EXHIBIT 4.1
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CADENCE DESIGN SYSTEMS, INC.
as Issuer
AND
X.X. XXXXXX TRUST COMPANY, National Association
as Trustee
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INDENTURE
Dated as of August 15, 2003
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Zero Coupon Zero Yield Senior Convertible Notes Due 2023
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions..................................................................... 1
Section 1.02. Compliance Certificates and Opinions............................................ 10
Section 1.03. Form of Documents Delivered to Trustee.......................................... 11
Section 1.04. Acts of Holders; Record Dates................................................... 11
Section 1.05. Notices, Etc., to Trustee and Company........................................... 12
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........................................ 14
Section 1.09. Successors and Assigns.......................................................... 14
Section 1.10. Severability Clause............................................................. 14
Section 1.11. Benefits of Indenture........................................................... 14
Section 1.12. Governing Law................................................................... 14
Section 1.13. Legal Holiday................................................................... 14
ARTICLE 2
SECURITY FORMS
Section 2.01. Forms Generally................................................................. 14
Section 2.02. Form of Face of Security......................................................... 15
Section 2.03. Form of Reverse of Security..................................................... 19
Section 2.04. Form of Trustee's Certificate of Authentication................................. 30
Section 2.05. Legend on Restricted Securities................................................. 30
ARTICLE 3
THE SECURITIES
Section 3.01. Title and Terms................................................................. 30
Section 3.02. Denominations................................................................... 31
Section 3.03. Execution, Authentication, Delivery and Dating.................................. 31
Section 3.04. Temporary Securities............................................................ 31
Section 3.05. Registration; Registration of Transfer and Exchange; Restrictions on Transfer... 32
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities................................ 34
Section 3.07. Persons Deemed Owners........................................................... 35
Section 3.08. Book-Entry Provisions for Global Securities..................................... 35
Section 3.09. Cancellation and Transfer Provisions............................................ 37
Section 3.10. CUSIP Numbers................................................................... 38
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ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture......................................... 39
Section 4.02. Application of Trust Money...................................................... 39
ARTICLE 5
REMEDIES
Section 5.01. Events of Default............................................................... 40
Section 5.02. Acceleration of Maturity; Rescission and Annulment.............................. 41
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee................. 42
Section 5.04. Trustee May File Proofs of Claim................................................ 43
Section 5.05. Application of Money Collected.................................................. 43
Section 5.06. Limitation on Suits............................................................. 44
Section 5.07. Unconditional Right of Holders to Receive Payment............................... 44
Section 5.08. Restoration of Rights and Remedies.............................................. 45
Section 5.09. Rights and Remedies Cumulative.................................................. 45
Section 5.10. Delay or Omission Not Waiver.................................................... 45
Section 5.11. Control by Holders.............................................................. 45
Section 5.12. Waiver of Past Defaults......................................................... 45
Section 5.13. Undertaking for Costs........................................................... 46
Section 5.14. Waiver of Stay or Extension Laws................................................ 46
ARTICLE 6
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities............................................. 46
Section 6.02. Notice of Defaults.............................................................. 47
Section 6.03. Certain Rights Of Trustee....................................................... 47
Section 6.04. Not Responsible for Recitals.................................................... 49
Section 6.05. May Hold Securities............................................................. 49
Section 6.06. Money Held in Trust............................................................. 49
Section 6.07. Compensation and Reimbursement.................................................. 49
Section 6.08. Disqualification; Conflicting Interests......................................... 50
Section 6.09. Corporate Trustee Required; Eligibility......................................... 50
Section 6.10. Resignation and Removal; Appointment of Successor............................... 50
Section 6.11. Acceptance of Appointment by Successor.......................................... 52
Section 6.12. Merger, Conversion, Consolidation or Succession to Business..................... 52
Section 6.13. Preferential Collection of Claims Against....................................... 53
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ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders....................... 53
Section 7.02. Preservation of Information; Communications to Holders.......................... 53
Section 7.03. Reports By Trustee.............................................................. 54
Section 7.04. Reports by Company.............................................................. 54
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, etc., Only on Certain Terms............................ 54
Section 8.02. Successor Substituted........................................................... 55
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.............................. 55
Section 9.02. Supplemental Indentures With Consent of Holders................................. 57
Section 9.03. Execution of Supplemental Indentures............................................ 58
Section 9.04. Effect of Supplemental Indentures............................................... 58
Section 9.05. Conformity with Trust Indenture Act............................................. 58
Section 9.06. Reference in Securities to Supplemental Indentures.............................. 58
ARTICLE 10
COVENANTS
Section 10.01. Payments....................................................................... 59
Section 10.02. Maintenance of Office or Agency................................................ 59
Section 10.03. Money for Security Payments to be Held in Trust................................ 60
Section 10.04. Statement by Officers as to Default............................................ 61
Section 10.05. Existence...................................................................... 61
Section 10.06. Reports and Delivery of Certain Information.................................... 61
Section 10.07. Resale of Certain Securities................................................... 62
Section 10.08. Book-Entry System.............................................................. 62
Section 10.09. Liquidated Damages Under the Registration Rights Agreement..................... 62
Section 10.10. Information for IRS Filings.................................................... 63
Section 10.11. Calculation Of Original Issue Discount......................................... 63
ARTICLE 11
REDEMPTION AND REPURCHASES
Section 11.01. Right to Redeem; Notices to Trustee............................................ 63
Section 11.02. Selection of Securities to be Redeemed......................................... 63
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Section 11.03. Notice of Redemption........................................................... 64
Section 11.04. Effect of Notice of Redemption................................................. 65
Section 11.05. Deposit of Redemption Price.................................................... 65
Section 11.06. Securities Redeemed in Part.................................................... 65
Section 11.07. Conversion Arrangement on Call for Redemption.................................. 65
Section 11.08. Repurchase of Securities at Option of the Holder............................... 66
Section 11.09. Repurchase of Securities at Option of the Holder Upon Fundamental Change....... 69
Section 11.10. Effect of Repurchase Notice or Fundamental Change Repurchase Notice............ 75
Section 11.11. Deposit of Repurchase Price or Fundamental Change Repurchase Price............. 76
Section 11.12. Securities Repurchased in Whole or in Part..................................... 76
Section 11.13. Covenant to Comply With Securities Laws Upon Repurchase of Securities.......... 77
Section 11.14. Repayment to the Company....................................................... 77
ARTICLE 12
[RESERVED]
ARTICLE 13
CONVERSION
Section 13.01. Conversion Privilege........................................................... 77
Section 13.02. Conversion Procedure........................................................... 81
Section 13.03. Fractional Shares.............................................................. 82
Section 13.04. Taxes on Conversion............................................................ 82
Section 13.05. Company to Provide Stock....................................................... 83
Section 13.06. Adjustment of Conversion Rate.................................................. 83
Section 13.07. No Adjustment.................................................................. 89
Section 13.08. Adjustment for Tax Purposes.................................................... 89
Section 13.09. Notice of Conversion Rate Adjustment........................................... 89
Section 13.10. Notice of Certain Transactions................................................. 89
Section 13.11. Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege 90
Section 13.12. Trustee's Disclaimer........................................................... 91
Section 13.13. Voluntary Increase............................................................. 91
Section 13.14. Company Determination Final.................................................... 91
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INDENTURE, dated as of August 15, 2003, between Cadence Design Systems,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware, as Issuer (the "COMPANY"), having its principal office at 0000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 and X.X. Xxxxxx Trust Company, National
Association, a national banking association duly organized under the laws of the
United States of America, as Trustee (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of Zero Coupon
Zero Yield Senior Convertible Notes Due 2023 (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 obligations of the Company, and to make this Indenture a
valid 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 1
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:
(i) the terms defined in this Article 1 have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(ii) 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;
(iii) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP; and
(iv) 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.
"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 3.08.
"BID SOLICITATION AGENT" means an independent nationally recognized
securities dealer selected by the Company to solicit market bid quotations for
the Securities, which initially shall be the Trustee and in no event shall it be
an Affiliate of the Company.
"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 or San Francisco are
authorized or obligated by law, or executive order or governmental decree to be
closed.
"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 EVENT" means any transaction or event (whether by
means of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or sale of all or substantially
all of
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the Company's assets or otherwise) in connection with which all or substantially
all of the Common Stock is exchanged for, converted into, acquired for or
constitutes solely the right to receive, consideration which is not all or
substantially all common stock or American Depositary Shares that (i) is listed
on, or immediately after the transaction or event will be listed on, a United
States national securities exchange, or (ii) is approved, or immediately after
the transaction or event will be approved, for quotation on the NASDAQ National
Market or any similar United States system of automated dissemination of
quotations of securities prices.
"CLOSING PRICE" with respect to the Company's Common Stock on any date
means the closing price on such date as reported by the New York Stock Exchange
or such other principal U.S. securities exchange on which the Company's Common
Stock is then listed, or if the Company's Common Stock is not listed on a U.S.
national or regional exchange, as reported on the National Association of
Securities Dealers Automated Quotation System, or if the Company's Common Stock
is not quoted on the National Association of Securities Dealers Automated
Quotation System, as reported on the principal other market on which the
Company's Common Stock is then traded. In the absence of such quotations, the
Board of Directors of the Company will make a good faith determination of the
sale price.
"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 STOCK" means the shares of Common Stock, par value $0.01 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 NOTICE" has the meaning specified in Section 11.08.
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"COMPANY NOTICE DATE" has the meaning specified in Section 11.08.
"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 President or any Vice President, and by its Chief
Financial Officer, 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 the date hereof 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 Fundamental Change 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 13.02(a).
"CONVERSION PERIOD" means the period from and including the eleventh
trading day in any of the Company's fiscal quarters (beginning with the quarter
ending January 3, 2004) up to but not including the eleventh trading day of the
following fiscal quarter.
"CONVERSION PRICE" has the meaning specified in Section 13.01(c).
"CONVERSION RATE" has the meaning specified in Section 13.01(c).
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, Attention:
Institutional Trust Services, and shall mean for purposes of Section 10.02, c/o
X.X. Xxxxxx Chase Bank, Institutional Trust Services Window, 0 Xxx Xxxx Xxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
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"CORPORATION" means a corporation, association, company, joint-stock
company or business trust.
