EXHIBIT 4.4
LIGAND PHARMACEUTICALS INCORPORATED
THIS SECURITY AND THE 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 APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A
"QUALIFIED INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO
EACH SUCH ACCOUNT, AND
(2) AGREES THAT IT WILL NOT DIRECTLY OR INDIRECTLY ENGAGE IN ANY HEDGING
TRANSACTIONS INVOLVING THIS SECURITY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY UNLESS IN COMPLIANCE WITH THE SECURITIES ACT, AND
(3) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN,
PRIOR TO THE DATE THAT IS THE LATER OF (X) TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER
THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT ONLY:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF;
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER
THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF TRANSFER;
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT; OR
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE).
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(C) ABOVE,
A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED FROM
THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY
TRANSFER IN ACCORDANCE WITH (3)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE
THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR
OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE
PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
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 OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
Certificate No. N-1
6% CONVERTIBLE SUBORDINATED NOTE DUE 2007
CUSIP NO. 00000XXX0
LIGAND PHARMACEUTICALS INCORPORATED, a Delaware corporation (herein called
the "COMPANY"), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of __________________ ($_________) on
November 16, 2007, and to pay interest thereon, as provided on the reverse
hereof, until the principal and any unpaid and accrued interest is paid or duly
provided for. The right to payment of the principal and all other amounts due
with respect hereto is subordinated to the rights of Senior Indebtedness as set
forth in the Indenture referred to on the reverse side hereof.
Interest Payment Dates: May 16 and November 16, with the first payment to
be made on May 16, 2003.
Record Dates: May 1 and November 1.
The provisions on the back of this certificate are incorporated as if set
forth on the face hereof.
IN WITNESS WHEREOF, LIGAND PHARMACEUTICALS INCORPORATED has caused this
instrument to be duly signed.
LIGAND PHARMACEUTICALS INCORPORATED
By:
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Name: Xxxx X. Xxxxx
Title: Senior Vice President and Chief
Financial Officer
Dated: November 26, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
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Authorized Signatory
Dated: ________________
[REVERSE OF SECURITY]
LIGAND PHARMACEUTICALS INCORPORATED
6% CONVERTIBLE SUBORDINATED NOTE DUE 2007
1. INTEREST. LIGAND PHARMACEUTICALS INCORPORATED, a Delaware corporation
(the "COMPANY"), promises to pay interest on the principal amount of this
Security at the rate PER ANNUM shown above. The Company will pay interest
semi-annually on May 16 and November 16 of each year, with the first payment to
be made on May 16, 2003. Interest on the Securities will accrue on the principal
amount from the most recent date to which interest has been paid or provided for
or, if no interest has been paid, from November 26, 2002. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The Holder of this Security is entitled to the benefits of the Pledge
Agreement, dated November 26, 2002, between the Company and the Trustee,
pursuant to which the Company has placed in the Pledge Account cash or Pledged
Financial Assets sufficient to provide for the payment of the first four
interest payments on this Security. The terms capitalized but undefined in this
paragraph have the meanings given to them in the Pledge Agreement.
2. MATURITY. The Notes will mature on November 16, 2007.
3. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the persons who are registered Holders of
Securities at the close of business on the record date set forth on the face of
this Security next preceding the applicable interest payment date. Holders must
surrender Securities to a Paying Agent to collect the principal, Redemption
Price or Repurchase Price of the Securities. The Company will pay all amounts
due with respect to the Securities in money of the United States that at the
time of payment is legal tender for payment of public and private debts. If this
Security is in global form, the Company will pay interest on the Securities by
wire transfer of immediately available funds to the account specified by the
Holder. With respect to securities held other than in global form, the Company
will make payments by wire transfer of immediately available funds to the
account specified by the Holders thereof or, if no such account is specified
with respect to a Holder, by mailing a check to the Holder's registered address.
4. PAYING AGENT, REGISTRAR, CONVERSION AGENT. Initially, X.X. Xxxxxx Trust
Company, National Association, (the "TRUSTEE") will act as Paying Agent,
Registrar and Conversion Agent. The Company may change any Paying Agent,
Registrar or Conversion Agent without notice. The Company or any Affiliate of
the Company may act as Paying Agent.
5. INDENTURE. The Company issued the Securities under an Indenture dated as
of November 26, 2002 (the "INDENTURE") between the Company and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code xx.xx. 77aaa-77bbbb) (the "ACT") as in effect on the date of the Indenture.
