JDS UNIPHASE CORPORATION as Issuer AND THE BANK OF NEW YORK TRUST COMPANY, N.A. as Trustee Indenture Dated as of May 17, 2006
JDS
UNIPHASE CORPORATION
as
Issuer
AND
THE
BANK OF NEW YORK TRUST COMPANY, N.A.
as
Trustee
____________________
Dated
as of May 17, 2006
___________________
1.00%
Senior Convertible Notes due 2026
TABLE
OF CONTENTS
Page
ARTICLE
I
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
|
Section
1.01
|
Definitions
|
1
|
|
Section
1.02
|
Compliance
Certificates And Opinions
|
11
|
|
Section
1.03
|
Form
Of Documents Delivered To Trustee
|
11
|
|
Section
1.04
|
Acts
Of Holders; Record Dates
|
12
|
|
Section
1.05
|
Notices,
Etc., To Trustee And Company
|
13
|
|
Section
1.06
|
Notice
To Holders; Waiver
|
13
|
|
Section
1.07
|
Conflict
With Trust Indenture Act
|
13
|
|
Section
1.08
|
Effect
Of Headings And Table Of Contents
|
13
|
|
Section
1.09
|
Successors
And Assigns
|
13
|
|
Section
1.10
|
Separability
Clause
|
14
|
|
Section
1.11
|
Benefits
Of Indenture
|
14
|
|
Section
1.12
|
Governing
Law
|
14
|
|
Section
1.13
|
Legal
Holiday
|
14
|
|
Section
1.14
|
No
Recourse Against Others
|
14
|
|
Section
1.15
|
Force
Majeure
|
14
|
|
Section
1.16
|
Counterparts
|
14
|
|
Section
1.17
|
Waiver
of Jury Trial
|
14
|
ARTICLE
II
SECURITY
FORMS
|
Section
2.01
|
Forms
Generally
|
15
|
|
Section
2.02
|
Form
Of Face Of Security
|
15
|
|
Section
2.03
|
Form
Of Reverse Of Security
|
18
|
|
Section
2.04
|
Form
Of Trustee’s Certificate Of Authentication
|
28
|
|
Section
2.05
|
Legend
On Restricted Securities
|
28
|
ARTICLE
III
THE
SECURITIES
|
Section
3.01
|
Title;
Amount And Issue Of Securities; Principal And Interest
|
28
|
|
Section
3.02
|
Denominations
|
29
|
|
Section
3.03
|
Execution,
Authentication, Delivery And Dating
|
29
|
|
Section
3.04
|
Temporary
Securities
|
30
|
|
Section
3.05
|
Paying
Agent; ▇▇▇▇▇▇▇▇▇
|
▇▇
|
|
Section
3.06
|
Registration
Of Transfer And Exchange; Restrictions On Transfer
|
31
|
|
Section
3.07
|
Mutilated,
Destroyed, Lost And Stolen Securities
|
32
|
|
Section
3.08
|
Persons
Deemed Owners
|
33
|
|
Section
3.09
|
Book-Entry
Provisions For Global Securities
|
33
|
|
Section
3.10
|
Cancellation
|
35
|
|
Section
3.11
|
Special
Transfer Provision
|
35
|
|
Section
3.12
|
Defaulted
Interest
|
37
|
|
Section
3.13
|
CUSIP
Numbers
|
37
|
|
Section
3.14
|
Ranking
|
38
|
|
Section
3.15
|
Sinking
Fund
|
38
|
ARTICLE
IV
SATISFACTION
AND DISCHARGE
|
Section
4.01
|
Satisfaction
And Discharge Of Indenture
|
38
|
|
Section
4.02
|
Application
Of Trust Money
|
39
|
ARTICLE
V
REMEDIES
|
Section
5.01
|
Events
Of Default
|
39
|
|
Section
5.02
|
Acceleration
Of Maturity; Rescission And Annulment
|
40
|
|
Section
5.03
|
Other
Remedies
|
41
|
|
Section
5.04
|
Collection
Of Indebtedness And Suits For Enforcement By Trustee
|
42
|
|
Section
5.05
|
Trustee
May File Proofs Of Claim
|
42
|
|
Section
5.06
|
Application
Of Money Collected
|
42
|
|
Section
5.07
|
Limitation
On Suits
|
43
|
|
Section
5.08
|
Unconditional
Right Of Holders To Receive Payment
|
43
|
|
Section
5.09
|
Restoration
Of Rights And Remedies
|
44
|
|
Section
5.10
|
Rights
And Remedies Cumulative
|
44
|
|
Section
5.11
|
Delay
Or Omission Not Waiver
|
44
|
|
Section
5.12
|
Control
By Holders
|
44
|
|
Section
5.13
|
Waiver
Of Past Defaults
|
44
|
|
Section
5.14
|
Undertaking
For Costs
|
45
|
|
Section
5.15
|
Waiver
Of Stay Or Extension Laws
|
45
|
ARTICLE
VI
THE
TRUSTEE
|
Section
6.01
|
Certain
Duties And Responsibilities
|
45
|
|
Section
6.02
|
Notice
Of Defaults
|
46
|
|
Section
6.03
|
Certain
Rights Of Trustee
|
46
|
|
Section
6.04
|
Not
Responsible For Recitals
|
47
|
|
Section
6.05
|
May
Hold Securities
|
47
|
|
Section
6.06
|
Money
Held In Trust
|
47
|
|
Section
6.07
|
Compensation
And Reimbursement
|
48
|
|
Section
6.08
|
Disqualification;
Conflicting Interests
|
48
|
|
Section
6.09
|
Corporate
Trustee Required; Eligibility
|
49
|
|
Section
6.10
|
Resignation
And Removal; Appointment Of Successor
|
49
|
|
Section
6.11
|
Acceptance
Of Appointment By Successor
|
50
|
|
Section
6.12
|
Merger,
Conversion, Consolidation Or Succession To Business
|
50
|
|
Section
6.13
|
Preferential
Collection Of Claims Against
|
51
|
ARTICLE
VII
REPORTS
BY TRUSTEE
|
Section
7.01
|
Preservation
Of Information; Communications To Holders
|
51
|
|
Section
7.02
|
Reports
By Trustee
|
51
|
ARTICLE
VIII
CONSOLIDATION,
MERGER, CONVEY, TRANSFER OR LEASE
|
Section
8.01
|
Company
May Consolidate, Etc., Only On Certain Terms
|
52
|
|
Section
8.02
|
Successor
Substituted
|
52
|
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
|
Section
9.01
|
Supplemental
Indentures Without Consent Of Holders
|
52
|
|
Section
9.02
|
Supplemental
Indentures With Consent Of Holders
|
53
|
|
Section
9.03
|
Execution
Of Supplemental Indentures
|
55
|
|
Section
9.04
|
Effect
Of Supplemental Indentures
|
55
|
|
Section
9.05
|
Conformity
With Trust Indenture Act
|
55
|
|
Section
9.06
|
Reference
In Securities To Supplemental Indentures
|
55
|
ARTICLE
X
COVENANTS
|
Section
10.01
|
Payments
|
55
|
|
Section
10.02
|
Maintenance
Of Office Or Agency
|
56
|
|
Section
10.03
|
Money
For Security Payments To Be Held In Trust
|
56
|
|
Section
10.04
|
Statement
By Officers As To Default
|
57
|
|
Section
10.05
|
Existence
|
57
|
|
Section
10.06
|
Resale
Of Certain Securities
|
58
|
|
Section
10.07
|
Book-Entry
System
|
58
|
|
Section
10.08
|
Company
To Furnish Trustee Names And Addresses Of Holders
|
58
|
|
Section
10.09
|
Reports
By Company And Delivery Of Certain Information
|
58
|
|
Section
10.10
|
Additional
Interest Amounts Under The Registration Rights Agreement
|
59
|
|
Section
10.11
|
Information
For IRS Filings
|
59
|
|
Section
10.12
|
Further
Instruments And Acts
|
59
|
ARTICLE
XI
REDEMPTION
|
Section
11.01
|
The
Company’s Right To Redeem; Notice To Trustee
|
59
|
|
Section
11.02
|
Selection
Of Securities To Be Redeemed
|
60
|
|
Section
11.03
|
Notice
Of Redemption
|
60
|
|
Section
11.04
|
Effect
Of Notice Of Redemption
|
61
|
|
Section
11.05
|
Deposit
Of Redemption Price
|
61
|
|
Section
11.06
|
Securities
Redeemed In Part
|
61
|
|
Section
11.07
|
Repayment
To The Company
|
62
|
|
Section
11.08
|
Other
Repurchases
|
62
|
ARTICLE
XII
REPURCHASE
OF SECURITIES AT THE OPTION OF HOLDERS ON SPECIFIC Dates
|
Section
12.01
|
Repurchase
Of Securities At The Option Of Holders On Specific Dates
|
62
|
|
Section
12.02
|
Effect
Of Repurchase Notice
|
64
|
|
Section
12.03
|
Deposit
Of Repurchase Price
|
65
|
|
Section
12.04
|
Securities
Repurchased In Part
|
65
|
|
Section
12.05
|
Covenant
To Comply With Securities Laws Upon Repurchase Of
Securities
|
65
|
|
Section
12.06
|
Repayment
To The Company
|
66
|
ARTICLE
XIII
REPURCHASE
OF SECURITIES AT THE OPTION
OF
THE
HOLDER UPON A FUNDAMENTAL CHANGE
|
Section
13.01
|
Repurchase
Of Securities At Option Of The Holder Upon A Fundamental
Change
|
66
|
|
Section
13.02
|
Effect
Of Fundamental Change Repurchase Notice
|
69
|
|
Section
13.03
|
Deposit
Of Fundamental Change Repurchase Price
|
70
|
|
Section
13.04
|
Securities
Repurchased In Part
|
71
|
|
Section
13.05
|
Covenant
To Comply With Securities Laws Upon Repurchase Of
Securities
|
71
|
|
Section
13.06
|
Repayment
To The Company
|
71
|
ARTICLE
XIV
CONVERSION
|
Section
14.01
|
Right
To Convert
|
72
|
|
Section
14.02
|
Conversion
Procedure
|
74
|
|
Section
14.03
|
Payments
Upon Conversion
|
75
|
|
Section
14.04
|
Adjustment
Of Conversion Rate
|
76
|
|
Section
14.05
|
Adjustments
Upon Certain Fundamental Changes
|
83
|
|
Section
14.06
|
Conversion
After A Public Acquirer Change Of Control
|
84
|
|
Section
14.07
|
Effect
Of Reclassification, Consolidation, Merger Or Sale
|
85
|
|
Section
14.08
|
Taxes
On Shares Issued
|
87
|
|
Section
14.09
|
Reservation
Of Shares; Shares To Be Fully Paid; Compliance With Governmental
Requirements; Listing Of Common Stock
|
87
|
|
Section
14.10
|
Payment
Of Cash in Lieu Of Common Stock
|
87
|
|
Section
14.11
|
Responsibility
Of Trustee
|
88
|
|
Section
14.12
|
Notice
To Holders Prior To Certain Actions
|
89
|
|
Section
14.13
|
Company
Determination Final
|
89
|
INDENTURE,
dated as of May 17, 2006, between JDS UNIPHASE CORPORATION, a corporation duly
organized and existing under the laws of the State of Delaware, as Issuer
(herein called the “Company”),
having its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and THE BANK OF NEW YORK TRUST COMPANY, N.A., a national
banking association, as Trustee (herein called the “Trustee”).
RECITALS
OF THE COMPANY
The
Company has duly authorized the creation of an issue of 1.00% Senior Convertible
Notes due 2026 (each a “Security”
and
collectively, the “Securities”)
of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All
things necessary to make the Securities, when executed by the Company and
authenticated and delivered hereunder and duly issued by the Company, the valid
and binding obligations of the Company, and to make this Indenture a valid
and
binding agreement of the Company, in accordance with the terms of the Securities
and the Indenture, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and
in consideration of the premises and the purchases of the Securities by the
Holders thereof, it is mutually agreed, for the benefit of the Company and
the
equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE
I
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
1.01 Definitions
.
For all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Article
I
have the meanings assigned to them in this Article I and include the plural
as
well as the singular;
(b) all
other
terms used herein that are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them
therein;
(c) all
accounting terms not otherwise defined herein have the meanings assigned to
them
in accordance with GAAP; and
(d) the
words
“herein,” “hereof’ and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.
“Act,”
when
used with respect to any Holder, has the meaning specified in Section
1.04.
“Additional
Interest Amount”
shall
have the meaning given to such term in the Registration Rights
Agreement.
“Additional
Securities”
means
additional Securities which may be issued after the Issue Date pursuant to
this
Indenture (other than in exchange for or in replacement of Outstanding
Securities. All references herein to “Securities” shall be deemed to include
Additional Securities).
“Additional
Shares”
has
the
meaning specified in Section
14.05.
“Affiliate”
of
any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with respect to
any specified Person means the power to direct the management and policies
of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Agent Members”
has
the
meaning specified in Section
3.09.
“Aggregate Share Cap”
means
894 shares of Common Stock per $1,000 Principal Amount of Securities (789 shares
of Common Stock per $1,000 Principal Amount of Securities if the Initial
Purchasers exercise their over-allotment option granted by the Company pursuant
to Section 2 of the Purchase Agreement), subject to adjustment upon the
occurrence of any of the events described in Section
14.04(a)
through
Section
14.04(c).
“Bid
Solicitation Agent”
means
the Person appointed by the Company to act as set forth in the definition of
the
term “Trading
Price”
in
this
Section
1.01.
“Board
of Directors”
means,
with respect to any Person, either the board of directors of such Person or
any
duly authorized committee of that board.
“Board
Resolution”
means,
with respect to any Person, a copy of a resolution certified by the Secretary
or
an Assistant Secretary of such Person to have been duly adopted by the Board
of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
“Business
Day”
means
any day other than a Saturday, a Sunday or a day on which banking institutions
in The City of New York are authorized or obligated by law, or executive order
or governmental decree to be closed.
“Cash
Percentage”
has
the
meaning specified in Section
14.10.
“Capital
Stock”
means
any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock, including, without limitation, with
respect to partnerships, partnership interests (whether general or limited)
and
any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
such partnership.
“Change
of Control”
has
the
meaning specified in Section
13.01.
“Closing
Sale Price”
of
a
share of Common Stock on any date means the closing per share sale price (or
if
no closing sale price is reported, the average of the bid and ask prices or,
if
more than one in either case, the average of the average bid and the average
ask
prices) on such date as reported in composite transactions for the principal
United States securities exchange on which the Common Stock is traded or, if
the
Common Stock is not listed on a United States national or regional securities
exchange, as reported by the Nasdaq System or by the National Quotation Bureau
Incorporated.
“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
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
“Common
Equity”
of
any
Person means capital stock of such Person that is generally entitled to (1)
vote
in the election of directors of such Person or (2) if such Person is not a
corporation, vote or otherwise participate in the selection of the governing
body, partners, managers or others that will control the management or policies
of such Person.
“Common
Stock”
means
the shares of Common Stock, par value $0.001 per share, of the Company as it
exists on the date of this Indenture or any other shares of Capital Stock of
the
Company into which the Common Stock shall be reclassified or changed or, in
the
event of a merger, consolidation or other similar transaction involving the
Company that is otherwise permitted hereunder in which the Company is not the
surviving corporation, the common stock, common equity interests, ordinary
shares or depositary shares or other certificates representing common equity
interests of such surviving corporation or its direct or indirect parent
corporation.
“Company”
means
the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Company” shall mean such successor
Person.
“Company
Request”
or
“Company
Order”
means
a
written request or order signed in the name of the Company by its Chairman
of
the Board, its Vice Chairman of the Board, its Chief Executive Officer, its
Chief Operating Officer or any Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to
the Trustee.
“Continuing
Director”
means,
at any date, a member of the Company’s Board of Directors (i) who was a member
of such board on May 11, 2006 or (ii) who was nominated or elected by at least
a
majority of the directors who were Continuing Directors at the time of such
nomination or election or whose election to the Company’s Board of Directors was
recommended or endorsed by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election or such lesser
number comprising a majority of a nominating committee comprised of independent
directors if authority for such nominations or elections has been delegated
to a
nominating committee whose authority and composition have been approved by
at
least a majority of the directors who were Continuing Directors at the time
such
committee was formed. (Under this definition, if the Board of Directors of
the
Company as of the date of this Indenture were to approve a new director or
directors and then resign, no Change in Control would occur even though the
current Board of Directors would thereafter cease to be in office).
“Conversion
Agent”
means
the Trustee or such other office or agency designated by the Company where
Securities may be presented for conversion.
“Conversion
Date”
has
the
meaning specified in Section
14.02.
“Conversion
Notice”
has
the
meaning specified in Section
14.02.
“Conversion
Price”
has
the
meaning specified in the Securities.
“Conversion
Rate”
means,
at any time, $1,000 divided by the Conversion Price in effect at such time,
rounded to three decimal places (rounded up if the fourth decimal place thereof
is 5 or more and otherwise rounded down).
“Conversion
Value”
means
the product of (1) the applicable Conversion Rate and (2) the average of the
Daily VWAP prices of the Common Stock for the 25 consecutive Trading Days during
the Observation Period.
“Corporate
Trust Office”
means
the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of
the
execution of this Indenture is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration (JDS
Uniphase Corporation — 1.00% Senior Convertible Notes due 2026) or at any other
time at such other address as the Trustee may designate from time to time by
notice to the Company.
“corporation”
means
a
corporation, association, company, joint-stock company or business
trust.
“Current
Market Price”
has
the
meaning specified in Section
14.04.
“Daily
Conversion Value”
means,
for each of the 25 consecutive Trading Days during the Observation Period,
4% of
the product of (1) the applicable Conversion Rate and (2) the daily VWAP of
Common Stock on such day.
“Daily
Settlement Amount”
has
the
meaning specified in Section
14.03.
“Daily
Share Amount”
means
the quotient of (1) 4% of the difference between (x) the applicable Conversion
Rate on such date multiplied by the Daily VWAP of the Common Stock for such
day
and (y) $1,000, divided by (2) the Daily VWAP of the Common Stock for such
day.
“Daily
VWAP”
means,
for each of the 25 consecutive Trading Days during the Observation Period,
the
per share volume-weighted average price as displayed under the heading
“Bloomberg
VWAP”
on
Bloomberg page “JDSU<equity> VAP” in respect of the period from
9:30 a.m. to 4:00 p.m. (New York City time) on such Trading Day (or if
such volume-weighted average price is unavailable, the market value of one
share
of Common Stock on such Trading Day as the Board of Directors of the Company
determines in good faith using a volume-weighted method); provided that after
the consummation of a Fundamental Change in which the consideration is comprised
entirely of cash, “Daily VWAP” means the cash price per share received by
holders of Common Stock in such Fundamental Change.
“Default”
means
any event that is or with the passage of time or the giving of notice or both
would become an Event of Default.
“Defaulted
Interest”
has
the
meaning specified in Section
3.12.
“Depositary”
means
The Depository Trust Company until a successor Depositary shall have become
such
pursuant to the applicable provisions of this Indenture, and thereafter
“Depositary” shall mean such successor Depositary.
“Effective
Date”
has
the
meaning specified in Section
14.05.
“Event
of Default”
has
the
meaning specified in Section
5.01.
“Exchange
Act”
means
the United States Securities Exchange Act of 1934, as amended.
“Ex-Dividend
Date”
means,
with respect to any issuance or distribution on shares of Common Stock, the
first Trading Day on which the shares of Common Stock trade regular way on
the
principal securities market on which the shares of Common Stock are then traded
without the right to receive such issuance or distribution.
“fair
market value”
has
the
meaning specified in Section
14.04.
“Fundamental
Change”
has
the
meaning specified in Section
13.01.
“Fundamental
Change Company Notice”
has
the
meaning specified in Section
13.01.
“Fundamental
Change Repurchase Date”
has
the
meaning specified in Section
13.01.
“Fundamental
Change Repurchase Notice”
has
the
meaning specified in Section
13.01.
“Fundamental
Change Repurchase Price”
has
the
meaning specified in Section
13.01.
“GAAP”
means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute
of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity
as
have been approved by a significant segment of the accounting profession, in
each case, as in effect in the United States from time to time.
“Global
Security”
means
a
Security in global form registered in the Security Register in the name of
a
Depositary or a nominee thereof.
“Holder”
or
“Securityholder”
means
a
Person in whose name a Security is registered in the Security
Register.
“Indenture”
means
this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.
“Initial
Purchasers”
mean
▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.
“Interest
Payment Date”
means
each May 15 and November 15 of each year.
“Issue
Date”
means
the date the Securities are originally executed and authenticated as set forth
in the Security under this Indenture.
“Majority
Owned”
means
having “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act)
of more than 50% of the total voting power of all shares of the respective
entity’s Common Equity. “Majority
Owner”
has
the
correlative meaning.
“Market
Disruption Event”
means
(1) a failure by the primary United States national securities exchange or
market in which the Common Stock is listed or admitted to trading to open during
its regular trading session or (2) the occurrence or existence prior to 1:00
p.m. on any Trading Day for the Common Stock for an aggregate one half hour
period of any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the stock exchange or
otherwise) in the Common Stock or in any options, contracts or future contracts
relating to the Common Stock.
“Maturity”,
when
used with respect to any Security, means the date on which the Principal Amount,
Redemption Price, Repurchase Price or Fundamental Change Repurchase Price of
such Security becomes due and payable as therein or herein provided, whether
at
the Stated Maturity, Redemption Date, Repurchase Date or Fundamental Change
Repurchase Date, or by declaration of acceleration or otherwise.
“Measurement
Period”
has
the
meaning specified in Section
14.01.
“non-electing
share”
has
the
meaning specified in Section
14.07.
“Non-U.S.
Person”
means
a
Person who is not a U.S. person, as defined in Regulation S.
“Notice
of Default”
has
the
meaning specified in Section
5.01.
“Observation
Period”
with
respect to any Security means the 25 consecutive Trading Day period beginning
on
and including the second Trading Day after the related Conversion Date, except
that with respect to any related Conversion Date occurring after the date of
issuance of a notice of redemption as described Section
11.03,
the
“Observation Period” means the 25 consecutive Trading Days beginning on and
including the second Trading Day following the applicable Redemption
Date.
