payable hereunder by the Company,
then this Indenture shall cease to be of further effect (except as to (i)
remaining rights of registration of transfer, substitution and exchange and
conversion of Notes, (ii) rights hereunder of Noteholders to receive payments of
principal of and Interest on, the Notes and the other rights, duties and
obligations of Noteholders, as beneficiaries hereof with
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respect to the amounts, if any, so deposited with the Trustee and (iii) the
rights, obligations and immunities of the Trustee hereunder), and the Trustee,
on written demand of the Company accompanied by an Officers' Certificate and an
Opinion of Counsel as required by Section 16.05 and at the cost and expense of
the Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture; the Company, however, hereby agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred by
the Trustee and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture or the
Notes.
Section 13.02. Deposited Monies To Be Held In Trust By Trustee.
Subject to Section 13.04, all monies deposited with the Trustee pursuant to
Section 13.01 shall be held in trust for the sole benefit of the Noteholders,
and such monies shall be applied by the Trustee to the payment, either directly
or through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Notes for the payment or redemption of
which such monies have been deposited with the Trustee, of all sums due and to
become due thereon for principal and Interest.
Section 13.03. Paying Agent To Repay Monies Held. Upon the
satisfaction and discharge of this Indenture, all monies then held by any paying
agent of the Notes (other than the Trustee) shall, upon written request of the
Company, be repaid to it or paid to the Trustee, and thereupon such paying agent
shall be released from all further liability with respect to such monies.
Section 13.04. Return Of Unclaimed Monies. Subject to the requirements
of applicable law, any monies deposited with or paid to the Trustee for payment
of the principal or Interest on Notes and not applied but remaining unclaimed by
the holders of Notes for two years after the date upon which the principal of or
Interest on such Notes, as the case may be, shall have become due and payable,
shall be repaid to the Company by the Trustee on demand and all liability of the
Trustee shall thereupon cease with respect to such monies; and the holder of any
of the Notes shall thereafter look only to the Company for any payment that such
holder may be entitled to collect unless an applicable abandoned property law
designates another Person.
Section 13.05. Reinstatement. If the Trustee or the paying agent is
unable to apply any money in accordance with Section 13.02 by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 13.01 until such time as the Trustee or the paying
agent is permitted to apply all such money in accordance with Section 13.02;
provided that if the Company makes any payment of Interest on or principal of
any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the holders of such Notes to receive such payment
from the money held by the Trustee or paying agent.
ARTICLE 14
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture And Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or Interest on any Note, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this Indenture or
in any supplemental indenture or in any Note, or
55
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, shareholder, employee, agent, officer, director or
subsidiary, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Notes.
ARTICLE 15
CONVERSION OF NOTES
Section 15.01. Right To Convert. (a) Subject to and upon compliance
with the provisions of this Indenture, prior to March 15, 2024, the holder of
any Note shall have the right, at such holder's option, to convert the principal
amount of the Note, or any portion of such principal amount that is a multiple
of $1,000, into fully paid and non-assessable Ordinary Shares (as such shares
shall then be constituted) at the Conversion Rate in effect at such time, by
surrender of the Note so to be converted in whole or in part, together with any
required funds, under the circumstances described in this Section 15.01 and in
the manner provided in Section 15.02. The Notes shall be convertible only upon
the occurrence of one of the following events:
(i) during any Fiscal Quarter (and only during such Fiscal
Quarters) commencing after March 31, 2004, if the Closing Sale Price of the
Ordinary Shares exceeds 130% of the then-effective Conversion Price for at
least 20 Trading Days in the 30 consecutive Trading Day period ending on
the last Trading Day of the immediately preceding Fiscal Quarter (it being
understood for purposes of this Section 15.01(a)(i) that the Conversion
Price in effect at the close of business on each of the 30 consecutive
Trading Days should be used);
(ii) during the five Business Day period immediately
following any five consecutive Trading Day period (the "Measurement
Period") in which the Trading Price per $1,000 principal amount of the
Notes for each day of such Measurement Period was less than 98% of the
product of the Closing Sale Price and the then-applicable Conversion Rate;
provided that no conversion pursuant to this clause (ii) may be made if on
any Trading Day during the Measurement Period, the Closing Sale Price is
more than 100%, but less than 130% of the Conversion Price on such Trading
Day;
(iii) if such Note has been called for redemption, at any
time on or after the date the notice of redemption has been given until the
close of business on the Business Day immediately preceding the redemption
date unless the Company fails to pay the redemption price, in which case
the Notes will continue to be convertible;
(iv) as provided in Section (b) of this Section 15.01; or
(v) after the earlier of (a) the date the Notes are rated by
both Standard & Poor's and ▇▇▇▇▇'▇ and (b) five Business Days from the date
the Notes are issued, during any period in which the credit rating assigned
to the Notes by Standard & Poor's or ▇▇▇▇▇'▇ (or any successors to these
entities) is "BB-" or "Ba3", respectively, or lower, or if either of these
rating agencies no longer assigns credit ratings to the Notes,
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or if either of these rating agencies suspends or withdraws the credit
rating assigned to the Notes, or if the Notes are not assigned a credit
rating by both agencies.
The Trustee (or other conversion agent appointed by the Company)
shall, on behalf of the Company, determine on a daily basis during the time
period specified in Section 15.01(a)(i) whether the Notes shall be convertible
as a result of the occurrence of an event specified in clause (i) above and, if
the Notes shall be so convertible, the Trustee (or other conversion agent
appointed by the Company) shall promptly deliver to the Company and the Trustee
(if the Trustee is not the conversion agent) written notice thereof. Whenever
the Notes shall become convertible pursuant to this Section 15.01, the Company
or, at the Company's request, the Trustee in the name and at the expense of the
Company, shall notify the holders of the event triggering such convertibility in
the manner provided in Section 16.03, and the Company shall also publicly
announce such information and publish it on the Company's web site. Any notice
so given shall be conclusively presumed to have been duly given, whether or not
the holder receives such notice.
The Trustee (or other conversion agent appointed by the Company) shall
have no obligation to determine the Trading Price under this Section 15.01
unless the Company has requested such a determination; and the Company shall
have no obligation to make such request unless a holder provides it with
reasonable evidence that the Trading Price per $1,000 principal amount of Notes
would be less than 98% of the product of the Closing Sale Price and the
then-applicable Conversion Rate. If such evidence is provided, the Company shall
instruct the Trustee (or other conversion agent) to determine the Trading Price
of the Notes beginning on the next Trading Day and on each successive Trading
Day until the Trading Price per $1,000 principal amount of Notes is greater than
or equal to 98% of the product of the Closing Sale Price and the then-applicable
Conversion Rate; provided that the Trustee shall be under no duty or obligation
to make the calculations described in Section 15.01(a)(ii) hereof or to
determine whether the Notes are convertible pursuant to such section. For the
avoidance of doubt, the Company shall make the calculations described in Section
15.01(a)(ii), using the Trading Price provided by the Trustee.
The Trustee shall be entitled at its sole discretion to consult with
the Company and to request the assistance of the Company in connection with the
Trustee's duties and obligations pursuant to Section 15.01(a)(i) and Section
15.01(a)(ii) hereof (including without limitation the calculation or
determination of the Conversion Price, the Closing Sale Price and the Trading
Price), and the Company agrees, if requested by the Trustee, to cooperate with,
and provide assistance to, the Trustee in carrying out its duties under this
Section 15.01; provided that nothing herein shall be construed to relieve the
Trustee of its duties pursuant to Section 15.01(a)(i) and Section 15.01(a)(ii)
hereof.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its
Ordinary Shares rights or warrants entitling them (for a period expiring
within 45 days of the record date for the determination of the shareholders
entitled to receive such distribution) to subscribe for or purchase
Ordinary Shares, at a price per share less than the average of the Closing
Sale Price for the ten Trading Days immediately preceding, but not
including, the declaration date for such distribution, or (B) the Company
distributes to all holders of its Ordinary Shares, ordinary shares, assets,
debt securities or rights to purchase its securities, where the Fair Market
Value of such distribution per Ordinary Share exceeds 5% of the Closing
Sale Price on the Trading Day immediately preceding the declaration date
for such distribution, then, in either case, the Notes may be
57
surrendered for conversion at any time on and after the date that the
Company gives notice to the holders of such distribution, which shall be
not less than 20 days prior to the Ex-Dividend Time for such distribution,
until the earlier of the close of business on the Business Day immediately
preceding, but not including, the Ex-Dividend Time or the date the Company
publicly announces that such distribution will not take place; provided
that if the holder will otherwise participate in such distribution without
conversion, such holder of a Note will not have the ability to convert
pursuant to this Section 15.01(b); or
(ii) the Company consolidates or amalgamates with or merges
with or into another Person or is a party to a binding share exchange or
conveys, transfers, sells, leases or otherwise disposes of all or
substantially all of its assets in each case pursuant to which the
Company's Ordinary Shares are converted into cash, securities or other
property, then the Notes may be surrendered for conversion at any time from
and after the date that is fifteen (15) days prior to the anticipated
effective date of the transaction and ending on and including the date that
is fifteen (15) days after the consummation of the transaction. If such
transaction constitutes a Designated Event, the Notes may be surrendered
for conversion until the corresponding Designated Event Purchase Date. In
such an event, a holder of Notes may elect to exercise its option to
require the Company to repurchase all or a portion of such holder's Notes.