"CURRENT MARKET PRICE" has the meaning specified in Section 13.06(f).
"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.
"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.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"FUNDAMENTAL CHANGE" means any transaction or event resulting in either
a Change of Control Event or a Termination of Trading.
"FUNDAMENTAL CHANGE COMPANY NOTICE" has the meaning specified in
Section 11.09.
"FUNDAMENTAL CHANGE REPURCHASE DATE" has the meaning specified in
Section 11.09.
"FUNDAMENTAL CHANGE REPURCHASE NOTICE" has the meaning specified in
Section 11.09.
"FUNDAMENTAL CHANGE REPURCHASE PRICE" has the meaning specified in the
Securities.
"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 on the date hereof.
"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.
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"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" means X.X. Xxxxxx Securities Inc. and XX Xxxxx
Securities Corporation.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"ISSUE DATE" means the date the Securities are originally issued as set
forth on the face of the Security under this Indenture.
"LIQUIDATED DAMAGES" shall mean the Liquidated Damages as defined in
the Registration Rights Agreement.
"MATURITY", when used with respect to any Security, means the date on
which the principal, Repurchase Price or Fundamental Change Repurchase Price of
such Security becomes due and payable as therein or herein provided, whether at
the Stated Maturity, on a Redemption Date, Repurchase Date or Fundamental Change
Repurchase Date, or by declaration of acceleration or otherwise.
"NOTICE OF DEFAULT" has the meaning specified in Section 5.01.
"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, and who shall be reasonably
acceptable to the Trustee.
"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;
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(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided that if such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given to
the Holders as herein provided, or provision satisfactory to a
Responsible Officer of the Trustee shall have been made for giving such
notice; and
(iii) Securities that have been paid or in exchange for or
in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture;
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 (including the Company) authorized by
the Company to pay the principal of, Liquidated Damages on, 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.
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"PRINCIPAL VALUE CONVERSION" has the meaning specified in Section
13.01(a)(ii).
"PURCHASE AGREEMENT" means the Purchase Agreement, dated August 11,
2003, 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" means each February 1 and August 1 (whether or not a
Business Day).
"REDEMPTION DATE" shall mean the date specified for redemption of the
Securities in accordance with the terms of the Securities and Article 11 hereof.
"REDEMPTION PRICE" has the meaning specified in the Securities.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of August 15, 2003, between the Company and the Initial
Purchasers, for the benefit of themselves and the Holders, as the same may be
amended or modified from time to time in accordance with the terms thereof.
"REPURCHASE DATE" has the meaning specified in Section 11.08.
"REPURCHASE NOTICE" has the meaning specified in Section 11.08.
"REPURCHASE PRICE" has the meaning specified in the Securities.
"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 GLOBAL SECURITY" means a Global Security representing
Restricted Securities.
"RESTRICTED SECURITY" or "RESTRICTED SECURITIES" has the meaning
specified in Section 2.05.
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"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 the Securities.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"SECURITY" or "SECURITIES" has the meaning specified in the first
paragraph of the Recitals of the Company.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.05.
"SIGNIFICANT SUBSIDIARY" means Cadence Technology Inc. and Cadence
Design Systems (Ireland) Limited.
"STATED MATURITY," when used with respect to any Security, means the
date specified in such Security as the fixed date on which an amount equal to
the principal amount of such Security together with accrued and unpaid
Liquidated Damages, if any, is due and payable.
"STOCK TRANSFER AGENT" means Mellon Investor Services LLC (formerly
ChaseMellon Shareholder Services LLC) 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.
"SURVIVING ENTITY" has the meaning specified in Section 8.01.
"TERMINATION OF TRADING" means that the Company's Common Stock or other
common stock into which the Securities are convertible is neither listed for
trading on a United States national securities exchange nor approved for listing
on the NASDAQ National Market or any similar United States system of automated
dissemination of quotations of securities prices, and no America depositary
shares or similar instruments for such common stock are so listed or approved
for listing in the United States.
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"TRADING DAY" means (x) if the applicable security is quoted on the
Nasdaq National Market System or Nasdaq SmallCap Market, a day on which trades
may be made on thereon or (y) if the applicable security is listed or admitted
for trading on the New York Stock Exchange or another national security
exchange, a day on which the New York Stock Exchange or such other national
security exchange is open for business or (z) if the applicable security is not
so listed, admitted for trading or quoted, any Business Day.
"TRADING PRICE" has the meaning specified in Section 13.01(a)(ii).
"TRADING PRICE CONDITION" has the meaning set forth in Section
13.01(a)(ii).
"TRANSFER RESTRICTED SECURITY" means a Security required to bear the
restricted legend set forth in the form of Security in Section 2.02.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in
effect on the date as of which this Indenture was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 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;
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(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.
Section 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon 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
11
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as an
"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 7.01)
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
12
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office;
or
(ii) 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: Secretary.
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.
Whenever under this Indenture the Trustee is required to provide any
notice by mail, in all cases the Trustee may alternatively provide notice by
overnight courier or by telefacsimile, with confirmation of transmission.
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 hereunder 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.
13
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, and all Article and Section references
are to Articles and Sections, respectively, of this Indenture unless otherwise
expressly stated.
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. Severability 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. In any case where the Stated Maturity of
any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of principal need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on at the Stated Maturity.
ARTICLE 2
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, 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.
14
The Securities shall initially be issued in the form of permanent
Global Securities in registered form in substantially the form set forth in this
Article. 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 (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY AND THE COMMON
STOCK ISSUABLE UPON CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF CADENCE DESIGN
SYSTEMS, INC. THAT (A) PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE
TO SALES OF THIS SECURITY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION HEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
TO (I) CADENCE DESIGN SYSTEMS, INC. OR ANY SUBSIDIARY THEREOF, (II) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE
RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE. THIS LEGEND WILL BE REMOVED UPON
THE EARLIER OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE (A)(IV) ABOVE OR
UPON ANY TRANSFER OF THIS SECURITY UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION). THE INDENTURE CONTAINS A
15
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER THE TRANSFER OF THIS
SECURITY IN VIOLATION OF THE FOREGOING RESTRICTION. IN ADDITION, THE HOLDER
HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH
REGARD TO THIS SECURITY OR THE COMMON STOCK ISSUABLE UPON THE CONVERSION HEREOF
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT (OR ANY SUCCESSOR ACT).
[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.]
THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR U.S. FEDERAL
INCOME TAX PURPOSES. FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL
REVENUE CODE, THE ISSUE PRICE OF EACH SECURITY IS $[ ] PER $1,000 OF PRINCIPAL
AMOUNT, THE ISSUE DATE IS AUGUST 15, 2003 AND THE YIELD TO MATURITY IS [ ]%,
COMPOUNDED [SEMI-ANNUALLY].
16
CADENCE DESIGN SYSTEMS, INC.
ZERO COUPON ZERO YIELD SENIOR CONVERTIBLE NOTES DUE 2023
No. [ ] CUSIP XX. 000000 XX 0 X.X. $[ ]
Cadence Design Systems, Inc., a corporation duly organized and validly
existing under the laws of the State of Delaware (herein called the "COMPANY"),
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received hereby promises to pay to [ ], or
registered assigns, the principal sum of [ ] United States Dollars ($ )
[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 August 15, 2023. 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 Company, by wire
transfer in immediately available funds, 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 August 15, 2003.
Reference is made to the further provisions of this Security set forth
on the reverse hereof, including, without limitation, provisions giving the
Company the right to repurchase this Security commencing August 15, 2008, the
right to convert this Security into Common Stock of the Company subject to the
occurrence of certain events and the right of the Holder of this Security to
require the Company to repurchase this Security on certain dates and upon
certain events, in each case, 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. Capitalized terms used but not defined herein
shall have such meanings as are ascribed to such terms in the Indenture.
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.
17
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CADENCE DESIGN SYSTEMS, INC.
By: _________________________
Authorized Signatory
18
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 Zero
Coupon Zero Yield Senior Convertible Notes Due 2023 (the "SECURITIES"), all
issued or to be issued under and pursuant to an Indenture, dated as of August
15, 2003 (the "INDENTURE"), between the Company and X.X. Xxxxxx Trust Company,
National Association (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 senior indebtedness of the Company and ranks equally with the
Company's other unsecured and unsubordinated senior indebtedness.
Redemption at the Option of the Company. No sinking fund is provided
for the Securities. The Securities are redeemable as a whole, or from time to
time in part, at any time commencing on August 15, 2008 at the option of the
Company at a redemption price (the "REDEMPTION PRICE") equal to 100%, expressed
as a percentage of the Principal Amount of Securities to be redeemed, together
with accrued and unpaid Liquidated Damages, if any, to, but excluding, the
Redemption Date.
Repurchase by the Company at the Option of the Holder. Subject to the
terms and conditions of the Indenture, the Company shall become obligated to
repurchase, at the option of the Holder, on each Repurchase Date, the Securities
held by such Holder as follows:
Repurchase Date % of Principal Amount
--------------- ---------------------
August 15, 2008 100.25
August 15, 2013 100.00
August 15, 2018 100.00
plus accrued and unpaid Liquidated Damages, if any, to, but excluding, the
Repurchase Date (the "REPURCHASE PRICE"), upon delivery of a Repurchase Notice
containing the information set forth in the Indenture, at any time from the
opening of business on the date that is 30 days prior to such Repurchase Date
until the close of business on the Business Day prior to such Repurchase Date
and upon delivery of the Securities to the Paying Agent by the Holder as set
forth in the Indenture. The Repurchase Price will be paid in cash.