“Offering”
means
the offering of the Securities by the Company.
“Offering
Memorandum”
means
the confidential offering memorandum, dated May 11, 2006, pursuant to which
the
Securities were offered and sold in the initial Offering.
“Officers’
Certificate”
means
a
certificate signed by the Chairman of the Board, the President or any Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers’ Certificate given pursuant to Section
10.04
shall be
the principal executive, financial or accounting officer of the
Company.
“Opinion
of Counsel”
means
a
written opinion of counsel, who may be external or in-house counsel for the
Company.
“Outstanding,”
when
used with respect to Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities,
or portions thereof, for whose payment in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities;
and
(iii) Securities
which have been paid or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other than
any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a protected
purchaser in whose hands such Securities are valid obligations of the
Company;
provided,
however,
that,
in determining whether the Holders of the requisite Principal Amount of the
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any
such request, demand, authorization, direction, notice, consent or waiver,
only
Securities which a Responsible Officer of the Trustee actually knows to be
so
owned shall be so disregarded. Securities so owned which have been pledged
in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the
Securities or any Affiliate of the Company or of such other
obligor.
“Paying
Agent”
means
any Person authorized by the Company to pay the principal of, and interest
(including Additional Interest Amounts, if any), Redemption Price, Repurchase
Price or Fundamental Change Repurchase Price of any Securities on behalf of
the
Company. The Trustee shall initially be the Paying Agent.
“Person”
means
any individual, corporation, partnership, limited liability company, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
“Physical
Securities”
means
permanent certificated Securities in registered form issued in denomination
of
$1,000 Principal Amount and integral multiples thereof.
“Principal
Amount”
of
a
Security means the principal amount as set forth on the face of the
Security.
“Public
Acquirer Change of Control”
means
a
Fundamental Change as defined in clause (ii) in the definition of Change of
Control in which the acquirer has a class of common stock traded on a U.S.
national or regional securities exchange or quoted on The Nasdaq National Market
or which will so be traded or quoted when issued or exchanged in connection
with
such Fundamental Change (the “Public
Acquirer Common Stock”).
If an
acquirer does not itself have a class of common stock satisfying the foregoing
requirement, it will be deemed to have Public Acquirer Common Stock if a
corporation that directly or indirectly is the Majority Owner of the acquirer
has a class of common stock satisfying the foregoing requirement, in such case,
all references to Public Acquirer Common Stock shall refer to such class of
common stock.
“Public
Acquirer Common Stock”
has
the
meaning specified in the definition of Public Acquirer Change of
Control.
“Purchase
Agreement”
means
the Purchase Agreement, dated as of May 11, 2006, entered into by the Company
and the Initial Purchasers in connection with the sale of the
Securities.
“Qualified
Institutional Buyer”
or
“QIB”
shall
have the meaning specified in Rule 144A.
“Record
Date”
has
the
meaning specified in Section
14.04.
“Redemption
Date”
means,
when used with respect to any Security to be redeemed, the date fixed for
redemption pursuant to this Indenture.
“Redemption
Price”
has
the
meaning set forth in Section
11.01.
“Reference
Property”
has
the
meaning set forth in Section
14.01.
“Registration
Rights Agreement”
means
the Registration Rights Agreement, dated as of May 17, 2006, between the Company
and the Initial Purchasers, for the benefit of the Initial Purchasers and the
Holders, as the same may be amended or modified from time to time in accordance
with the terms thereof.
“Regular
Record Date”
for
the
payment of interest on the Securities (including Additional Interest Amounts,
if
any), means May 1(whether or not a Business Day) next preceding an interest
payment date on May 15 and November 1 (whether or not a Business Day) next
preceding an interest payment date on November 15.
“Remaining
Shares”
has
the
meaning set forth in Section
14.03.
“Regulation
S”
means
Regulation S under the Securities Act.
“Repurchase
Date”
has
the
meaning set forth in Section
12.01.
“Repurchase
Notice”
has
the
meaning set forth in Section
12.01.
“Repurchase
Price”
has
the
meaning set forth in Section
12.01.
“Resale
Registration Statement”
means
a
registration statement under the Securities Act registering the Securities
for
resale pursuant to the terms of the Registration Rights Agreement.
“Responsible
Officer”
means
any officer of the Trustee within the Corporate Trust Office of the Trustee
with
direct responsibility for the administration of this Indenture and also, with
respect to a particular matter, any other officer of the Trustee to whom such
matter is referred because of such officer’s knowledge and familiarity with the
particular subject.
“Restricted
Security”
or
“Restricted
Securities”
has
the
meaning specified in Section
2.05.
“Rule
144”
means
Rule 144 under the Securities Act (including any successor rule thereto), as
the
same may be amended from time to time.
“Rule
144A”
means
Rule 144A under the Securities Act (including any successor rule thereto),
as
the same may be amended from time to time.
“Rule
144A Information”
has
the
meaning specified in Section
2.03.
“Securities
Act”
means
the United States Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Security”
or
“Securities”
have
the respective meanings specified in the first paragraph of the Recitals of
the
Company.
“Security
Register”
has
the
meaning specified in Section
3.06.
“Security
Registrar”
has
the
meaning specified in Section
3.06.
“Settlement
Amount”
has
the
meaning specified in Section
14.03.
“Special
Interest Payment Date”
has
the
meaning specified in Section
3.12.
“Special
Record Date”
has
the
meaning specified in Section
3.12.
“Spin-Off”
has
the
meaning specified in Section
14.04.
“Stated
Maturity”
when
used with respect to any Security, means May 15, 2026.
“Stock
Price”
has
the
meaning specified in Section
14.05.
“Stock
Transfer Agent”
means
Chemical Trust Company of California or such other Person designated by the
Company as the transfer agent for the Common Stock.
“Subsidiary”
means
a
corporation more than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries,
or
by the Company and one or more other Subsidiaries. For the purposes of this
definition, “voting
stock”
means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
“Successor
Company”
has
the
meaning specified in Section
8.01.
“Termination
of Trading”
has
the
meaning specified in Section
13.01.
“Trading
Day”
means
a
day during which (i) trading in the Common Stock generally occurs, (ii) there
is
no Market Disruption Event and (iii) a Closing Sale Price for the Common Stock
may be obtained for that day.
“Trading
Price”
means,
as of any date of determination, the average of the secondary market bid
quotations per $1,000 Principal Amount of Securities obtained by the Bid
Solicitation Agent for $10,000,000 Principal Amount of Securities at
approximately 3:30 p.m., New York City time, on such date of determination
from
three independent, nationally-recognized securities dealers selected by the
Company and provided to the Bid Solicitation Agent in writing; provided,
that if
at least three such bids cannot be reasonably obtained by the Bid Solicitation
Agent, but two bids are obtained, then the Trading Price, as of such
determination date, shall mean the average of such two bids, and if only one
bid
can be reasonably obtained by the Bid Solicitation Agent, then the Trading
Price, as of such determination date, shall mean such one bid; provided,
however,
that if
the Bid Solicitation Agent, through the exercise of reasonable efforts, is
unable to obtain at least one bid from an independent, nationally-recognized
securities dealer, then the Trading Price of a Security for such date of
determination shall be deemed to be less than 98% of the product of the Closing
Sale Price of the Common Stock on such date of determination and the Conversion
Rate in effect as of such date of determination.
“Trigger
Event”
has
the
meaning specified in Section
14.04(b).
“Trust
Indenture Act”
means
the Trust Indenture Act of 1939 as in force at the date as of which this
instrument was executed; provided,
however,
that in
the event the Trust Indenture Act of 1939 is amended after such date,
“Trust
Indenture Act”
means,
to the extent required by any such amendment, the Trust Indenture Act of 1939
as
so amended.
“Trustee”
means
the Person named as the “Trustee”
in
the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
“Trustee”
shall
mean such successor Trustee.
“Vice
President”
when
used with respect to the Company or the Trustee, means any vice president,
whether or not designated by a number or a word or words added before or after
the title “vice
president”.
Section
1.02 Compliance
Certificates And Opinions.
Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
such certificates and opinions as may be required under the Trust Indenture
Act.
Each such certificate or opinion shall be given in the form of an Officers’
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements
of
the Trust Indenture Act and any other requirement set forth in this
Indenture.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a
statement that each individual signing such certificate or opinion has read
such
covenant or condition and the definitions herein relating thereto;
(b) a
brief
statement as to the nature and scope of the examination or investigation
upon
which the statements or opinions contained in such certificate or opinion
are
based;
(c) a
statement that, in the opinion of each such individual, such individual has
made
such examination or investigation as is necessary to enable such individual
to
express an informed opinion as to whether or not such covenant or condition
has
been complied with; and
(d) a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Any
certificate or opinion of an officer of the Company may be based, insofar as
it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates
to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect
to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are
erroneous.
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
Section
1.04 Acts
Of Holders; Record Dates.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee
and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act”
of
the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Indenture and (subject to Section
6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by a certificate
of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact
and
date of the execution of any such instrument or writing, or the authority of
the
Person executing the same, may also be proved in any other manner which the
Trustee reasonably deems sufficient.
(c) The
Company may, in the circumstances permitted by the Trust Indenture Act, fix
any
day as the record date for the purpose of determining the Holders entitled
to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or permitted to
be
given or taken by Holders. If not set by the Company prior to the first
solicitation of a Holder made by any Person in respect of any such action,
or,
in the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided pursuant to Section 10.08) prior to
such
first solicitation or vote, as the case may be. With regard to any record date,
only the Holders on such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action.
(d) The
ownership of Securities shall be proved by the Security Register.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company
in
reliance thereon, whether or not notation of such action is made upon such
Security.
Section
1.05 Notices,
Etc., To
Trustee And Company.
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing (which
may be via facsimile) to or with the Trustee at its Corporate Trust Office;
or
(b) the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the address
of
its principal office specified in the first paragraph of this instrument or
at
any other address previously furnished in writing to the Trustee by the Company,
Attention: General Counsel.
Section
1.06 Notice
To Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at such Holder’s address as it appears in the Security Register, not later than
the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of
such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled
to
receive such notice, either before or after the event, and such waiver shall
be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In
case
by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section
1.07 Conflict
With Trust Indenture Act.
If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may
be.
Section
1.08 Effect
Of Headings And Table Of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
1.09 Successors
And Assigns.
All
covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section
1.10 Separability
Clause.
In case
any provision in this Indenture or in the Securities shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
1.11 Benefits
Of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their respective successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section
1.12 Governing
Law.
This
Indenture and the Securities shall be governed by and construed in accordance
with the laws of the State of New York.
Section
1.13 Legal
Holiday.
If any
specified date (including a date for giving notice) is a Legal Holiday, the
action shall be taken on the next succeeding day that is not a Legal Holiday,
and, if the action to be taken on such date is a payment in respect of the
Securities, no interest, if any, shall accrue for the intervening period.
Section
1.14 No
Recourse Against Others.
No
director, officer, employee, stockholder or Affiliate, as such, of the Company
from time to time shall have any liability for any obligations of the Company
under the Securities or this Indenture. Each Holder by accepting a Security
waives and releases all such liability. This waiver and release are part of
the
consideration for the Securities. Each of such directors, officers, employers,
shareholders and Affiliates of the Company is a third party beneficiary of
this
Section
1.14.
Section
1.15 Force
Majeure. In
no
event shall the Trustee be responsible or liable for any failure or delay in
the
performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its 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 and
hardware) services; it being understood that the Trustee shall use reasonable
efforts which are consistent with accepted practices in the banking industry
to
resume performance as soon as practicable under the circumstances.
Section
1.16 Counterparts.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section
1.17 Waiver
of Jury Trial.
EACH OF
THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUR OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
ARTICLE
II
SECURITY
FORMS
Section
2.01 Forms
Generally.
The
Securities and the Trustee’s certificates of authentication shall be in
substantially the forms set forth in this Article II, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary
therefor, the Internal Revenue Code of 1986, as amended, and regulations
thereunder, or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution thereof.
The
Securities shall be initially issued in the form of permanent Global Securities
in registered form in substantially the form set forth in this Article II.
The
aggregate Principal Amount of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, as hereinafter provided.
Section
2.02 Form
Of Face Of Security. [INCLUDE
IF SECURITY IS A RESTRICTED SECURITY —
THIS
SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES
ACT”),
OR
ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER
THE SECURITIES ACT.
BY
ITS
ACQUISITION HEREOF, THE HOLDER AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
THIS
SECURITY PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH JDS UNIPHASE CORPORATION (THE
“COMPANY”)
OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF
THIS SECURITY) (THE “RESALE
RESTRICTION TERMINATION DATE”)
ONLY
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) 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 THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN
RELIANCE ON RULE 144A, OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND
THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(D) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY
OF
AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY
TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL
BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
THIS
SECURITY AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM
TIME
TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER
TRANSFERS OF THIS SECURITY TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION
(OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR
TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS SECURITY SHALL
BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY TO HAVE AGREED TO ANY SUCH
AMENDMENT OR SUPPLEMENT.
THE
HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS OF, A
REGISTRATION RIGHTS AGREEMENT, DATED AS OF MAY 17, 2006, ENTERED INTO BY THE
COMPANY FOR THE BENEFIT OF CERTAIN HOLDERS OF SECURITIES FROM TIME TO
TIME.]
[INCLUDE
IF SECURITY IS A GLOBAL SECURITY—
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (“DTC”),
A NEW
YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
|
JDS
UNIPHASE CORPORATION
|
||
|
1.00%
Senior Convertible Notes due 2026
|
||
|
No.
[●]
|
CUSIP
NO. [●]
|
U.S.
$[●]
|
JDS
Uniphase Corporation, a corporation duly organized and validly existing under
the laws of the State of Delaware (herein called the “Company”,
which
term includes any successor corporation under the Indenture referred to on
the
reverse hereof), for value received hereby promises to pay to [●], or registered
assigns, the principal sum of [●] United States Dollars ($●) [INCLUDE IF
SECURITY IS A GLOBAL SECURITY — (which amount may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian
for
the Depositary, in accordance with the rules and procedures of the Depositary)]
on May 15, 2026. Payment of the principal of this Security shall be made by
check mailed to the address of the Holder of this Security specified in the
register of Securities, or, at the option of the Holder of this Security, at
the
Corporate Trust Office, in such lawful money of the United States of America
as
at the time of payment shall be legal tender for the payment of public and
private debts. The Issue Date of this Security is [ , ].
Reference
is made to the further provisions of this Security set forth on the reverse
hereof, including, without limitation, provisions giving the Holder of this
Security the right to convert this Security in certain circumstances and the
right to require the Company to repurchase this Security upon certain events
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
Security 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 said State.
This
Security shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the
Indenture.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
|
JDS
UNIPHASE CORPORATION
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
|
Attest:
|
||
|
By:
_________________________
Authorized
Signatory
|
||
Section
2.03 Form
Of Reverse Of Security.
This
Security is one of a duly authorized issue of Securities of the Company,
designated as its 1.00% Senior Convertible Notes due 2026 (herein called the
“Securities”),
all
issued or to be issued under and pursuant to an Indenture dated as of May 17,
2006 (herein called the “Indenture”),
between the Company and The Bank of New York Trust Company, N.A. (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
Securities.
The
indebtedness evidenced by the Securities is unsecured and unsubordinated
indebtedness of the Company and ranks equally with the Company’s other unsecured
and unsubordinated indebtedness.
Interest.
The
Company, promises to pay interest on the principal amount of this Security
at
the rate of 1.00% per annum. The Company will pay interest semiannually on
May
15 and November 15 of each year commencing on November 15, 2006.
Interest
will be paid to the person in whose name a Security is registered at the close
of business on May 1 and November 1, as the case may be, immediately preceding
the relevant interest payment date. Interest will be computed on the basis
of a
360-day year of twelve 30-day months.
The
Holder of this Security after 5:00 p.m., New York City time, on a Regular Record
Date shall be entitled to receive interest (including any Additional Interest
Amount), on this Security on the corresponding interest payment date. The Holder
of this Security after 5:00 p.m., New York City time, on a Regular Record Date
will receive payment of interest (including any Additional Interest Amount)
payable on the corresponding interest payment date notwithstanding the
conversion of this Security at any time after the close of business on such
Regular Record Date. If this Security is surrendered for conversion during
the
period after 5:00 p.m., New York City time, on any Regular Record Date to 9:00
a.m., New York City time, on the corresponding interest payment date, it must
be
accompanied by payment of an amount equal to the interest (including any
Additional Interest Amount) that the Holder is to receive on the Securities.
Notwithstanding the foregoing, no such payment of interest (including any
Additional Interest Amount) need be made by any converting Holder (i) if the
Company has specified a Redemption Date that is after a Regular Record Date
and
on or prior to the corresponding interest payment date, (ii) if the Company
has
specified a Fundamental Change Purchase Date during such period, or (iii) to
the
extent of any overdue interest (including any Additional Interest Amount)
existing at the time of conversion of such Security. Except where this Security
is surrendered for conversion and must be accompanied by payment as described
above, no interest or Additional Interest Amount thereon will be payable by
the
Company on any interest payment date subsequent to the date of conversion,
and
delivery of the cash and shares of Common Stock, if applicable, pursuant to
Article XII of the Indenture, together with any cash payment for any fractional
share, upon conversion will be deemed to satisfy the Company’s obligation to pay
the principal amount of the Securities and accrued and unpaid interest and
Additional Interest Amount, if any, to, but not including, the related
Conversion Date.
Method
of Payment.
By no
later than 10:00 a.m. (New York City time) on the date on which any principal
of
or interest (including any Additional Interest Amount), on any Security is
due
and payable, the Company shall deposit with the Paying Agent money sufficient
to
pay such amount. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of Securities represented by a Global
Security (including principal and interest (including any Additional Interest
Amount)) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Company will pay
principal of Definitive Securities at the office or agency designated by the
Company in the Borough of Manhattan, The City of New York. Interest (including
any Additional Interest Amount), on Definitive Securities will be payable (i)
to
Holders having an aggregate principal amount of $5,000,000 or less, by check
mailed to the Holders of these Securities and (ii) to Holders having an
aggregate principal amount of more than $5,000,000, either by check mailed
to
each Holder or, upon application by a Holder to the Registrar not later than
the
relevant Record Date, by wire transfer in immediately available funds to that
Holder’s account within the United States, which application shall remain in
effect until the Holder notifies, in writing, the Registrar to the
contrary.
Redemption
at the Option of the Company.
Prior
to May 20, 2013, the Company may not redeem the Securities. On or after May
20,
2013, the Company may redeem the Securities in whole or in part for an amount
equal to 100% of the Principal Amount of the Securities, plus accrued and unpaid
interest (including Additional Interest Amounts, if any), to, but excluding,
the
Redemption Date (the “Redemption
Price”).
Notice
of
redemption pursuant to this Section of this Security will be mailed at least
30
days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at the Holder’s registered address. If cash sufficient
to pay the Redemption Price of all Securities (or portions thereof) to be
redeemed on the Redemption Date is deposited with the Paying Agent prior to
10:00 a.m., New York City time, on the Redemption Date, then on such Redemption
Date, interest, including Additional Interest Amounts, if any, cease to accrue
on such Securities or portions thereof. Securities in denominations larger
than
$1,000 of Principal Amount may be redeemed in part but only in integral
multiples of $1,000 of Principal Amount.
Purchase
By the Company at the Option of the Holder on a Repurchase Date.
Subject
to the terms and conditions of the Indenture, the Company shall become obligated
to repurchase, at the option of the Holder, all or any portion of the Securities
held by such Holder on May 15, 2013, May 15, 2016 and May 15, 2021 (each, a
“Repurchase
Date”)
in
integral multiples of $1,000 at a repurchase price equal to 100% of the
Principal Amount of those Securities plus accrued and unpaid interest, including
Additional Interest Amounts, if any, up to, but excluding, such Repurchase
Date
(the “Repurchase
Price”).
To
exercise such right, a Holder shall deliver to the Paying Agent a Repurchase
Notice containing the information set forth in the Indenture, at any time from
9:00 a.m., New York City time, on the date that is 20 Business Days immediately
preceding such Repurchase Date until 5:00 p.m., New York City time, on the
Repurchase Date, and shall deliver the Securities to the Paying Agent as set
forth in the Indenture.
If
cash
sufficient to pay the Repurchase Price of all Securities or portions thereof
to
be purchased on a Repurchase Date is deposited with the Paying Agent on the
Business Day following the Repurchase Date, the Holder thereof shall have no
other rights as such (other than the right to receive the Repurchase Price
upon
surrender of such Security).
Purchase
By the Company at the Option of the Holder upon a Fundamental
Change.
At the
option of the Holder and subject to the terms and conditions of the Indenture,
the Company shall become obligated to repurchase the Securities, in cash, if
a
Fundamental Change occurs at any time prior to May 15, 2026 at a price equal
to
the Principal Amount plus accrued but unpaid interest, including Additional
Interest Amounts, if any, up to, but excluding, the repurchase date (the
“Fundamental
Change Repurchase Price”).
Holders
have the right to withdraw any Repurchase Notice or Fundamental Change
Repurchase Notice by delivering to the Paying Agent a written notice of
withdrawal in accordance with the provisions of the Indenture.
If
cash
sufficient to pay the Fundamental Change Repurchase Price of all Securities
or
portions thereof to be purchased on a Fundamental Change Repurchase Date is
deposited with the Paying Agent on the Business Day following the Fundamental
Change Repurchase Date, the Holder thereof shall have no other rights as such
(other than the right to receive the Fundamental Change Repurchase Price, upon
surrender of such Security).
Conversion.
Subject
to and in compliance with the provisions of the Indenture (including without
limitation the conditions of conversion of this Security set forth in
Section
14.01
thereof), the Holder hereof has the right, at its option, to convert the
Principal Amount hereof or any portion of such principal which is $1,000 or
an
integral multiple thereof, into, subject to Section
14.02
of the
Indenture, cash and shares of Common Stock, if any, at the Conversion Rate.
The
initial Conversion Rate is 264.0264 shares of Common Stock per $1,000 Principal
Amount of Securities (equivalent to a conversion price of $3.79 (the
“Conversion
Price”)),
subject to adjustment in certain events described in the Indenture. Upon
conversion, the Company will pay cash and shares of Common Stock, if any, based
on a Daily Conversion Value calculated on a proportionate basis for each day
of
the Observation Period, as set forth in the Indenture. 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 Securities for conversion.