The Board of Directors shall determine the anticipated effective date of
the transaction, and such determination shall be conclusive and binding on
the holders and shall be publicly announced by the Company and posted on
its web site not later than two Business Days prior to such 15th day. At
the effective time of such transaction, the right to convert the Notes into
Ordinary Shares will convert into a right to convert the Notes into the
kind and amount of cash, securities and other property that a Noteholder
would have received if such holder had converted such holder's Notes
immediately prior to the transaction.
"Ex-Dividend Time" means, with respect to any distribution on Ordinary
Shares, the first date on which the Ordinary Shares trade regular way on the
principal securities market on which the Ordinary Shares are then traded without
the right to receive such distribution.
(c) A Note in respect of which a holder is electing to exercise
its option to require the Company to repurchase such holder's Notes upon a
Designated Event pursuant to Section 3.05, or at the option of the holder
pursuant to Section 3.06, may be converted only if such holder withdraws its
election in accordance with Section 3.05(c) or Section 3.08, respectively. A
holder of Notes is not entitled to any rights of a holder of Ordinary Shares
until such holder has converted his Notes to Ordinary Shares, and only to the
extent such Notes are deemed to have been converted to Ordinary Shares under
this Article 15.
Section 15.02. Exercise Of Conversion Privilege; Issuance Of Ordinary
Shares On Conversion. (a) In order to exercise the conversion privilege with
respect to any Note in certificated form, the Company must receive at the office
or agency of the Company maintained for that purpose or, at the option of such
holder, the Corporate Trust Office, such Note with the original or facsimile of
the form entitled "Conversion Notice" on the reverse thereof duly completed and
manually signed, together with such Notes duly endorsed for transfer,
accompanied by the funds, if any, required by paragraph (e) of this Section
15.02. Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for Ordinary Shares that
shall be issuable on such conversion shall be issued, and shall be accompanied
by transfer or similar taxes, if required pursuant to Section 15.07.
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(b) In order to exercise the conversion privilege with respect to
any interest in a Global Note, the beneficial holder must complete, or cause to
be completed, the appropriate instruction form for conversion pursuant to the
Depositary's book-entry conversion program, deliver, or cause to be delivered,
by book-entry delivery an interest in such Global Note, furnish appropriate
endorsements and transfer documents if required by the Company or the Trustee or
conversion agent, and pay the funds, if any, required by this Section 15.02 and
any transfer taxes if required pursuant to Section 15.07.
(c) As promptly as practicable after satisfaction of the
requirements for conversion set forth above, subject to compliance with any
restrictions on transfer if shares issuable on conversion are to be issued in a
name other than that of the Noteholder (as if such transfer were a transfer of
the Note or Notes (or portion thereof) so converted), the Company shall issue
and shall deliver to such Noteholder at the office or agency maintained by the
Company for such purpose pursuant to Section 5.02, a certificate or certificates
for the number of full Ordinary Shares issuable upon the conversion of such Note
or portion thereof as determined by the Company in accordance with the
provisions of this Article 15 and a check or cash in respect of any fractional
interest in respect of an Ordinary Share arising upon such conversion,
calculated by the Company as provided in Section 15.03. In case any Note of a
denomination greater than $1,000 shall be surrendered for partial conversion,
and subject to Section 2.03, the Company shall execute and the Trustee shall
authenticate and deliver to the holder of the Note so surrendered, without
charge to him, a new Note or Notes in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Note.
(d) Each conversion shall be deemed to have been effected as to
any such Note (or portion thereof) as of the close of business on the date (the
"Conversion Date") on which the requirements set forth above in this Section
15.02 have been satisfied as to such Note (or portion thereof), and the Person
in whose name any certificate or certificates for Ordinary Shares shall be
issuable upon such conversion shall be deemed to have become as of the close of
business on said date the holder of record of the shares represented thereby;
provided that any such surrender on any date when the stock transfer books of
the Company shall be closed shall constitute the Person in whose name the
certificates are to be issued as the record holder thereof for all purposes as
of the close of business on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion Rate in effect on
the date upon which such Note shall be surrendered.
(e) Any Note or portion thereof surrendered for conversion during
the period from the close of business on the record date for any interest
payment date to the close of business on the Business Day preceding the
following interest payment date shall be accompanied by payment, in immediately
available funds or other funds acceptable to the Company, of an amount equal to
the Interest otherwise payable on such interest payment date on the principal
amount being converted; provided that no such payment need be made (1) if the
Company has specified a redemption date that is after a record date and on or
prior to the next interest payment date, (2) if the Company has specified a
Designed Event Repurchase Date that is after a record date and on or prior to
the next interest payment date or (3) to the extent of any overdue Interest, if
any overdue Interest exists at the time of conversion with respect to such Note.
Except as provided above in this Section 15.02, no payment or other adjustment
shall be made for Interest accrued on any Note converted or for dividends on any
shares issued upon the conversion of such Note as provided in this Article 15.
(f) Upon the conversion of an interest in a Global Note, the
Trustee (or other conversion agent appointed by the Company), or the Custodian
at the direction of the
59
Trustee (or other conversion agent appointed by the Company), shall make a
notation on such Global Note as to the reduction in the principal amount
represented thereby. The Company shall notify the Trustee in writing of any
conversions of Notes effected through any conversion agent other than the
Trustee.
(g) Upon the conversion of a Note, that portion of the accrued
but unpaid Interest, including accrued Additional Interest, if any, to the
Conversion Date, with respect to the converted Note shall be forfeited.
Section 15.03. Cash Payments in Lieu of Fractional Shares. No
fractional Ordinary Shares or scrip certificates representing fractional shares
shall be issued upon conversion of Notes. If more than one Note shall be
surrendered for conversion at one time by the same holder, the number of full
shares that shall be issuable upon conversion shall be computed on the basis of
the aggregate principal amount of the Notes (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional share of stock
would be issuable upon the conversion of any Note or Notes, the Company shall
make an adjustment and payment therefor in cash at the current market price
thereof to the holder of Notes. The current market price of an Ordinary Share
shall be the Closing Sale Price on the last Trading Day immediately preceding
the Conversion Date.
Section 15.04. Conversion Rate. Each $1,000 principal amount of the
Notes shall be convertible into the number of Ordinary Shares specified in the
form of Note (herein called the "Conversion Rate") attached as Exhibit A hereto,
subject to adjustment as provided in this Article 15.
Section 15.05. Adjustment Of Conversion Rate. The Conversion Rate
shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter while any of the Notes
are outstanding pay a dividend or make a distribution to all holders of the
outstanding Ordinary Shares in Ordinary Shares, the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect at the opening of business on the date following the
date fixed for the determination of shareholders entitled to receive such
dividend or other distribution by a fraction,
(i) the numerator of which shall be the sum of the number of
Ordinary Shares outstanding at the close of business on the date fixed for
the determination of shareholders entitled to receive such dividend or
other distribution plus the total number of Ordinary Shares constituting
such dividend or other distribution; and
(ii) the denominator of which shall be the number of
Ordinary Shares outstanding at the close of business on the date fixed for
such determination,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purpose of this
paragraph (a), the number of Ordinary Shares at any time outstanding shall not
include shares held in the treasury of the Company or by any wholly-owned
Subsidiary of the Company. The Company will not pay any dividend or make any
distribution on Ordinary Shares held in the treasury of the Company or by any
wholly-owned Subsidiary of the Company. If any dividend or distribution of the
type described in this Section 15.05(a) is declared but not so paid or made, the
Conversion Rate shall
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again be adjusted to the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.
(b) In case the Company shall hereafter while any of the Notes
are outstanding issue rights or warrants to all holders of its outstanding
Ordinary Shares entitling them (for a period expiring within forty-five (45)
days after the date fixed for determination of shareholders entitled to receive
such rights or warrants) to subscribe for or purchase Ordinary Shares at a price
per share less than the average of the Closing Sale Prices of the Ordinary
Shares for the 10 Trading Days immediately preceding the declaration date for
such distribution, the Conversion Rate shall be increased so that the same shall
equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to such declaration date by a fraction,
(i) the numerator of which shall be the number of Ordinary
Shares outstanding as of the close of business on the date fixed for
determination of shareholders entitled to receive such rights or warrants
plus the total number of additional Ordinary Shares offered for
subscription or purchase, and
(ii) the denominator of which shall be the sum of the number
of Ordinary Shares outstanding at the close of business on the date fixed
for determination of shareholders entitled to receive such rights or
warrants plus the number of shares that the aggregate offering price of the
total number of shares so offered would purchase at a price equal to the
average of the Closing Sale Prices of the Ordinary Shares for the 10
Trading Days immediately preceding the declaration date for such
distribution,
such adjustment shall be successively made whenever any such rights or warrants
are issued, and shall become effective immediately after the opening of business
on the day following the date fixed for determination of shareholders entitled
to receive such rights or warrants. To the extent that Ordinary Shares are not
delivered after the expiration of such rights or warrants, the Conversion Rate
shall be readjusted to the Conversion Rate that would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the
basis of delivery of only the number of Ordinary Shares actually delivered. If
such rights or warrants are not so issued, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be in effect if such date
fixed for the determination of shareholders entitled to receive such rights or
warrants had not been fixed. In determining whether any rights or warrants
entitle the holders to subscribe for or purchase Ordinary Shares at a price less
than the average of the Closing Sale Prices of the Ordinary Shares for the 10
Trading Days immediately preceding the date such distribution is first publicly
announced by the Company, and in determining the aggregate offering price of
such Ordinary Shares, there shall be taken into account any consideration
received by the Company for such rights or warrants and any amount payable on
exercise or conversion thereof, the value of such consideration, if other than
cash, to be determined by the Board of Directors.