Repurchase by the Company at the Option of the Holder Upon a
Fundamental Change. Subject to the terms and conditions of the Indenture, the
Company shall become obligated, at the option of the Holder, to repurchase the
Securities if a Fundamental Change occurs at any time prior to the Stated
Maturity at 100% of the Principal Amount plus accrued and unpaid Liquidated
19
Damages, if any, to, but excluding, the Fundamental Change Repurchase Date (the
"FUNDAMENTAL CHANGE REPURCHASE PRICE"), which Fundamental Change Repurchase
Price will be paid in cash; provided that if a Fundamental Change results from a
Change of Control Event, the Company may elect, subject to the satisfaction of
certain conditions described in the Indenture, to pay all or a portion of the
Fundamental Change Repurchase Price in Common Stock or a combination of cash and
Common Stock. The number of shares of Common Stock a Holder will receive will
equal the quotient obtained by dividing (i) the portion of the Fundamental
Change Repurchase Price to be paid in shares of Common Stock by (ii) 95% of the
average Closing Price of the shares of Common Stock for the five Trading Day
period immediately preceding but ending on the second Business Day immediately
preceding the Fundamental Change Repurchase Date, subject to adjusted as
described in the Indenture. Notwithstanding the foregoing, a Holder will not
have the right to require the Company to repurchase the Securities upon a Change
of Control Event constituting a Fundamental Change if the Closing Price per
share of the Company's Common Stock for any five Trading Days within the period
of 10 consecutive Trading Days ending immediately after the later of the Change
of Control Event and the public announcement of the Change of Control Event
exceeds 105% of the Conversion Price of the Securities in effect on each of
those five Trading Days.
Withdrawal of Repurchase Notice and Fundamental Change Repurchase
Notice. Holders have the right to withdraw, in whole or in part, any Repurchase
Notice or Fundamental Change Repurchase Notice, as the case may be, by
delivering to the Paying Agent a written notice of withdrawal in accordance with
the provisions of the Indenture.
Payment of Redemption Price, Repurchase Price and Fundamental Change
Repurchase Price. If cash and/or Common Stock, if permitted under the Indenture,
sufficient to pay the Redemption Price, Repurchase Price or Fundamental Change
Repurchase Price, as the case may be, of all Securities or portions thereof to
be redeemed or repurchased on a Redemption Date, Repurchase Date or on a
Fundamental Change Repurchase Date, as the case may be, is deposited with the
Paying Agent on the Business Day following the Redemption Date, Repurchase Date
or the Fundamental Change Repurchase Date, as the case may be, such Securities
will cease to be outstanding and Liquidated Damages, if any, will cease to
accrue on such Securities (or portions thereof) immediately after such
Redemption Date, Repurchase Date or Fundamental Change Repurchase Date, as the
case may be, and the Holder thereof shall have no other rights as such (other
than the right to receive the Redemption Price, Repurchase Price or Fundamental
Change Repurchase Price, as the case may be, upon surrender of such Security).
Conversion. Subject to the terms and conditions of the Indenture, a
Holder may convert each of its Securities into shares of the Company's common
20
stock at an initial conversion rate of $63.8790 shares per $1,000 Principal
Amount of Securities (the "CONVERSION RATE"), at any time prior to the close of
business on August 15, 2023. The Conversion Rate in effect at any given time is
subject to adjustment. A Holder may convert fewer than all of such Holder's
Securities so long as the Securities converted are an integral multiple of
$1,000 principal amount. Holders will not receive any cash payment representing
accrued and unpaid Liquidated Damages, if any, upon conversion of a Security.
Accrued and unpaid Liquidated Damages, if any, will be deemed paid in full
rather than canceled, extinguished or forfeited.
Holders may surrender their Securities for conversion, in whole or in
part, into shares of the Company's Common Stock upon the occurrence of the
following circumstances (in each case, as more fully described in the
Indenture): (A) if (i) during any Conversion Period prior to August 15, 2018 the
Closing Price of the Company's Common Stock for at least 20 Trading Days in the
30 Trading Day period ending on the first day of such Conversion Period exceeds
145% of the Conversion Price of the Securities on the first day of such
Conversion Period or (ii) during anytime on or after August 15, 2018 through the
close of business on the Business Day prior to the Stated Maturity, the Closing
Price of the Company's Common Stock is more than 145% of the Conversion Price of
the Company's Common Stock; (B) if during the five consecutive Business Day
period following any five consecutive Trading Day period in which the average
Trading Price for the Securities was less than 98% of the product of the average
Closing Price of the Company's Common Stock during such five Trading Day period
and the Conversion Rate; provided that if on the date of any conversion pursuant
to a Trading Price Condition that is on or after August 15, 2018, the Closing
Price of the Company's Common Stock on the Trading Day prior to the Conversion
Date is greater than 100% of the Conversion Price, Holders surrendering
Securities for conversion will receive, in lieu of shares of Common Stock based
on the Conversion Rate, shares of Common Stock with a value equal to the
Principal Value Conversion; (C) if a Security is called for redemption, at any
time prior to the close of business on the Business Day prior to the Redemption
Date, even if the Securities are not otherwise convertible at such time; or (D)
if the Company elects to (i) distribute to all or substantially all holders of
the Company's Common Stock certain rights entitling them to purchase shares of
the Company's Common Stock at less than the Closing Price of a share of the
Company's Common Stock on the trading day preceding the declaration date for
such distribution or (ii) distribute to all or substantially all holders of the
Company's common stock its assets, debt securities or certain rights to purchase
its securities, which distribution has a per share value as determined by the
Company's Board of Directors exceeding 5% of the Closing Price of the Company's
Common Stock on the Trading Day preceding the declaration date for such
distribution.
21
[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 Liquidated Damages, if any, through such date on all the Securities
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 any provision of or applicable to 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
22
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, 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 the Trustee 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, Repurchase Price or
Fundamental Change Repurchase Price of, and Liquidated Damages, if any, on, this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
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.
23
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.
24
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.
25
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, 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) [ ] to the Company or a subsidiary thereof; or
(2) [ ] to a "Qualified Institutional Buyer"
pursuant to and in compliance with Rule
144A under the Securities Act; or
(3) [ ] pursuant to the exemption from
registration provided by Rule 144 under
the Securities Act.
Unless one of the above 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) is checked,
the Company may require, prior to registering any such transfer of the
Securities, in its sole discretion, such legal opinions, certifications 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 3.09 of the Indenture
shall have been satisfied.
Date:___________________ Signed:___________________________________
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:___________________________________________________
26
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.
27
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.
28
CONVERSION NOTICE
If you want 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 (which must be $1,000 or an integral multiple of $1,000):
$_______________________________
If you want the stock certificate 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.
29
90
Section 2.04. Form of Trustee's Certificate of Authentication. This is
one of the Securities referred to in the within-mentioned Indenture.
Dated: __________ X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, 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 3.05. 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 3.05 and Section 3.09, the Trustee shall not issue any
unlegended Security until it has received an Officers' Certificate from the
Company directing it to do so.
ARTICLE 3
THE SECURITIES
Section 3.01. Title and Terms. The aggregate Principal Amount of
Securities that may be authenticated and delivered under this Indenture is
initially limited to $350,000,000 (subject to increase by up to $70,000,000 in
the event the Initial Purchasers exercise the option granted to them in the
Purchase Agreement), except for Securities authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.06 or 11.12.
The Securities shall be known and designated as the "Zero Coupon Zero
Yield Senior Convertible Notes Due 2023" of the Company. The Principal Amount
shall be payable at the Stated Maturity.
The Principal Amount and accrued Liquidated Damages, if any, on the
Securities shall be payable at the office or agency of the Company in The City
of New York maintained for such purpose and at any other office or agency
maintained by the Company for such purpose; provided, however, that at the
option of the Company payments may be made by wire transfer or by check
30
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Securities shall not have the benefit of a sinking fund.
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 President or one of its Vice Presidents.
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
31
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. Registration; Registration of Transfer and Exchange;
Restrictions on Transfer. (a) The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency designated pursuant to Section
10.02 being herein sometimes collectively referred to as the "SECURITY
REGISTER") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" (the "SECURITY
REGISTRAR") for the purpose of registering Securities and transfers of
Securities as herein provided.
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 Sections 2.02, 2.05 and 3.09).
At the option of the Holder and subject to the other provisions of this
Section 3.05 and to Section 3.09, 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
32
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 3.09, 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 Sections 2.02 and 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 not involving any transfer.
The Company shall not be required to exchange or register a transfer of
any Security (i) during the 15-day period immediately preceding the mailing of
any notice of redemption of any Security, (ii) after any notice of redemption
has been given to Holders, except, where such notice provides that such Security
is to be redeemed only in part, the Company shall be required to exchange or
register a transfer of the portion thereof not to be redeemed, (iii) that has
been surrendered for conversion or (iv) as to which a Repurchase Notice or
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 Sections 2.02 and
2.05, unless such restrictions on transfer shall be terminated in accordance
with this Section 3.05(b)
33
or Section 3.09. 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 3.05 and by Sections 2.02,
2.05 and 3.09 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 3.05, be
exchanged for a new Security, of like tenor and aggregate Principal Amount,
which shall not bear the restrictive legends required by Sections 2.02 and 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 3.05, 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 relating to
any transfers or exchanges other than as specifically required hereunder.
Section 3.06. 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.
34
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable or has been called for redemption
in full, 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 3.06, the
Company may require payment by the Holder 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 3.06 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 3.07. 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
the principal of 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 3.08. 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
35
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. Interests of beneficial owners in a Global Security may be
transferred or exchanged, in whole or in part, for Physical Securities in
accordance with the rules and procedures of the Depositary and the provisions of
Section 3.09. In addition, Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in the Global
Securities 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 either such case, no successor
Depositary shall have been appointed within 90 days of such notification or of
the Company becoming aware of such event; or (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 the Trustee requests that Physical Securities be issued; 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.
(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) above, 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) above, 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) above shall, except as otherwise provided by paragraph (c)
of Section 3.09, 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.
36
(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 3.09. Cancellation and Transfer Provisions. 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 13 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.
(a) 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:
(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
37
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.
(b) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Securities not bearing the legends required by
Sections 2.02 and 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 Sections 2.02 and
2.05, the Security Registrar shall deliver only Securities that bear such
legends unless 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.
(c) General. By its acceptance of any Security bearing the legends
required by Sections 2.02 and 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 3.09. 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 3.10. CUSIP Numbers. In issuing the Securities, the Company may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
38
ARTICLE 4
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
(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 3.06
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.
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 Section 4.01(a)(ii), the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
10.03 shall survive.
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
39
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal and Liquidated Damages, if any, for whose payment such money has been
deposited with the Trustee.