Securities in respect of which a Holder is exercising its right to require
repurchase on a Repurchase Date or Fundamental Change Repurchase Date may be
converted only if such Holder withdraws its election to exercise such right
in
accordance with the terms of the Indenture.
Upon
conversion, the Company shall deliver, for each $1,000 principal amount of
Securities being converted, cash equal to the lesser of (i) $1,000 or (ii)
the
Conversion Value. To the extent the Conversion Value exceeds $1,000, the Company
may choose to deliver cash in lieu of shares of Common Stock, shares of Common
Stock or a combination of cash and shares of Common Stock in accordance with
the
Indenture.
[INCLUDE
IF SECURITY IS A GLOBAL SECURITY—
In
the
event of a deposit or withdrawal of an interest in this Security, including
an
exchange, transfer, repurchase or conversion of this Security in part only,
the
Trustee, as custodian of the Depositary, shall make an adjustment on its records
to reflect such deposit or withdrawal in accordance with the rules and
procedures of the Depositary.]
[INCLUDE
IF SECURITY IS A RESTRICTED SECURITY—
Subject
to certain limitations in the Indenture, at any time when the Company is not
subject to Section 13 or 15(d) of the United States Securities Exchange Act
of
1934, as amended, upon the request of a Holder of a Restricted Security, the
Company will promptly furnish or cause to be furnished Rule 144A Information
(as
defined below) to such Holder of Restricted Securities, or to a prospective
purchaser of any such security designated by any such Holder, to the extent
required to permit compliance by any such Holder with Rule 144A under the
Securities Act of 1933, as amended (the “Securities
Act”).
“Rule
144A Information”
shall
be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto).]
If
an
Event of Default shall occur and be continuing, the Principal Amount plus
accrued but unpaid interest, including Additional Interest Amounts, if any,
may
be declared due and payable in the manner and with the effect provided in the
Indenture.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities under the Indenture at any time
by
the Company and the Trustee with the consent of the Holders of not less than
a
majority in aggregate Principal Amount of the Outstanding Securities. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate Principal Amount of the Outstanding Securities, on
behalf of the Holders of all the Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder
of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As
provided in and subject to the provisions of the Indenture, the Holder of this
Security shall not have the right to institute any proceeding with respect
to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities,
the Holders of not less than 25% in aggregate Principal Amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity satisfactory to it, and the Trustee shall
not
have received from the Holders of a majority in Principal Amount of Outstanding
Securities a direction inconsistent with such request, and shall have failed
to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted
by
the Holder of this Security for the enforcement of any payment of said principal
hereof on or after the respective due dates expressed herein or for the
enforcement of any conversion right.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the Principal Amount, Redemption Price, Repurchase
Price or Fundamental Change Repurchase Price of, and interest, including
Additional Interest Amounts, if any, on, this Security at the times, place
and
rate, and in the coin, currency or shares, herein prescribed. Notwithstanding
the foregoing, prior to the occurrence of a Fundamental Change, the Company
may,
with the consent of the holders of not less than a majority of the Securities,
amend the obligation of the Company to repurchase Securities upon a Fundamental
Change.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in The City of New York, duly endorsed by, or accompanied by
a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate Principal Amount, will be issued to
the
designated transferee or transferees.
The
Securities are issuable only in registered form in denominations of $1,000
and
any integral multiple of $1,000 above that amount, as provided in the Indenture
and subject to certain limitations therein set forth. Securities are
exchangeable for a like aggregate Principal Amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the
same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior
to
due presentment of this Security for registration of transfer, the Company,
the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
This
Security shall be governed by and construed in accordance with the laws of
the
State of New York.
All
terms
used in this Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
ASSIGNMENT
FORM
If
you
want to assign this Security, fill in the form below and have your signature
guaranteed:
I
or we
assign and transfer this Security to:
|
(Print
or type name, address and zip code and social security or tax ID
number of
assignee)
|
and
irrevocably appoint ____________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
|
Date:
|
Signed:
|
||||
|
(Sign
exactly as your name appears on the other side of this
Security)
|
|||||
|
Signature
Guarantee:
|
|||||
|
Note:
|
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security 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 Security Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as
amended.
|
In
connection with any transfer of this Security occurring prior to the date which
is the earlier of (i) the date of the declaration by the Commission of the
effectiveness of a registration statement under the Securities Act of 1933,
as
amended (the “Securities
Act”),
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the second
anniversary of the Issue Date set forth on the face of this Security, the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that this Security
is
being transferred:
|
[Check
One]
|
||
|
(1)
|
r
|
to
the Company or a subsidiary thereof; or
|
|
(2)
|
r
|
to
a “Qualified Institutional Buyer” pursuant to and in compliance with Rule
144A under the Securities Act; or
|
|
(3)
|
r
|
outside
the United States to a “foreign person” in compliance with Rule 904 of
Regulation S under the Securities Act; or
|
|
(4)
|
r
|
pursuant
to the exemption from registration provided by Rule 144 under the
Securities Act.
|
Unless
one of the boxes is checked, the Trustee will refuse to register any of the
Securities evidenced by this certificate in the name of any Person other than
the registered Holder thereof, provided
that if
box (3) or (4) is checked, the Company may require, prior to registering any
such transfer of the Securities, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3)) and
other
information as the Company may reasonably request to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject
to,
the registration requirements of the Securities Act.
If
none
of the foregoing boxes is checked, the Trustee or Security Registrar shall
not
be obligated to register this Security in the name of any Person other than
the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section
3.11
of the
Indenture shall have been satisfied.
|
Date:
|
Signed:
|
||||
|
(Sign
exactly as your name appears on the other side of this
Security)
|
|||||
|
Signature
Guarantee:
|
|||||
|
Note:
|
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security 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 Security Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as
amended.
|
TO
BE
COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The
undersigned represents and warrants that it is purchasing this Security for
its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified
institutional buyer”
within
the meaning of Rule 144A under the Securities Act and is aware that the sale
to
it is being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information and that it
is
aware that the transferor is relying upon the undersigned’s foregoing
representations in order to claim the exemption from registration provided
by
Rule 144A.
|
Date:
|
Signed:
|
||||
|
NOTICE:
To
be executed by an executive officer.
|
|||||
CONVERSION
NOTICE
If
you
want to convert this Security into cash and if applicable Common Stock of the
Company, check the box: r
To
convert only part of this Security, state the Principal Amount to be converted
(which must be $1,000 or an integral multiple of $1,000):
$_________________________________
If
you
want the stock certificate and Securities (if any) to be delivered, made out
in
another person’s name, fill in the form below:
|
(Insert
other person’s social security or tax ID no.)
|
|
(Print
or type other person’s name, address and zip
code)
|
|
Date:
|
Signed:
|
||||
|
(Sign
exactly as your name appears on the other side of this
Security)
|
|||||
|
Signature
Guarantee:
|
|||||
|
Note:
|
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security 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 Security Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as
amended.
|
Section
2.04 Form
Of Trustee’s
Certificate Of Authentication.
This is
one of the Securities referred to in the within-mentioned
Indenture.
|
Dated:
|
THE
BANK OF NEW YORK TRUST COMPANY, N.A.,
|
|
|
as
Trustee
|
||
|
By:
|
||
|
Authorized
Signatory
|
Section
2.05 Legend
On Restricted Securities.
During
the period beginning on the Issue Date and ending on the date two years from
such date, any Security including any Security issued in exchange therefor
or in
lieu thereof, shall be deemed a “Restricted
Security”
and
shall be subject to the restrictions on transfer provided in the legends set
forth on the face of the form of Security in Section
2.02;
provided,
however,
that
the term “Restricted
Security”
shall
not include any Securities as to which restrictions have been terminated in
accordance with Section
3.06.
All
Securities shall bear the applicable legends set forth on the face of the form
of Security in Section
2.02.
Except
as provided in Section
3.06
and
Section
3.11,
the
Trustee shall not issue any unlegended Security until it has received an
Officers’ Certificate from the Company directing it to do so.
ARTICLE
III
THE
SECURITIES
Section
3.01 Title;
Amount And Issue Of Securities; Principal And Interest.
The
Securities shall be known and designated as the “1.00% Senior Convertible Notes
due 2026” of the Company. The aggregate Principal Amount of Securities that may
be authenticated and delivered under this Indenture is initially limited to
$425,000,000, except for Securities authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu of other Securities
pursuant to Sections 2.05, 3.03, 3.04, 3.06, 3.07, 3.08, 9.06, 11.06, 12.04,
13.04 and 14.01, provided that Additional Securities with the same terms and
with the same CUSIP numbers as the Securities issued on the date of this
Indenture may be issued in an unlimited aggregate principal amount from time
to
time thereafter pursuant to Section 3.03; provided
that
such
Additional Securities must be part of the same issue as the Securities issued
on
the date of this Indenture for U.S. federal income tax purposes. The Principal
Amount shall be payable on May 15, 2026, unless earlier converted, redeemed
or
repurchased.
The
Securities shall bear interest at a rate of 1.00% per year. Interest on the
Securities shall accrue from the Issue Date. Interest shall be payable
semiannually in arrears on May 15 and November 15, beginning November 15, 2006.
Interest (including any Additional Interest Amount) on the Securities shall
be
computed on the basis of a 360-day year of twelve 30-day months.
The
Principal Amount of Physical Securities shall be payable at the office or agency
designated by the Company in the Borough of Manhattan, The City of New York
initially the Corporate Trust Office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇. Interest (including Additional Interest Amounts, if any) on Physical
Securities shall be payable (i) to Holders having an aggregate Principal Amount
of $5,000,000 or less, by check mailed to the Holders of these Securities and
(ii) to Holders having an aggregate Principal Amount of more than $5,000,000,
either by check mailed to each Holder or, upon application by a Holder to the
Security Registrar not later than two days prior to the relevant record date,
by
wire transfer in immediately available funds to that Holder’s account within the
United States, which application shall remain in effect until the Holder
notifies, in writing, the Security Registrar to the contrary.
A
Holder
of any Security at 5:00 p.m., New York City time, on a Regular Record Date
shall
be entitled to receive interest (including Additional Interest Amounts, if
any),
on such Security on the corresponding Interest Payment Date. Holders of
Securities after 5:00 p.m., New York City time, on a Regular Record Date will
receive payment of interest (including Additional Interest Amounts, if any)
payable on the corresponding interest payment date notwithstanding the
conversion of such Securities at any time after the close of business on such
Regular Record Date. Securities surrendered for conversion during the period
after 5:00 p.m., New York City time, on any Regular Record Date to 9:00 a.m.,
New York City time, on the corresponding interest payment date must be
accompanied by payment of an amount equal to the interest (including Additional
Interest Amounts, if any) that the Holder is to receive on the Securities.
Notwithstanding the foregoing, no such payment of interest (including Additional
Interest Amounts, if any) need be made by any converting Holder (i) if the
Company has specified a Redemption Date that is after a Regular Record Date
and
on or prior to the corresponding interest payment date, (ii) if the Company
has
specified a Fundamental Change Purchase Date during such period, or (iii) to
the
extent of any overdue interest (including Additional Interest Amounts, if any)
existing at the time of conversion of such Security. Except where Securities
surrendered for conversion must be accompanied by payment as described above,
no
interest or Additional Interest Amount on converted Securities will be payable
by the Company on any interest payment date subsequent to the date of conversion
and delivery of the cash and shares of Common Stock, if applicable, pursuant
to
Article XIV hereunder, together with any cash payment for any fractional share,
upon conversion will be deemed to satisfy the Company’s obligation to pay the
principal amount of the Securities and accrued and unpaid interest and
Additional Interest Amounts, if any, to, but not including, the related
Conversion Date.
Principal
of and interest (including Additional Interest Amounts, if any) on Global
Securities shall be payable in immediately available funds to the
Depository.
The
Securities shall not be superior in right of payment to, and shall rank
pari
passu
with,
all other unsecured and unsubordinated indebtedness of the Company.
Section
3.02 Denominations.
The
Securities shall be issuable only in registered form without coupons and in
denominations of $1,000 and any integral multiple of $1,000 above that
amount.
Section
3.03 Execution,
Authentication, Delivery And
Dating.
The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Chief Executive Officer, its Chief Operating Officer, its Chief
Financial Officer, one of its Vice Presidents, its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding
that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices
at
the date of such Securities.
At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities. The Company Order shall specify the amount of
Securities to be authenticated, and shall further specify the amount of such
Securities to be issued as a Global Security or as Physical Securities. The
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities as in this Indenture provided and not otherwise.
Each
Security shall be dated the date of its authentication.
No
Security shall be entitled to any benefit under this Indenture or be valid
or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by
the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
Section
3.04 Temporary
Securities.
Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such
Securities.
If
temporary Securities are issued, the Company will cause definitive Securities
to
be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at any office or agency
of
the Company designated pursuant to Section
10.02,
without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section
3.05 Paying
Agent; Registrar.
The
Company shall maintain an office or agency where Securities may be presented
for
registration of transfer or for exchange (the “Security
Registrar”)
and an
office or agency where Securities may be presented to the Paying Agent for
payment. The Company shall cause each of the Registrar and the Paying Agent
to
maintain an office or agency in the Borough of Manhattan, The City of New York.
The Security Registrar shall keep a register of the Securities and of their
transfer and exchange (the “Securities
Register”).
The
Company may have one or more co-registrars and one or more additional paying
agents. The term “Paying
Agent”
includes any additional paying agent and the term “Registrar”
includes any co-registrar.
The
Company initially appoints the Trustee as the Paying Agent and the Security
Registrar. The Company may, however, change the Paying Agent or Security
Registrar without prior notice to the Holders, and the Company may act as the
Paying Agent and Security Registrar.
Section
3.06 Registration
Of Transfer And Exchange; Restrictions On Transfer.
(a) Upon
surrender for registration of transfer of any Security at an office or agency
of
the Company designated pursuant to Section
10.02
for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate Principal
Amount and tenor, each such Security bearing such restrictive legends as may
be
required by this Indenture (including Section
2.02,
Section
2.05
and
Section
3.11).
At
the
option of the Holder and subject to the other provisions of this Section
3.06
and to
Section
3.11,
Securities may be exchanged for other Securities of any authorized denominations
and of a like aggregate Principal Amount and tenor, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is
entitled to receive.
All
Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every
Security presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or
his
attorney duly authorized in writing. As a condition to the registration of
transfer of any Restricted Securities, the Company or the Trustee may require
evidence satisfactory to them as to the compliance with the restrictions set
forth in the legend on such securities.
Except
as
provided in the following sentence and in Section
3.11,
all
Securities originally issued hereunder and all Securities issued upon
registration of transfer or exchange or replacement thereof shall be Restricted
Securities and shall bear the legend required by Section
2.02
and
Section
2.05,
unless
the Company shall have delivered to the Trustee (and the Security Registrar,
if
other than the Trustee) a Company Order stating that the Security is not a
Restricted Security and may be issued without such legend thereon. Securities
which are issued upon registration of transfer of, or in exchange for,
Securities which are not Restricted Securities shall not be Restricted
Securities and shall not bear such legend.
No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section
3.04
and
Section
9.06
not
involving any transfer.
The
Company shall not be required to exchange or register a transfer of any Security
(i) that has been surrendered for conversion or (ii) as to which a Repurchase
Notice or a Fundamental Change Repurchase Notice has been delivered and not
withdrawn, except, where such Repurchase Notice or Fundamental Change Repurchase
Notice provides that such Security is to be purchased only in part, the Company
shall be required to exchange or register a transfer of the portion thereof
not
to be purchased.
(b) Beneficial
ownership of every Restricted Security shall be subject to the restrictions
on
transfer provided in the legends required to be set forth on the face of each
Restricted Security pursuant to Section
2.02
and
Section
2.05,
unless
such restrictions on transfer shall be terminated in accordance with this
Section
3.06(b)
or
Section
3.11.
The
Holder of each Restricted Security, by such Holder’s acceptance thereof, agrees
to be bound by such restrictions on transfer.
The
restrictions imposed by this Section
3.06
and
Section
2.02,
Section
2.05
and
Section
3.11
upon the
transferability of any particular Restricted Security shall cease and terminate
upon delivery by the Company to the Trustee of an Officers’ Certificate stating
that such Restricted Security has been sold pursuant to an effective Resale
Registration Statement under the Securities Act or transferred in compliance
with Rule 144 under the Securities Act (or any successor provision thereto).
Any
Restricted Security as to which the Company has delivered to the Trustee an
Officers’ Certificate that such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon surrender of
such
Restricted Security for exchange to the Security Registrar in accordance with
the provisions of this Section
3.06,
be
exchanged for a new Security, of like tenor and aggregate Principal Amount,
which shall not bear the restrictive legends required by Section
2.02
and
Section
2.05.
The
Company shall inform the Trustee in writing of the effective date of any Resale
Registration Statement registering the Securities under the Securities Act.
The
Trustee shall not be liable for any action taken or omitted to be taken by
it in
good faith in accordance with the aforementioned Resale Registration
Statement.
As
used
in the preceding two paragraphs of this Section
3.06,
the
term “transfer” encompasses any sale, pledge, transfer or other disposition of
any Restricted Security.
(c) Neither
the Trustee nor any of its agents shall (i) have any duty to monitor compliance
with or with respect to any federal or state or other securities or tax laws
or
(ii) have any duty to obtain documentation on any transfers or exchanges other
than as specifically required hereunder.
Section
3.07 Mutilated,
Destroyed, Lost And Stolen Securities.
If any
mutilated Security is surrendered to the Trustee, the Company shall execute
and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of like tenor and Principal Amount and bearing a number not contemporaneously
outstanding.
If
there
shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and Principal Amount and bearing a number not contemporaneously
outstanding.
In
case
any such mutilated, destroyed, lost or stolen Security has become or is about
to
become due and payable, the Company in its discretion may, instead of issuing
a
new Security, pay such Security.
Upon
the
issuance of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every
new
Security issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall
be
at any time enforceable by anyone, and shall be entitled to all the benefits
of
this Indenture equally and proportionately with any and all other Securities
duly issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
Section
3.08 Persons
Deemed Owners.
Prior to
due presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section
3.09 Book-Entry
Provisions For Global Securities.
(a) The
Global Securities initially shall (i) be registered in the name of the
Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee
as custodian for the Depositary and (iii) bear legends as set forth on the
face
of the form of Security in Section
2.02.
Members
of, or participants in, the Depositary (“Agent
Members”)
shall
have no rights under this Indenture with respect to any Global Security held
on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Security 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 impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of any Holder.
(b) Transfers
of the Global Securities shall be limited to transfers in whole, but not in
part, to the Depositary, its successors or their respective nominees. Physical
Securities shall be transferred to beneficial owners in exchange for their
beneficial interests in the Global Securities only if (A) such Depositary has
notified the Company (or the Company becomes aware) that the Depositary (i)
is
unwilling or unable to continue as Depositary for such Global Security or (ii)
has ceased to be a clearing agency registered under the Exchange Act when the
Depositary is required to be so registered to act as such Depositary and, in
both such cases, no successor Depositary shall have been appointed within 90
days of such notification or of the Company becoming aware of such event, (B)
there shall have occurred and be continuing an Event of Default with respect
to
such Global Security and the Outstanding Securities shall have become due and
payable pursuant to Section
5.02
and any
Holder requests that Physical Securities be issued or (C) the Company has
determined in its sole discretion that the Securities shall no longer be
represented by Global Securities; provided
that
Holders of Physical Securities offered and sold in reliance on Rule 144A shall
have the right, subject to applicable law, to request that such Securities
be
exchanged for interests in the applicable Global Security. Any such transfer
or
exchange of interests of beneficial owners in a Global Security, in whole or
in
part, for Physical Securities shall be in accordance with the rules and
procedures of the Depositary and the provisions of Section
3.11.
(c) In
connection with any transfer or exchange of a portion of the beneficial interest
in the Global Security to beneficial owners pursuant to paragraph (b), the
Security Registrar shall (if one or more Physical Securities are to be issued)
reflect on its books and records the date and a decrease in the Principal Amount
of the Global Security in an amount equal to the Principal Amount of the
beneficial interest in the Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Securities of like tenor and amount.
(d) In
connection with the transfer of the entire Global Security to beneficial owners
pursuant to paragraph (b), the Global Security shall be deemed to be surrendered
to the Trustee for cancellation, and the Company shall execute, and the Trustee
shall authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Global Security,
an
equal aggregate Principal Amount of Physical Securities of authorized
denominations and the same tenor.
(e) Any
Physical Security constituting a Restricted Security delivered in exchange
for
an interest in the Global Security pursuant to paragraph (c) or (d) shall,
except as otherwise provided by paragraphs (a)(i)(x) and (c) of Section
3.11,
bear
the legend regarding transfer restrictions applicable to the Physical Securities
set forth on the face of the form of Security in Section
2.02.
(f) The
Holder of the Global Securities may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under
this
Indenture or the Securities.
Section
3.10 Cancellation.
The
Company at any time may deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold. The Trustee shall cancel and dispose of all Securities
surrendered for registration of transfer, exchange, payment, purchase,
repurchase, redemption, conversion (pursuant to Article XIV hereof) or
cancellation in accordance with its customary practices. If the Company shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation. The
Company may not issue new Securities to replace Securities it has paid in full
or delivered to the Trustee for cancellation.
Section
3.11 Special
Transfer Provision.
(a) Transfers
to Non-U.S. Persons.
The
following provisions shall apply with respect to the registration of any
proposed transfer of a Security constituting a Restricted Security to any
Non-U.S. Person to which Securities in the form of Global Securities cannot
be
issued:
(i) the
Security Registrar shall register the transfer of any Security constituting
a
Restricted Security, whether or not such Security bears the legend required
by
Section
2.02
and
Section
2.05,
if (x)
the requested transfer is after the second anniversary of the Issue Date of
such
Security or (y) the proposed transferor has delivered to the Security Registrar
a certificate substantially in the form of Exhibit
A
hereto,
together with such other certifications, legal opinions or other information
as
the Company may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act; and
(ii) if
the
proposed transferor is an Agent Member holding a beneficial interest in the
Global Security, upon receipt by the Security Registrar of (x) the certificate,
if any, required by paragraph (i) above and instructions given in accordance
with the Depositary’s and the Security Registrar’s procedures,
whereupon
(1) the Security Registrar shall reflect on its books and records the date
and
(if the transfer does not involve a transfer of outstanding Physical Securities)
a decrease in the Principal Amount of the Global Security in an amount equal
to
the Principal Amount of the beneficial interest in the Global Security to be
transferred, and (b) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities of like tenor and
amount.