(c) In case outstanding Ordinary Shares shall be subdivided into
a greater number of Ordinary Shares, the Conversion Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and conversely, in case
outstanding Ordinary Shares shall be combined into a smaller number of Ordinary
Shares, the Conversion Rate in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective. In such
case, the Conversion Rate shall be
61
adjusted by multiplying such Conversion Rate by a fraction, the numerator of
which shall be the number of Ordinary Shares outstanding immediately after
giving effect to such subdivision or combination and the denominator of which
shall be the number of Ordinary Shares outstanding immediately prior to such
subdivision or combination.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Ordinary Shares of any class of capital stock
of the Company or evidences of its indebtedness or assets (including securities,
but excluding any rights or warrants referred to in Section 15.05(b), and
excluding any dividend or distribution (x) paid exclusively in cash or (y)
referred to in Section 15.05(a) (any of the foregoing hereinafter in this
Section 15.05(d)) called the "Securities")), then, in each such case (unless the
Company elects to reserve such Securities for distribution to the Noteholders
upon the conversion of the Notes so that any such holder converting Notes will
receive upon such conversion, in addition to the Ordinary Shares to which such
holder is entitled, the amount and kind of such Securities that such holder
would have received if such holder had converted its Notes into Ordinary Shares
immediately prior to the Record Date for such distribution of the Securities)
the Conversion Rate shall be increased so that the same shall be equal to the
rate determined by multiplying the Conversion Rate in effect on the Record Date
with respect to such distribution by a fraction,
(i) the numerator of which shall be the Current Market Price
on such Record Date; and
(ii) the denominator of which shall be the Current Market
Price on such Record Date less the Fair Market Value (as determined by the
Board of Directors, whose determination shall be conclusive, and described
in a resolution of the Board of Directors) on the Record Date of the
portion of the Securities so distributed applicable to one Ordinary Share,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; provided that if the then Fair Market
Value (as so determined) of the portion of the Securities so distributed
applicable to one Ordinary Share is equal to or greater than the Current Market
Price on the Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Noteholder shall have the right to receive
upon conversion the amount of Securities such holder would have received had
such holder converted each Note on the Record Date. If such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared. If the Board of Directors determines the
Fair Market Value of any distribution for purposes of this Section 15.05(d) by
reference to the actual or when issued trading market for any securities, it
must in doing so consider the prices in such market over the same period used in
computing the Current Market Price on the applicable Record Date.
Notwithstanding the foregoing, if the Securities distributed by the Company to
all holders of its Ordinary Shares consist of capital stock of, or similar
equity interests in, a Subsidiary or other business unit, the Conversion Rate
shall be increased so that the same shall be equal to the rate determined by
multiplying the Conversion Rate in effect on the Record Date with respect to
such distribution by a fraction,
(i) the numerator of which shall be the sum of (A) the
average of the Closing Sale Prices of the Ordinary Shares for the ten (10)
Trading Days commencing on and including the fifth Trading Day after the
Ex-Dividend Time plus (B) the Fair Market Value of the securities
distributed in respect of each Ordinary Share for which this Section
15.05(d) applies and shall equal the number of securities distributed in
62
respect of each Ordinary Share multiplied by the average of the closing
sale prices of those securities distributed (where such closing sale prices
are available) for the ten (10) Trading Days commencing on and including
the fifth Trading Day after the Ex-Dividend Time; and
(ii) the denominator of which shall be the average of the
Closing Sale Prices of the Ordinary Shares for the ten (10) Trading Days
commencing on and including the fifth Trading Day after the Ex-Dividend
Time,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; provided that the Company may in lieu of
the foregoing adjustment make adequate provision so that each Noteholder shall
have the right to receive upon conversion the amount of Securities such holder
would have received had such holder converted each Note on the Record Date with
respect to such distribution.
Rights or warrants distributed by the Company to all holders of
Ordinary Shares entitling the holders thereof to subscribe for or purchase
shares of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"): (i) are deemed to be transferred with such
Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect
of future issuances of Ordinary Shares, shall be deemed not to have been
distributed for purposes of this Section 15.05 (and no adjustment to the
Conversion Rate under this Section 15.05 will be required) until the occurrence
of the earliest Trigger Event, whereupon such rights and warrants shall be
deemed to have been distributed and an appropriate adjustment (if any is
required) to the Conversion Rate shall be made under this Section 15.05(d). If
any such right or warrant, including any such existing rights or warrants
distributed prior to the date of this Indenture, are subject to events, upon the
occurrence of which such rights or warrants become exercisable to purchase
different securities, evidences of indebtedness or other assets, then the date
of the occurrence of any and each such event shall be deemed to be the date of
distribution and record date with respect to new rights or warrants with such
rights (and a termination or expiration of the existing rights or warrants
without exercise by any of the holders thereof). In addition, in the event of
any distribution (or deemed distribution) of rights or warrants, or any Trigger
Event or other event (of the type described in the preceding sentence) with
respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this Section 15.05
was made, (1) in the case of any such rights or warrants that shall all have
been redeemed or repurchased without exercise by any holders thereof, the
Conversion Rate shall be readjusted upon such final redemption or repurchase to
give effect to such distribution or Trigger Event, as the case may be, as though
it were a cash distribution, equal to the per share redemption or repurchase
price received by a holder or holders of Ordinary Shares with respect to such
rights or warrants (assuming such holder had retained such rights or warrants),
made to all holders of Ordinary Shares as of the date of such redemption or
repurchase, and (2) in the case of such rights or warrants that shall have
expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights and warrants had not been
issued.
No adjustment of the Conversion Rate shall be made pursuant to this
Section 15.05(d) in respect of rights or warrants distributed or deemed
distributed on any Trigger Event to the extent that such rights or warrants are
actually distributed, or reserved by the Company for distribution to holders of
Notes upon conversion by such holders of Notes to Ordinary Shares.
For purposes of this Section 15.05(d) and Sections 15.05(a) and (b),
any dividend or distribution to which this Section 15.05(d) is applicable that
also includes Ordinary Shares, or
63
rights or warrants to subscribe for or purchase Ordinary Shares (or both), shall
be deemed instead to be (1) a dividend or distribution of the evidences of
indebtedness, assets or shares of capital stock other than such Ordinary Shares
or rights or warrants (and any Conversion Rate adjustment required by this
Section 15.05(d) with respect to such dividend or distribution shall then be
made) immediately followed by (2) a dividend or distribution of such Ordinary
Shares or such rights or warrants (and any further Conversion Rate adjustment
required by Sections 15.05(a) and 15.05(b) with respect to such dividend or
distribution shall then be made), except (A) the Record Date of such dividend or
distribution shall be substituted as "the date fixed for the determination of
shareholders entitled to receive such dividend or other distribution", "the date
fixed for the determination of shareholders entitled to receive such rights or
warrants" and "the date fixed for such determination" within the meaning of
Section 15.05(a) and 15.05(b) and (B) any Ordinary Shares included in such
dividend or distribution shall not be deemed "outstanding at the close of
business on the date fixed for such determination" within the meaning of Section
15.05(a).
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Ordinary Shares cash (excluding any dividend or
distribution in connection with the liquidation, dissolution or winding up of
the Company, whether voluntary or involuntary), then, in such case, the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to the
close of business on such record date by a fraction,
(i) the numerator of which shall be the Current Market Price
on such record date; and
(ii) the denominator of which shall be the Current Market
Price on such record date less the amount of cash so distributed applicable
to one Ordinary Share,
such adjustment to be effective immediately prior to the opening of business on
the day following the record date; provided that if the portion of the cash so
distributed applicable to one Ordinary Share is equal to or greater than the
Current Market Price on the record date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Noteholder shall have the right to
receive upon conversion the amount of cash such holder would have received had
such holder converted each Note on the record date. If such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
(f) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Ordinary Shares shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to shareholders of consideration per Ordinary Share having a Fair
Market Value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a resolution of the Board of Directors) that as
of the last time (the "Expiration Time") tenders or exchanges may be made
pursuant to such tender or exchange offer (as it may be amended) exceeds the
Closing Sale Price of an Ordinary Share on the Trading Day next succeeding the
Expiration Time, the Conversion Rate shall be increased so that the same shall
equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the Expiration Time by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair
Market Value (determined as aforesaid) of the aggregate consideration
payable to shareholders based on the acceptance (up to any maximum
specified in the terms of the
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tender or exchange offer) of all shares validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares deemed so accepted up
to any such maximum, being referred to as the "Purchased Shares") and (y)
the product of the number of Ordinary Shares outstanding (less any
Purchased Shares) at the Expiration Time and the Closing Sale Price of a
Ordinary Share on the Trading Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the number of
Ordinary Shares outstanding (including any tendered or exchanged shares) at
the Expiration Time multiplied by the Closing Sale Price of an Ordinary
Share on the Trading Day next succeeding the Expiration Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. If the Company is obligated to
purchase shares pursuant to any such tender or exchange offer, but the Company
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted to
be the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made.