ARTICLE 5
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 Liquidated Damages, if any, on any
Securities when due and payable and such default continues for a period of 30
days; or
(b) 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
(c) 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 paragraph (a) or (b) above), and such default continues 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
(d) default in the Company's obligation to convert the Securities
into shares of its Common Stock upon exercise of a Holder's conversion rights in
accordance with Article 13 hereof and such default continues for a period of 10
days; or
(e) default by the Company or any Significant Subsidiary in the
payment of the principal or interest on any loan agreement or other loan
instrument under which there may be outstanding, or by which there may be
evidenced, any debt for money borrowed in excess of $25.0 million in the
aggregate of the Company and/or any Significant Subsidiary (other than
indebtedness for borrowed money secured only by the real property to which the
indebtedness relates and which is non-recourse to the Company or to such
Significant Subsidiary), whether such debt now exists or shall hereafter be
created, resulting in such debt becoming or being declared due and payable prior
40
to its stated maturity, and such acceleration shall not have been rescinded or
annulled within 30 days after written notice has been received by the Company or
such Significant Subsidiary from the Trustee; provided that if any time before a
judgment or decree has been obtained by the Trustee as hereinafter provided,
such default is remedied or cured by the Company within the applicable cure
period, or is waived by the holders of such indebtedness, default under this
paragraph (e) shall be deemed to have been remedied, cured or waived, as the
case may be; or
(f) failure by the Company to give the Fundamental Change Company
Notice; 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 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 decree or order unstayed
and in effect for a period of 60 consecutive days; or
(h) the commencement by the Company 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, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. (a)
If an Event of Default (other than those specified in 5.01(g) and 5.01(h))
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 Liquidated Damages, if
41
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 and unpaid
Liquidated Damages, 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) or 5.01(h), the Principal Amount plus accrued and
unpaid Liquidated Damages, if any, on all Outstanding Securities will ipso facto
become due and payable without any declaration or other Act on the part of the
Trustee or any Holder.
(a) 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 5 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) such rescission and annulment will not conflict with
any judgment or decree of a court of competent jurisdiction; and
(ii) all Events of Default, other than the non-payment of
the Principal Amount plus accrued and unpaid Liquidated Damages, if
any, on Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if a default is made in the payment of the
Principal Amount plus accrued and unpaid Liquidated Damages, if any, at the
Maturity thereof or in the payment of the Redemption Price, the Repurchase Price
or the 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.
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 Liquidated Damages, if any, on the
Securities or to enforce the performance of any provision of the Securities or
this
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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. 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 5.05. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money 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 Liquidated Damages, 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.
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Section 5.06. 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 5.01(b)), unless:
(i) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(ii) 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;
(iii) 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;
(iv) the Trustee for 60 days after its receipt of such
notice, request and offer of security or indemnity has failed to
institute any such proceeding; and
(v) no direction, in the opinion of the Trustee,
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 itself 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 5.07. 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 Liquidated Damages, if any, in respect of
the Securities held by such Holder, on or after the respective due dates
expressed in the Securities or any Redemption Date, Repurchase Date or
Fundamental Change Purchase Date, as applicable, and to convert the Securities
in accordance with Article 13, 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.
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Section 5.08. 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 5.09. 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 3.06, 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 shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 5.10. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.11. 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:
(i) such direction shall not be in conflict with any rule
of law or with this Indenture; and
(ii) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
Section 5.12. 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:
45
(i) Described in Section 5.01(a) or (b); or
(ii) in respect of a covenant or provision hereof which
under Article 9 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 5.13. 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, 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 5.13 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 on any Security on or after Maturity of such Security, the
Redemption Price, the Repurchase Price or the Fundamental Change Repurchase
Price.
Section 5.14. 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 6
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.
Except during the continuance of an Event of Default, the Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this
46
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee. 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. 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;
provided, that (except in the case of any Default in the payment of Principal
Amount or Liquidated Damages, if any, on any of the Securities, 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 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,
request and 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
47
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 misconduct or
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, director, officer,
employee and other Person employed to act hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
48
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.
(l) The permissive rights of the Trustee to take certain actions
under this Indenture shall not be construed as a duty unless so specified
herein.
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, sufficiency or priority 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 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:
(i) 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);
(ii) 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 negligence or willful misconduct; and
49
(iii) to indemnify the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
including taxes (other than taxes based upon, measured by or determined
by the income of the Trustee) incurred without negligence or willful
misconduct 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.
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 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 Sections 5.01(g) or 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 U.S.
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, or whose parent
banking company 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 said supervising or examining authority, then for the
purposes of this Section 6.09, 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 6.09, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
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 6 shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
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(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 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 5.13, 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,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in Principal Amount of the Outstanding Securities
delivered to the
51
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, 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.
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 6.
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 by sale or otherwise, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article 6, 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
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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 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 7.01. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(i) semi-annually, not more than 15 days after each
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Record
Date; and
(ii) 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar; provided, however, that no such list need be
furnished so long as the Trustee is acting as Security Registrar.
Section 7.02. 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 7.01 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 7.01 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
53
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 7.03. 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, 2004. 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, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when the Securities are listed on
any stock exchange or of any delisting thereof.
Section 7.04. Reports by Company. 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 upon request the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act. 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). It is expressly
understood that materials transmitted electronically by the Company to the
Trustee shall be deemed filed with the Trustee for purposes of this Section
7.04.
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and the Company shall not permit any Person to consolidate with or
54
merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(a) either (i) the Company shall be the continuing Person or (ii)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety (the "SURVIVING ENTITY"), (1) shall be organized
and validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and (2) the Surviving Entity shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, all of the obligations of the Company under the Securities and 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 Surviving Entity has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with this Article 8 and Article 9, respectively.
Section 8.02. Successor Substituted. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 8.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
55
(i) 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
(ii) 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
(iii) to provide for a successor Trustee with respect to
the Securities; or
(iv) 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 (iv) shall not adversely affect the
interests of the Holders in any material respect; or
(v) to add any additional Events of Default for the
benefit of the Holders; or
(vi) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities any property or assets; or
(vii) to increase the Conversion Rate of the Securities;
provided, however, that such increase shall be in accordance with the
terms of this Indenture or shall not adversely affect the interests of
the Holders of the Securities; or
(viii) to supplement any provision of this Indenture to such
extent as shall be necessary to permit or facilitate the discharge of
the Securities; provided that such change or modification does not
adversely affect the interests of the Holders of the Securities; or
(ix) to make any change or modification necessary in
connection with the registration of the Securities under the Securities
Act as contemplated in the Registration Rights Agreement; provided that
such change or modification does not adversely affect the interests of
the Holders of Securities; or
(x) to add or modify any other provision 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
56
expected to adversely affect the interests of the Holders of Securities
in any material respect.
Section 9.02. Supplemental Indentures With Consent of Holders. 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) reduce the Principal Amount of, or extend the Stated
Maturity of, any Security; or
(ii) make any change that impairs or adversely affects the
conversion rights of any Securities; or
(iii) reduce the Redemption Price, the Repurchase Price or
Fundamental Change Repurchase Price of any Security or amend or modify
in any manner adverse to the Holders of Securities the Company's
obligation to make such payments, whether through an amendment or
waiver of provisions in the covenants, definitions or otherwise; or
(iv) modify the provisions with respect to the right of
Holders to cause the Company to repurchase Securities upon a
Fundamental Change in a manner adverse to Holders of Securities; or
(v) make any Security payable in money other than that
stated in the Security or other than in accordance with the provisions
of this Indenture; or
(vi) impair the right of any Holder to receive payment of
the Principal Amount of, or premium or Liquidated Damages, if any, on a
Holder's Securities on or after the due dates therefor or to institute
suit for the enforcement of any payment on or with respect to such
Holder's Securities; or
(vii) reduce the quorum or voting requirements under this
Indenture; or
(viii) change the ranking of the Securities in a manner
adverse to the Holders of the Securities; or
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(ix) make any change in the amendment provisions which
require each Holder's consent or in the waiver provisions; or
(x) 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
(xi) modify any of the provisions of this Section 9.02 or
Section 5.12, 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.
It shall not be necessary for any Act of Holders under this Section
9.02 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 9 or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, 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 adversely 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 that adversely
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 9, 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 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 9 shall bear a notation in form approved by
the
58
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 10
COVENANTS
Section 10.01. Payments. The Company shall duly and punctually make all
payments in respect of the Securities in accordance with the terms of the
Securities and this Indenture.
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 and Liquidated
Damages, 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 or exchange and where notices
and demands 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.
59
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,
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 10.03,
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
60
in The City of New York or San Francisco, California, 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. In the absence of a
written request from the Company to return funds remaining unclaimed for two
years after such payment has become due to the Company, the Trustee shall from
time to time deliver all unclaimed payments to or as directed by applicable
escheat authorities, as determined by the Trustee in its sole discretion, in
accordance with the customary practices and procedures of the Trustee. Any such
unclaimed funds held by the Trustee pursuant to this Section 10.03 shall be held
uninvested and without any liability for interest.
Section 10.04. Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 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 30 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 is taking or proposes to take with respect thereto.
Section 10.05. Existence. Subject to Article 8, 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. Reports and Delivery of Certain Information. Whether or
not required by the rules and regulations of the Commission, so long as any
Securities are outstanding, the Company shall promptly furnish to 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
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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 "furnished" to the Trustee for purposes
of this Section 10.06. 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 to any
prospective purchaser of Securities or beneficial owner of Securities in
connection with any sale thereof the information required by Rule 144A(d)(4)
under the Securities Act, until the earlier of (a) such time as the Holders
thereof have disposed of such Securities pursuant to an effective Resale
Registration Statement or Rule 144 under the Securities Act and (b) the date
that is two years from the Issue Date.
Section 10.07. 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, and shall not permit any of its "AFFILIATES"
(as defined under Rule 144 under the Securities Act or any successor provision
thereto) to, 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 10.08. 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 10.09. Liquidated Damages Under the Registration Rights
Agreement. If at any time Liquidated Damages 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 Liquidated Damages that are payable and (ii) the date on which such
Liquidated Damages 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 Liquidated Damages
are payable. If the Company has paid Liquidated Damages directly to the Persons
entitled to such Liquidated Damages, the Company shall deliver to the Trustee a
certificate setting forth the particulars of such payment.