(b) Transfers
to QIBs.
The
following provisions shall apply with respect to the registration of any
proposed transfer of a Security constituting a Restricted Security to a QIB
(excluding transfers to Non-U.S. Persons):
(i) the
Security Registrar shall register the transfer if such transfer is being made
by
a proposed transferor who has checked the box provided for on the form of
Security stating, or has otherwise advised the Company and the Security
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that it is purchasing the
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a QIB within
the
meaning of Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A or has determined not
to
request such information and that it is aware that the transferor is relying
upon its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if
the
proposed transferee is an Agent Member, and the Securities to be transferred
consist of Physical Securities which after transfer are to be evidenced by
an
interest in the Global Security, upon receipt by the Security Registrar of
instructions given in accordance with the Depositary’s
and
the Security Registrar’s procedures, the Security Registrar shall reflect on its
books and records the date and an increase in the Principal Amount of the Global
Security in an amount equal to the Principal Amount of the Physical Securities
to be transferred, and the Trustee shall cancel the Physical Securities so
transferred.
(c) Private
Placement Legend.
Upon
the registration of transfer, exchange or replacement of Securities not bearing
the legends required by Section
2.02
and
Section
2.05,
the
Security Registrar shall deliver Securities that do not bear such legends.
Upon
the registration of transfer, exchange or replacement of Securities bearing
the
legends required by Section
2.02
and
Section
2.05,
the
Security Registrar shall deliver only Securities that bear such legends unless
(i) the circumstance contemplated by paragraph (a)(i)(x) of this Section
3.11
exists
or (ii) there is delivered to the Security Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities
Act.
(d) General.
By its
acceptance of any Security bearing the legends required by Section
2.02
and
Section
2.05,
each
Holder of such a Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and in such legends and agrees that it
will
transfer such Security only as provided in this Indenture.
The
Security Registrar shall retain, in accordance with its customary procedures,
copies of all letters, notices and other written communications received
pursuant to this Section
3.11.
The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Security Registrar.
Section
3.12 Defaulted
Interest.
Any
interest on any Security which is payable, but is not paid when the same becomes
due and payable and such nonpayment continues for a period of 30 days, shall
forthwith cease to be payable to the Holder on the Regular Record Date, and
such
defaulted interest and (to the extent lawful) interest on such defaulted
interest at the rate set forth in Section
10.01
(such
defaulted interest and interest thereon herein collectively called “Defaulted
Interest”)
shall
be paid by the Company, at its election in each case, as provided in clause
(a)
or (b) below:
(a) The
Company may elect to make payment of any Defaulted Interest to the Persons
in
whose names the Securities (or their respective predecessor Securities) are
registered at the close of business
on
a Special Record Date for the payment of such Defaulted Interest, which shall
be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security and
the
date (not less than 30 days after such notice) of the proposed payment (the
“Special
Interest Payment Date”),
and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as
in this clause provided. Thereupon the Trustee shall fix a record date (the
“Special
Record Date”)
for
the payment of such Defaulted Interest which shall be not more than 15 days
and
not less than 10 days prior to the Special Interest Payment Date and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date, and in the name and at the expense of the Company, shall cause notice
of
the proposed payment of such Defaulted Interest and the Special Record Date
and
Special Interest Payment Date therefor to be given in the manner provided for
in
Section
13.02,
not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date and Special
Interest Payment Date therefor having been so given, such Defaulted Interest
shall be paid on the Special Interest Payment Date to the Persons in whose
names
the Securities (or their respective predecessor Securities) are registered
at
the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which
the
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject
to the foregoing provisions of this Section
3.12,
each
Security delivered under this Indenture upon registration of, transfer of or
in
exchange for or in lieu of any other Security shall carry the rights to interest
(including any Additional Interest Amount) accrued and unpaid, and to accrue,
which were carried by such other Security.
Section
3.13 CUSIP
Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices as a
convenience to Holders; provided
that any
such notice may state that no representation is made as to the correctness
of
such numbers either as printed on the Securities or as contained in any notice
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such notice 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.
Section
3.14 Ranking.
The
indebtedness of the Company arising under or in connection with this Indenture
and every outstanding Security issued under this Indenture from time to time
constitutes and will constitute a senior unsecured general obligation of the
Company, ranking equally with other existing and future senior unsecured and
unsubordinated Indebtedness of the Company and ranking senior in right of
payment to any future Indebtedness of the Company that is expressly made
subordinate to the Securities by the terms of such Indebtedness. For purposes
of
this Section
3.14
only,
“Indebtedness”
means,
without duplication, the principal or face amount of (i) all obligations for
borrowed money, (ii) all obligations evidenced by debentures, notes or other
similar instruments, (iii) all obligations in respect of letters of credit
or
bankers acceptances or similar instruments (or reimbursement obligations with
respect thereto), (iv) all obligations to pay the deferred purchase price of
property or services, (v) all obligations as lessee which are capitalized in
accordance with generally accepted accounting principles, and (vi) all
Indebtedness of others guaranteed by the Company or any of its Subsidiaries
or
for which the Company or any of its Subsidiaries is legally responsible or
liable (whether by agreement to purchase indebtedness of, or to supply funds
or
to invest in, others).
Section
3.15 Sinking
Fund.
The
Securities shall not have the benefit of a sinking fund.
ARTICLE
IV
SATISFACTION
AND DISCHARGE
Section
4.01 Satisfaction
And Discharge Of Indenture.
This
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section
6.07
and, if
money shall have been deposited with the Trustee pursuant to subclause (ii)
of
clause (a) of this Section
4.01,
the
obligations of the Trustee under Section
4.02
and the
last paragraph of Section
10.03
shall
survive such satisfaction and discharge.
(a) either:
(i) all
Securities theretofore authenticated and delivered (other than (A) Securities
which have been destroyed, lost or stolen and which have been replaced or
paid
as provided in Section
3.07
and (B)
Securities for whose payment money has theretofore been deposited with the
Trustee in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust as provided in Section
10.03)
have
been delivered to the Trustee for cancellation; or
(ii) all
such
Securities not theretofore delivered to the Trustee for cancellation have
become
due and payable and the Company has deposited or caused to be deposited with
the
Trustee as trust funds in trust for the purpose an amount sufficient to pay
and
discharge the entire indebtedness evidenced by such Securities not theretofore
delivered to the Trustee for cancellation;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by
the
Company; and
(c) the
Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this
Indenture have been complied with.
Section
4.02 Application
Of Trust Money.
Subject
to the provisions of the last paragraph of Section
10.03,
all
money deposited with the Trustee pursuant to Section
4.01
shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
interest (including Additional Interest Amounts, if any), for whose payment
such
money has been deposited with the Trustee.
ARTICLE
V
REMEDIES
Section
5.01 Events
Of Default.“Event
of Default”,
wherever used herein, means any one of the following events (whatever the reason
for such Event of Default and whether 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):
(a) default
in the payment of the Principal Amount, Redemption Price, Repurchase Price
or
Fundamental Change Repurchase Price on any Security when it becomes due and
payable; or
(b) default
in the payment of interest or Additional Interest Amounts, if any, upon any
Security, when such amounts become due and payable, and continuance of such
default for a period of 30 days; or
(c) failure
by the Company to convert Securities into cash and shares of Common Stock upon
exercise of a Holder’s conversion right and such failure continues for 10
Business Days or more; or
(d) default
in the payment of any indebtedness for borrowed money by the Company or any
of
its significant subsidiaries (all or substantially all of the outstanding voting
securities of which are owned, directly or indirectly, by the Company) in an
outstanding principal amount in excess of $100,000,000 when such amounts become
due at final maturity or upon acceleration, and such indebtedness is not
discharged, or such default in payment or acceleration is not cured or rescinded
within the period specified in such instrument; provided,
however,
that if
such default payment or acceleration is cured or rescinded, there shall be
an
automatic cure of the corresponding Event of Default under this Section
5.01(c)
without
any action by the parties hereto; or
(e) default
in the performance of any covenant, agreement or condition of the Company in
this Indenture or the Securities (other than a default specified in Section
5.01(a)
or
(b)),
and
continuance of such default for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in aggregate Principal Amount
of
the Outstanding Securities a written notice specifying such default and
requiring it to be remedied and stating that such notice is a “Notice
of Default”
hereunder; or
(f) the
rendering of a final judgment or judgments (not subject to appeal and not
covered by insurance) against the Company or any of its Subsidiaries in excess
of $100,000,000 which remains unstayed, undischarged or unbonded for 60 days;
or
(g) the
entry
by a court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company or any of its significant Subsidiaries of
a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (ii) a decree or order
adjudging the Company as bankrupt or insolvent, or approving as properly filed
a
petition seeking reorganization, arrangement, adjustment or composition of
or in
respect of the Company under any applicable Federal or State law or (iii)
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or
other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
appointment, decree or order unstayed and in effect for a period of 60
consecutive days; or
(h) the
commencement by the Company or any of its significant Subsidiaries of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it
to
the entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it
of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or the making by it of
an
assignment for the benefit of creditors.
Section
5.02 Acceleration
Of Maturity; Rescission And Annulment.
(a) If
an
Event of Default (other than those specified in Section
5.01(g)and
Section
5.01(h)
with
respect to the Company) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in aggregate Principal Amount
of
the Outstanding Securities may declare the Principal Amount plus accrued and
unpaid interest, including Additional Interest Amounts, if any, on all the
Outstanding Securities to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration such Principal Amount plus accrued but unpaid interest, including
Additional Interest Amounts, if any, shall become immediately due and
payable.
Notwithstanding
the foregoing, in the case of an Event of Default specified in Section
5.01(g)
and
Section
5.01(h)
with
respect to the Company, the Principal Amount plus accrued but unpaid interest,
including Additional Interest Amounts, if any, on all Outstanding Securities
will ipso
facto
become
due and payable without any declaration or other Act on the part of any Holder
or the Trustee.
(b) At
any
time after such a declaration of acceleration has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article
V
provided, the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(i) the
Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) the
Principal Amount plus accrued but unpaid interest, including Additional Interest
Amounts, if any, Redemption Price, Repurchase Price or Fundamental Change
Repurchase Price, as applicable, on any Securities which have become due
otherwise than by such declaration of acceleration, and interest on any such
amounts that are overdue at the rate of 1.00% per annum from the required
payment date, and
(B) all
sums
paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and
any other amounts due the Trustee under Section
6.07;
and
(ii) all
Events of Default, other than the non-payment of the Principal Amount plus
accrued but unpaid interest, including Additional Interest Amounts, if any,
on
Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section
5.13.
No
such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Section
5.03 Other
Remedies.
If an
Event of Default occurs and is continuing, the Trustee may, but shall not be
obligated to, pursue any available remedy to collect the payment of the
Principal Amount plus accrued but unpaid interest, including Additional Interest
Amounts, if any, on the Securities or to enforce the performance of any
provision of the Securities or this Indenture. The Trustee may maintain a
proceeding even if the Trustee does not possess any of the Securities or does
not produce any of the Securities in the proceeding. A delay or omission by
the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of,
or
acquiescence in, the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
Section
5.04 Collection
Of Indebtedness And Suits For Enforcement By Trustee.
The
Company covenants that if:
(a) default
is made in the payment of any interest, including Additional Interest Amounts,
on any Security when such amounts become due and payable, and such default
continues for a period of 30 days, or
(b) default
is made in the payment of the Principal Amount plus accrued but unpaid interest,
including Additional Interest Amounts, if any, at the Stated Maturity thereof
or
in the payment of the Redemption Price, Repurchase Price or Fundamental Change
Repurchase Price in respect of any Security,
the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
Section
5.05 Trustee
May File Proofs Of Claim.
In case
of any judicial proceeding relative to the Company (or any other obligor upon
the Securities), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any
and
all actions authorized under the Trust Indenture Act in order to have claims
of
the Holders and the Trustee allowed in any such proceeding. In particular,
the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section
6.07.
No
provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section
5.06 Application
Of Money Collected.
Any
money collected by the Trustee pursuant to this Article V shall be applied
in
the following order, at the date or dates fixed by the Trustee and, in case
of
the distribution of such money to Holders, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST:
To
the payment of all amounts due the Trustee under Section
6.07;
and
SECOND:
To the payment of the amounts then due and unpaid on the Securities for the
Principal Amount, Redemption Price, Repurchase Price, Fundamental Change
Repurchase Price or interest, including Additional Interest Amounts, if any,
as
the case may be, in respect of which or for the benefit of which such money
has
been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities.
THIRD:
To
the Company.
Section
5.07 Limitation
On Suits.
No
Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of
a receiver or trustee, or for any other remedy hereunder (other than in the
case
of an Event of Default specified in Section
5.01(a)
or
Section
5.01(b)),
unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default;
(b) the
Holders of not less than 25% in aggregate Principal Amount of the Outstanding
Securities shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity reasonably satisfactory
to it against the costs, expenses and liabilities to be incurred in compliance
with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(e) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in aggregate Principal
Amount of the Outstanding Securities;
it
being
understood and intended that no one or more Holders shall have any right in
any
manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holders, or to obtain
or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the
equal and ratable benefit of all the Holders.
Section
5.08 Unconditional
Right Of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the Principal Amount, Redemption Price, Repurchase Price,
Fundamental Change Repurchase Price or interest, including Additional Interest
Amounts, if any, in respect of the Securities held by such Holder, on or after
the respective due dates expressed in the Securities or on or after any
Redemption Date, Repurchase Date or Fundamental Change Repurchase Date, as
applicable, and to convert the Securities in accordance with Article XIV hereof,
or to bring suit for the enforcement of any such payment on or after such
respective dates or the right to convert, shall not be impaired or affected
adversely without the consent of such Holder. For purposes of clarification,
prior to the occurrence of a Fundamental Change, the provisions relating to
the
right to receive payment upon a Fundamental Change Repurchase Date may be
modified in the manner set forth in Section
9.02.
Section
5.09 Restoration
Of Rights And Remedies.
If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section
5.10 Rights
And Remedies Cumulative.
Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section
3.07,
no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section
5.11 Delay
Or Omission Not Waiver.
No delay
or omission of the Trustee or of any Holder of any Security to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article V or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section
5.12 Control
By Holders.
The
Holders of a majority in Principal Amount of the Outstanding Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee, provided
that:
(a) such
direction shall not be in conflict with any rule of law or with this Indenture;
and
(b) the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section
5.13 Waiver
Of Past Defaults.
The
Holders of not less than a majority in Principal Amount of the Outstanding
Securities may on behalf of the Holders of all the Securities waive any past
Default hereunder and its consequences, except a Default:
(a) described
in Section
5.01(a)
or
Section
5.01(b);
or
(b) in
respect of a covenant or provision hereof which under Article IX cannot be
modified or amended without the consent of the Holder of each Outstanding
Security affected.
Upon
any
such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or
impair any right consequent thereon.
Section
5.14 Undertaking
For Costs.
In any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as Trustee,
in
either case in respect of the Securities, a court may require any party litigant
in such suit to file an undertaking to pay the costs of the suit, and the court
may assess reasonable costs, including reasonable attorney’s fees and expenses,
against any party litigant in the suit having due regard to the merits and
good
faith of the claims or defenses made by the party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in Principal Amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the Principal Amount or accrued but unpaid
interest, including Additional Interest Amounts, if any, on any Security on
or
after the Stated Maturity of such Security or the Redemption Price, Repurchase
Price or Fundamental Change Repurchase Price.
Section
5.15 Waiver
Of Stay Or Extension Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay, or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE
VI
THE
TRUSTEE
Section
6.01 Certain
Duties And Responsibilities.
The
duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act and as set forth herein. In case an Event of Default with respect
to the Securities has occurred (which has not been cured or waived), the Trustee
shall exercise 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. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the
exercise of any of its rights or powers. Except during the continuance of an
Event of Default, the Trustee need perform only those duties as are specifically
set forth in this Indenture and no duties, covenants or obligations of the
Trustee shall be implied in this Indenture. Whether or not therein expressly
so
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.
Section
6.02 Notice
Of Defaults.
The
Trustee shall give the Holders notice of any Default hereunder within 60 days
after the occurrence thereof or, if later, within 15 days after it is known
to
the Trustee, unless such Default shall have been cured or waived before the
giving of such notice; provided,
that
(except in the case of any Default in the payment of Principal Amount, interest,
including Additional Interest Amounts, if any, on any of the Securities or
the
Redemption Price, Repurchase Price or Fundamental Change Repurchase Price),
the
Trustee shall be protected in withholding such notice if and so long as a trust
committee of directors or trustees and/or a Responsible Officer of the Trustee
in good faith determines that the withholding of such notice is in the interest
of the Holders of Securities.
Section
6.03 Certain
Rights Of Trustee.
Subject
to the provisions of Section
6.01:
(a) the
Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper
or
document believed by it to be genuine and to have been signed or presented
by
the proper party or parties;
(b) any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors of the Company may be sufficiently evidenced by a Board
Resolution;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers’
Certificate;
(d) the
Trustee may consult with counsel of its selection and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or
matters as it may see fit; and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at
the
sole cost of the Company and shall incur no liability or additional liability
of
any kind by reason of such inquiry or investigation;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any willful misconduct or gross negligence on
the
part of any agent or attorney appointed with due care by it
hereunder;
(h) the
Trustee shall not be charged with knowledge of any Default or Event of Default
with respect to the Securities unless either (i) a Responsible Officer shall
have actual knowledge of such Default or Event of Default or (ii) written notice
of such Default or Event of Default shall have been given to the Trustee by
the
Company or any other obligor on such Securities or by any Holder of such
Securities;
(i) the
Trustee shall not be liable for any action taken, suffered or omitted by it
in
good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(j) 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;
(k) the
Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time
to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded; and
(l) 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.
Section
6.04 Not
Responsible For Recitals.
The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture
or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section
6.05 May
Hold Securities.
The
Trustee, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Section
6.08
and
Section
6.13,
may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
Section
6.06 Money
Held In Trust.
Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed
in
writing with the Company.
Section
6.07 Compensation
And Reimbursement.
The
Company agrees:
(a) to
pay to
the Trustee from time to time such compensation for all services rendered by
it
hereunder as the Company and the Trustee shall from time to time agree in
writing (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except
as
otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by
the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its gross negligence or bad faith;
(c) to
indemnify the Trustee and any predecessor Trustee for, and to hold it harmless
against, any loss, liability,
claim,
damage or expense including taxes (other than taxes based upon, measured by
or
determined by the income of the Trustee) incurred without gross negligence,
willful misconduct or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust, including the reasonable
costs and expenses of defending itself against any claim (whether assessed
by
the Company, by any Holder or any other Person) or liability in connection
with
the exercise or performance of any of its powers or duties hereunder;
and
(d) the
Trustee shall notify the Company promptly of any claim asserted against it.
Failure by the Trustee to so notify the Company shall not relieve the Company
of
its obligations under this Section
6.07.
The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may at its option have separate counsel of its own choosing and
the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its written consent, which consent
shall not be unreasonably withheld.
The
obligations of the Company under this Section
6.07
shall
survive the resignation or removal of the Trustee and the satisfaction and
discharge of this Indenture. To secure the Company’s payment obligations in this
Section
6.07,
the
Trustee shall have a lien prior to the Securities on all money or property
held
or collected by the Trustee, except that held in trust to pay principal and
interest on the Securities. Such lien shall survive the resignation or removal
of the Trustee and the satisfaction and discharge of this Indenture. When the
Trustee incurs expenses or renders services after a Default or an Event of
Default specified in Section
5.01(g)
and
Section
5.01(h)
hereof
occurs, the expenses and the compensation for the services (including, the
fees
and expenses of its agents and counsel) are intended to constitute expenses
of
administration under United States Code, Title 11 or any other similar foreign,
federal or state law for the relief of debtors.
Section
6.08 Disqualification;
Conflicting Interests.
If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions
of,
the Trust Indenture Act and this Indenture.
Section
6.09 Corporate
Trustee Required; Eligibility.
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. 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, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article VI.
Section
6.10 Resignation
And Removal; Appointment Of Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article
VI shall become effective until the acceptance of appointment by the successor
Trustee under Section
6.11.
(b) The
Trustee may resign at any time by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction at the expense of the Trustee for the appointment of a successor
Trustee.
(c) The
Trustee may be removed at any time by Act of the Holders of a majority in
Principal Amount of the Outstanding Securities, delivered to the Trustee and
to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the notice of removal,
the Trustee being removed may petition, at the expense of the Company, any
court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities.
(d) If
at any
time:
(i) the
Trustee shall fail to comply with Section
6.08
after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(ii) the
Trustee shall cease to be eligible under Section
6.09
and
shall fail to resign after written request therefor by the Company or by any
such Holder, or
(iii) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or
(iv) 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, (A) the Company by a Company Order may remove the Trustee, or
(B)
subject to Section
5.14,
any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of such Holder and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If
the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Company
Order, shall promptly appoint a successor Trustee. If no successor Trustee
shall
have been so appointed by the Company and accepted appointment in the manner
hereinafter provided
within
60 days of such resignation, removal, incapability or vacancy, any Holder who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee to all Holders in the manner
provided in Section
1.06.
Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
(g) If
a
Trustee is removed with or without cause, all fees and expenses (including
the
reasonable fees and expenses of counsel) of the Trustee incurred in the
administration of the trust or in the performance of the duties hereunder prior
to such removal shall be paid to the Trustee.
Section
6.11 Acceptance
Of Appointment By Successor.
Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver
to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company
shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and
trusts.
No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article VI.
Section
6.12 Merger,
Conversion, Consolidation Or Succession To Business.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided
such
corporation shall be otherwise qualified and eligible under this Article VI,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such
Securities.
Section
6.13 Preferential
Collection Of Claims Against.