(g) In case of a payment in respect of a tender or exchange offer
made by a Person other than the Company or any Subsidiary for an amount that
increases such offeror's ownership of Ordinary Shares to more than twenty-five
percent (25%) of the Ordinary Shares outstanding at such time and shall involve
the payment by such Person of consideration per Ordinary Share having a Fair
Market Value (as determined by the Board of Directors, whose determination shall
be conclusive, and described in a resolution of the Board of Directors) that as
of the last time (the "Offer Expiration Time") tenders or exchanges may be made
pursuant to such tender or exchange offer (as it shall have been amended)
exceeds the Closing Sale Price of an Ordinary Share on the Trading Day next
succeeding the Offer Expiration Time, and in which, as of the Offer Expiration
Time, the Board of Directors is not recommending rejection of the offer, the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to the
Offer Expiration Time by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair
Market Value (determined as aforesaid) of the aggregate consideration
payable to shareholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Offer Expiration
Time (the shares deemed so accepted, up to any such maximum, being referred
to as the "Offeror Purchased Shares") and (y) the product of the number of
Ordinary Shares outstanding (less any Offeror Purchased Shares) at the
Offer Expiration Time and the Closing Sale Price of a Ordinary Share on the
Trading Day next succeeding the Offer Expiration Time, and
(ii) the denominator of which shall be the number of
Ordinary Shares outstanding (including any tendered or exchanged shares) at
the Offer Expiration Time multiplied by the Closing Sale Price of a
Ordinary Share on the Trading Day next succeeding the Offer Expiration
Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Offer Expiration Time. If such Person is obligated to
purchase shares pursuant to any such tender or exchange offer, but such Person
is permanently prevented by applicable law
65
from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such tender or exchange offer had not been made.
Notwithstanding the foregoing, the adjustment described in this Section 15.05(g)
shall not be made if, as of the Offer Expiration Time, the offering documents
with respect to such offer disclose a plan or intention to cause the Company to
engage in any transaction described in Article 12.
(h) For purposes of this Section 15.05, the following terms shall
have the meaning indicated:
(i) "Current Market Price" as of any date of determination
shall mean the average of the daily Closing Sale Prices per Ordinary Share
for the ten consecutive Trading Days ending on the earlier of such date of
determination and the day before the "ex" date with respect to the
issuance, distribution, subdivision or combination requiring such
computation immediately prior to the date in question. For purpose of this
paragraph, the term "ex" date, (1) when used with respect to any issuance
or distribution, means the first date on which the Ordinary Shares trades,
regular way, on the relevant exchange or in the relevant market from which
the Closing Sale Price was obtained without the right to receive such
issuance or distribution, and (2) when used with respect to any subdivision
or combination of Ordinary Shares, means the first date on which the
Ordinary Shares trades, regular way, on such exchange or in such market
after the time at which such subdivision or combination becomes effective.
If another issuance, distribution, subdivision or
combination to which Section 15.05 applies occurs during the period
applicable for calculating "Current Market Price" pursuant to the
definition in the preceding paragraph, "Current Market Price" shall be
calculated for such period in a manner determined by the Board of Directors
to reflect the impact of such issuance, distribution, subdivision or
combination on the Closing Sale Price of the Ordinary Shares during such
period.
(ii) "Fair Market Value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's-length transaction.
(iii) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders
of Ordinary Shares have the right to receive any cash, securities or other
property or in which the Ordinary Shares (or other applicable security) is
exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of shareholders entitled
to receive such cash, securities or other property (whether such date is
fixed by the Board of Directors or by statute, contract or otherwise).
(iv) "Trading Day" shall mean (x) if the applicable security
is quoted on the Nasdaq National Market, a day on which trades may be made
thereon or (y) if the applicable security is listed or admitted for trading
on the American Stock Exchange, New York Stock Exchange or another national
securities exchange, a day on which the American Stock Exchange, New York
Stock Exchange or another national securities exchange is open for business
or (z) if the applicable security is not so listed, admitted for trading or
quoted, any day other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close.
66
(i) The Company may make such increases in the Conversion Rate,
in addition to those required by Section 15.05(a), (b), (c), (d), (e), (f) or
(g) as the Board of Directors considers to be advisable to avoid or diminish any
income tax to holders of Ordinary Shares or rights to purchase Ordinary Shares
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
The Company from time to time may increase the Conversion Rate by any
amount for any period of time if the period is at least twenty (20) days, the
increase is irrevocable during the period and the Board of Directors shall have
made a determination that such increase would be in the best interests of the
Company, which determination shall be conclusive. Whenever the Conversion Rate
is increased pursuant to the preceding sentence, the Company shall mail to
holders of record of the Notes a notice of the increase at least fifteen (15)
days prior to the date the increased Conversion Rate takes effect, and such
notice shall state the increased Conversion Rate and the period during which it
will be in effect.
(j) No adjustment in the Conversion Rate shall be required unless
such adjustment would require an increase or decrease of at least one percent
(1%) in such rate; provided that any adjustments that by reason of this Section
15.05(j) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Article 15
shall be made by the Company and shall be made to the nearest cent or to the
nearest one-ten thousandth (1/10,000) of a share, as the case may be. No
adjustment need be made for rights to purchase Ordinary Shares pursuant to a
Company plan for reinvestment of dividends or interest or for any issuance of
Ordinary Shares or convertible or exchangeable securities or rights to purchase
Ordinary Shares or convertible or exchangeable securities. To the extent the
Notes become convertible into cash, assets, property or securities (other than
capital stock of the Company), no adjustment need be made thereafter as to the
cash, assets, property or such securities. Interest will not accrue on any cash
into which the Notes are convertible.
(k) Whenever the Conversion Rate is adjusted as herein provided,
the Company shall promptly file with the Trustee and any conversion agent other
than the Trustee an Officers' Certificate setting forth the Conversion Rate
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment. Unless and until a Responsible Officer of the Trustee shall
have received such Officers' Certificate, the Trustee shall not be deemed to
have knowledge of any adjustment of the Conversion Rate and may assume that the
last Conversion Rate of which it has knowledge is still in effect. Promptly
after delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and
the date on which each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Rate to the holder of each Note at his last
address appearing on the Note Register provided for in Section 2.05 of this
Indenture, within twenty (20) days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of any such adjustment.
(l) In any case in which this Section 15.05 provides that an
adjustment shall become effective immediately after (1) a record date or Record
Date for an event, (2) the date fixed for the determination of shareholders
entitled to receive a dividend or distribution pursuant to Section 15.05(a), (3)
a date fixed for the determination of shareholders entitled to receive rights or
warrants pursuant to Section 15.05(b), or (4) the Expiration Time for any tender
or exchange offer pursuant to Section 15.05(f) or (g), (each a "Determination
Date"), the Company may elect to defer until the occurrence of the applicable
Adjustment Event (as hereinafter defined) (x) issuing to the holder of any Note
converted after such Determination Date and before the occurrence of such
Adjustment Event, the additional Ordinary Shares or other
67
securities issuable upon such conversion by reason of the adjustment required by
such Adjustment Event over and above the Ordinary Shares issuable upon such
conversion before giving effect to such adjustment and (y) paying to such holder
any amount in cash in lieu of any fraction pursuant to Section 15.03. For
purposes of this Section 15.05(l), the term "Adjustment Event" shall mean:
(i) in any case referred to in clause (1) hereof, the
occurrence of such event,
(ii) in any case referred to in clause (2) hereof, the date
any such dividend or distribution is paid or made,
(iii) in any case referred to in clause (3) hereof, the date
of expiration of such rights or warrants, and
(iv) in any case referred to in clause (4) hereof, the date
a sale or exchange of Ordinary Shares pursuant to such tender or exchange
offer is consummated and becomes irrevocable.
(m) For purposes of this Section 15.05, the number of Ordinary
Shares at any time outstanding shall not include shares held in the treasury of
the Company or by a wholly-owned Subsidiary of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
Ordinary Shares. The Company will not pay any dividend or make any distribution
on Ordinary Shares held in the treasury of the Company or by a wholly-owned
Subsidiary of the Company.
Section 15.06. Effect Of Reclassification, Consolidation, Merger or
Sale. If any of the following events occur, namely (i) any reclassification or
change of the outstanding Ordinary Shares (other than a subdivision or
combination to which Section 15.05(c) applies or a change in par value, or from
par value to no par value, or from no par value to par value), (ii) any
consolidation, merger or combination of the Company with another Person as a
result of which holders of Ordinary Shares shall be entitled to receive stock,
other securities or other property or assets (including cash) with respect to or
in exchange for such Ordinary Shares, or (iii) any sale or conveyance of all or
substantially all of the properties and assets of the Company to any other
Person as a result of which holders of Ordinary Shares shall be entitled to
receive stock, other securities or other property or assets (including cash)
with respect to or in exchange for such Ordinary Shares, then the Company or the
successor or purchasing Person, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture)
providing that each Note shall be convertible into the kind and amount of shares
of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of Ordinary Shares
issuable upon conversion of such Notes (assuming, for such purposes, a
sufficient number of authorized Ordinary Shares are available to convert all
such Notes) immediately prior to such reclassification, change, consolidation,
merger, combination, sale or conveyance assuming such holder of Ordinary Shares
did not exercise his rights of election, if any, as to the kind or amount of
stock, other securities or other property or assets (including cash) receivable
upon such reclassification, change, consolidation, merger, combination, sale or
conveyance (provided that, if the kind or amount of stock, other securities or
other property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance is not the same
for each Ordinary Share in respect of which such rights of election
68
shall not have been exercised ("Non-electing share"), then for the purposes of
this Section 15.06 the kind and amount of stock, other securities or other
property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance for each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares). Such supplemental indenture
shall provide for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 15.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes, at its address appearing on the
Note Register provided for in Section 2.05 of this Indenture, within twenty (20)
days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 15.06 applies to any event or occurrence, Section
15.05 shall not apply.