The Securities are subject to all such terms, and Securityholders are
referred to the Indenture and the Act for a statement of such terms. The
Securities are general unsecured senior subordinated obligations of the Company
limited to $135,000,000 aggregate principal amount ($155,250,000 if the Initial
Purchaser (as defined in the Indenture) has elected to exercise its
over-allotment option to purchase an additional $20,250,000 of the Securities),
except as otherwise provided in the Indenture (except for Securities issued in
substitution for destroyed, mutilated, lost or stolen Securities). Terms used
herein which are defined in the Indenture have the meanings assigned to them in
the Indenture.
6. OPTIONAL REDEMPTION. The Securities will be redeemable prior to maturity
at the option of the Company, in whole or in part, at any time on or after
November 22, 2005, at the following redemption prices (expressed as percentages
of the principal amount thereof), if redeemed during the periods commencing on
the dates set forth below, in each case together with accrued and unpaid
interest to, but excluding, the redemption date:
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Redemption
Date Price
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November 22, 2005 102.40%
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November 16, 2006 and 101.20%
thereafter
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7. NOTICE OF REDEMPTION. Notice of redemption 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 its registered address. Securities in denominations
larger than $1,000 principal amount may be redeemed in part but only in positive
integral multiples of $1,000 principal amount. On and after the redemption date
interest ceases to accrue on Securities or portions of them called for
redemption.
8. REPURCHASE AT OPTION OF HOLDER. In the event of a Change in Control with
respect to the Company, then each Holder of the Securities shall have the right,
at the Holder's option, subject to the rights of the holders of Senior
Indebtedness under ARTICLE XI of the Indenture, to require the Company to
repurchase such Holder's Securities including any portion thereof which is
$1,000 in principal amount or any positive integral multiple thereof on a day
(the "REPURCHASE DATE") that is 30 business days after the date of the Change in
Control Notice, unless otherwise required by applicable law, at a price equal to
100% of the outstanding principal amount of such Security, plus accrued and
unpaid interest to, but excluding, the Repurchase Date.
Within 30 business days after the occurrence of the Change in Control, the
Company is obligated to give notice of the occurrence of such Change in Control
to each Holder. Such notice shall include, among other things, the date by which
Xxxxxx must notify the Company of such Xxxxxx's intention to exercise the
Repurchase Right and of the procedure which such Holder must follow to exercise
such right. To exercise the Repurchase Right, a Holder of Securities
must deliver on or before the close of business on the third business day
immediately preceding the Repurchase Date written notice to the Company (or an
agent designated by the Company for such purpose) and the Trustee of the
Holder's exercise of such right together with the Securities with respect to
which the right is being exercised, duly endorsed for transfer in accordance
with the provisions of the Indenture.
A "CHANGE IN CONTROL" of the Company shall be deemed to have occurred at
such time as:
(i) any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act), is or becomes the
"beneficial owner" (as such term is used in Rule 13d-3 under the Exchange
Act), directly or indirectly, of 50% or more of the voting power of the
Company's Common Stock or other capital stock into which our common stock
is reclassified or changed; or
(ii) at any time the following persons cease for any reason to
constitute a majority of our board of directors:
(1) individuals who on the issue date of the convertible notes
constituted our board of directors and
(2) any new directors whose election by our board of directors or
whose nomination for election by our stockholders was approved by at
least a majority of the directors then still in office who were either
directors on the issue date of the convertible notes or whose election
or nomination for election was previously so approved; or
(iii) the sale, lease or transfer of all or substantially all of the
assets of the Company to any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act).
However, a Change in Control will not be deemed to have occurred if either:
(X) the last sale price of the Company's Common Stock for any five trading
days during the ten trading days immediately preceding the Change in
Control is at least equal to 105% of the then effective conversion
price on the date of such trading day; or
(Y) in the case of a merger or consolidation, all of the consideration
(excluding cash payments for fractional shares and cash payments
pursuant to dissenters' appraisal rights) in the merger or
consolidation constituting the Change in Control consists of common
stock traded on a U.S. national securities exchange or quoted on the
NNM (or which will be so traded or quoted when issued or exchanged in
connection with such Change in Control) and as a result of such
transaction or transactions the Securities become convertible solely
into such common stock.
9. CONVERSION. A Holder may convert his or her Security into Common Stock
of the Company at any time prior to the close of business on November 16, 2007,
or, (x) if the Security is called for redemption by the Company, the Holder may
convert it at any time before the close of business on the business day
immediately preceding the date fixed for such redemption, or (y) if the Security
is to be repurchased by the Company pursuant to PARAGRAPH 8 hereof, the Holder
may convert it at any time before the close of business on the business day
immediately preceding the Repurchase Date. The initial conversion rate is
161.9905 shares of Common Stock per $1,000 principal amount of Securities, or an
effective initial conversion price of approximately $6.17 per share, subject to
adjustment in the event of certain circumstances as specified in the Indenture.