If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions
of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
ARTICLE
VII
REPORTS
BY TRUSTEE
Section
7.01 Preservation
Of Information; Communications To Holders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable,
the
names and addresses of Holders contained in the most recent list furnished
to
the Trustee as provided in Section
10.08 and the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished
to it
as provided in Section 10.08 upon receipt of a new list so
furnished.
(b) The
rights of Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights
and
duties of the Trustee, shall be as provided by the Trust Indenture
Act.
(c) Every
Holder of Securities, 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 made pursuant to the Trust Indenture
Act.
Section
7.02 Reports
By Trustee.
(a) The
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto. Reports so
required to be transmitted at stated intervals of not more than 12 months shall
be transmitted no later than July 15 in each calendar year, commencing in July
15, 2006. Each such report shall be dated as of a date not more than 60 days
prior to the date of transmission.
(b) A
copy of
each such report shall, at the time of such transmission to Holders, be filed
by
the Trustee with each stock exchange upon which the Securities are listed,
with
the Commission and with the Company. The Company shall notify the Trustee
promptly (and in any event within 10 days) whenever the Securities become listed
on any stock exchange or of any delisting thereof.
ARTICLE
VIII
CONSOLIDATION,
MERGER, CONVEY, TRANSFER OR LEASE
Section
8.01 Company
May Consolidate, Etc., Only On Certain Terms.
The
Company shall not consolidate or combine with or merge into any other Person
or
convey, transfer or lease its properties, and assets, substantially as an entity
to another Person, unless:
(a) the
resulting, surviving or transferee Person (the “Successor
Company”)
and,
if the conversion obligation relates to Public Acquirer Common Stock that is
not
issued by such Successor Company, such Public Acquirer, shall be a corporation
organized and existing under the laws of the United States of America, any
State
thereof or the District of Columbia and the Successor Company (if not the
Company) and the Public Acquirer, as applicable, shall expressly assume, by
supplemental indenture, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all the obligations of the Company
under
the Securities, this Indenture;
(b) immediately
after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing; and
(c) the
Company or the Successor Company shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, business combination or lease
and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article VIII and Article IX,
respectively.
Section
8.02 Successor
Substituted.
The
Successor Company will succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture, but, in the case
of
a conveyance, transfer or lease of substantially all its assets that results
in
the sale, assignment, conveyance, transfer or other disposition or assets
constituting or accounting for less than 95% of the Company’s consolidated
assets, revenue or net income (loss), the Company will not be released from
the
obligation to pay the principal of and interest (including any Additional
Interest Amount) on the Securities.
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
Section
9.01 Supplemental
Indentures Without Consent Of Holders.
Without
the consent of any Holder, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may amend, modify or
supplement this Indenture or the Securities, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to
evidence the succession of another Person to the Company and the assumption
by
any such successor of the covenants of the Company herein and in the Securities;
or
(b) to
add to
the covenants of the Company for the benefit of the Holders, or to surrender
any
right or power herein conferred upon the Company; or
(c) to
provide for a successor Trustee with respect to the Securities; or
(d) to
add
any additional Events of Default with respect to the Securities; or
(e) to
cure
any ambiguity or defect, to correct or supplement any provision herein which
may
be inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided
that
such action pursuant to this clause (e) shall not adversely affect the interests
of the Holders in any material respect; or
(f) to
secure
the Securities; or
(g) to
reduce
the Conversion Price; provided,
however,
that
such reduction in the Conversion Price is in accordance with the terms of this
Indenture or shall not adversely affect the interests of the Holders of
Securities (after taking into account tax and other consequences of such
reduction) in any material respect; or
(h) to
supplement any of the provisions of the Indenture to such extent as shall be
necessary to permit or facilitate the discharge of the Securities; provided,
however
that
such change or modification does not adversely affect the interests of the
Holders of the Securities in any material respect; or
(i) to
make
any changes or modifications necessary in connection with the registration
of
the Securities under the Securities Act as contemplated in the Registration
Rights Agreement; provided,
however,
that
such change or modification does not adversely affect the interests of the
Holders of Securities in any material respect; or
(j) to
add or
modify any other provisions herein with respect to matters or questions arising
hereunder which the Company and the Trustee may deem necessary or desirable
and
which would not reasonably be expected to adversely affect the interests of
the
Holders of Securities in any material respect; or
(k) to
conform this Indenture or the Securities to the description thereof under the
caption “Description of Notes” in the Offering Memorandum; or
(l) to
convey, transfer, assign, mortgage or pledge to the Trustee as security for
the
Securities any property or assets; or\
(m) to
comply
with any requirements of the Commission in connection with the qualification
of
this Indenture under the Trust Indenture Act.
Section
9.02 Supplemental
Indentures With Consent Of Holders.
(a) With
the
consent of the Holders of not less than a majority in Principal Amount of the
Outstanding Securities, by Act of said Holders delivered to the Company and
the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided,
however,
that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(i) extend
the fixed Maturity of any Security; or
(ii) reduce
the Principal Amount of
or
reduce the interest rate on or extend the stated time for payment of interest,
including Additional Interest Amounts, if any, on any Security; or
(iii) reduce
the Redemption Price, Repurchase Price or Fundamental Change Repurchase Price
of
any Security; or
(iv) after
the
occurrence of a Fundamental Change, make any change that adversely affects
the
right of Holders of the Securities to require the Company to purchase such
Securities in accordance with the terms thereof and this Indenture;
or
(v) change
the currency of any payment amount of any Security from U.S. Dollars or shares
of Common Stock as provided herein; or
(vi) make
any
change that impairs the right of Holders of Securities to convert any Security;
or
(vii) make
any
change that impairs the right of Holders to institute suit for payment of the
Securities; or
(viii) reduce
the percentage in Principal Amount of the Outstanding Securities, the consent
of
whose Holders is required for any such supplemental indenture, or the consent
of
whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture; or
(ix) change
the ranking of the notes in any manner that adversely affects the rights of
Holders of Securities under this Indenture;
(x) modify
the obligation of the Company to maintain an agency in The City of New York
as
required under this Indenture; or
(xi) modify
any of the provisions of this Section or Section
5.13,
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 Outstanding Security affected thereby.
(b) The
Holders of not less than a majority in aggregate Principal Amount of the
Outstanding Securities may, on behalf of the Holders of all of the Securities,
waive any past default and its consequences under this Indenture, except a
default (i) in the payment of the Principal Amount of or any interest, including
Additional Interest Amounts, if any, on or with respect to the Securities or
(ii) in respect of a covenant or provision that cannot be modified without
the
consent of the Holder of each Security affected thereby as set forth in
clause
(a) above.
It
shall
not be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Section
9.03 Execution
Of Supplemental Indentures.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be provided with, and
(subject to Section
6.01)
shall
be fully protected in relying upon, in addition to the documents required by
Section
1.02,
an
Opinion of Counsel stating that the execution of such supplemental indenture
is
authorized or permitted by this Indenture. Subject to the preceding sentence,
the Trustee shall sign such supplemental indenture if the same does not affect
the Trustee’s own rights, duties or immunities under this Indenture or
otherwise. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Section
9.04 Effect
Of Supplemental Indentures.
Upon the
execution of any supplemental indenture under this Article IX, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall
form a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section
9.05 Conformity
With Trust Indenture Act.
Every
supplemental indenture executed pursuant to this Article IX shall conform to
the
requirements of the Trust Indenture Act.
Section
9.06 Reference
In Securities To Supplemental Indentures. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX shall bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture
may
be prepared and executed by the Company and authenticated and delivered by
the
Trustee in exchange for Outstanding Securities.
ARTICLE
X
COVENANTS
Section
10.01 Payments.
The
Company shall duly and punctually make all payments in respect of the Securities
and this Indenture in accordance with the terms of the Securities and this
Indenture. The Company shall, to the fullest extent permitted by law, pay
interest on overdue payments of Principal Amount, plus accrued but unpaid
interest, including Additional Interest Amounts, if any, Redemption Price,
Repurchase Price and Fundamental Change Repurchase Price at the rate of 1%
per
annum from the required payment date of such overdue payment.
Any
payments made or due pursuant to this Indenture shall be considered paid on
the
applicable date due if by 10:00 a.m., New York City time, on such date the
Paying Agent holds, in accordance with this Indenture, cash sufficient to pay
all such amounts then due. Payment of the principal of and interest, including
Additional Interest Amounts, if any, on the Securities shall be in such coin
or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Section
10.02 Maintenance
Of Office Or Agency.
The
Company shall maintain in the Borough of Manhattan, The City of New York, an
office or agency where Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of transfer, exchange,
repurchase or conversion and where notices and demands pursuant to this
Section
10.02
to or
upon the Company in respect of the Securities and this Indenture may be served,
which shall initially be the Corporate Trust Office of the Trustee. The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall
fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The
Company may also from time to time designate one or more other offices or
agencies (in or outside the Borough of Manhattan, The City of New York) where
the Securities may be presented or surrendered for any or all such purposes
and
may from time to time rescind such designations; provided,
however,
that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The
City
of New York, for such purposes. The Company shall give prompt written notice
to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section
10.03 Money
For Security Payments To Be Held In Trust.
If the
Company shall at any time act as its own Paying Agent, it shall, on or before
each due date of any payment in respect of any of the Securities, segregate
and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to make the payment so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and shall promptly notify
the Trustee of its action or failure so to act.
Whenever
the Company shall have one or more Paying Agents, it will, on or prior to each
due date of any payment in respect of any Securities, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided
by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to
act.
The
Company shall cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with
the Trustee, subject to the provisions of this Section, that such Paying Agent
will (i) comply with the provisions of the Trust Indenture Act applicable to
it
as a Paying Agent and (ii) during the continuance of any default by the Company
(or any other obligor upon the Securities) in the making of any payment in
respect of the Securities, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent as
such.
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
Any
money
deposited with the Trustee or any Paying Agent, or then held by the Company,
in
trust for the making of payments in respect of any Security and remaining
unclaimed for two years after such payment has become due shall be paid to
the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided,
however,
that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the
Company.
Section
10.04 Statement
By Officers As To Default.
The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the knowledge of the signers 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 status thereof
of
which they may have knowledge.
The
Company shall deliver to the Trustee, as soon as possible and in any event
within five days after the Company becomes aware of the occurrence of any Event
of Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers’ Certificate setting forth the
details of such Event of Default or default and the action which the Company
proposes to take with respect thereto.
Section
10.05 Existence.
Subject
to Article VIII hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided,
however,
that
the Company shall not be required to preserve any such right or franchise if
the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the
Holders.
Section
10.06 Resale
Of Certain Securities.
During
the period beginning on the Issue Date and ending on the date that is two years
from the Issue Date, the Company shall not resell any Securities which
constitute “restricted
securities”
under
Rule 144 that have been reacquired by any of them. The Trustee shall have no
responsibility in respect of the Company’s performance of its agreement in the
preceding sentence.
Section
10.07 Book-Entry
System.
If the
Securities cease to trade in the Depositary’s book-entry settlement system, the
Company covenants and agrees that it shall use reasonable efforts to make such
other book entry arrangements that it determines are reasonable for the
Securities.
Section
10.08 Company
To Furnish Trustee Names And Addresses Of Holders.
The
Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually,
not later than 15 days after each Regular Record Date, a list, in such form
as
the Trustee may reasonably require, of the names and addresses of the Holders
as
of such Regular Record Date; and
(b) at
such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished;
provided,
however,
that no
such list need be furnished so long as the Trustee is acting as Security
Registrar.
Section
10.09 Reports
By
Company And Delivery Of Certain Information.
The
Company shall file with the Trustee and the Commission, and transmit to Holders,
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; provided
that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. In the event the Company is not subject to Section 13 or 15(d)
of
the Exchange Act, it shall file with the Trustee (i) all quarterly and annual
financial information that is substantially equivalent to that which would
be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K
if the Company were required to file such Forms, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations”
section and, with respect to the annual information only, a report thereon
by
the Company’s certified independent accountants and (ii) all reports that are
substantially equivalent to that which would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports;
provided
that in
each case the delivery of materials to the Trustee by electronic means shall
be
deemed to be “filed” with the Trustee for purposes of this Section
10.09;
and
provided further
that so
long as such filings by the Company are available on the Commission’s Electronic
Data Gathering, Analysis and Retrieval system (▇▇▇▇▇), such filings shall be
deemed to have been “filed” with the Trustee for purposes of this Section
10.09
without
any further action required by the Company. Delivery of such reports,
information and documents to the Trustee is for informational purposes only
and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates). In addition, whether or not required by the rules and regulations
of the Commission, the Company shall file a copy of all such information with
the Commission for public availability (unless the Commission will not accept
such a filing) and make such information available to investors who request
it
in writing. So long as any of the Securities remain Outstanding, the Company
shall make available the information required by Rule 144A(d) under the
Securities Act to any Holder or any beneficial owner of Securities or holder
or
beneficial owner of shares of Common Stock, or to a prospective purchaser of
any
such security designated by any such holder, as the case may be, to the extent
required to permit compliance by such Holder or holder with Rule 144A under
the
Securities Act in connection with the resale of any such security.
Section
10.10 Additional
Interest Amounts Under The Registration Rights
Agreement.
If at
any time Additional Interest Amounts become payable by the Company pursuant
to
the Registration Rights Agreement, the Company shall promptly deliver to the
Trustee a certificate to that effect and stating (i) the amount of such
Additional Interest Amounts that are payable and (ii) the date on which such
Additional Interest Amounts are payable pursuant to the terms of the
Registration Rights Agreement. Unless and until a Responsible Officer of the
Trustee receives such a certificate, the Trustee may assume without inquiry
that
no Additional Interest Amounts are payable. If the Company has paid Additional
Interest Amounts directly to the Persons entitled to such Additional Interest
Amounts, the Company shall deliver to the Trustee a certificate setting forth
the particulars of such payment.
Section
10.11 Information
For IRS Filings.
The
Company shall provide to the Trustee on a timely basis such information and
documentation as the Trustee may require to enable the Trustee to file any
form
required to be submitted by the Trustee on behalf of the Company with the
Internal Revenue Service and the Holders.
Section
10.12 Further
Instruments And Acts.
Upon
reasonable request of the Trustee, or as otherwise necessary, the Company will
execute and deliver such further instruments and do such further acts as may
be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
ARTICLE
XI
REDEMPTION
Section
11.01 The
Company’s
Right To Redeem; Notice To Trustee.
Prior to
May 20, 2013 the Company may not redeem the Securities. On or after May 20,
2013, the Company, at its option, may redeem the Securities in accordance with
this Article XI for cash at any time as a whole, or from time to time in part,
at a redemption price equal to 100% of the Principal Amount of Securities to
be
redeemed plus accrued and unpaid interest, including Additional Interest
Amounts, if any, up to but not including, the Redemption Date (the “Redemption
Price”).
If
the
Company elects to redeem Securities, it shall notify the Trustee in writing
of
the Redemption Date, the Principal Amount of Securities to be redeemed and
the
Redemption Price. The Company shall give this notice to the Trustee by a Company
Order at least 35 days before the Redemption Date (unless a shorter notice
shall
be satisfactory to the Trustee).
Section
11.02 Selection
Of Securities To Be Redeemed.
If fewer
than all of the outstanding Securities are to be redeemed, unless the procedures
of the Depositary provide otherwise, the Trustee shall select the Securities
to
be redeemed by lot, pro rata or by some other method. The Trustee shall make
the
selection within five Business Days after it receives the notice provided for
in
Section
11.01
from
outstanding Securities not previously called for redemption.
Securities
and portions of Securities that the Trustee selects shall be in Principal
Amounts of $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of the Securities to be
redeemed.
Securities
and portions of Securities that are to be redeemed are convertible by the Holder
until 5:00 p.m., New York City time, on the Business Day immediately preceding
the Redemption Date. If any Security selected for partial redemption is
converted in part before termination of the conversion right with respect to
the
portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be
redeemed may be treated by the Trustee as outstanding for the purpose of such
selection.
Section
11.03 Notice
Of
Redemption.
At least
30 days but not more than 60 days before a Redemption Date, the Company shall
mail a notice of redemption by first class mail, postage prepaid, to each Holder
of Securities to be redeemed.
The
notice of redemption shall identify the Securities to be redeemed and shall
state:
(a) the
Redemption Date;
(b) the
Redemption Price;
(c) the
then
current Conversion Rate and the related Observation Period
for
conversion of Securities;
(d) the
name
and address of the Paying Agent and Conversion Agent;
(e) that
Securities called for redemption may be converted at any time prior to 5:00
p.m., New York City time, on the Business Day preceding the Redemption
Date;
(f) that
Holders who want to convert their Securities must satisfy the requirements
set
forth in Article XIV;
(g) that
Securities called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price;
(h) in
the
case of any Security redeemed in part, that the Holder of such Security will
receive a new Security or Securities, of authorized denominations for the
Principal Amount thereof remaining unredeemed;
(i) if
fewer
than all of the outstanding Securities are to be redeemed, the certificate
numbers, if any, and Principal Amounts of the particular Securities to be
redeemed;
(j) that,
unless the Company defaults in making payment of such Redemption Price, any
interest (including Additional Interest Amounts, if any) on Securities called
for redemption will cease to accrue on and after the Redemption
Date;
(k) the
CUSIP
number(s) of the Securities; and
(l) any
other
information the Company wants to present.
At
the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at the Company’s expense; provided,
however,
that
the Company makes such request at least five Business Days (unless a shorter
period shall be satisfactory to the Trustee) prior to the date by which such
notice of redemption must be given to Holders in accordance with this
Section
11.03;
provided,
further,
that
the text of the notice of redemption shall be prepared by the
Company.
Section
11.04 Effect
Of Notice Of Redemption.
Once
notice of redemption is given, Securities called for redemption become due
and
payable on the Redemption Date and at the Redemption Price, except for
Securities which are converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such redeemed Securities shall be paid
at
the Redemption Price.
Section
11.05 Deposit
Of Redemption Price.
Prior to
10:00 a.m., New York City time, on the applicable Redemption Date, the Company
shall deposit with the Paying Agent (or if the Company or a Subsidiary or an
Affiliate of any of them is acting as the Paying Agent, shall segregate and
hold
in trust as provided in Section
10.03)
an
amount of cash (in immediately available funds if deposited on the Redemption
Date) sufficient to pay the aggregate Redemption Price of all Securities or
portions thereof which are to be redeemed as of such Redemption Date other
than
Securities or portions of Securities called for redemption which on or prior
thereto have been delivered by the Company to the Trustee for cancellation
or
have been converted.
If
the
Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m., New
York
City time, on the applicable Redemption Date, cash sufficient to pay the
Redemption Price of any Securities for which notice of redemption has been
given, then, on such Redemption Date, such Securities will cease to be
outstanding and interest (including Additional Interest Amounts, if any), on
such Securities will cease to accrue, whether or not such Securities are
delivered to the Paying Agent, and the rights of the Holders in respect thereof
shall terminate (other than the right to receive the Redemption Price upon
delivery of such Securities).
Section
11.06 Securities
Redeemed In Part.
Any
Physical Security which is to be redeemed only in part shall be surrendered
at
the office of the Paying Agent and the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security, without charge,
a
new Security or Securities, of any authorized denomination as requested by
such
Holder in aggregate Principal Amount equal to the unredeemed portion of the
Security surrendered.
Section
11.07 Repayment
To The Company.
To the
extent that the aggregate amount of cash deposited by the Company pursuant
to
Section
11.05
exceeds
the aggregate Redemption Price of the Securities or portions thereof which
the
Company is redeeming as of the Redemption Date, then, promptly after the
Redemption Date, the Paying Agent shall return any such excess to the Company.
Section
11.08 Other
Repurchases.
The
Company may, from time to time, at its option (and nothing contained in this
Indenture shall limit the Company’s right to), repurchase the Securities in open
market purchases or negotiated transactions, without any prior notice to any
Holders, provided
that in
exercising its right under this Section
11.08,
the
Company complies with all applicable federal and state securities
laws.
ARTICLE
XII
REPURCHASE
OF SECURITIES AT THE OPTION OF HOLDERS
ON SPECIFIC DATES
Section
12.01 Repurchase
Of Securities At The Option Of Holders
On Specific Dates.
(a) Securities
shall be repurchased by the Company for cash, at the option of the Holder
thereof, on May
15,
2013, May 15, 2016 and May 15, 2021 (each, a “Repurchase
Date”)
at a
price equal to 100% of the Principal Amount of those Securities plus accrued
but
unpaid interest, including Additional Interest Amounts, if any, to, but
excluding, the Repurchase Date (the “Repurchase
Price”),
subject to satisfaction by or on behalf of the Holder of the requirements set
forth in Section
12.01(c).
(b) No
later
than 20 Business Days prior to a Repurchase Date, the Company shall mail a
written notice of the repurchase right by first class mail to the Trustee and
to
each Holder, at their addresses shown in the register of the Registrar (and
to
beneficial owners as required by applicable law). The notice shall include
a
form of Repurchase Notice to be completed by the Holder and shall briefly state,
as applicable:
(i) the
date
by which the Repurchase Notice must be delivered to the Paying Agent in order
for a Holder to exercise the repurchase right;
(ii) the
Repurchase Date;
(iii) the
Repurchase Price;
(iv) the
name
and address of the Paying Agent and the Conversion Agent;
(v) the
conversion rights, if any, of the Securities;
(vi) the
Conversion Rate and any adjustments thereto;
(vii) that
the
Securities as to which a Repurchase Notice has been given may be converted
if
they are otherwise convertible pursuant to Article
XIV hereof only if the Repurchase Notice has been withdrawn in accordance with
the terms of this Indenture;
(viii) the
procedures for withdrawing a Repurchase Notice;
(ix) that
the
Securities must be surrendered to the Paying Agent to collect
payment;
(x) that
the
Repurchase Price for any Security as to which a Repurchase Notice has been
duly
given and not withdrawn will be paid promptly following the later of the
Repurchase Date and the time of surrender of such Security;
(xi) the
procedures the Holder must follow to exercise its repurchase right under this
Section
12.01;
(xii) that,
unless the Company defaults in making payment of such Repurchase Price, any
interest, including Additional Interest Amounts, if any, on Securities
surrendered for repurchase by the Company will cease to accrue on and after
the
Repurchase Date; and
(xiii) the
CUSIP
number(s) of the Securities.