Section 15.07. Taxes On Shares Issued. The issue of stock certificates
on conversions of Notes shall be made without charge to the converting
Noteholder for any documentary, stamp or similar issue or transfer tax in
respect of the issue thereof. The Company shall not, however, be required to pay
any such tax that may be payable in respect of any transfer involved in the
issue and delivery of stock in any name other than that of the holder of any
Note converted, and the Company shall not be required to issue or deliver any
such stock certificate unless and until the Person or Persons requesting the
issue thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
Section 15.08. Reservation of Shares, Shares to Be Fully Paid;
Compliance With Governmental Requirements; Listing of Ordinary Shares. The
Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient Ordinary Shares to
provide for the conversion of the Notes from time to time as such Notes are
presented for conversion.
Before taking any action that would cause an adjustment increasing the
Conversion Rate to an amount that would cause the Conversion Price to be reduced
below the then par value, if any, of the Ordinary Shares issuable upon
conversion of the Notes, the Company will take all corporate action that may, in
the opinion of its counsel, be necessary in order that the Company may validly
and legally issue shares of such Ordinary Shares at such adjusted Conversion
Rate.
The Company covenants that all Ordinary Shares that may be issued upon
conversion of Notes will upon issue be fully paid and non-assessable by the
Company and free from all taxes, liens and charges with respect to the issue
thereof.
The Company covenants that, if any Ordinary Shares to be provided for
the purpose of conversion of Notes hereunder require registration with or
approval of any governmental authority under any federal or state law before
such shares may be validly issued upon conversion, the Company will in good
faith and as expeditiously as possible, to the extent
69
then permitted by the rules and interpretations of the Commission (or any
successor thereto), endeavor to secure such registration or approval, as the
case may be.
The Company further covenants that, if at any time the Ordinary Shares
shall be listed on the New York Stock Exchange or any other national securities
exchange or automated quotation system, the Company will, if permitted by the
rules of such exchange or automated quotation system, list and keep listed, so
long as the Ordinary Shares shall be so listed on such exchange or automated
quotation system, all Ordinary Shares issuable upon conversion of the Notes;
provided that if the rules of such exchange or automated quotation system permit
the Company to defer the listing of such Ordinary Shares until the first
conversion of the Notes into Ordinary Shares in accordance with the provisions
of this Indenture, the Company covenants to list such Ordinary Shares issuable
upon conversion of the Notes in accordance with the requirements of such
exchange or automated quotation system at such time.
Section 15.09. Responsibility Of Trustee. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any holder of Notes to determine the Conversion Rate or whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee and any other
conversion agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any Ordinary Shares, or of any securities or
property, that may at any time be issued or delivered upon the conversion of any
Note; and the Trustee and any other conversion agent make no representations
with respect thereto. Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
Ordinary Shares or stock certificates or other securities or property or cash
upon the surrender of any Note for the purpose of conversion or to comply with
any of the duties, responsibilities or covenants of the Company contained in
this Article 15. Without limiting the generality of the foregoing, neither the
Trustee nor any conversion agent shall be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
entered into pursuant to Section 15.06 relating either to the kind or amount of
shares of stock or securities or property (including cash) receivable by
Noteholders upon the conversion of their Notes after any event referred to in
such Section 15.06 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 8.01, may accept as conclusive evidence of
the correctness of any such provisions, and shall be protected in relying upon,
the Officers' Certificate (which the Company shall be obligated to file with the
Trustee prior to the execution of any such supplemental indenture) with respect
thereto.
Section 15.10. Notice To Holders Prior To Certain Actions. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Ordinary Shares that would require an adjustment in the
Conversion Rate pursuant to Section 15.05; or
(b) the Company shall authorize the granting to the holders of
all or substantially all of its Ordinary Shares of rights or warrants to
subscribe for or purchase any share of any class or any other rights or
warrants; or
(c) of any reclassification or reorganization of the Ordinary
Shares of the Company (other than a subdivision or combination of its
outstanding Ordinary Shares, or a change in par value, or from par value to no
par value, or from no par value to par value), or of any consolidation or merger
to which the Company is a party and for which approval of any
70
shareholders of the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note Register provided for in
Section 2.05 of this Indenture, as promptly as possible but in any event at
least ten (10) days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Ordinary Shares of record to be
entitled to such dividend, distribution or rights are to be determined, or (y)
the date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective or occur,
and the date as of which it is expected that holders of Ordinary Shares of
record shall be entitled to exchange their Ordinary Shares for securities or
other property deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
Section 15.11. Shareholder Rights Plans. Each Ordinary Share issued
upon conversion of Notes pursuant to this Article 15 shall be entitled to
receive the appropriate number of rights, if any, and the certificates
representing the Ordinary Shares issued upon such conversion shall bear such
legends, if any, in each case as may be provided by the terms of any shareholder
rights plan adopted by the Company, as the same may be amended from time to
time. If at the time of conversion, however, the rights have separated from the
Ordinary Shares in accordance with the provisions of the applicable shareholder
rights agreement so that the holders of the Notes would not be entitled to
receive any rights in respect of Ordinary Shares issuable upon conversion of the
Notes, the conversion rate will be adjusted in accordance with Section 15.05(d)
treating all rights previously issued as Securities for purposes of such
adjustment, subject to readjustment in the event of the expiration, termination
or redemption of the rights.
ARTICLE 16
MISCELLANEOUS PROVISIONS
Section 16.01. Provisions Binding On Company's Successors. All the
covenants, stipulations, promises and agreements by the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.
Section 16.02. Official Acts By Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any Person that shall at the time be the lawful sole successor of the
Company.
Section 16.03. Addresses For Notices, Etc. Any notice or demand that
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Notes on the Company shall be deemed
to have been sufficiently given or made, for all purposes, if given or served by
being deposited postage prepaid by registered or certified mail in
71
a post office letter box or sent by telecopier transmission addressed as
follows: to c/o Amdocs, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, Telecopier No. ▇▇▇-▇▇▇-▇▇▇▇. Any
notice, direction, request or demand hereunder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
served by being deposited, postage prepaid, by registered or certified mail in a
post office letter box or sent by telecopier transmission addressed as follows:
The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration.
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first-class mail, postage prepaid, at his address as it appears on the
Note Register and shall be sufficiently given to him if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Section 16.04. Governing Law. This Indenture and each Note shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of laws principles thereof.
Section 16.05. Evidence Of Compliance With Conditions Precedent,
Certificates To Trustee. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been complied
with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include: (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is
based; (3) a statement that, in the opinion of such person, 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.
Section 16.06. Legal Holidays. In any case in which the date of
maturity of Interest on or principal of the Notes or the redemption date of any
Note will not be a Business Day, then payment of such Interest on or principal
of the Notes need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the redemption date, and no Interest shall accrue for the period
from and after such date.
Section 16.07. Trust Indenture Act. This Indenture is hereby made
subject to, and shall be governed by, the provisions of the Trust Indenture Act
required to be part of and to
72
govern indentures qualified under the Trust Indenture Act; provided that unless
otherwise required by law, notwithstanding the foregoing, this Indenture and the
Notes issued hereunder shall not be subject to the provisions of subsections
(a)(1), (a)(2), and (a)(3) of Section 314 of the Trust Indenture Act as now in
effect or as hereafter amended or modified; provided further that this Section
16.07 shall not require this Indenture or the Trustee to be qualified under the
Trust Indenture Act prior to the time such qualification is in fact required
under the terms of the Trust Indenture Act, nor shall it constitute any
admission or acknowledgment by any party to the Indenture that any such
qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in an indenture qualified under the Trust Indenture Act, such
required provision shall control.
Section 16.08. No Security Interest Created. Nothing in this Indenture
or in the Notes, expressed or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar legislation, as
now or hereafter enacted and in effect, in any jurisdiction in which property of
the Company or its Subsidiaries is located.