The Company will deliver a check in lieu of any fractional share. On conversion
no payment or adjustment for any unpaid and accrued interest, or liquidated
damages with respect to, the Securities will be made. If a Holder surrenders a
Security for conversion between the record date for the payment of interest and
the next interest payment date, such Security, when surrendered for conversion,
must be accompanied by payment of an amount equal to the interest thereon which
the registered Holder on such record date is to receive, unless the Securities
have been called for redemption as described in the Indenture.
To convert a Security, a Holder must (1) complete and sign the Conversion
Notice, with appropriate signature guarantee, on the back of the Security, (2)
surrender the Security to a Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Registrar or Conversion
Agent, (4) pay the amount of interest, if any, the Holder may be paid as
provided in the last sentence of the above paragraph and (5) pay any transfer or
similar tax if required. A Holder may convert a portion of a Security if the
portion is $1,000 principal amount or a positive integral multiple of $1,000
principal amount.
Any shares issued upon conversion of a Security shall bear the Private
Placement Legend until after the second anniversary of the later of the issue
date for the Securities and the last date on which the Company or any Affiliate
of the Company was the owner of such shares or the Security (or any predecessor
security) from which such shares were converted (or such shorter period of time
as permitted by Rule 144(k) under the Securities Act or any successor provision
thereunder) (or such longer period of time as may be required under the
Securities Act or applicable state securities laws in the Opinion of Counsel for
the Company, unless otherwise agreed by the Company and the Holder thereof).
10. SUBORDINATION. The Securities are subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the prior payment in
full of all Senior Indebtedness. Each Holder by accepting a Security agrees to
such subordination and authorizes the Trustee to give it effect.
11. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered
form without coupons in denominations of $1,000 principal amount and positive
integral multiples of $1,000 principal amount. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents. 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. The Registrar need not exchange or register the transfer
of any Security selected for redemption in whole or in part, except the
unredeemed portion of Securities to be redeemed in part. Also, it need not
exchange or register the transfer of any Securities for a period of 15 days
before the mailing of a notice of redemption of the Securities selected to be
redeemed and in certain other circumstances provided in the Indenture.
12. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as the owner of such Security for all purposes.
13. MERGER OR CONSOLIDATION. The Company shall not consolidate with or
merge into, or transfer or lease all or substantially all of its properties and
assets to, another person unless such other person is a corporation organized
under the laws of the United States, any State thereof or the District of
Columbia or a corporation or comparable legal entity organized under the laws of
a foreign jurisdiction and whose equity securities are listed on a national
securities exchange in the United States or authorized for quotation on the NNM
prior to or upon giving effect to the transaction (PROVIDED HOWEVER, that in the
case of a transaction where the surviving entity is organized under the laws of
a foreign jurisdiction, the Company may not consummate the transaction without
first (i) making provision for the satisfaction of its obligations to repurchase
Securities following a Change in Control, if any, and (ii) obtaining an opinion
of tax counsel experienced in such matters to the effect that, under then
existing United States federal income tax laws, there would be no material
adverse tax consequences to holders of the Securities resulting from such
transaction); such person assumes by supplemental indenture all the obligations
of the Company, under the Securities and this Indenture; and immediately after
giving effect to the transaction, no Default or Event of Default shall exist.
14. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or the consent of
any Securityholder, the Indenture or the Securities may be amended or
supplemented to cure any ambiguity or inconsistency, to comply with SECTIONS
5.01 and 10.12 of the Indenture, to make any changes or modifications to the
Indenture necessary in connection with the registration of the Securities under
the Securities Act and the qualification of the Indenture under the TIA, to
secure the obligations of the Company in respect of the Securities, or to add to
covenants of the Company described in the Indenture for the benefit of
Securityholders or to surrender any right or power conferred upon the Company.
15. DEFAULTS AND REMEDIES. An Event of Default includes the occurrence of
any of the following: default in payment of principal at maturity, upon
redemption or exercise of a Repurchase Right or otherwise; default for 30 days
in payment of interest or other amounts due, provided that a failure to make any
of the first four scheduled interest payments on any Security within three (3)
business days after the applicable interest payment dates will constitute an
Event of Default with no additional grace or cure period; failure by the Company
for 60 days after
notice to it to comply with any of its other agreements in the Indenture or the
Securities; certain payment defaults or the acceleration of other Indebtedness
of the Company and its subsidiaries; certain events of bankruptcy or insolvency
involving the Company or its Significant Subsidiaries; the Pledge Agreement
cease to be in full force and effect or enforceable in accordance with its
terms; and default by the Company or failure by the Company to comply with the
Pledge Agreement or the Control Agreement, with no additional grace or cure
period. If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Securities then
outstanding may declare all the Securities to be due and payable immediately,
except as provided in the Indenture. If an Event of Default specified in SECTION
6.01(V) or (VI) of the Indenture with respect to the Company occurs, the
principal of and accrued interest on all the Securities shall IPSO FACTO become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Securityholder. Securityholders may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities then outstanding may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Securityholders notice of
any continuing Default or Event of Default (except a Default or Event of Default
in payment) if it determines that withholding notice is in the interests of the
Securityholders. The Company must furnish an annual compliance certificate to
the Trustee.