At
the
Company’s request, the Trustee shall give the notice of repurchase right in the
Company’s name and at the Company’s expense; provided,
however,
that
the Company makes such request at least three Business Days (unless a shorter
period shall be satisfactory to the Trustee) prior to the date by which such
notice of repurchase right must be given to the Holder in accordance with this
Section
12.01(b);
provided,
further,
that
the text of the notice of repurchase right shall be prepared by the
Company.
(c) A
Holder
may exercise its right specified in Section
12.01(a)
upon
delivery of a written notice of repurchase (a “Repurchase
Notice”)
to the
Paying Agent at any time during the period beginning at 9:00 a.m., New York
City
time, on the date that is 20 Business Days immediately preceding the Repurchase
Date until 5:00 p.m., New York City time, on the Repurchase Date,
stating:
(i) the
certificate number of the Security which the Holder will deliver to be
repurchased or the appropriate Depositary procedures if Physical Securities
have
not been issued;
(ii) the
portion of the Principal Amount of the Security which the Holder will deliver
to
be repurchased, which portion must be in Principal Amounts of $1,000 or an
integral multiple of $1,000; and
(iii) that
such
Security shall be repurchased by the Company as of the Repurchase Date pursuant
to the terms and conditions specified in the Securities and in this
Indenture.
The
delivery of such Security to the Paying Agent with, or at any time after
delivery of, the Repurchase Notice (together with all necessary endorsements)
at
the offices of the Paying Agent shall be a condition to the receipt by the
Holder of the Repurchase Price therefor; provided,
however,
that
such Repurchase Price shall be so paid pursuant to this Section
12.01
only if
the Security so delivered to the Paying Agent shall conform in all respects
to
the description thereof in the related Repurchase Notice.
The
Company shall repurchase from the Holder thereof, pursuant to this Section
12.01,
a
portion of a Security, so long as the Principal Amount of such portion is $1,000
or an integral multiple of $1,000. Provisions of this Indenture that apply
to
the repurchase of all of a Security also apply to the repurchase of such portion
of such Security.
Any
repurchase by the Company contemplated pursuant to the provisions of this
Section
12.01
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 delivery
of
the Security.
Notwithstanding
anything contained herein to the contrary, any Holder delivering to the Paying
Agent the Repurchase Notice contemplated by this Section
12.01(c)
shall
have the right to withdraw such Repurchase Notice at any applicable time prior
to 5:00 p.m., New York City time, on the Repurchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
12.02.
The
Paying Agent shall promptly notify the Company of the receipt by it of any
Repurchase Notice or written notice of withdrawal thereof.
Section
12.02 Effect
Of
Repurchase Notice. Upon
receipt
by the Paying Agent of the Repurchase Notice specified in Section
12.01(c),
the
Holder of the Security in respect of which such Repurchase Notice was given
shall (unless such Repurchase Notice is withdrawn as specified in the following
paragraph) thereafter be entitled to receive solely the Repurchase Price with
respect to such Security. Such Repurchase Price shall be paid to such Holder,
subject to receipt of cash by the Paying Agent, promptly following the later
of
(a) the Repurchase Date with respect to such Security (provided the conditions
in Section
12.01(c)
have
been satisfied) and (b) the time of delivery of such Security to the Paying
Agent by the Holder thereof in the manner required by Section
12.01(c).
Securities in respect of which a Repurchase Notice has been given by the Holder
thereof may not be converted pursuant to Article XIV hereof on or after the
date
of the delivery of such Repurchase Notice unless such Repurchase Notice has
first been validly withdrawn as specified in the following paragraph.
A
Repurchase Notice may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Repurchase
Notice at any time prior to 5:00 p.m., New York City time, on the Repurchase
Date, specifying:
(a) the
certificate number, if any, or the appropriate Depositary procedures, if
applicable, of the Security in respect of which such notice of withdrawal is
being submitted;
(b) the
Principal Amount of the Security with respect to which such notice of withdrawal
is being submitted; and
(c) the
Principal Amount, if any, of such Security which remains subject to the original
Repurchase Notice and which has been or will be delivered for repurchase by
the
Company.
There
shall be no purchase of any Securities pursuant to Section
12.01
if there
has occurred (prior to, on or after, as the case may be, the giving, by the
Holders of such Securities, of the required Repurchase Notice) and is continuing
an Event of Default (other than a default in the payment of the Repurchase
Price
with respect to such Securities). The Paying Agent will promptly return to
the
respective Holders any Securities (x) with respect to which a Repurchase Notice
has been withdrawn in compliance with this Indenture, or (y) held by it during
the continuance of an Event of Default (other than a default in the payment
of
the Repurchase Price with respect to such Securities) in which case, upon such
return, the Repurchase Notice with respect thereto shall be deemed to have
been
withdrawn.
Section
12.03 Deposit
Of Repurchase Price.
Prior to
10:00 a.m., New York City time, on the first Business Day after the Repurchase
Date, the Company shall deposit with the Paying Agent (or if the Company or
a
Subsidiary or an Affiliate of any of them is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section
10.03)
an
amount of cash (in immediately available funds if deposited on such Business
Day) sufficient to pay the aggregate Repurchase Price of all the Securities
or
portions thereof which are to be repurchased on such Repurchase
Date.
If
the
Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m., New
York
City time, on the first Business Day after the Repurchase Date, cash sufficient
to pay the Repurchase Price of any Securities for which a Repurchase Notice
has
been tendered and not withdrawn pursuant to Section
12.02,
then,
immediately after the Repurchase Date, such Securities will cease to be
outstanding and any interest, including Additional Interest Amounts, if any,
on
such Securities will cease to accrue, whether or not such Securities are
delivered to the Paying Agent, and the rights of the Holders in respect thereof
shall terminate (other than the right to receive the Repurchase Price upon
delivery of such Securities).
Section
12.04 Securities
Repurchased In Part.
Any
Physical Security which is to be repurchased only in part shall be surrendered
at the office of the Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder’s attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate Principal Amount equal
to,
and in exchange for, the portion of the Principal Amount of the Security so
surrendered which is not repurchased.
Section
12.05 Covenant
To Comply With Securities Laws Upon Repurchase Of
Securities.
When
complying with the provisions of Section
12.01
hereof
(provided
that
such offer or purchase constitutes an “issuer tender offer” for purposes of Rule
13e-4 (which term, as used herein, includes any successor provision thereto)
under the Exchange Act at the time of such offer or purchase), and subject
to
any exemptions available under applicable law, the Company shall:
(a) comply
with Rule 13e-4
and
Rule 14e-1 (or any successor provision) under the Exchange Act, as
applicable;
(b) file
the
related Schedule TO (or any successor schedule, form or report) under the
Exchange Act, as applicable; and
(c) otherwise
comply with all federal and state securities laws so as to permit the rights
and
obligations under this Article XII to be exercised in the time and in the manner
specified herein.
To
the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this Article XII, the Company’s compliance with such laws and
regulations shall not in and of itself cause a breach of its obligations under
this Article XII.
Section
12.06 Repayment
To
The Company.
The
Paying Agent shall return to the Company any cash that remains unclaimed for
two
years, together with interest thereon, held by it for the payment of the
Repurchase Price; provided,
however,
to the
extent that the aggregate amount of cash deposited by the Company pursuant
to
Section
12.03
exceeds
the aggregate Repurchase Price of the Securities or portions thereof which
the
Company is obligated to repurchase on the Repurchase Date, then, promptly after
the Repurchase Date, the Paying Agent shall return any such excess to the
Company.
ARTICLE
XIII
REPURCHASE
OF SECURITIES AT THE OPTION OF
THE HOLDER UPON A FUNDAMENTAL CHANGE
Section
13.01 Repurchase
Of Securities At Option Of The Holder Upon A Fundamental
Change.
(a) General.
If at
any time prior to the Stated Maturity there shall have occurred a Fundamental
Change, Securities shall be purchased for cash by the Company, at the option
of
the Holder, in whole or in part, as of the date that is 30 days after the date
of the mailing of the Fundamental Change Company Notice under Section
13.01(b)
(the
“Fundamental
Change Repurchase Date”)
at a
purchase price equal to the Principal Amount of the Securities to be purchased
plus accrued but unpaid interest (including Additional Interest Amounts, if
any), to, but excluding, the Fundamental Change Repurchase Date (the
“Fundamental
Change Repurchase Price”),
subject to satisfaction by or on behalf of any Holder of the requirements set
forth in Section
13.01(c).
“Fundamental
Change”
will
be
deemed to have occurred upon a Change of Control or a Termination of Trading.
‘‘Termination
of Trading’’
shall
be deemed to have occurred if the Common Stock is (i) neither listed for
trading on a U.S. national or regional securities market nor approved for
quotation on The Nasdaq National Market or any similar United States system
of
automated dissemination of quotations of securities prices, and no other
American Depository Shares or similar instruments for such Common Stock or
common stock are listed or approved for listing in the United States or (ii)
suspended from trading for 20 consecutive Business Days. A “Change
of Control”
shall
be deemed to have occurred at the time after the Securities are originally
issued that any of the following occurs:
(i) a
“person”
or “group” within the meaning of Section 13(d) of the Exchange Act, other than
the Company, any Subsidiary of the Company or any employee benefit plan of
the
Company or any such Subsidiary, files a Schedule TO or any schedule, form or
report under the Exchange Act disclosing that such person or group has become
the direct or indirect ultimate “Beneficial
Owner,”
as
defined in Rule 13d-3 under the Exchange Act, of Common Equity of the Company
representing more than 50% of the voting power of the Company’s Common
Equity;
(ii) consummation
of any share exchange, consolidation or merger of the Company pursuant to which
the Common Stock will be converted into cash, securities or other property
or
any sale, lease or other transfer in one transaction or a series of transactions
of all or substantially all of the consolidated assets of the Company and its
Subsidiaries, taken as a whole, to any Person other than one of the Company’s
wholly-owned Subsidiaries; provided,
however,
that a
transaction where the holders of more than 50% of all classes of the Company’s
Common Equity immediately prior to such transaction own, directly or indirectly,
more than 50% of all classes of Common Equity of the continuing or surviving
corporation or transferee immediately after such event shall not be a Change
of
Control;
(iii) Continuing
Directors cease to constitute at least a majority of the Company’s Board of
Directors; or
(iv) the
stockholders of the Company approve any plan or proposal for the liquidation
or
dissolution of the Company.
A
Change
of Control will not be deemed to have occurred, however, if at least 90% of
the
consideration, excluding cash payments for fractional shares, in the transaction
or transactions constituting the Fundamental Change consists of shares of common
stock or American Depositary Shares that are traded or listed on, or immediately
after the transaction or event will be traded or listed on a U.S. national
or
regional securities exchange or The Nasdaq National Market.
(b) Notice
of Fundamental Change.
Within
30 days after the occurrence of a Fundamental Change, the Company shall mail
a
written notice of Fundamental Change (the “Fundamental
Change Company Notice”)
by
first-class mail to the Trustee and to each Holder (and to beneficial owners
as
required by applicable law). The notice shall include a form of Fundamental
Change Repurchase Notice to be completed by the Holder and shall
state:
(i) the
events causing a Fundamental Change and the date of such Fundamental
Change;
(ii) that
the
Holder has a right to require the Company to repurchase the Holder’s
Securities;
(iii) the
date
by which the Fundamental Change Repurchase Notice pursuant to this Section
13.01
must be
delivered to the Paying Agent in order for a Holder to exercise the Fundamental
Change repurchase right;
(iv) the
Fundamental Change Repurchase Date;
(v) the
Fundamental Change Repurchase Price;
(vi) the
name
and address of the Paying Agent and the Conversion Agent;
(vii) the
conversion rights, if any, of the Securities;
(viii) the
Conversion Price applicable on the Fundamental Change Company Notice Date;
(ix) that
Securities as to which a Fundamental Change Repurchase Notice has been given
may
be converted pursuant to Article XIV hereof only if the Fundamental Change
Repurchase Notice has been withdrawn in accordance with the terms of this
Indenture;
(x) that
Securities must be surrendered to the Paying Agent for cancellation to collect
payment;
(xi) that
the
Fundamental Change Repurchase Price for any Security as to which a Fundamental
Change Repurchase Notice has been duly given and not withdrawn will be paid
promptly following the later of the Fundamental Change Repurchase Date and
the
time of surrender of such Security as described in (ix);
(xii) the
procedures the Holder must follow to exercise rights under this Section
13.01;
(xiii) the
procedures for withdrawing a Fundamental Change Repurchase Notice;
and
(xiv) the
CUSIP
number of the Securities.
At
the
Company’s request, the Trustee shall give such Fundamental Change Company Notice
in the Company’s name and at the Company’s expense; provided,
however,
that,
in all cases, the text of such Fundamental Change Company Notice shall be
prepared by the Company.
(c) Fundamental
Change Repurchase Notice.
A
Holder may exercise its right specified in Section
13.01(a)
upon
delivery of a written notice of repurchase (a “Fundamental
Change Repurchase Notice”),
substantially in the form of Exhibit
B
hereto,
at any time from the opening of business on the date of the Fundamental Change
Company Notice until the close of business on the Fundamental Change Repurchase
Date, stating:
(i) the
certificate number of the Security which the Holder will deliver to be
repurchased or the appropriate Depositary procedures if Physical Securities
have
not been issued;
(ii) the
portion of the Principal Amount of the Security which the Holder will deliver
to
be repurchased, which portion must be in a Principal Amount of $1,000 or an
integral multiple thereof; and
(iii) that
such
Security shall be repurchased with respect to the Fundamental Change Repurchase
Date pursuant to the terms and conditions specified in the Securities and in
this Indenture.
The
delivery of such Security to the Paying Agent with, or at any time after
delivery of, the Fundamental Change Repurchase Notice (together with all
necessary endorsements) at the offices of the Paying Agent shall be a condition
to the receipt by the Holder of the Fundamental Change Repurchase Price
therefor; provided,
however,
that
such Fundamental Change Repurchase Price shall be so paid pursuant to this
Section
13.01
only if
the Security so delivered to the Paying Agent shall conform in all respects
to
the description thereof set forth in the related Fundamental Change Repurchase
Notice.
The
Company shall repurchase from the Holder thereof, pursuant to this Section
13.01,
a
portion of a Security, so long as the Principal Amount of such portion is $1,000
or an integral multiple thereof. Provisions of this Indenture that apply to
the
repurchase of all of a Security also apply to the repurchase of such portion
of
such Security.
Any
repurchase by the Company contemplated pursuant to the provisions of this
Section
13.01
shall be
consummated by the delivery of the Fundamental Change Repurchase Price to be
received by the Holder promptly following the later of the Fundamental Change
Repurchase Date and the time of delivery of the Security; provided,
however,
that
if the Fundamental Change Repurchase Notice is delivered after a date which
is
two (2) Business Days prior to the Fundamental Change Repurchase Date, such
payment may be made as promptly after such Fundamental Change Repurchase Date
as
is practicable.
Notwithstanding
anything contained herein to the contrary, any Holder delivering to the Paying
Agent the Fundamental Change Repurchase Notice contemplated by this Section
13.01(c)
shall
have the right to withdraw such Fundamental Change Repurchase Notice at any
time
prior to the close of business on the Fundamental Change Repurchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section
13.03.
The
Paying Agent shall promptly notify the Company of the receipt by it of any
Fundamental Change Repurchase Notice or written notice of withdrawal
thereof.
Section
13.02 Effect
Of Fundamental Change Repurchase Notice.
Upon
receipt by the Paying Agent of the Fundamental Change Repurchase Notice
specified in Section
13.01(c),
the
Holder of the Security in respect of which such Fundamental Change Repurchase
Notice was given shall (unless such Fundamental Change Repurchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Fundamental Change Repurchase Price with respect to such
Security. Such Fundamental Change Repurchase Price shall be paid to such Holder,
subject to receipt of funds and/or securities by the Paying Agent, promptly
following the later of (x) the Fundamental Change Repurchase Date with respect
to such Security (provided the conditions in Section
13.01(c)
have
been satisfied) and (y) the time of delivery of such Security to the Paying
Agent by the Holder thereof in the manner required by Section
13.01(c).
Securities in respect of which a Fundamental Change Repurchase Notice has been
given by the Holder thereof may not be converted pursuant to Article XIV hereof
on or after the date of the delivery of such Fundamental Change Repurchase
Notice unless such Fundamental Change Repurchase Notice has first been validly
withdrawn as specified in the following two paragraphs.
A
Fundamental Change Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in accordance
with the procedures set forth in the Fundamental Change Company Notice at any
time prior to the close of business on the Fundamental Change Repurchase Date
specifying:
(i) the
certificate number, if any, or the appropriate Depositary procedures, if
applicable, of the Security in respect of which such notice of withdrawal is
being submitted;
(ii) the
Principal Amount of the Security with respect to which such notice of withdrawal
is being submitted; and
(iii) the
Principal Amount, if any, of such Security which remains subject to the original
Fundamental Change Repurchase Notice and which has been or will be delivered
for
repurchase by the Company.
There
shall be no purchase of any Securities pursuant to Section
13.01
if there
has occurred (prior to, on or after, as the case may be, the giving, by the
Holders of such Securities, of the required Fundamental Change Repurchase
Notice) and is continuing an Event of Default (other than a default in the
payment of the Fundamental Change Repurchase Price with respect to such
Securities). The Paying Agent will promptly return to the respective Holders
any
Securities (x) with respect to which a Fundamental Change Repurchase Notice
has
been withdrawn in compliance with this Indenture, or (y) held by it during
the
continuance of an Event of Default (other than a default in the payment of
the
Fundamental Change Repurchase Price with respect to such Securities) in which
case, upon such return, the Fundamental Change Repurchase Notice with respect
thereto shall be deemed to have been withdrawn.
Section
13.03 Deposit
Of Fundamental Change Repurchase Price.
Prior to
10:00 a.m. (New York City time) on the Business Day following the Fundamental
Change Repurchase Date, the Company shall deposit with the Trustee or with
the
Paying Agent (or if the Company or a Subsidiary or an Affiliate of any of them
is acting as the Paying Agent, shall segregate and hold in trust as provided
herein) an amount of cash (in immediately available funds if deposited on such
Business Day) sufficient to pay the aggregate Fundamental Change Repurchase
Price of all the Securities or portions thereof which are to be repurchased
on
such Fundamental Change Repurchase Date.
If
the
Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m. (New
York
City time) on the Business Day immediately following the applicable Fundamental
Change Repurchase Date, cash sufficient to pay the Fundamental Change Repurchase
Price of any Securities for which a Fundamental Change Repurchase Notice has
been tendered and not withdrawn pursuant to Section
13.02,
then,
immediately after such Fundamental Change Repurchase Date, such Securities
will
cease to be outstanding, and the rights of the Holders in respect thereof shall
terminate (other than the right to receive the Fundamental Change Repurchase
Price upon delivery of such Securities).
Section
13.04 Securities
Repurchased In Part.
Any
Security which is to be repurchased only in part shall be surrendered at the
office of the Paying Agent (with, if the Company or the Trustee so requires,
due
endorsement by, or a written instrument of transfer in form satisfactory to
the
Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities, of any authorized denomination
as
requested by such Holder in aggregate Principal Amount equal to, and in exchange
for, the portion of the Principal Amount of the Security so surrendered which
is
not purchased.
Section
13.05 Covenant
To Comply With Securities Laws Upon Repurchase Of
Securities.
In
connection with any offer to repurchase Securities under Section
13.01
hereof
(provided
that
such offer or repurchase constitutes an “issuer tender offer” for purposes of
Rule 13e-4 (which term, as used herein, includes any successor provision
thereto) under the Exchange Act at the time of such offer or purchase), and
subject to any exemptions under applicable law, the Company shall (i) comply
with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the Exchange
Act, (ii) file the related Schedule TO (or any successor schedule, form or
report) under the Exchange Act, and (iii) otherwise comply with all Federal
and
state securities laws so as to permit the rights and obligations under
Section
13.02
to be
exercised in the time and in the manner specified in Section
13.02.
To
the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this Article XIII, the Company’s compliance with such laws and
regulations including the extension of the payment or notice periods
contemplated by this Article, shall not in and of itself cause a breach of
their
obligations under this Article XIII.
Section
13.06 Repayment
To The Company.
The
Trustee and the Paying Agent shall return to the Company any cash that remain
unclaimed, together with interest, if any, thereon, held by them for the payment
of the Fundamental Change Repurchase Price; provided,
however,
that to
the extent that the aggregate amount of cash deposited by the Company pursuant
to Section
13.03
exceeds
the aggregate Fundamental Change Repurchase Price of the Securities or portions
thereof which the Company is obligated to purchase as of the Fundamental Change
Repurchase Date then the Trustee or the Paying Agent, as the case may be, shall
return any such excess to the Company.
ARTICLE
XIV
CONVERSION
Section
14.01 Right
To Convert.
(a) Subject
to and upon compliance with the provisions of this Indenture, each Holder shall
have the right, at such Holder’s
option, at any time following the Issue Date of the Securities hereunder through
the close of business on the Stated Maturity to convert the Principal Amount
of
any such Securities, or any portion of such Principal Amount which is $1,000
or
an integral multiple thereof at the Conversion Price then in effect:
(i) during
any fiscal quarter (and only during such fiscal quarter) commencing after June
30, 2006, if the Closing Sale Price of the Common Stock is greater than or
equal
to 130% of the Conversion Price for at least 20 Trading Days during the period
of the 30 consecutive Trading Days ending on,
and
including, the last Trading Day of the preceding fiscal quarter;
(ii) prior
to
April 15, 2026 during the five Business Day period immediately following a
five
consecutive Trading Day period (the “Measurement
Period”)
in
which the Trading Price, as determined following a request by a Holder in
accordance with Section
14.01(d),
for
each day of such Measurement Period was less than 98% of the product of the
Closing Sale Price of the Common Stock on such Trading Day and the applicable
Conversion Rate in effect on such Trading Day;
(iii) at
any
time prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Redemption Date, if such Security has been called for redemption
pursuant to Article XI hereof;
(iv) as
provided in Section 14.01(b); or
(v) at
any
time during the period beginning 10 Trading Days before the Stated Maturity
and
until 5:00 p.m., New York City time, on the Business Day immediately preceding
the Stated Maturity.