Section 16.09. Benefits Of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto, any paying agent, any authenticating agent, any Note Registrar and their
successors hereunder and the holders of Notes any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 16.10. Table Of Contents, Headings, Etc. The table of contents
and the titles and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 16.11. Authenticating Agent. The Trustee may appoint an
authenticating agent that shall be authorized to act on its behalf, and subject
to its direction, in the authentication and delivery of Notes in connection with
the original issuance thereof and transfers and exchanges of Notes hereunder,
including under Sections 2.04, 2.05, 2.06, 2.07, 3.03, 3.05, 3.06, 3.10 and
15.02, as fully to all intents and purposes as though the authenticating agent
had been expressly authorized by this Indenture and those Sections to
authenticate and deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by the authenticating agent shall be deemed
to be authentication and delivery of such Notes "by the Trustee" and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent shall be deemed to satisfy any requirement hereunder or in
the Notes for the Trustee's certificate of authentication. Such authenticating
agent shall at all times be a Person eligible to serve as trustee hereunder
pursuant to Section 8.09.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 16.11, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any authenticating agent by giving written notice
of termination to such authenticating
73
agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time any authenticating agent shall cease
to be eligible under this Section, the Trustee shall either promptly appoint a
successor authenticating agent or itself assume the duties and obligations of
the former authenticating agent under this Indenture and, upon such appointment
of a successor authenticating agent, if made, shall give written notice of such
appointment of a successor authenticating agent to the Company and shall mail
notice of such appointment of a successor authenticating agent to all holders of
Notes as the names and addresses of such holders appear on the Note Register.
The Company agrees to pay to the authenticating agent from time to
time such reasonable compensation for its services as shall be agreed upon in
writing between the Company and the authenticating agent.
The provisions of Sections 8.02, 8.03, 8.04 and 9.03 and this Section
16.11 shall be applicable to any authenticating agent.
Section 16.12. Execution In Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
Section 16.13. Severability
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, then (to the extent permitted by law) the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
The Bank of New York hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions herein above set forth.
Section 16.14. Submission to Jurisdiction; Appointment of Agent
The Company irrevocably (i) agrees that any legal suit, action or
proceeding against it arising out of or based upon the Securities, this
Indenture or the transactions contemplated hereby may be instituted in any state
or federal court located in the Borough of Manhattan, The City of New York, New
York (each a "New York Court"), (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
has appointed Amdocs, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as its authorized agent (the "Authorized Agent") upon whom
process may be served in any such action arising out of or based on the
Securities, this Indenture or the transactions contemplated hereby which may be
instituted in any New York Court, expressly consents to the jurisdiction of any
such court in respect of any such action, and waives any other requirements of
or objections to personal jurisdiction with respect thereto. Such appointment
shall be irrevocable. The Company represents and warrants that the Authorized
Agent has agreed to act as such agent for service of process and agrees to take
any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Company shall be deemed, in every respect,
effective service of process upon the Company.
74
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed.
AMDOCS LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Secretary and Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A
THIS SECURITY AND THE ORDINARY SHARES ("ORDINARY SHARES") OF
AMDOCS LIMITED (THE "COMPANY") ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
""SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE
ORDINARY SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE RIGHTS OF THE COMPANY AND THE WITHIN MENTIONED TRUSTEE PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES WHERE REGISTRATION OR TRANSFER
OF THIS SECURITY IS REQUIRED, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE OTHER SIDE OF THIS SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE THIS LEGEND WILL BE REMOVED AFTER THE RESALE RESTRICTION TERMINATION
DATE UPON THE REQUEST OF THE HOLDER AND THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATES AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY,
THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL
PURPOSES.
A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), 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 DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED
TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
A-2
AMDOCS LIMITED
0.50% CONVERTIBLE SENIOR NOTE DUE 2024
CUSIP No.: ▇▇▇▇▇▇▇▇▇
No. 1 $450,000,000
AMDOCS LIMITED, a company duly organized and validly existing
under the laws of the Island of Guernsey, Channel Islands (herein called the
"Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received hereby promises to pay to
CEDE & CO. or its registered assigns, the principal sum as set forth on Schedule
I hereto on March 15, 2024, at the office or agency of the Company maintained
for that purpose in accordance with the terms of the Indenture, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
semiannually on March 15 and September 15 of each year, commencing September 15,
2004, on said principal sum at said office or agency, in like coin or currency,
at the rate per annum of 0.50%. Except as otherwise provided in the Indenture,
the interest payable on the Note pursuant to the Indenture on any March 15 or
September 15 will be paid to the Person entitled thereto as it appears in the
Note Register at the close of business on the record date, which shall be the
March 1 or September 1 (whether or not a Business Day) next preceding such March
15 or September 15, as provided in the Indenture; provided that any such
interest not punctually paid or duly provided for shall be payable as provided
in the Indenture. The Company shall pay interest (i) on any Notes in
certificated form by check mailed to the address of the Person entitled thereto
as it appears in the Note Register (provided that the holder of Notes with an
aggregate principal amount in excess of $2,000,000 shall, at the written
election of such holder, be paid by wire transfer of immediately available
funds) or (ii) on any Global Note by wire transfer of immediately available
funds to the account of the Depositary or its nominee.
The Company promises to pay interest on overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) interest at the rate of 1.5% per annum.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, including, without limitation, provisions giving
the holder of this Note the right to convert this Note into Ordinary Shares of
the Company on the terms and subject to the limitations referred to on the
reverse hereof and as more fully specified in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set forth
at this place.
This Note shall be deemed to be a contract made under the laws
of the State of New York, and for all purposes shall be construed in accordance
with and governed by the laws of the State of New York, without regard to
conflicts of laws principles thereof.
A-3
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by the Trustee or a duly authorized authenticating agent under the
Indenture.
[Signature page to follow]
A-4
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed.
AMDOCS LIMITED
By:
-------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named
Indenture.
THE BANK OF NEW YORK, as Trustee
By:
---------------------------
Authorized Signatory
, or
By:
---------------------------
As Authenticating Agent
(if different from Trustee)
By:
---------------------------
Authorized Signatory
A-5
This Note is one of a duly authorized issue of Notes of the
Company, designated as its 0.50% Convertible Senior Notes due 2024 (herein
called the "Notes"), issued and to be issued under and pursuant to an Indenture
dated as of March 5, 2004 (herein called the "Indenture"), between the Company
and The Bank of New York, as trustee (herein called the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the Notes.
In case an Event of Default shall have occurred and be
continuing, the principal of and accrued and unpaid Interest on all Notes may be
declared by either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Notes then outstanding, and upon said declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of at least a majority in aggregate
principal amount of the Notes at the time outstanding, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the holders of the Notes; provided that no such
supplemental indenture shall (i) extend the fixed maturity of any Note, or
reduce the rate or extend the time of payment of Interest thereon, or reduce the
principal amount thereof or reduce any amount payable upon redemption or
repurchase thereof, or change the obligation of the Company to repurchase any
Note at the option of a Noteholder on a Repurchase Date in a manner adverse to
the holders of Notes, or change the obligation of the Company to repurchase any
Note upon the happening of a Designated Event in a manner adverse to the holders
of Notes, or impair the right of any Noteholder to institute suit for the
payment thereof, or make the principal thereof or interest thereon payable in
any coin or currency other than that provided in the Notes, or impair the right
to convert the Notes into Ordinary Shares or reduce the number of Ordinary
Shares or any other property receivable by a Noteholder upon conversion subject
to the terms set forth in the Indenture, including Section 15.06 thereof, in
each case, without the consent of the holder of each Note so affected, or modify
any of the provisions of Section 11.02 or Section 7.07 thereof, except to
increase any such percentage or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent of the holder of each
Note so affected, or change any obligation of the Company to maintain an office
or agency in the places and for the purposes set forth in Section 5.02 thereof,
or reduce the quorum or voting requirements set forth in Article 10 thereof or
(ii) reduce the aforesaid percentage of Notes, the holders of which are required
to consent to any such supplemental indenture, without the consent of the
holders of all Notes then outstanding. Subject to the provisions of the
Indenture, the holders of a majority in aggregate principal amount of the Notes
at the time outstanding may on behalf of the holders of all of the Notes waive
any past Default or Event of Default under the Indenture and its consequences
except (A) a default in the payment of Interest on, or the principal of, any of
the Notes, (B) a failure by the Company to convert any Notes into Ordinary
Shares of the Company, (C) a default in the payment of the redemption price
pursuant to Article 3 of the Indenture, (D) a default in the payment of the
repurchase
A-6
price pursuant to Article 3 of the Indenture, or (E) a default in respect of a
covenant or provisions of the Indenture which under Article 11 of the Indenture
cannot be modified or amended without the consent of the holders of each or all
Notes then outstanding or affected thereby. Any such consent or waiver by the
holder of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Note and any Notes which may be issued in exchange or substitution
hereof, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and Interest on
this Note at the place, at the respective times, at the rate and in the coin or
currency herein prescribed.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
The Notes are issuable in fully registered form, without
coupons, in denominations of $1,000 principal amount and any multiple of $1,000.
At the office or agency of the Company referred to on the face hereof, and in
the manner and subject to the limitations provided in the Indenture, without
payment of any service charge but with payment of a sum sufficient to cover any
tax, assessment or other governmental charge that may be imposed in connection
with any registration or exchange of Notes, Notes may be exchanged for a like
aggregate principal amount of Notes of any other authorized denominations.
At any time on or after March 20, 2009 and prior to maturity,
the Notes may be redeemed at the option of the Company, in whole or in part,
upon mailing a notice of such redemption not less than 30 days but not more than
60 days before the redemption date to the holders of Notes at their last
registered addresses, all as provided in the Indenture, at a redemption price
equal to 100% of the principal amount of the Notes being redeemed and accrued
and unpaid Interest, to, but excluding, the redemption date; provided that if
the redemption date falls after a record date and on or prior the corresponding
interest payment date, then accrued and unpaid Interest to, but excluding, the
redemption date shall be paid on such interest payment date to the holders of
record of such Notes on the applicable record date instead of to the holders
surrendering such Notes for redemption on such date.