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Section 10.10. Information for IRS Filings. The Company shall provide
to the Trustee on a timely basis such information as the Trustee requires to
enable the Trustee to prepare and file any form required to be submitted by the
Company with the Internal Revenue Service and the Holders of the Securities.
Section 10.11. Calculation Of Original Issue Discount. The Company
shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on outstanding Securities as of the end of
such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE 11
REDEMPTION AND REPURCHASES
Section 11.01. Right to Redeem; Notices to Trustee. Prior to August 15,
2008, the Securities are not redeemable. At any time commencing on August 15,
2008, the Securities are redeemable as a whole, or from time to time in part, at
the option of the Company at the Redemption Price equal to 100% expressed as a
percentage of the Principal Amount of Securities to be redeemed, together with
accrued and unpaid Liquidated Damages, if any, to, but excluding, the Redemption
Date.
The Company shall give the notice to the Trustee provided for in this
Section 11.01 by a Company Order, at least 45 days but not more than 60 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 less than all
the Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed pro rata or by lot or by any other method the Trustee considers fair
and appropriate (so long as such method is not prohibited by the rules of any
stock exchange on which the Securities are then listed). The Trustee shall make
the selection within 7 days from its receipt of the notice from the Company
delivered pursuant to the second paragraph of Section 11.01 from Outstanding
Securities not previously called for redemption.
Securities and portions of them the Trustee selects shall be in
Principal Amounts of $1,000 or integral multiples of $1,000. Provisions of this
Indenture that apply to Securities called for redemption in whole also apply to
Securities called for redemption in part. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be redeemed.
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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 shall identify the Securities to be redeemed and shall
state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the Conversion Price;
(iv) the name and address of the Paying Agent and
Conversion Agent;
(v) that Securities called for redemption may be
converted at any time before the close of business on the Business Day
immediately preceding the Redemption Date;
(vi) that Holders who want to convert Securities must
satisfy the requirements set forth therein and in this Indenture;
(vii) that Securities called for redemption must be
surrendered to the Paying Agent for cancellation to collect the
Redemption Price;
(viii) if fewer than all the outstanding Securities are to
be redeemed, the certificate number (if such Securities are held other
than in global form) and Principal Amounts of the particular Securities
to be redeemed;
(ix) that, unless the Company defaults in making payment
of such Redemption Price, Liquidated Damages, if any, will cease to
accrue on and after the Redemption Date; and
(x) the CUSIP number of the Securities.
At the Company's written request delivered at least 30 days prior to
the date such notice is to be given (unless a shorter time period shall be
acceptable to
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the Trustee), the Trustee shall give the notice of redemption in the Company's
name and at the Company's expense.
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 stated in the notice except for
Securities which are converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption Price stated in the notice.
Section 11.05. Deposit of Redemption Price. Prior to 10:00 a.m. (New
York City time) on a Redemption Date, the Company shall deposit with the Paying
Agent (or if the Company or a Subsidiary or an Affiliate of either of them is
the Paying Agent, shall segregate and hold in trust) money sufficient to pay the
Redemption Price of all Securities to be redeemed on that 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. The Paying Agent shall as promptly as practicable return to
the Company any money not required for that purpose because of conversion of
Securities pursuant to Article 13. If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.
Section 11.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Security in an authorized
denomination equal in principal amount to the unredeemed portion of the Security
surrendered. The Company shall not be required to (i) issue, register the
transfer of, or exchange any Securities during a period of 15 days before the
Redemption Date or (ii) register the transfer of, or exchange any, Securities so
selected for redemption, in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Section 11.07. Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Trustee in trust for the Securityholders, on or
prior to 10:00 a.m. New York City time on the Redemption Date, an amount that,
together with any amounts deposited with the Trustee by the Company for the
redemption of such Securities, is not less than the Redemption Price of such
Securities. Notwithstanding anything to the contrary contained in this Article
11, the obligation of the Company to pay the Redemption Price of such Securities
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers. If such an agreement is entered into, any Securities
not duly surrendered for conversion by the Holders thereof may, at the option of
the
65
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article 13) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the Business Day prior to the
Redemption Date, subject to payment of the above amount as aforesaid. The
Trustee shall hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it for purchase and conversion in the same
manner as it would moneys deposited with it by the Company for the redemption of
Securities. Without the Trustee's prior written consent, no arrangement between
the Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in connection with any
such arrangement for the purchase and conversion of any Securities between the
Company and such purchasers, including the costs and expenses incurred by the
Trustee in the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of its powers, duties, responsibilities
or obligations under this Indenture, except in the case of the Trustee's
negligence or willful misconduct.
Section 11.08. Repurchase of Securities at Option of the Holder.
(a) General. Securities shall be repurchased by the Company
pursuant to the terms thereof on August 15, 2008, August 15, 2013 and August 15,
2018 (each, a "REPURCHASE DATE"), at the applicable Repurchase Price, at the
option of the Holder thereof, in accordance with the following procedures.
(b) Company Notice. The Company shall deliver a notice (the
"COMPANY NOTICE") to Holders (and to beneficial owners as required by applicable
law) not less than 30 days prior to such Repurchase Date (the "COMPANY NOTICE
DATE"). The Company Notice shall include a form of Repurchase Notice to be
completed by a Securityholder and shall state:
(i) the Repurchase Price and the Conversion Price
applicable on the Company Notice Date;
(ii) the name and address of the Paying Agent and the
Conversion Agent;
(iii) that Securities as to which a Repurchase Notice has
been given by the Holder may be converted pursuant to Article 13 only
if the applicable Repurchase Notice has been withdrawn in accordance
with the terms of this Indenture;
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(iv) that Securities must be surrendered to the Paying
Agent for cancellation to collect payment;
(v) that the Repurchase Price for any security as to
which a Repurchase Notice has been given and not withdrawn will be paid
promptly following the later of the Repurchase Date and the time of
surrender of such Security as described in clause (iv) above;
(vi) the procedures the Holder must follow to exercise
rights under this Section 11.08 and a brief description of those
rights;
(vii) the conversion rights of the Securities;
(viii) the procedures for withdrawing a Repurchase Notice;
(ix) that, unless the Company defaults in making payment
of the Repurchase Price, Liquidated Damages, if any, on Securities
covered by the Repurchase Notice, will cease to accrue on and after the
Repurchase Date; and
(x) the CUSIP number of the Securities.
At least three Business Days before the Company Notice Date, the
Company shall deliver an Officers' Certificate to the Trustee specifying whether
the Company desires the Trustee to give the Company Notice. At the Company's
request, the Trustee shall give such Company Notice in the Company's name and at
the Company's expense; provided that in all cases the text of such Company
Notice shall be prepared by the Company. On or before the Company Notice Date,
the Company shall publish a notice containing substantially the same information
that is required in the Company Notice in a newspaper published in the English
language, customarily published each Business Day and of general circulation in
The City of New York, or publish such information on the Company's website or
through such other public medium as the Company may use at such time.
(c) Repurchase Notice. Holders must deliver to the Paying Agent:
(1) a written notice of repurchase (a "REPURCHASE
NOTICE"), substantially in the form of Exhibit A hereto, at any time
from the opening of business on the date that is 30 days prior to a
Repurchase Date until the close of business on the Business Day prior
to such Repurchase Date stating:
(A) the certificate number (if such Security is
held other than in global form) of the Security which the
Holder will deliver to be repurchased;
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(B) 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
integral multiples thereof; and
(C) that such Security shall be repurchased as
of the Repurchase Date pursuant to the terms and conditions
specified in the Securities and in this Indenture; and
(2) the Security (if such Security is held in other than
global form) to the Paying Agent for cancellation prior to, on or after
the Repurchase Date (together with all necessary endorsements) at the
offices of the Paying Agent, such delivery being a condition to receipt
by the Holder of the Repurchase Price therefor; provided that such
Repurchase Price shall be so paid pursuant to this Section 11.08 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 purchase from the Holder thereof, pursuant to this
Section 11.08, a portion of a Security if the Principal Amount of such portion
is $1,000 or an integral multiple of $1,000 if so requested by the Holder.
Provisions of this Indenture that apply to the purchase of all of a Security
also apply to the purchase of such portion of such Security.
Any repurchase by the Company contemplated pursuant to the provisions
of this Section 11.08 shall be consummated by the delivery to the Paying Agent
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 herein to the contrary, any Holder delivering
to the Paying Agent the Repurchase Notice contemplated by this Section 11.08(a)
shall have the right to withdraw such Repurchase Notice at any time prior to the
close of business on the Business Day prior to the Repurchase Date by delivery
of a written notice of withdrawal to the Paying Agent in accordance with Section
11.10.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Repurchase Notice or written notice of withdrawal thereof.
(d) Payment of Repurchase Price. The Securities to be repurchased
pursuant to Section 11.08(a) shall be paid for in cash.
(e) Procedures Upon Repurchase. The Company shall deposit cash at
the time and in the manner as provided in Section 11.11, sufficient to pay the
00
xxxxxxxxx Xxxxxxxxxx Price of all Securities to be purchased pursuant to this
Section 11.08.
Section 11.09. Repurchase of Securities at Option of the Holder Upon
Fundamental Change.
(a) General. If prior to the Stated Maturity there shall have
occurred a Fundamental Change, Securities shall be repurchased by the Company at
the Fundamental Change Repurchase Price on or before a date that is 20 Business
Days after the occurrence of the Fundamental Change (the "FUNDAMENTAL CHANGE
REPURCHASE DATE"), at the option of the Holder thereof, in accordance with the
following procedures; provided that the Company shall not be required to
repurchase the Securities pursuant to this Section 11.09 if the Sale Price per
share of Common Stock for any five Trading Days within the period of 10
consecutive Trading Days ending immediately after the later of the Fundamental
Change and the public announcement of the Fundamental Change equals or exceeds
105% of the Conversion Price of the Securities in effect on each of those five
Trading Days.