(b) In
addition, in the event that:
(i) (A)the
Company elects to distribute to all holders of Common Stock certain rights
entitling them to purchase, for a period expiring within 45 days, Common Stock
at less than the Current Market Rate; or
(B) the
Company elects to distribute to holders of Common Stock assets, debt securities
or certain rights to purchase the Company’s
securities, which distribution has a per share value as determined by the Board
of Directors of the Company exceeding 10% of the Closing Sale Price of the
Common Stock on the Trading Day immediately preceding the declaration for such
distribution;
then,
in
each case, the Company must notify, in writing, Holders of Securities of the
occurrence of such an event at least 20 days prior to the Ex-Dividend Date
for
any such distribution. Once the Company has given such notice, Holders may
surrender their Securities for conversion at any time until the earlier of
the
close of business on the Business Day immediately preceding the Ex-Dividend
Date
or the date of announcement by the Company that the distribution will not take
place. No adjustment shall be made to the ability of a Holder of Securities
to
convert if such Holder may participate in the distribution without
conversion;
(ii) the
Company becomes party to a consolidation, merger, binding share exchange or
sale
of all or substantially all of the Company’s
assets, in each case pursuant to which the Common Stock of the Company would
be
converted into cash, securities or other property, a Holder may surrender the
Securities for conversion at any time from and after the date which is 15 days
prior to the anticipated effective date of the transaction until and including
the date which is 15 days after the actual date of the transaction. If the
Company becomes party to a consolidation, merger, binding share exchange or
sale
of all or substantially all of the Company’s assets, in each case pursuant to
which the Common Stock would be converted into cash, securities or other
property, then at the effective time of the transaction, the right to convert
the Securities into Common Stock shall be changed into a right to convert such
Securities into the kind and amount of cash, securities and other property
which
the Holder would have received if the Holder had converted such Securities
immediately prior to the transaction (the “Reference
Property”).
If
the transaction causes the Common Stock to be converted into the right to
receive more than a single type of consideration (determined based in part
upon
any form of stockholder election), the Reference Property into which the
Securities shall be convertible shall be deemed to be the weighted average
of
the types and amounts of consideration received by the holders of Common Stock
that affirmatively make such an election. The Company shall not become a party
to any such transaction unless its terms are consistent with the foregoing.
However, if the transaction described above also constitutes a Public Acquirer
Change of Control then the Company may in certain circumstances elect to change
the conversion right in the manner described in Section
14.06
in lieu
of changing the conversion right in the manner described in this Section
14.01(b)(ii);
(iii) If
a
transaction described in Section 14.01(b)(ii) also constitutes a Fundamental
Change, a Holder can require the Company to repurchase all or a portion of
its
Securities as described in Section
13.01.
In
addition, a Holder may surrender all or a portion of the Holder’s Securities for
conversion if a Fundamental Change of the type described in clause (i) of the
definition of Change of Control occurs or a termination of trading occurs.
In
such event, a Holder may surrender Securities for conversion at any time
beginning on the actual effective date of such Fundamental Change until and
including the date which is 30 calendar days after the actual effective date
of
such transaction or, if later, until the Fundamental Change Repurchase Date
corresponding to such Fundamental Change.
(c) Notwithstanding
the foregoing, a Security in respect of which a Holder has delivered a
Repurchase Notice or a Fundamental Change Repurchase Notice exercising such
Holder’s
option
to require the Company to repurchase such Security may be converted only if
such
notice of exercise is withdrawn in accordance with Article XII or Article XIII
hereof prior to the close of business on the Business Day immediately preceding
the Repurchase Date or the Fundamental Change Repurchase Date, as the case
may
be.
(d) In
connection with any potential conversion pursuant to Section 14.01(a)(ii),
the Bid
Solicitation Agent shall have no obligation to determine the Trading Price
unless the Company has requested such determination, and the Company shall
have
no obligation to request such determination unless a Holder has provided the
Company with reasonable evidence that the Trading Price would be less than
98%
of the product of the Closing Sale Price of the Common Stock and the Conversion
Rate. At such time as the Company has determined that a Holder has provided
such
evidence to the Company, the Company shall instruct the Bid Solicitation Agent,
in writing, to determine the Trading Price beginning on the next Trading Day
and
on each successive Trading Day until the Trading Price is greater than or equal
to 98% of the product of the Closing Sale Price of the Common Stock and the
Conversion Rate. After receiving from a Holder any materials that purport to
constitute such “reasonable evidence,” the Company shall promptly determine
whether such material does constitute “reasonable evidence” for purposes of this
Section
14.01(d);
provided
that
absent manifest error, the Company’s determination shall be binding and final.
The Company shall not be obligated to give any instructions to the Bid
Solicitation Agent until the Company has completed its determination, which
it
shall do promptly.
Section
14.02 Conversion
Procedure.
(a) Each
Security shall be convertible at the office of the Conversion Agent.
(b) In
order
to exercise the conversion privilege with respect to any Securities in
certificated form, the Holder of any such Securities to be converted, in whole
or in part, shall:
(i) complete
and manually sign the conversion notice provided on the back of the Security
(the “Conversion
Notice”)
or
facsimile of the conversion notice and deliver such notice to a Conversion
Agent;
(ii) surrender
the Security to a Conversion Agent;
(iii) furnish
appropriate endorsements and transfer documents, if required; and
(iv) pay
any
transfer or similar tax, if required.
The
date
on which the Holder satisfies all of the requirements set forth in (i) through
(iv) above is the “Conversion
Date.”
Such
notice shall also state the name or names (with address or addresses) in which
any certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued. All such Securities surrendered
for
conversion shall, unless the shares issuable on conversion are to be issued
in
the same name as the registration of such Securities, be duly endorsed by,
or be
accompanied by instruments of transfer in form satisfactory to the Company
duly
executed by, the Holder or his duly authorized attorney.
In
order
to exercise the conversion privilege with respect to any interest in Securities
in global form, the Holder must complete the appropriate instruction form for
conversion pursuant to the Depositary’s book-entry conversion program, 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
14.02
and any
transfer taxes if required pursuant to Section
14.08.
(c) As
promptly as practicable after the
later
of (i) the Conversion Date (but in no event later than 5 Business Days after
the
Conversion Date) or (ii) the date all the calculations necessary to make such
payment and delivery have been made (but in no event later than as specified
in
Section
14.03(c)),
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 Holder (as if
such
transfer were a transfer of the Securities (or portion thereof) so converted),
the Company shall issue and shall deliver to such Holder at the office of the
Conversion Agent, a check or cash and a certificate or certificates for the
number of full shares of Common Stock issuable in accordance with the provisions
of this Article XIV, if applicable. In case any Securities of a denomination
greater than $1,000 shall be surrendered for partial conversion, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
of
the Securities so surrendered, without charge to him, new Securities in
authorized denominations in an aggregate Principal Amount equal to the
unconverted portion of the surrendered Securities.
Each
conversion shall be deemed to have been effected as to any such Securities
(or
portion thereof) on the date on which the requirements set forth above in this
Section
14.02
have
been satisfied as to such Securities (or portion thereof), and the person in
whose name any certificate or certificates for shares of Common Stock shall
be
issuable upon such conversion shall be deemed to have become on said date the
Holder of record of the shares represented thereby; provided,
however,
that in
case of any such surrender on any date when the stock transfer books of the
Company shall be closed, the person or persons in whose name the certificate
or
certificates for such shares are to be issued shall be deemed to have become
the
record Holder thereof for all purposes on the next day on which such stock
transfer books are open, but such conversion shall be at the Conversion Price
in
effect on the date upon which such Securities shall be surrendered.
(d) Upon
the
conversion of an interest in Global Securities, the Trustee (or other Conversion
Agent appointed by the Company) shall make a notation on such Global Securities
as to the reduction in the Principal Amount represented thereby. The Company
shall notify the Trustee in writing of any conversions of Securities effected
through any Conversion Agent other than the Trustee.
(e) Each
stock certificate representing Common Stock issued upon conversion of the
Securities that are Restricted Securities shall bear the legend in substantially
the form of Exhibit
C
hereto.
Section
14.03 Payments
Upon Conversion.
(a) Upon
any
conversion of any Security, the Company shall deliver to converting Holders,
in
respect of each $1,000 Principal Amount of Securities being converted, a
“Settlement
Amount”
equal
to the sum of the Daily Settlement Amount for each of the 25 Trading Days during
the Observation Period for such Security.
(b) The
“Daily
Settlement Amount”
for
each of the 25 Trading Days during the Observation Period shall consist
of:
(i) cash
equal to 1/25th of the lesser
of
(x) $1,000 and (y) the Conversion Value, and
(ii) to
the
extent the Conversion Value exceeds $1,000, a number of shares of Common Stock
(the “Remaining
Shares”)
equal
to the Daily Share Amounts subject to the Company’s right to deliver cash in
lieu of all or a portion of such Remaining Shares set forth in Section
14.10;
provided,
that in
no event shall the aggregate number of shares per $1,000 Principal Amount of
Securities exceed the Aggregate Share Cap.
(c) The
Company shall
deliver the Settlement Amount to converting Holders on or prior to the third
Business Day immediately following the last day of the Observation
Period.
(d) Upon
conversion, Holders will not receive any separate cash payment for accrued
and
unpaid interest and Additional Interest Amounts, if any, unless such conversion
occurs between a Regular Record Date and the Interest Payment Date to which
it
relates.
(e) The
Company will not issue fractional shares of Common Stock upon conversion of
Securities. If multiple Securities shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable
upon
conversion shall be computed on the basis of the aggregate Principal Amount
of
the Securities (or specified portions thereof to the extent permitted hereby)
so
surrendered. If any fractional share of stock would be issuable upon the
conversion of any Securities, the Company shall make payment therefor in cash
equal to the fraction of a share of Common Stock otherwise issuable multiplied
by the Current Market Price to the Holder of such Securities.
Section
14.04 Adjustment
Of Conversion Rate.
The
Conversion Rate shall be adjusted from time to time by the Company as follows,
except that the Company shall not make any adjustment if holders of Securities
may participate, as a result of holding the Securities, in the transaction
described without having to convert their Securities.
(a) If
the
Company, at any time or from time to time while any of the Securities are
outstanding, pays a dividend or make a distribution in shares of Common Stock
to
all holders of its outstanding shares of Common Stock, or if the Company
subdivides or combines its Common Stock then the Conversion Rate will be
adjusted based on the following formula:
where,
CR0
= the
Conversion Rate in effect immediately prior to such event
CR'
= the
Conversion Rate in effect immediately after such event
OS0
= the
number of shares of Common Stock outstanding immediately prior to such
event
OS'
= the
number of shares of Common Stock outstanding immediately after such
event
Such
adjustment shall become effective immediately after the opening of business
on
the day following the Record Date for such dividend or distribution, or the
date
fixed for determination for such share split or share combination. If any
dividend or distribution of the type described in this Section
14.04(a)
is
declared but not so paid or made, the Conversion Rate shall again be adjusted
to
the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.
(b) If
the
Company, at any time or from time to time while any of the Securities are
outstanding, issues to all or substantially all holders of its outstanding
shares of Common Stock certain rights or warrants to purchase shares of Common
Stock (or securities convertible into or exchangeable or exercisable for Common
Stock) at a price per share (or having a conversion, exchange or exercise price
per share) less than the Closing Sale Price of Common Stock on the Record Date
for stockholders entitled to receive such rights and warrants, which rights
or
warrants are exercisable for not more than 60 days,
the
Conversion Rate shall be adjusted based on the following formula (provided
that the
Conversion Rate shall be readjusted to the extent that such rights or warrants
are not exercised prior to their expiration):
where,
|
CR0
=
|
the
Conversion Rate in effect immediately prior to such
event
|
|
CR'
=
|
the
Conversion Rate in effect immediately after such
event
|
|
OS0
=
|
the
number of shares of Common Stock outstanding on the close of business
on
the next Business Day following such Record Date
|
|
X
=
|
the
total number of shares of Common Stock issuable pursuant to such
rights
|
|
Y
=
|
the
number of shares of Common Stock equal to the aggregate offering
price
that the total number of shares so offered would purchase at such
Closing
Sale Price of Common Stock on the Record Date of such issuance determined
by multiplying such total number of shares so offered by the exercise
price of such rights or warrants and dividing the product so obtained
by
such Closing Sale Price.
|
Such
adjustment shall become effective immediately after the opening of business
on
the day following the date of announcement of such issuance.
To
the
extent that shares of Common Stock (or securities convertible into or
exchangeable or exercisable for shares of Common Stock) are not delivered
pursuant to such rights or warrants, upon the expiration or termination of
such
rights or warrants, the Conversion Rate shall be readjusted to the Conversion
Rate which would then be in effect had the adjustments made upon the issuance
of
such rights or warrants been made on the basis of the delivery of only the
number of shares of Common Stock (or securities convertible into or exchangeable
or exercisable for shares of Common Stock) actually delivered. In the event
that
such rights or warrants are not so issued, the Conversion Rate shall again
be
adjusted to be the Conversion Rate which would then be in effect if the date
fixed for the determination of stockholders entitled to receive such rights
or
warrants had not been fixed. In determining whether any rights or warrants
entitle the holders to subscribe for or purchase shares of Common Stock at
less
than such Closing Sale Price, and in determining the aggregate offering price
of
such shares of Common Stock, there shall be taken into account any consideration
received for such rights or warrants and the value of such consideration, if
other than cash, to be determined in good faith by the Board of Directors of
the
Company.
For
the
purposes of this Section
14.04(b),
rights
or warrants distributed by the Company to all holders of its Common Stock
entitling them 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”):
(1)
are deemed to be transferred with such shares of Common Stock; (2) are not
exercisable; and (3) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this
Section
14.04(b)
(and no
adjustment to the Conversion Price under this Section 14.04(b) 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
14.04(b). If any such right or warrant, including any such existing rights
or
warrants distributed prior to the date of this Indenture, are subject to events,
upon the occurrence of which such rights or warrants become exercisable to
purchase different securities, evidences of indebtedness or other assets, then
the date of the occurrence of any and each such event shall be deemed to be
the
date of distribution and record date with respect to new rights or warrants
with
such rights (and a termination or expiration of the existing rights or warrants
without exercise by any of the holders thereof). In addition, in the event
of
any distribution (or deemed distribution) of rights or warrants, or any Trigger
Event or other event (of the type described in the preceding sentence) with
respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this Section
14.04(b) was made, (1) in the case of any such rights or warrants which 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 of Common Stock with respect to such
rights or warrants (assuming such holder had retained such rights or warrants),
made to all applicable holders of Common Stock as of the date of such redemption
or repurchase, and (2) in the case of such rights or warrants which shall have
expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights and warrants had not
been
issued.
(c) If
the
Company, at any time or from time to time while the Securities are outstanding,
distributes to all or substantially all holders of its Common
Stock,
shares of any class of Capital Stock of the Company, evidences of its
indebtedness or assets, including securities, but excluding:
(i) dividends
or distributions referred to in Section
14.04(a);
(ii) rights
or
warrants referred to in Section
14.04(b);
and
(iii) dividends
or distributions referred to in Section
14.04(d);
then
the
Conversion Rate shall be adjusted based on the following formula:
where,
CR0
= the
Conversion Rate in effect immediately prior to such distribution
CR'
= the
Conversion Rate in effect immediately after such distribution
SP0
= the
Current Market Price of Common Stock on the Record Date for such
distribution
FMV
= the
fair
market value (as determined by the Board of Directors of the Company) of the
shares of Capital Stock, evidences of indebtedness, assets or property
distributed with respect to each outstanding share of Common Stock on the Record
Date for such distribution
Such
adjustment shall
become effective immediately prior to the opening of business on the day
following the Record Date for such distribution. If the Board of Directors
of
the Company determines the fair market value of any distribution for purposes
of
this Section 14.04(c) 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 of the Common
Stock.
To
the
extent that the Company has a rights plan in effect upon conversion of the
Securities into Common Stock, a Holder shall receive, in addition to the Common
Stock, the rights under the rights plan unless the rights have separated from
the Common Stock at the time of conversion, in which case the Conversion Rate
will be adjusted as if we distributed to all holders of Common Stock, shares
of
Capital Stock, evidences of indebtedness or assets, subject to readjustment
in
the event of the expiration, termination or redemption of such
rights.
With
respect to an adjustment pursuant to this Section
14.03(c)
where
there has been a payment of a dividend or other distribution on the Common
Stock
or shares of Capital Stock of any class or series, or similar equity interest,
of or relating to a Subsidiary or other business unit (a “Spin-Off”),
the
Conversion Rate in effect immediately before 5:00 p.m., New York City time,
on
the effective date fixed for determination of stockholders entitled to receive
the dividend or distribution for such for such Spin-Off shall be increased
based
on the following formula:
where,
CR0
= the
Conversion Rate in effect immediately prior to such distribution
CR'
= the
Conversion Rate in effect immediately after such distribution
FMV0
= the
average of the Closing Sale Prices of the Capital Stock or similar equity
interest distributed to holders of Common Stock applicable to one share of
Common Stock over the ten consecutive Trading-Day period commencing on and
including the fifth Trading Day after the date on which Ex-Dividend Trading
commences for such distribution on The Nasdaq National Market or such other
national or regional exchange or market on which the Securities are then listed
or quoted
MP0
= the
average of the Closing Sale Prices of Common Stock over the ten consecutive
Trading-Day period commencing on and including the fifth Trading Day after
the
date on which Ex-Dividend Trading commences for such distribution on The Nasdaq
National Market or such other national or regional exchange or market on which
the Securities are then listed or quoted
The
adjustment to the Conversion Rate under the preceding paragraph will occur
on
the fourteenth Trading Day after the date on which “Ex-Dividend Trading”
commences for such distribution on The Nasdaq National Market or such other
national or regional exchange or market on which the Securities are then listed
or quoted.
(d) If
any
cash dividend or other distribution is made to all or substantially all holders
of Common Stock, the Conversion Rate shall be adjusted based on the following
formula:
where,
CR0
= the
Conversion Rate in effect on the Record Date for such distribution
CR'
= the
Conversion Rate in effect immediately after the Record Date for such
distribution
SP0
= the
Current Market Price of a share of Common Stock on the Record Date for such
distribution
C
= the
amount in cash per share the Company distributes to holders of Common
Stock.
Such
adjustment shall become effective immediately after 5:00 p.m., New York City
time, on the Record Date for such dividend or distribution; provided
that if
such dividend or distribution is not 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.
(e) If
the
Company or any of its Subsidiaries makes a payment in respect of a tender offer
or exchange offer for Common Stock to the extent that the cash and value of
any
other consideration included in the payment per share of Common Stock exceeds
the Current Market Price per share of Common Stock on the Trading Day
immediately preceding the date such tender offer or exchange offer is announced,
the Conversion Rate shall be increased based on the following
formula:
where,
CR0
= the
Conversion Rate in effect on the date such tender or exchange offer
expires
CR'
= the
Conversion Rate in effect on the day next succeeding the date such tender or
exchange offer expires
AC
= the
fair
market value (as determined by the Board of Directors) of the aggregate
consideration paid or payable for shares purchased in such tender or exchange
offer
OS0
= the
number of shares of Common Stock outstanding on the Trading Day immediately
preceding the date such tender or exchange offer is announced
OS'
= the
number of shares of Common Stock outstanding less any shares purchased in the
tender or exchange offer at the time such tender or exchange offer
expires
SP'
= the
Current Market Price of Common Stock on the Trading Day immediately preceding
the date such tender or exchange offer is announced.
If
the
Company is obligated to repurchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law
from
effecting any such purchases or all 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 had not been made.
(f) For
purposes of this Section
14.04,
the
following terms shall have the meaning indicated:
(i) “Current
Market Price”
on
any
date means the average of the Closing Sale Prices per share of Common Stock
for
the 10 consecutive Trading Days immediately preceding the day before the Record
Date (or, if earlier, the Ex-Dividend Date) with respect to any distribution,
issuance or other event requiring such computation.
(ii) “fair
market value”
shall
mean the amount which a willing buyer would pay a willing seller in an arm’s
length transaction.
(iii) “Record
Date”
shall
mean, with respect to any dividend, distribution or other transaction or event
in which the Holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash, securities
or other property, the date fixed for determination of stockholders entitled
to
receive such cash, securities or other property (whether such date is fixed
by
the Board of Directors or by statute, contract or otherwise).
(g) Subject
to subsection (i) below, the Company may make such increases in the Conversion
Rate, in addition to any adjustments required by Section
14.04(a),
Section
14.04(b),
Section
14.04(c),
Section
14.04(d),
Section
14.04(e)
or
Section
14.04(f),
as the
Board of Directors considers to be advisable to avoid or diminish any income
tax
to holders of Common Stock or rights to purchase Common Stock resulting from
any
dividend or distribution of stock (or rights to acquire stock) or from any
event
treated as such for income tax purposes.
(h) To
the
extent permitted by applicable law and subject to subsection (i) below, the
Company from time to time may increase the Conversion Rate by any amount for
any
period of time if the period is at least 20 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 Securities a notice of the increase at least 15 days prior to the date
the increased Conversion Rate takes effect, and such notice shall state the
increased Conversion Rate and the period during which it will be in
effect.
(i) Any
increase in the Conversion Rate pursuant to subsections (g) and (h) above shall
not, without the approval of the stockholders of the Company, as required by
Rule 4350 of the Marketplace Rules of The Nasdaq Stock Market, result in the
sale or issuance of 20% or more of the shares of Common Stock, or 20% of more
of
the voting power, outstanding as of the date of the Offering
Memorandum.
(j) No
adjustment in the Conversion Rate shall be required unless such adjustment
would
require an increase or decrease of at least 1% in such rate; provided,
however,
that
any adjustments which by reason of this Section
14.04(i)
are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article XIV shall be made
by
the Company and shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be. No adjustment need be made for
rights to purchase Common Stock pursuant to a Company plan for reinvestment
of
dividends or interest. To the extent the Securities 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 the cash.
(k) Whenever
the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent 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 without inquiry 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 each Holder of Securities at such Holder’s last
address appearing on the list of Security holders provided for in Section
3.06,
within
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
14.04
provides
that an adjustment shall become effective immediately after a Record Date for
an
event, the Company may defer until the occurrence of such event (i) issuing
to
the Holder of any Securities converted after such Record Date and before the
occurrence of such event the additional shares of Common Stock issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before giving effect to
such adjustment and (ii) paying to such Holder any amount in cash in lieu of
any
fraction pursuant to Section
14.03.