The Company may not give notice of any redemption of the Notes
if a default in the payment of Interest on the Notes has occurred and is
continuing, or if the principal amount of the Notes has been accelerated.
All amounts payable (whether in respect of principal, interest
or otherwise) in respect of the Securities will be made free and clear of and
without withholding or deduction for or on account of any present or future
taxes, duties, levies, assessments, or governmental charges of whatever nature
imposed or levied by or on behalf of Guernsey or any political subdivision
thereof or any authority or agency therein or thereof having
A-7
power to tax, unless the withholding or deduction of such taxes, duties, levies,
assessments or governmental charges is required by law. In that event, the
Company will pay, or cause to be paid, such additional amounts ("Additional
Amounts") as may be necessary in order that the net amounts receivable by the
holder after such withholding or deduction shall equal the respective amounts
which would have been receivable by such Holder in the absence of such
withholding or deduction; except that no such additional amounts shall be
payable in relation to any payment in respect of any of the Securities
(i) to, or to a third party on behalf of, a person who is
liable for such taxes, duties, levies assessments or governmental charges in
respect of such note by reason of his having some connection with (including,
without limitation, being a citizen of, being incorporated or engaged in a trade
or business in, or having a residence or principal place of business or other
presence in) Guernsey other than (a) the mere holding of such Security or (b)
the receipt of principal, interest or other amount in respect of such Security;
or
(ii) presented for payment more than 30 days after the
relevant date (as defined below), except to the extent that the relevant holder
would have been entitled to such Additional Amounts on presenting the same for
payment on or before the expiry of such period of 30 days; or
(iii) on account of any inheritance, gift, estate, personal
property, sale or similar taxes duties, levies, assessments or similar
governmental charges; or
(iv) on account of any taxes, duties, levies, assessments or
governmental charges that are payable otherwise than by withholding form
payments in respect of such note.
The "relevant date" means, in respect of any payment, the date
on which such payment first becomes due and payable, but if the full amount of
the moneys payable has not been received by the Trustee on or prior to such due
date, it means the first date on which, the full amount of such moneys having
been so received and being available for payment to holders, notice to that
effect shall have been duly given to the holders of the notes.
If the Company becomes subject generally at any time to any
taxing jurisdiction other than or in addition to Guernsey, references in this
section to Guernsey shall be read and construed as references to such other
jurisdiction(s) and/or to Guernsey.
Notwithstanding the foregoing discussion concerning
withholding taxes, in the event that any deduction or withholding on account of
tax is required to be made or is made in connection with the European Union
directive on the taxation of savings income adopted on June 3, 2003, no
Additional Amounts shall be payable or paid by the Company to any holder in
respect of the Securities.
Any reference herein or in the Indenture to "principal" and/or
"interest" in respect of the Securities shall be deemed also to refer to any
Additional Amounts and Additional Interest which may be payable. Unless the
context otherwise requires, any
A-8
reference herein or in the Indenture to "principal" shall include any redemption
amount and any other amounts in the nature of principal payable pursuant to this
Security or the Indenture.
Subject to the conditions described below, the Notes may be
redeemed for cash, in whole but not in part, at the Company's option, upon not
less than 30 days' nor more than 60 days' prior notice to the holders at the
redemption price equal to 100% of the principal amount, plus accrued and unpaid
Interest, if any, to, but excluding, the date fixed for redemption, if the
Company determines, based on an opinion received from a tax advisor who is an
expert in the tax laws of the relevant jurisdiction, that on the next succeeding
Interest payment date, as a result of any change in or amendment to the laws or
treaties, or any regulations or rulings promulgated thereunder, of Guernsey or
any political subdivision thereof or any authority or agency therein or thereof
having power to tax and affecting taxation, or any proposed change in such laws,
treaties, regulations or rulings (including a holding by a court of competent
jurisdiction) which change or amendment becomes effective or is proposed on or
after the closing date of the sale of the Notes, the Company has or will become
obligated to pay additional amounts on any Notes, provided, however, that (i)
the obligation to withhold or deduct cannot be avoided by the Company by using
the Company's reasonable best efforts to obtain an exemption from such deduction
or withholding obligation (in the event application to the appropriate
authorities is reasonably required in order to avoid such obligation) and such
application has been denied, and (ii) no such notice of redemption may be given
earlier than 90 days prior to the earliest date on which the Company would be
obligated to pay such additional amounts.
Notwithstanding the foregoing, if the Company gives notice of
redemption as described above, each holder of Notes will have the right to elect
that such holder's Notes will not be subject to such redemption. If a holder of
Notes elects not to be subject to such redemption, the Company will not be
required to pay any additional amounts with respect to payments made on that
holder's Notes (solely as a result of the change in Guernsey tax law that caused
additional amounts to be payable) following the redemption date fixed by the
Company, and all subsequent payments on such holder's Notes whether in cash or
Ordinary Shares will be subject to applicable Guernsey taxes. In such event,
payments of Interest on the Notes arising on maturity, redemption, purchase or
conversion of a Note or on an assignment or other transfer of a Note to a person
resident in Guernsey may be subject to Guernsey taxes.
In the event that cash payments which a holder would otherwise
be entitled to receive from the Company are insufficient to pay applicable
Guernsey taxes, the Company may require from a holder as a condition to the
holder's right to receive any Ordinary Shares on conversion or other amounts
from the Company an amount of cash sufficient to pay applicable Guernsey taxes.
Holders of Notes must elect their option to avoid such redemption by written
notice to the Trustee no later than the 15th day prior to the redemption date
fixed by the Company.
The Notes are not subject to redemption through the operation
of any sinking fund.
A-9
If a Designated Event occurs at any time prior to maturity of
the Notes, the Company shall become obligated to purchase, at the option of the
holder, all or any portion of the Notes held by such holder, on a date specified
by the Company that is not less than twenty (20) Business Days nor more than
thirty-five (35) Business Days after notice thereof at a cash repurchase price
of 100% of the principal amount, plus any accrued and unpaid Interest, on such
Note up to, but excluding, the Designated Event Repurchase Date; provided that
if the repurchase date falls after a record date and on or prior the
corresponding interest payment date, then accrued and unpaid Interest to, but
excluding, the Designated Event Repurchase Date shall be paid on such interest
payment date to the holders of record of such Notes on the applicable record
date instead of to the holders surrendering such Notes for repurchase on such
date, and provided further that no Notes may be repurchased by the Company upon
a Designated Event if the principal amount thereof has been accelerated and such
acceleration has not been rescinded on or prior to the Designated Event
Repurchase Date. The Notes will be subject to repurchase in multiples of $1,000
principal amount. The Company shall mail to all holders of record of the Notes a
notice of the occurrence of a Designated Event and of the repurchase right
arising as a result thereof on or before the 15th day after the occurrence of
such Designated Event. To exercise such right, a holder shall deliver to the
Company such Note with the form entitled "Designated Event Repurchase Notice" on
the reverse thereof duly completed, together with the Note, duly endorsed for
transfer, at any time prior to the close of business on the Designated Event
Repurchase Date, and shall deliver the Notes to the Trustee (or other paying
agent appointed by the Company) as set forth in the Indenture.
Subject to the terms and conditions of the Indenture, the
Company shall become obligated to purchase, at the option of the holder, all or
any portion of the Notes held by such holder on March 15, 2009, 2014 and 2019 in
whole multiples of $1,000 at a repurchase price of 100% of the principal amount,
plus any accrued and unpaid Interest, on such Note up to, but excluding, the
Repurchase Date. To exercise such right, a holder shall deliver to the Company
such Note with the form entitled "Repurchase Notice" on the reverse thereof duly
completed, together with the Note, duly endorsed for transfer, at any time from
the opening of business on the date that is twenty (20) Business Days prior to
such Repurchase Date until the close of business on the Repurchase Date, and
shall deliver the Notes to the Trustee (or other paying agent appointed by the
Company) as set forth in the Indenture.
At the option of the Company, subject to the satisfaction by
the Company of the conditions set forth in the Indenture, the Company may elect
to pay the Designated Event Purchaser Price or the Redemption Price in whole or
in part by delivery of Ordinary Shares, subject to the provisions of the
Indenture. The Company may, at any time, irrevocably relinquish its right to pay
the Designated Event Purchase Price or the Repurchase Price, as applicable, by
delivery of Ordinary Shares by entering into a supplemental indenture with the
Trustee.
Holders have the right to withdraw any Designated Event
Repurchase Notice or the Repurchase Notice, as the case may be, by delivering to
the Trustee (or other paying agent appointed by the Company) a written notice of
withdrawal up to the close of
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business on the Designated Event Repurchase Date or the Repurchase Date, as the
case may be, all as provided in the Indenture.
If money or cash, sufficient to pay the repurchase price of
all Notes or portions thereof to be purchased as of the Designated Event
Repurchase Date or the Repurchase Date, as the case may be, is deposited with
the Trustee (or other paying agent appointed by the Company), on or prior to the
Designated Event Repurchase Date or the Repurchase Date, as the case may be,
then on or after the Business Day following such date, interest will cease to
accrue on such Notes (or portions thereof), and the holder thereof shall have no
other rights as such other than the right to receive the repurchase price upon
surrender of such Note.