(b) Company Notice of Fundamental Change. Within 15 days after the
occurrence of a Fundamental Change, the Company shall, if Holders have the right
to require the Company to repurchase Securities hereunder, deliver a written
notice of Fundamental Change (the "FUNDAMENTAL CHANGE COMPANY NOTICE") by
first-class mail or by overnight courier 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
Securityholder and shall state:
(i) the events causing a Fundamental Change and the date
of such Fundamental Change;
(ii) the date by which a Holder must deliver a Fundamental
Change Repurchase Notice to elect the repurchase option pursuant to
this Section 11.09;
(iii) the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) whether the Fundamental Change Repurchase Price will
be paid in cash, shares of Common Stock or a combination thereof,
specifying the percentages of each;
(vi) if shares of Common Stock will be used to pay all or
part of the Fundamental Change Repurchase Price, state:
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(a) the method for valuing the shares of Common
Stock to be delivered in connection with the repurchase; and
(b) that holders of the Securities will bear the
market risk with respect to the value of the shares of Common
Stock to be delivered from the date the number of shares is
determined;
(vii) the name and address of the Paying Agent and the
Conversion Agent;
(viii) the Conversion Rate 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
13 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 clause (viii) above;
(xii) the procedures the Holder must follow to exercise
rights under this Section 11.09;
(xiii) the conversion rights of the Securities;
(xiv) the procedures for withdrawing a Fundamental Change
Repurchase Notice;
(xv) that, unless the Company defaults in making payment
of such Fundamental Change Repurchase Price, Securities covered by any
Fundamental Change Repurchase Notice will cease to be outstanding and
Liquidated Damages, if any, will cease to accrue on and after the
Fundamental Change Repurchase Date; and
(xvi) 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 that, in all cases, the text of such Fundamental Change Company Notice
70
shall be prepared by the Company. In connection with delivery of the Fundamental
Change Company Notice to the Holders, the Company shall publish a notice
containing substantially the same information that is required in the
Fundamental Change Company Notice in a newspaper published in the English
language, customarily published each Business Day and of general circulation in
The City of New York, or publish such information on the Company's website or
through such other public medium as the Company may use at such time.
(c) Fundamental Change Repurchase Notice. Holders must deliver to
the Paying Agent:
(1) 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:
(A) the certificate number (if such Security is
held other than in global form) of the Security which the
Holder will deliver to be purchased;
(B) the portion of the Principal Amount of the
Security which the Holder will deliver to be purchased, which
portion must be in a Principal Amount of $1,000 or integral
multiples thereof; and
(C) that such Security shall be purchased as of
the Fundamental Change Repurchase Date pursuant to the terms
and conditions specified in the Securities and in this
Indenture; and
(2) the Security (if such Security is held other than in
global form) to the Paying Agent for cancellation prior to, on or after
the Fundamental Change Repurchase Date (together with all necessary
endorsements) at the offices of the Paying Agent, such delivery being a
condition to receipt by the Holder of the Fundamental Change Repurchase
Price therefor; provided that such Fundamental Change Repurchase Price
shall be so paid pursuant to this Section 11.09 only if the Security so
delivered to the Paying Agent shall conform in all respects to the
description thereof in the related Fundamental Change Repurchase
Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 11.09, a portion of a Security if the Principal Amount of such portion
is $1,000 or an integral multiple of $1,000 if so requested by the Holder.
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.
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Any repurchase by the Company contemplated pursuant to the provisions
of this Section 11.09 shall be consummated by the delivery to the Paying Agent
of the consideration to be received by the Holder promptly following the later
of the Fundamental Change Repurchase Date and the time of delivery of the
Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Fundamental Change Repurchase Notice contemplated by
this Section 11.09(c) shall have the right to withdraw such Fundamental Change
Repurchase Notice at any time prior to the close of business on the Business Day
prior to the Fundamental Change Repurchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 11.10.
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.
(d) Payment of Fundamental Change Repurchase Price. The Securities
to be repurchased pursuant to this Section 11.09 shall be paid for in cash;
provided that if a Fundamental Change occurs as a result of a Change of Control
Event, the Securities to be repurchased may be paid for, in whole or in part, at
the election of the Company, in cash or Common Stock or any combination of cash
and Common Stock, subject to the conditions set forth in paragraph (e) below.
(e) Conditions for Election to Pay Fundamental Change Repurchase
Price in Common Stock. If the Company elects to pay all or any portion of the
Fundamental Change Repurchase Price in Common Stock, the number of shares of
Common Stock to be paid will equal the quotient obtained by dividing (i) the
portion of the Fundamental Change Repurchase Price to be paid in shares of
Common Stock by (ii) 95% of the average Closing Price of the shares of Common
Stock for the five Trading Day period immediately preceding but ending on the
second Business Day immediately preceding the Fundamental Change Repurchase
Date, appropriately adjusted to take into account the occurrence, during the
period commencing on the first of the Trading Days during the five Trading Day
period and ending on the Fundamental Change Repurchase Date, of any event
described in Section 13.06, subject to the next succeeding paragraph. The
Company shall designate, in the Fundamental Change Company Notice delivered
pursuant to Section 11.09(b) above, whether it will repurchase the Securities
for cash or shares of Common Stock, or, if a combination thereof, the
percentages of the Fundamental Change Repurchase Price of Securities in respect
of which it will pay in cash or shares of Common Stock; provided that the
Company will pay cash for fractional interests in shares of Common Stock. For
purposes of determining the existence of potential fractional interests, all
Securities subject to repurchase by the Company held by a Holder shall be
considered together (no matter how many separate certificates are to be
presented). Each holder whose Securities are repurchased pursuant to this
Section
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11.09 shall receive the same percentage of cash or shares of Common Stock in
payment of the Fundamental Change Repurchase Price for such Securities, except
with regard to the payment of cash in lieu of fractional shares of Common Stock.
The Company may not change its election with respect to the consideration (or
components or percentages of components thereof) to be paid once the Company has
given its Fundamental Change Company Notice to holders except as set forth in
the next succeeding paragraph in the event of a failure to satisfy, prior to the
close of business on the Business Day prior to the Fundamental Change Repurchase
Date, any condition to the payment of the Fundamental Change Repurchase Price,
in whole or in part, in shares of Common Stock.
The Company shall, at least three Business Days prior to delivering the
Fundamental Change Company Notice, deliver an Officers' Certificate to the
Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by the Company Repurchase
Notice pursuant to Section 11.09(b),
(iii) if the Company elects to pay the Fundamental Change
Repurchase Price, or a specified percentage thereof, in shares of
Common Stock, that the conditions to such manner of payment set forth
in this Section 11.09(e) have been or will be complied with, and
(iv) whether the Company desires the Trustee to give the
Fundamental Change Company Notice required by Section 11.09(b).
The Company's right to exercise its election to repurchase Securities
through the issuance of shares of Common Stock shall be conditioned upon:
(v) the Company's giving a timely Fundamental Change
Company Notice containing an election to purchase all or a specified
percentage of the Securities with shares of Common Stock as provided
herein;
(vi) the registration of such shares of Common Stock under
the Securities Act and, if required, the Exchange Act;
(vii) the listing of such shares of Common Stock on a
United States national securities exchange or the quotation of such
shares of Common Stock in an inter-dealer quotation system of any
registered United States national securities association, in each case,
if the Common Stock is then listed on a national securities exchange or
quoted in an inter-dealer quotation system;
73
(viii) any necessary qualification or registration of such
shares of Common Stock under applicable state securities laws or the
availability of an exemption from such qualification and registration;
and
(ix) the receipt by the Trustee of an (A) Officers'
Certificate stating that the terms of the issuance of the shares of
Common Stock are in conformity with this Indenture, (B) an Opinion of
Counsel to the effect that the shares of Common Stock to be issued by
the Company in payment of the Fundamental Change Repurchase Price in
respect of the Securities have been duly authorized and, when issued
and delivered pursuant to the terms of this Indenture in payment of the
Fundamental Change Repurchase Price in respect of the Securities, will
be validly issued, fully paid and non-assessable and (c) an Officer's
Certificate, stating that the conditions to the issuance of the shares
of Common Stock have been satisfied.
Such Officers' Certificate shall also set forth the number of shares of
Common Stock to be issued for each $1,000 principal amount of Securities upon
their Stated Maturity and the Closing Price of a share of Common Stock on each
Trading Day during the period commencing on the fifth Trading Day immediately
preceding but ending on the third Business Day prior to the applicable
Fundamental Change Repurchase Date. If the foregoing conditions are not
satisfied prior to the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date and the Company has elected to
repurchase the Securities through the issuance of shares of Common Stock, the
Company shall pay the entire Fundamental Change Repurchase Price of the
Securities in cash.
Promptly after determination of the actual number of shares of Common
Stock to be issued upon repurchase of Securities, the Company shall be required
to disseminate a press release through Dow Xxxxx & Company, Inc. or Bloomberg
Business News containing this information or publish the information on the
Company's web site or through such other public medium as the Company may use at
that time.
All shares of Common Stock delivered upon repurchase of the Securities
shall be duly authorized, validly issued, fully paid and nonassessable.
If a holder of a repurchased Security is paid in shares of Common
Stock, the Company shall pay any documentary, stamp or similar issue or transfer
tax due on such issue of Common Stock. However, the holder shall pay any such
tax which is due because the holder requests the Common Stock to be issued in a
name other than the holder's name. The Trustee (or other paying agent appointed
by the Company) may refuse to deliver the certificates representing the shares
of Common Stock being issued in a name other than the holder's name until the
74
Trustee (or other paying agent appointed by the Company) receives a sum
sufficient to pay any tax which will be due because the shares of Common Stock
are to be issued in a name other than the holder's name. Nothing herein shall
preclude any income tax withholding required by law or regulations.
(f) Procedure Upon Repurchase. The Company shall deposit cash or
Common Stock, if permitted hereunder, at the time and in the manner as provided
in Section 11.11, sufficient to pay the aggregate Fundamental Change Repurchase
Price of all Securities to be purchased pursuant to this Section 11.09.