(m) For
purposes of this Section
14.04,
the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company so long as the Company does not
pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company, but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.
(n) No
adjustment to the Conversion Rate shall be made pursuant to this Section
14.04
if the
Holders of the Securities may participate in the transaction that would
otherwise give rise to an adjustment pursuant to this Section
14.04.
(o) Whenever
any provision of this Article XIV requires a calculation of an average of
Closing Sale Prices or Daily VWAP over a span of multiple days, the Company
shall make appropriate adjustments (determined in good faith by the Board of
Directors) to account for any adjustment to the Conversion Rate that becomes
effective, or any event requiring an adjustment to the Conversion Rate where
the
Ex-Dividend Date of the event occurs at any time during the period from which
the average is to be calculated.
Section
14.05 Adjustments
Upon Certain Fundamental Changes.
(a) If
a
Holder elects to convert Securities pursuant to Section
14.01(b)(ii)
above in
connection with a transaction described therein and the transaction (1) has
an
effective date occurring on or prior to May 15, 2013 and (2) constitutes a
Fundamental Change, subject to Section
14.06
below,
the Conversion Rate for such Securities shall be increased by an additional
number of shares of Common Stock (the “Additional
Shares”)
as
described below. Any conversion occurring at a time when the Securities would
be
convertible in light of the expected or actual occurrence of a Fundamental
Change will be deemed to have occurred in connection with such Fundamental
Change notwithstanding the fact that a Security may then be convertible because
another condition to conversion has been satisfied.
(b) The
number of Additional Shares will be determined by reference to the table
attached as Schedule A hereto, based on the date on which the Fundamental Change
occurs or becomes effective (the “Effective
Date”)
and
the price (the “Stock
Price”)
paid
per share of Common Stock in the Fundamental Change. If the Fundamental Change
is a transaction described in clause (ii) of the definition of Change in
Control, and holders of Common Stock receive only cash in the Fundamental
Change, the Stock Price shall be the cash amount per share. Otherwise, the
Stock
Price shall be the average of the Closing Sale Prices of Common Stock over
the
five Trading-Day period ending on the Trading Day preceding the Effective Date
of the Fundamental Change.
(c) The
Stock
Prices set forth in the first row of the table in Schedule A hereto shall be
adjusted as of any date on which the Conversion Rate of the Securities is
otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices
applicable immediately prior to such adjustment, multiplied by a fraction,
the
numerator of which is the Conversion Rate immediately prior to such adjustment
and the denominator of which is the Conversion Rate as so adjusted. The number
of Additional Shares set forth in such table will be adjusted in the same manner
as the Conversion Rate as set forth in Section
14.04.
(d) The
table
in Schedule A hereto sets forth the hypothetical stock price and the number
of
additional shares to be received per $1,000 Principal Amount of
Securities.
The
exact
Stock Prices and Effective Dates may not be set forth in the table in
Schedule A, in which case:
(i) If
the
Stock Price is between two Stock Price amounts in the table or the Effective
Date is between two Effective Dates in the table, the number of Additional
Shares will be determined by a straight-line interpolation between the number
of
Additional Shares set forth for the higher and lower Stock Price amounts and
the
two dates, as applicable, based on a 365-day year.
(ii) If
the
Stock Price is greater than $16.00]
per
share (subject to adjustment), no Additional Shares will be issued upon
conversion.
(iii) If
the
Stock Price is less than $3.03 per share (subject to adjustment), no Additional
Shares will be issued upon conversion.
Notwithstanding
the foregoing, in no event will the total number of shares of Common Stock
issuable upon conversion exceed 894 shares of Common Stock per $1,000 Principal
Amount of Securities (789 shares of Common Stock per $1,000 Principal Amount
of
Securities if the Initial Purchasers exercise their over-allotment option
granted by the Company pursuant to Section 2 of the Purchase Agreement), subject
to adjustments in the same manner as the Conversion Rate as set forth in
Section
14.04.
Section
14.06 Conversion
After A
Public
Acquirer
Change Of Control.
(a) In
the
event of a Public Acquirer Change of Control, the Company may, in lieu of
increasing the Conversion Rate by Additional Shares pursuant to Section
14.05,
elect
to adjust the Conversion Rate and the related conversion obligation such that
from and after the Effective Date of such Public Acquirer Change of Control,
Holders shall be entitled to convert their Securities, in accordance with
Section
14.01,
into a
number of shares of Public Acquirer Common Stock, still subject to the
arrangements for payment upon conversion in Section
14.03.
The
adjusted Conversion Rate shall be the Conversion Rate in effect immediately
before the Public Acquirer Change of Control multiplied by a
fraction:
(i) the
numerator of which will be the average of the Closing
Sale Prices of the Common Stock for the five consecutive Trading Days prior
to
but excluding the Effective Date of such Public Acquirer Change of Control,
and
(ii) the
denominator of which will be the average of the Closing Sale Prices of the
Public Acquirer Common Stock for the five consecutive Trading Days commencing
on
the Trading Day next succeeding the Effective Date of such Public Acquirer
Change of Control.
(b) In
order
to make the election pursuant to this Section
14.06,
the
Company and the issuer of the Public Acquirer Common Stock 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 Security shall be exchangeable into Public
Acquirer Common Stock and execute an amendment to the Registration Rights
Agreement (to the extent any Registrable Securities (as defined therein) remain
outstanding) to make the provisions thereof to apply to the Public Acquirer
Common Stock. Such supplemental indenture shall provide for provisions and
adjustments which shall be a nearly equivalent as may be practicable to the
provisions and adjustments provided for in this Article XIV.
(c) Within
10
Trading Days prior to but not including the expected effective date of a
Fundamental Change that is also a Public Acquirer Change of Control, the Company
will provide to all Holders and the Trustee and Paying Agent a notification,
in
a manner as provided in Section 1.06, stating whether the Company will:
(i) elect
to
adjust the Conversion Rate and related conversion obligation as
set
forth in this Section
14.06,
in
which case the Holders will not have the right to receive additional shares
upon
conversion, as described in Section 14.05; or
(ii) not
elect
to adjust the Conversion Rate and related conversion obligation, in which case
the Holders will have the right to convert Notes and, if applicable, receive
Additional Shares upon conversion as described above in Section
14.05.
Section
14.07 Effect
Of Reclassification, Consolidation, Merger Or Sale.
Except
as otherwise provided in Section
14.06,
if any
of the following events occur, namely:
(i) any
reclassification or change of shares of Common Stock issuable upon conversion
of
the Securities (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination, or any other change for which an adjustment is provided
in Section
14.04(c));
(ii) any
consolidation, merger or combination to which the Company is a party other
than
a merger in which the Company is the continuing corporation and which does
not
result in any reclassification of, or change (other than in par value, or from
par value to no par value, or from no par value to par value, or as a result
of
a subdivision or combination) in outstanding shares of Common Stock;
or
(iii) any
sale
or conveyance of all or substantially all of the properties and assets of the
Company to any other person as a result of which holders of Common Stock shall
be entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock,
then
the
Company or the successor or purchasing person, as the case may be, shall execute
with the Trustee a supplemental indenture (which shall comply with the Trust
Indenture Act as in force at the date of execution of such supplemental
indenture) providing that such Securities shall be convertible into the kind
and
amount of shares of stock, securities or other property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Securities (assuming, for such purposes,
a sufficient number of authorized shares of Common Stock available to convert
all such Securities) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance. Assuming such holder
of
Common Stock did not exercise his rights of election, if any, as to the kind
or
amount of securities, cash or other property receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
(provided
that, if
the kind or amount of stock, securities or other property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance is not the same for each share of Common Stock
in respect of which such rights of election shall not have been exercised
(“non-electing
share”),
then
for the purposes of this Section
14.07,
the
kind and amount of stock, securities or other property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance for each non-electing share shall be deemed
to
be the kind and amount so receivable per share by a plurality of the
non-electing shares). Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article XIV. If, in the case of any such reclassification,
change, consolidation, merger, combination, sale or conveyance, the stock,
securities or other property or assets (including cash) receivable thereupon
by
a holder of Common Stock includes shares of stock, securities or other property
or assets (including cash) of a corporation other than the successor or
purchasing corporation, as the case may be, in such reclassification, change,
consolidation, merger, combination, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holders of the
Securities as the Board of Directors shall reasonably consider necessary by
reason of the foregoing.
The
Company shall cause notice of the execution of such supplemental indenture
to be
mailed to each Holder, at the address of such Holder as it appears on the
register of the Securities maintained by the Registrar, within 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
14.07
applies
to any event or occurrence, Section
14.04
shall
not apply.
Section
14.08 Taxes
On Shares Issued.
Any
issue of stock certificates on conversions of Securities shall be made without
charge to the converting Holder for any documentary, transfer, stamp or any
similar tax in respect of the issue thereof, and the Company shall pay any
and
all documentary, stamp or similar issue or transfer taxes that may be payable
in
respect of the issue or delivery of shares of Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to
pay
any such tax which may be payable in respect of any transfer involved in the
issue and delivery of stock in any name other than that of the Holder of any
Securities 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
14.09 Reservation
Of Shares; Shares To Be Fully Paid; Compliance With Governmental Requirements;
Listing Of Common Stock.
The
Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient shares of Common Stock
to
provide for the conversion of the Securities from time to time as such
Securities are presented for conversion (assuming that, at the time of the
computation of such number of shares or securities, all such Securities would
be
held by a single Holder).
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 shares of Common Stock issuable upon conversion of
the
Securities, the Company will take all corporate action which may, in the opinion
of its counsel, be necessary in order that the Company may validly and legally
issue shares of such Common Stock at such adjusted Conversion
Price.
The
Company covenants that all shares of Common Stock that may be issued upon
conversion of Securities shall be newly issued shares or treasury shares, shall
be duly authorized, validly issued, fully paid and non-assessable and shall
be
free from preemptive rights and free from any lien or adverse
claim.
The
Company shall use its reasonable efforts to list or cause to have quoted any
shares of Common Stock to be issued upon conversion of Securities on each
national securities exchange or over-the-counter or other domestic market on
which the Common Stock is then listed or quoted.
Section
14.10 Payment
Of Cash in Lieu Of Common Stock.
The
Company may elect to pay cash to the Holders surrendered for conversion in
lieu
of all or a portion of the Common Stock otherwise issuable pursuant to Section
14.03. In such event, on any day prior to the first Trading Day of the
applicable Observation Period, the Company shall specify a percentage of the
Daily Share Amount that shall be settled in cash (the “Cash
Percentage”)
and
the amount of cash that the Company shall pay in respect of each Trading Day
in
the applicable Observation Period will equal the product of: (1) the Cash
Percentage, (2) the Daily Share Amount for such Trading Day and (3) the Daily
VWAP of the Common Stock for such Trading Day (provided that after the
consummation of a Fundamental Change in which the consideration is comprised
entirely of cash, the amount used in this clause (3) shall be the cash price
per
share received by holders of the Common Stock in such Fundamental Change).
The
number of shares that the Company shall deliver in respect of each Trading
Day
in the applicable Observation Period will be a percentage of the Daily Share
Amount equal to 100% minus the Cash Percentage. Upon making a determination
that
a percentage of the Daily Share Amount will be settled in cash, the Company
shall promptly disclose such information on its website prior to the first
Trading Day of the applicable Observation Period. If the Company does not
specify a Cash Percentage by the start of the applicable Observation Period,
the
Company shall settle 100% of the Daily Share Amount for each Trading Day in
the
applicable Observation Period with shares of Common Stock; provided,
however,
that
the Company shall pay cash in lieu of fractional shares otherwise issuable
upon
conversion of Securities.
For
the
purposes of this Section 14.10, in the event that any of Conversion Value,
Daily
Share Amounts or Daily VWAP is not calculable for all portions of the
Observation Period, the Company’s Board of Directors shall in good faith
determine the values necessary to calculate the Conversion Value, Daily Share
Amounts and Daily VWAP, as applicable.
Section
14.11 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 Securities to determine the Conversion Rate
or whether any facts exist which may require any adjustment of the Conversion
Rate, or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed, or herein or
in
any supplemental indenture provided to be employed, in making the same. The
Trustee and any other Conversion Agent shall not be accountable with respect
to
the validity or value (or the kind or amount) of any shares of Common Stock,
or
of any securities or property, which may at any time be issued or delivered
upon
the conversion of any Securities; and the Trustee and any other Conversion
Agent
make no representations with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Securities for the
purpose of conversion or to comply with any of the duties, responsibilities
or
covenants of the Company contained in this Article XIV. 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
14.07
relating
either to the kind or amount of shares of stock or securities or property
(including cash) receivable by Holders upon the conversion of their Securities
after any event referred to in such Section
14.07
or to
any adjustment to be made with respect thereto, but, subject to the provisions
of Section
6.01,
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
14.12 Notice
To Holders Prior To Certain Actions.
In
case,
(a) the
Company shall declare a dividend (or any other distribution) on its Common
Stock
that would require an adjustment in the Conversion
Rate pursuant to Section
14.04;
or
(b) the
Company shall authorize the granting to the holders of all or substantially
all
of its Common Stock of rights or warrants to subscribe for or purchase any
share
of any class or any other rights or warrants; or
(c) of
any
reclassification or reorganization of the Common Stock of the Company (other
than a subdivision or combination of its outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to par
value), or of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of the
sale or transfer of all or substantially all of the assets of the Company or
any
of its significant subsidiaries; or
(d) of
the
voluntary or involuntary dissolution, liquidation or winding up of the Company
or any of its significant subsidiaries;
then,
in
each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent and to be mailed to each Holder of Securities at such Holder’s
address appearing on the list of Security holders provided for in Section
3.06
of this
Indenture, as promptly as practicable but in any event at least 15 days prior
to
the applicable date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution
or
rights or warrants, or, if a record is not to be taken, the date as of which
the
holders of Common Stock of record to be entitled to such dividend, distribution
or rights are to be determined, or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding
up is
expected to become effective or occur, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.
Section
14.13 Company
Determination Final.
Any
determination that the Company or its Board of Directors must make pursuant
to
this Article XIV shall be conclusive if made in good faith and in accordance
with the provisions of this Article XIV, absent manifest error, and set forth
in
a Board Resolution.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
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JDS
UNIPHASE CORPORATION
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By:
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Name:
Title:
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THE
BANK OF NEW YORK TRUST COMPANY, N.A., as
Trustee
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By:
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Name:
Title:
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SCHEDULE
A
The
following table sets forth the number of Additional Shares to be received per
$1,000 Principal Amount of Securities pursuant to Section 14.05 of this
Indenture:
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Stock
Price
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|||||||||||||||
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Effective
Date
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$3.03
|
$4.00
|
$5.00
|
$6.00
|
$7.00
|
$8.00
|
$9.00
|
$10.00
|
$11.00
|
$12.00
|
$13.00
|
$14.00
|
$15.00
|
$16.00
|
|
|
May
15, 2006
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66.0066
|
41.0971
|
27.8126
|
20.1833
|
15.4117
|
12.2350
|
10.0166
|
8.4055
|
7.1972
|
6.2663
|
5.5326
|
4.9431
|
4.4613
|
4.0620
|
|
|
May
15, 2007
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66.0066
|
41.3641
|
27.3140
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19.4009
|
14.5469
|
11.3741
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9.1936
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7.6347
|
6.4823
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5.6062
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4.9239
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4.3815
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3.9423
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3.5813
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May
15, 2008
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66.0066
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41.2031
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26.3610
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18.2098
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13.3332
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10.2221
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8.1307
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6.6669
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5.6052
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4.8116
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4.2028
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3.7250
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3.3427
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3.0313
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May
15, 2009
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66.0066
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40.3569
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24.7554
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16.4739
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11.6862
|
8.7309
|
6.8066
|
5.4968
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4.5707
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3.8943
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3.3852
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2.9925
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2.6825
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2.4327
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May
15, 2010
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66.0066
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38.4871
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22.2410
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14.0314
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9.5196
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6.8663
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5.2166
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4.1390
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3.4040
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2.8831
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2.5010
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2.2122
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1.9876
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1.8080
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May
15, 2011
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66.0066
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34.7639
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18.0880
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10.3713
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6.5109
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4.4410
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3.2608
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2.5461
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2.0876
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1.7777
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1.5577
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1.3946
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1.2683
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1.1676
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May
15, 2012
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66.0066
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27.0494
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10.9708
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5.0196
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2.6987
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1.7241
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1.2715
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1.0342
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0.8926
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0.7968
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0.7258
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0.6694
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0.6225
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0.5825
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May
15, 2013
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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EXHIBIT
A
Form
of
Certificate to Be Delivered
in
Connection with Transfers
Pursuant
to Regulation S
_______________,
____
The
Bank
of New York Trust Company, N.A.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Administration
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
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Re:
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JDS
Uniphase Corporation (the “Company”)
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1.00%
Senior Convertible Notes due 2026 (the “Notes”)
Ladies
and Gentlemen:
In
connection with our proposed sale of $ aggregate Principal Amount of the Notes,
we confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the United States Securities Act of 1933, as amended (the
“Securities
Act”),
and,
accordingly, we represent that:
1. the
offer
of the Notes was not made to a Person in the United States;
2. either
(a) at the time the buy offer was originated, the transferee was outside the
United States or we and any Person acting on our behalf reasonably believed
that
the transferee was outside the United States, or (b) the transaction was
executed in, on or through the facilities of a designated off-shore securities
market and neither we nor any Person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United
States;
3. no
directed selling efforts have been made in the United States in contravention
of
the requirements of Rule 903(a) or Rule 904(a) of Regulation S, as applicable
(or applicable successor rules);
4. the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and the conditions of Rule 903(b) or 904(b)
of Regulation S, as applicable (or applicable successor rules) have been
satisfied; and
5. we
have
advised the transferee of the transfer restrictions applicable to the
Notes.
You
and
the Company are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party, in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very
truly yours,
[Name
of
Transferor]
By:
Authorized
Signature
EXHIBIT
B
Form
of
Fundamental Change Repurchase Notice
_______________,
____
The
Bank
of New York Trust Company, N.A.
Floor
21
West
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Trustee Administration
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
|
Re:
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JDS
Uniphase Corporation (the “Company”)
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1.00%
Senior Convertible Notes due
2026
This
is a
Fundamental Change Repurchase Notice as defined in Section
13.01
of the
Indenture dated as of May 17, 2006 (the “Indenture”)
between the Company and The Bank of New York Trust Company, N.A., as Trustee.
Terms used but not defined herein shall have the meanings ascribed to them
in
the Indenture.
Certificate
No(s). of Securities: _____________________________
I
intend
to deliver the following aggregate Principal Amount of Securities for purchase
by the Company pursuant to Section
13.01
of the
Indenture (in multiples of $1,000):
$__________________________________
I
hereby
agree that the Securities will be purchased as of the Fundamental Change
Repurchase Date pursuant to the terms and conditions thereof and of the
Indenture.
Signed:
EXHIBIT
C
THE
COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”),
OR
ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT
UNTIL THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK
EVIDENCED HEREBY EXCEPT (A) TO JDS UNIPHASE CORPORATION OR TO ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A “QUALIFIED
INSTITUTIONAL BUYER”
(AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A,
(C)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT,
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE
SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO A REGISTRATION STATEMENT
WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO
BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER
THAN
A TRANSFER PURSUANT TO CLAUSE 1(E) ABOVE, IT WILL FURNISH TO CHEMICAL TRUST
COMPANY OF CALIFORNIA, AS STOCK TRANSFER AGENT (OR SUCCESSOR TRANSFER AGENT,
AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT
MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) IT WILL DELIVER TO EACH PERSON TO
WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 1(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IF THE PROPOSED TRANSFEREE IS A PURCHASER WHO IS NOT A U.S. PERSON,
THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO CHEMICAL TRUST COMPANY OF
CALIFORNIA, AS STOCK TRANSFER AGENT (OR SUCCESSOR TRANSFER AGENT, AS APPLICABLE)
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER
OF
THE COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE 1(E) ABOVE OR UPON ANY
TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY AFTER THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED HEREIN,
THE TERMS “UNITED
STATES”
AND
“U.S.
PERSON”
HAVE
THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Certain
Sections of this Indenture relating to
Sections
310 through 318 of the
Trust
Indenture Act of 1939:
|
Trust
Indenture
Act
Section
|
Indenture
Section
|
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§
310 (a)(1)
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6.09
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(a)(2)
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6.09
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(a)(3)
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Not
Applicable
|
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(a)(4)
|
Not
Applicable
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(b)
|
6.08
|
|
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6.10
|
||
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§
311 (a)
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6.13
|
|
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(b)
|
6.13
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§
312 (a)
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10.08
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|
|
7.01(a)
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||
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(b)
|
7.01(b)
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(c)
|
7.01(c)
|
|
|
§
313 (a)
|
7.02(a)
|
|
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(b)
|
7.02(a)
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(c)
|
7.02(a)
|
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(d)
|
7.02(b)
|
|
|
§
314 (a)
|
10.09
|
|
|
(b)
|
Not
Applicable
|
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(c)(1)
|
1.02
|
|
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(c)(2)
|
1.02
|
|
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(c)(3)
|
Not
Applicable
|
|
|
(d)
|
Not
Applicable
|
|
|
(e)
|
1.02
|
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§
315 (a)
|
6.01
|
|
|
(b)
|
6.02
|
|
|
(c)
|
6.01
|
|
|
(d)
|
6.01
|
|
|
(e)
|
5.14
|
|
|
§
316 (a)(1)(A)
|
5.12
|
|
|
(a)(1)(B)
|
5.13
|
|
|
(a)(2)
|
Not
Applicable
|
|
|
(b)
|
5.08
|
|
|
(c)
|
1.04(c)
|
|
|
§
317 (a)(1)
|
5.03
|
|
|
(a)(2)
|
5.05
|
|
|
(b)
|
10.03
|
|
|
§
318 (a)
|
1.07
|
_________________
Note:
This reconciliation and tie shall not, for any purpose, be deemed to be a part
of this Indenture.