Subject to the occurrence of certain events and in compliance
with the provisions of the Indenture, prior to the final maturity date of the
Notes, the holder hereof has the right, at its option, to convert each $1,000
principal amount of the Notes into 23.1911 Ordinary Shares (a conversion price
of approximately $43.12 per share), as such shares shall be constituted at the
date of conversion and subject to adjustment from time to time as provided in
the Indenture, upon surrender of this Note with the form entitled "Conversion
Notice" on the reverse thereof duly completed, to the Company at the office or
agency of the Company maintained for that purpose in accordance with the terms
of the Indenture, or at the option of such holder, the Corporate Trust Office,
and, unless the shares issuable on conversion are to be issued in the same name
as this Note, duly endorsed by, or accompanied by instruments of transfer in
form satisfactory to the Company duly executed by, the holder or by his duly
authorized attorney. The Company will notify the holder thereof of any event
triggering the right to convert the Notes as specified above in accordance with
the Indenture.
No adjustment in respect of Interest on any Note converted or
dividends on any shares issued upon conversion of such Note will be made upon
any conversion except as set forth in the next sentence. If this Note (or
portion hereof) is surrendered for conversion during the period from the close
of business on any record date for the payment of Interest to the close of
business on the Business Day preceding the following interest payment date, this
Note (or portion hereof being converted) must be accompanied by payment, in
immediately available funds or other funds acceptable to the Company, of an
amount equal to the Interest otherwise payable on such interest payment date on
the principal amount being converted; provided that no such payment shall be
required (1) if the Company has specified a redemption date that is after a
record date and prior to the next interest payment date, (2) if the Company has
specified a Designated Event Repurchase Date that is after a record date and
prior to the next interest payment date or (3) to the extent of any overdue
Interest, if any overdue interest exists at the time of conversion with respect
to such Note.
No fractional shares will be issued upon any conversion, but
an adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Note or Notes for conversion.
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A Note in respect of which a holder is exercising its right to
require repurchase upon a Designated Event or repurchase on a Repurchase Date
may be converted only if such holder withdraws its election to exercise either
such right in accordance with the terms of the Indenture.
The Company, the Trustee, any authenticating agent, any paying
agent, any conversion agent and any Note Registrar may deem and treat the
registered holder hereof as the absolute owner of this Note (whether or not this
Note shall be overdue and notwithstanding any notation of ownership or other
writing hereon made by anyone other than the Company or any Note Registrar) for
the purpose of receiving payment hereof, or on account hereof, for the
conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any paying agent nor other
conversion agent nor any Note Registrar shall be affected by any notice to the
contrary. All payments made to or upon the order of such registered holder
shall, to the extent of the sum or sums paid, satisfy and discharge liability
for monies payable on this Note.
No recourse for the payment of the principal of or Interest on
this Note, or for any claim based hereon or otherwise in respect hereof, and no
recourse under or upon any obligation, covenant or agreement of the Company in
the Indenture or any supplemental indenture or in any Note, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, shareholder, employee, agent, officer, director or subsidiary, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Terms used in this Note and defined in the Indenture are used
herein as therein defined.
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EXHIBIT A
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT ___Custodian ___
(Cust) (Minor)
TEN ENT - as tenant by the entireties under Uniform Gifts to Minors Act
JT TEN - as joint tenants with right of
survivorship and not as __________________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
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CONVERSION NOTICE
TO: AMDOCS LIMITED
THE BANK OF NEW YORK
The undersigned registered owner of this Note hereby irrevocably
exercises the option to convert this Note, or the portion thereof (which is
$1,000 or a multiple thereof) below designated, into Ordinary Shares of Amdocs
Limited in accordance with the terms of the Indenture referred to in this Note,
and directs that the shares issuable and deliverable upon such conversion,
together with any check in payment for fractional shares and any Notes
representing any unconverted principal amount hereof, be issued and delivered to
the registered holder hereof unless a different name has been indicated below.
Capitalized terms used herein but not defined shall have the meanings ascribed
to such terms in the Indenture. If shares or any portion of this Note not
converted are to be issued in the name of a person other than the undersigned,
the undersigned will provide the appropriate information below and pay all
transfer taxes payable with respect thereto. Any amount required to be paid by
the undersigned on account of interest accompanies this Note.
Dated:
---------------- -----------------------------------
------------------------------------
Signature(s)
Signature(s) must be guaranteed by
an "eligible guarantor institution"
meeting the requirements of the Note
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the Note
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
-----------------------------------
Signature Guarantee
Fill in the registration of Ordinary Shares if to be issued, and Notes
if to be delivered, other than to and in the name of the registered holder:
----------------------------
(Name)
----------------------------
(Street Address)
----------------------------
(City, State and Zip Code)
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--------------------------------
Please print name and address
Principal amount to be converted
(if less than all):
$
-------------------------------
Social Security or Other Taxpayer Identification Number:
-----------------------
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DESIGNATED EVENT REPURCHASE NOTICE
TO: AMDOCS LIMITED
THE BANK OF NEW YORK
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Amdocs Limited (the "Company") regarding
the right of holders to elect to require the Company to repurchase the Notes
upon the occurrence of a Designated Event with respect to the Company and
requests and instructs the Company to repurchase this Note, or the portion
thereof (which is $1,000 or an integral multiple thereof) below designated, in
accordance with the terms and conditions of the Indenture at the price of 100%
of such entire principal amount or portion thereof, together with accrued and
unpaid Interest to, but excluding, the Designated Event Repurchase Date, to the
registered holder hereof. Capitalized terms used herein but not defined shall
have the meanings ascribed to such terms in the Indenture. The Notes shall be
repurchased by the Company as of the portion thereof, together with accrued and
unpaid interest to, but excluding, the Designated Event Repurchase Date pursuant
to the terms and conditions specified in the Indenture.
$ _____ principal amount of the Notes to which this Designated Event Repurchase
Notice relates (if less than entire principal amount).
Dated:
Signature(s):
NOTICE: The above signatures of the holder(s) hereof must correspond
with the name as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
Note Certificate Number (if applicable):
Principal amount to be repurchased (if less than all):
Social Security or Other Taxpayer Identification Number:
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REPURCHASE NOTICE
TO: AMDOCS LIMITED
THE BANK OF NEW YORK
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Amdocs Limited (the "Company") regarding
the right of holders to elect to require the Company to repurchase the Notes and
requests and instructs the Company to repurchase this Note, or the portion
thereof (which is $1,000 or an integral multiple thereof) below designated, in
accordance with the terms of the Indenture at the price of 100% of such entire
principal amount or portion thereof, together with accrued and unpaid Interest
to, but excluding, the Repurchase Date, to the registered holder hereof.
Capitalized terms used herein but not defined shall have the meanings ascribed
to such terms in the Indenture. The Notes shall be repurchased by the Company as
of the Repurchase Date pursuant to the terms and conditions specified in the
Indenture.
$ _____ principal amount of the Notes to which this Designated Event Repurchase
Notice relates (if less than entire principal amount).
Dated:
Signature(s):
NOTICE: The above signatures of the holder(s) hereof must correspond
with the name as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
Note Certificate Number (if applicable):
Principal amount to be repurchased (if less than all):
Social Security or Other Taxpayer Identification Number:
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ASSIGNMENT
For value received ______________________________ hereby sell(s)
assign(s) and transfer(s) unto _______________________ (Please insert social
security or other Taxpayer Identification Number of assignee) the within Note,
and hereby irrevocably constitutes and appoints ________________________________
attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
In connection with any transfer of the Note prior to the expiration of
the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) (other than any transfer pursuant to
a registration statement that has been declared effective under the Securities
Act), the undersigned confirms that such Note is being transferred:
[ ] To Amdocs Limited or a subsidiary thereof; or
[ ] To a "qualified institutional buyer" in compliance with Rule 144A
under the Securities Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Rule 144 under the Securities
Act of 1933, as amended; or
[ ] Pursuant to a Registration Statement which has been declared
effective under the Securities Act of 1933, as amended, and which
continues to be effective at the time of transfer;
and unless the Note has been transferred to Amdocs Limited or a subsidiary
thereof, the undersigned confirms that such Note is not being transferred
to an "affiliate" of the Company as defined in Rule 144 under the
Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Debentures evidenced by this certificate in the name of any person
other than the registered holder thereof.
Dated:
------------------------------ -----------------------------------
-----------------------------------
Signature(s)
Signature(s) must be guaranteed by
an eligible guarantor institution"
meeting the requirements of the
Debenture Registrar, which
requirements include membership or
participation in the Security
Transfer Agent Medallion Program
("STAMP") or such other "signature
guarantee program" as may be
determined by the Debenture
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
-----------------------------------
Signature Guarantee
NOTICE: The signature on the Conversion Notice, the Designated Event Repurchase
Notice, the Repurchase Notice or the Assignment must correspond with the name as
written upon the face of the Debenture in every particular without alteration or
enlargement or any change whatever.
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Schedule I
AMDOCS LIMITED
0.50% CONVERTIBLE SENIOR NOTE DUE 2024
No.
The original principal amount of this Note is $450 MILLION DOLLARS
($450,000,0000). The principal amount has been adjusted in accordance with the
terms of the Indenture as set forth below:
Notation Authorized Signature
Explaining Principal of Trustee or
Date Principal Amount Amount Recorded Custodian
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