Section 11.10. Effect of Repurchase Notice or Fundamental Change
Repurchase Notice. Upon receipt by the Paying Agent of the Repurchase Notice or
Fundamental Change Repurchase Notice specified in Section 11.08(b) or Section
11.09(b), as applicable, the Holder of the Security in respect of which such
Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be,
was given shall (unless such Repurchase Notice or Fundamental Change Repurchase
Notice is withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Repurchase Price or Fundamental Change Repurchase
Price, as the case may be, with respect to such Security. Such Repurchase Price
or Fundamental Change Repurchase Price shall be paid to such Holder, subject to
receipt of funds by the Paying Agent, promptly following the later of (x) the
Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
with respect to such Security (provided the conditions in Section 11.08(b) or
Section 11.09(b), as applicable, 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 11.08(b) or Section 11.09(b), as applicable.
Securities in respect of which a Repurchase Notice or Fundamental Change
Repurchase Notice, as the case may be, has been given by the Holder thereof may
not be converted pursuant to Article 13 on or after the date of the delivery of
such Repurchase Notice or Fundamental Change Repurchase Notice, as the case may
be, unless such Repurchase Notice or Fundamental Change Repurchase Notice, as
the case may be, has first been validly withdrawn as specified in the following
two paragraphs.
A Repurchase Notice or Fundamental Change Repurchase Notice, as the
case may be, may be withdrawn only 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 Company Notice or Fundamental Change Company Notice, as the
case may be, at any time prior to the close of business on the Business Day
prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the
case may be, specifying:
(i) the Principal Amount of the Security with respect to
which such notice of withdrawal is being submitted; and
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(ii) the certificate number (if such Security is held in
other than global form) of the Security in respect of which such notice
of withdrawal is being submitted; and
(iii) the Principal Amount, if any, of such Security which
remains subject to the original Repurchase Notice or Fundamental Change
Repurchase Notice, as the case may be, and which has been or will be
delivered for purchase or repurchase by the Company.
There shall be no repurchase of any Securities pursuant to Section
11.08 or 11.09 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
or Fundamental Change Repurchase Notice, as the case may be) and is continuing
an Event of Default (other than a default in the payment of the Repurchase Price
or Fundamental Change Repurchase Price, as the case may be, with respect to such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities (x) with respect to which a Repurchase Notice or
Fundamental Change Repurchase Notice, as the case may be, 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 or
Fundamental Change Repurchase Price, as the case may be, with respect to such
Securities) in which case, upon such return, the Repurchase Notice or
Fundamental Change Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.
Section 11.11. Deposit of Repurchase Price or Fundamental Change
Repurchase Price. Prior to 10:00 a.m. (local time in The City of New York) on
the Business Day following the Repurchase Date or the Fundamental Change
Repurchase Date, as the case may be, the Company shall deposit with the Trustee
or with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of
either of them is acting as the Paying Agent, shall segregate and hold in trust
as provided herein) an amount of money (in immediately available funds if
deposited on such Business Day) or Common Stock, if permitted hereunder,
sufficient to pay the Repurchase Price or the Fundamental Change Repurchase
Price, as the case may be, of all the Securities or portions thereof which are
to be repurchased as of the Repurchase Date or the Fundamental Change Repurchase
Date, as applicable. The Company shall promptly notify the Trustee in writing of
the amount of any deposits of cash or Common Stock made pursuant to Section
11.11
Section 11.12. Securities Repurchased in Whole or in Part. Any Security
which is to be repurchased, whether in whole or 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
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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 repurchased.
Section 11.13. Covenant to Comply With Securities Laws Upon Repurchase
of Securities. In connection with any offer to repurchase Securities under
Section 11.08 or 11.09 (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 repurchase), the Company shall (i) comply with Rule 13e-4 and Rule
14e-1 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 11.08 or 11.09 to be exercised in the time and in the
manner specified in Section 11.08 or 11.09, as applicable.
Section 11.14. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed, together with
interest or dividends, if any, thereon, held by them for the payment of the
Repurchase Price or Fundamental Change Repurchase Price, as the case may be;
provided that to the extent that the aggregate amount of cash or Common Stock
deposited by the Company pursuant to Section 11.11 exceeds the aggregate
Repurchase Price or Fundamental Change Repurchase Price, as the case may be, of
the Securities or portions thereof which the Company is obligated to repurchase
as of the Repurchase Date or Fundamental Change Repurchase Date, as the case may
be, then as soon as practicable following the Repurchase Date or Fundamental
Change Repurchase Date, as the case may be, the Trustee or the Paying Agent, as
the case may be, shall return any such excess to the Company.
ARTICLE 12
[RESERVED]
ARTICLE 13
CONVERSION
Section 13.01. Conversion Privilege. (a) Subject to the further
provisions of this Article 13, a Holder of a Security may convert the Principal
Amount of
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such Security (or a portion thereof equal to $1,000 or any integral multiple of
$1,000 in excess thereof) into Common Stock at any time prior to the close of
business at the Stated Maturity only as follows:
(i) if (A) during any Conversion Period prior to August
15, 2018 if the Closing Price of the Company's Common Stock for at
least twenty (20) Trading Days in a period of thirty (30) consecutive
Trading Days ending on the first day of such Conversion Period was more
than 145% of the applicable Conversion Price on the first day of the
Conversion Period or (B) at any time on or after August 15, 2018
through the close of business on the Business Day prior to Stated
Maturity if the Closing Price of the Company's Common Stock is more
than 145% of the applicable Conversion Price;
(ii) if during the five (5) consecutive Business Day
period following any five (5) consecutive Trading Day period in which
the average Trading Price for the Securities for such five (5) Trading
Day period was less than 98% of the average Closing Price of the
Company's Common Stock during that five (5) Trading Day period
multiplied by the Conversion Rate (the "TRADING PRICE CONDITION");
provided, however, that if on the date of any conversion pursuant to
the Trading Price Condition that is on or after August 15, 2018, the
Closing Price of the Company's Common Stock on the Trading Day
immediately prior to the Conversion Date is greater than 100% of the
Conversion Price, Holders surrendering Securities for conversion will
receive, in lieu of shares of the Company's Common Stock based on the
Conversion Rate, shares of the Company's Common Stock with a value
equal to the Principal Amount of Securities being converted (a
"PRINCIPAL VALUE CONVERSION"). Shares of the Company's Common Stock
delivered upon a Principal Value Conversion will be valued at the
greater of the effective Conversion Price as of the date eight Trading
Days prior to the Conversion Date and the Closing Price as of the
Conversion Date and will be delivered no later than the third Business
Day following the determination of the Closing Price;
"TRADING PRICE" of the Securities on any date of determination means
the average of the secondary market bid quotations per Security obtained by the
Trustee for $10,000,000 Principal Amount of Securities at approximately 3:30
p.m., New York City time, on such determination date from two Bid Solicitation
Agents; provided that if at least two such bids cannot reasonably be obtained by
the Trustee, but one such bid can reasonably be obtained, this one bid will be
used. If the Trustee cannot reasonably obtain at least one bid for $10,000,000
Principal Amount of Securities from a Bid Solicitation Agent or, in the
reasonable judgment of the Company, the bid quotations are not indicative of the
secondary market value of the Securities, the trading price of the Securities
will be deemed to be less than 98% of the product of the applicable Conversion
78
Rate of the Securities and the Closing Price of the Company's Common Stock on
such date of determination.
(iii) in the event that the Company calls the Securities
for redemption, at any time prior to the close of business on the
Business Day immediately preceding the Redemption Date;
(iv) if the Company becomes a party to a consolidation,
merger or binding share exchange pursuant to which all or substantially
all of the Common Stock would be converted into cash, securities or
other property, in which case a Holder may surrender Securities for
conversion at any time from and after the date which is 15 days prior
to the anticipated effective date for the transaction until 15 days
after the actual effective date of such transaction; provided, however,
that on the effective date of such transaction, the right of a Holder
to convert a Security into Common Stock will change into a right to
convert such Security into the kind and amount of cash, securities or
other property that such Holder would have received if such Holder had
converted such Security immediately prior to the transaction; or
(v) if the Company elects to (i) distribute to all or
substantially all holders of Common Stock assets, debt securities or
Capital Stock of the Company, which distribution has a per share value
as determined by the Board of Directors exceeding 5% of the Closing
Price of a share of Common Stock on the Trading Day immediately
preceding the declaration date for such distribution or (ii) distribute
to all or substantially all holders of Common Stock rights, options or
warrants entitling them to purchase shares of Common Stock at less than
the Closing Price of Common Stock on the Trading Day immediately
preceding the declaration date of the distribution. In the case of the
foregoing clauses (i) and (ii), the Company must notify the Holders at
least 20 days immediately prior to the ex-dividend date for such
distribution. Once the Company has given such notice, Holders may
surrender their Securities for conversion at any time thereafter until
the earlier of the close of business on the Business Day immediately
prior to the ex-dividend date or the Company's announcement that such
distribution will not take place even if the Securities are not
convertible at such time; provided however, that a Holder may not
exercise this right to convert if the Holder may participate in the
distribution without conversion. As used herein, the term "EX DIVIDEND
DATE" or "EX-DATE" when used with respect to any issuance or
distribution, shall mean the first date upon which a sale of shares of
Common Stock does not automatically transfer the right to receive the
relevant dividend from the seller of such Common Stock to its buyer.
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The Conversion Agent shall, on behalf of the Company, determine on a
daily basis whether the Securities shall be convertible as a result of the
occurrence of an event specified in clause (i) above and, if the Securities
shall be so convertible, the Conversion Agent shall promptly deliver to the
Company and the Trustee written notice thereof. Whenever the Securities shall
become convertible pursuant to this Section 13.01, the Company or, at the
Company's request, the Trustee in the name and at the expense of the Company,
shall notify the Holders of the event triggering such convertibility in the
manner provided in Section 1.06. In addition, the Company shall publish a notice
containing substantially the same information in a newspaper published in the
English language, customarily published each Business Day and of general
circulation in The City of New York, or publish such information on the
Company's website or through such other public medium as the Company may use at
such time.
The Conversion Agent shall have no obligation to determine the Trading
Price under this Section 13.01 unless the Company has requested such a
determination; and the Company shall have no obligation to make such request
unless a Holder provides the Company with reasonable evidence that the Trading
Price per $1,000 Principal Amount of Securities would be less than 98% of the
product of the Closing Price of the Common Stock and the number of shares of
Common Stock issuable upon conversion of $1,000 Principal Amount of Securities.