16. REGISTRATION RIGHTS. The Holders are entitled to registration rights as
set forth in the Registration Rights Agreement (as defined in the Indenture).
The Holders shall be entitled to receive liquidated damages in certain
circumstances, all as set forth in the Registration Rights Agreement.
17. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee under the Indenture, or
any banking institution serving as successor Trustee thereunder, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
18. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee or stockholder, as such, of the Company shall have any
liability for any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
19. AUTHENTICATION. This Security shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
20. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entirety), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to
Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
Ligand Pharmaceuticals Incorporated
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-1117
Facsimile: (000) 000-0000
Attention: President & Chief Executive Officer
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
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(please print or type name and address)
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the within Security and all rights thereunder, and hereby irrevocably
constitutes and appoints
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Attorney to transfer the Security on the books of the Company with full power of
substitution in the premises.
Dated:
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NOTICE: The signature on this assignment must
correspond with the name as it appears upon the face of the
within Security in every particular without alteration or
enlargement or any change whatsoever and be guaranteed by a
guarantor institution participating in the Securities
Transfer Agents Medallion Program or in such other guarantee
program acceptable to the Trustee.
Signature Guarantee:
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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 Resale Restriction Termination Date, the undersigned
confirms that it has not utilized any general solicitation or general
advertising in
connection with transfer:
[Check One]
(1) ____ to the Company or any subsidiary thereof; or
(2) ____ pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
(3) ____ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act of 1933, as amended; or
(4) ____ pursuant to an effective registration statement under the Securities
Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "AFFILIATE"):
_________The transferee is an Affiliate of the Company. (If the
Security is transferred to an Affiliate, the restrictive legend must remain on
the Security for two years following the date of the transfer).
Unless one of the items 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, HOWEVER, that if item
(3) or (4) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Securities, in their sole discretion, such
written legal opinions, certifications and other information as the Trustee or
the Company have reasonably requested 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 of 1933, as amended.
If none of the foregoing items are checked, the Trustee or 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 2.16 of the Indenture shall have
been satisfied.
Dated: Signed:
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(Sign exactly as name appears on the other
side of this Security)
Signature Guarantee:
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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 of
1933, as amended, 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
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
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NOTICE: To be executed by an executive officer
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box:______
To convert only part of this Security, state the principal amount to be
converted (must be in multiples of $1,000):
$_________________________
If you want the stock certificate made out in another person's name, fill in the
form below:
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(Insert other person's soc. sec. or tax I.D. no.)
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(Print or type other person's name, address and zip code)
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Date:______________ Signature(s):
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(Sign exactly as your name(s) appear(s) on
the other side of this Security)
Signature(s) guaranteed by:
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(All signatures must be guaranteed by a guarantor
institution participating in the Securities Transfer Agents
Medallion Program or in such other guarantee program
acceptable to the Trustee.)
OPTION OF HOLDER TO ELECT PURCHASE NOTICE
Certificate No. of Security: ___________
If you want to elect to have this Security purchased by the Company
pursuant to SECTION 3.08 of the Indenture, check the box:
If you want to elect to have only part of this Security purchased by the
Company pursuant to SECTION 3.08 of the Indenture, state the principal amount:
$_________________________
(in an integral multiple of $1,000)
Date:__________________ Signature(s):
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(Sign exactly as your name(s)
appear(s) on the other side of
this Security)
Signature(s) guaranteed by:
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(All signatures must be guaranteed by a guarantor
institution participating in the Securities Transfer Agents
Medallion Program or in such other guarantee program
acceptable to the Trustee.)
SCHEDULE A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITYa.
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The following exchanges of a part of this Global Security for an interest
in another Global Security or for Securities in certificated form, have been
made:
Principal amount of
Amount of decrease Amount of increase in this Global Signature or
in Principal amount Principal amount of Security following authorized signatory
of this Global this Global Security such decrease of Trustee or Note
Date of Exchange Security (or increase) Custodian
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a This is included in Global Notes only.