If such evidence is provided, the Company shall instruct the Conversion Agent to
determine the Trading Price of the Securities beginning on the next Trading Day
and on each successive Trading Day until the Trading Price per $1,000 Principal
Amount of Debentures is greater than or equal to 98% of the product of the
Closing Price and the number of shares issuable upon conversion of $1,000
Principal Amount of Securities.
(b) Conversion Period. Notwithstanding the foregoing, if such
Security is submitted or presented for repurchase pursuant to Article 11, such
conversion right shall terminate at the close of business on the Business Day
prior to the Repurchase Date or Fundamental Change Repurchase Date, as the case
may be, for such Security or such earlier date as the Holder presents such
Security for repurchase (unless the Company shall default when due, in which
case the conversion right shall terminate at the close of business on the date
such default is cured and such Security is repurchased).
(c) Conversion Rate; Conversion Price. The conversion rate per
Security (the "CONVERSION RATE") shall be that set forth in paragraph 8 in the
Securities, subject to adjustment as herein set forth. The initial Conversion
Rate is 63.8790 shares of Common Stock per $1,000 principal amount of
Securities. The "CONVERSION PRICE" at any particular time is determined by
dividing $1,000 by the then-applicable Conversion Rate.
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(d) Delivery of Officers' Certificate. If any of the Securities is
convertible by the Holders into Common Stock, the Company shall deliver to the
Trustee an Officers' Certificate to that effect stating (i) the fact that such
Securities are so convertible, (ii) the date as of which the Securities are
convertible, (iii) the reason why the Securities are convertible and (iv) the
Conversion Rate at which the Securities are convertible. Unless and until a
Trust Officer of the Trustee receives such Officers' Certificate, the Trustee
may assume without inquiry that the Securities are not convertible. Whenever any
fact set forth in an Officers' Certificate delivered pursuant to this Section
13.01 changes, the Company shall deliver to the Trustee a new Officers'
Certificate setting forth the correct information. Unless and until a Trust
Officer receives such a correcting Officers' Certificate, the Trustee may assume
without inquiry that the last Officers' Certificate delivered to it remains in
full force and effect and is correct is every respect.
(e) Securities Converted in Whole or in Part. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of a Security.
(f) Rights of Holders. A Holder of Securities is not entitled to
any rights of a holder of Common Stock until such Holder has converted its
Securities to Common Stock, and only to the extent such Securities are deemed to
have been converted into Common Stock pursuant to this Article 13.
Section 13.02. Conversion Procedure.
(a) To convert a Security, a Holder must (i) complete and manually
sign the conversion notice on the back of the Security 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 by a Registrar or a Conversion Agent and (iv) pay
any transfer or similar tax, if required. Such notice is hereinafter referred to
as a "NOTICE OF CONVERSION." A Security shall be deemed to have been converted
as of the close of business on the date (the "CONVERSION DATE") on which the
Holder has complied with the immediately preceding sentence of this Section
13.02(a). Anything herein to the contrary notwithstanding, in the case of Global
Securities, a Notice of Conversion shall be delivered and such Securities shall
be surrendered for conversion in accordance with the rules and procedures of DTC
as in effect from time to time.
(b) The Company will, as soon as practicable after the Conversion
Date, issue, or cause to be issued, and deliver to the Conversion Agent or to
such Holder, or such Holder's nominee or nominees, certificates for the number
of full shares of Common Stock, if any, to which such Holder shall be entitled.
The Person or Persons entitled to receive such Common Stock upon such conversion
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shall be treated for all purposes as the record holder or holders of such Common
Stock, as of the close of business on the applicable Conversion Date; provided,
however, that no surrender of a Security on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the Person
or Persons entitled to receive the shares of Common Stock upon such conversion
as the record holder or holders of such shares of Common Stock on such date, but
such surrender shall be effective to constitute the Person or Persons entitled
to receive such shares of Common Stock as the record holder or holders thereof
for all purposes at the close of business on the next succeeding day on which
such stock transfer books are open; provided further that such conversion shall
be at the Conversion Rate in effect on the Conversion Date as if the stock
transfer books of the Company had not been closed. Upon conversion of a
Security, such Person shall no longer be a Holder of such Security. Except as
otherwise provided in Section 13.06, no payment or adjustment will be made for
dividends or distributions on shares of Common Stock issued upon conversion of a
Security.
(c) If a Holder converts more than one Security at the same time,
the number of shares of Common Stock issuable upon the conversion shall be based
on the aggregate Principal Amount of Securities converted.
(d) Upon surrender of a Security that is converted in part, the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder, a new Security equal in principal amount to the unconverted portion of
the Security surrendered.
(e) If the last day on which Security may be converted is not a
Business Day in a place where a Conversion Agent is located, the Securities may
be surrendered to that Conversion Agent on the next succeeding Business Day.
(f) Holders that have already delivered a Repurchase Notice or
Fundamental Change Repurchase Notice with respect to a Security may not
surrender such Security for conversion until the Repurchase Notice or
Fundamental Change Repurchase Notice, as the case may be, has been withdrawn in
accordance with the procedures set forth in Section 11.10.
Section 13.03. Fractional Shares. The Company will not issue
fractional shares of Common Stock upon conversion of Securities. In lieu
thereof, the Company will pay an amount in cash for the current market value of
the fractional shares. The current market value of a fractional share shall be
determined, (calculated to the nearest 1/1000th of a share) by multiplying the
Closing Price of the Common Stock on the Trading Day immediately prior to the
Conversion Date by such fractional share and rounding the product to the nearest
whole cent.
Section 13.04. Taxes on Conversion. If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on
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the issuance of shares of Common Stock upon such conversion. However, the Holder
shall pay any such tax which is due because the Holder requests the shares to be
issued in a name other than the Holder's name. The Conversion Agent may refuse
to deliver the certificate representing the Common Stock being issued in a name
other than the Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due because the shares are to be issued
in a name other than the Holder's name. Nothing herein shall preclude any tax
withholding required by law or regulation.
Section 13.05. Company to Provide Stock.
(a) The Company shall, prior to issuance of any Securities
hereunder, and from time to time as may be necessary, reserve, out of its
authorized but unissued Common Stock, a sufficient number of shares of Common
Stock to permit the conversion of all outstanding Securities into shares of
Common Stock (including after taking into account any adjustments to the
Conversion Rate pursuant to Section 13.06).
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares, shall be duly authorized, validly issued, fully
paid and nonassessable and shall be free from preemptive rights and free of any
lien or adverse claim.
The Company will endeavor promptly to comply with all federal and state
securities laws regulating the offer and delivery of shares of Common Stock upon
conversion of Securities, if any, and will list or cause to have quoted such
shares of Common Stock on each national securities exchange or on the New York
Stock Exchange, the Nasdaq National Market or other over-the-counter market or
such other market on which the Common Stock is then listed or quoted; provided,
however, that if rules of such automated quotation system or exchange permit the
Company to defer the listing of such Common Stock until the first conversion of
the Securities into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Notes in accordance with the requirements of such automated
quotation system or exchange at such time. Any Common Stock issued upon
conversion of a Security hereunder which at the time of conversion was a
Transfer Restricted Security will also be a Transfer Restricted Security.
Section 13.06. Adjustment of Conversion Rate. The Conversion Rate shall
be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend on its Common
Stock in shares of Common Stock, (ii) make a distribution on its Common Stock in
shares of Common Stock, (iii) subdivide its outstanding Common Stock into a
greater number of shares, or (iv) combine its outstanding Common Stock into a
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smaller number of shares, the Conversion Rate in effect immediately prior
thereto shall be adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive that number of shares of
Common Stock which it would have owned had such Security been converted
immediately prior to the happening of such event. An adjustment made pursuant to
this subsection (a) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of subdivision or combination.
(b) In case the Company shall issue rights or warrants (other than
pursuant to a stockholder rights plan) to all or substantially all holders of
its Common Stock entitling them (for a period commencing no earlier than the
record date described below and expiring not more than 60 days after such record
date) to subscribe for or purchase shares of Common Stock (or securities
convertible into Common Stock) at a price per share (or having a conversion
price per share) less than the Closing Price per share of Common Stock on the
Business Day immediately prior to the date of announcement of such issuance, the
Conversion Rate in effect shall be adjusted so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect immediately prior
to such announcement by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date of
announcement plus the number of additional shares of Common Stock offered (or
into which the convertible securities so offered are convertible), and the
denominator of which shall be the number of shares of Common Stock outstanding
at the close of business on the date of announcement plus the number of shares
which the aggregate offering price of the total number of shares of Common Stock
so offered (or the aggregate conversion price of the convertible securities so
offered, which shall be determined by multiplying the number of shares of Common
Stock issuable upon conversion of such convertible securities by the conversion
price per share of Common Stock pursuant to the terms of such convertible
securities) would purchase at the Current Market Price per share of Common Stock
on the Business Day immediately preceding the date of announcement of such
issuance. Such adjustment shall be made successively whenever any such rights or
warrants are issued, and shall become effective on the day following the date of
announcement of such issuance. If at the end of the period during which such
rights or warrants are exercisable not all rights or warrants shall have been
exercised, the adjusted Conversion Rate shall be immediately readjusted to what
it would have been based upon the number of additional shares of Common Stock
actually issued (or the number of shares of Common Stock issuable upon
conversion of convertible securities actually issued).
(c) In case the Company shall distribute to all or substantially
all holders of its Common Stock any shares of capital stock of the Company
(other than Common Stock), evidences of indebtedness or other non-cash assets
84
(including securities of any person other than the Company but excluding (1)
dividends or distributions paid exclusively in cash or (2) dividends or
distributions referred to in subsection (a) of this Section 13.06), or shall
distribute to all or substantially all holders of its Common Stock rights or
warrants to subscribe for or purchase any of its securities (excluding those
rights and warrants referred to in subsection (b) of this Section 13.06 and also
excluding the distribution of rights to all holders of Common Stock pursuant to
the adoption of a stockholders rights plan or the detachment of such rights
under the terms of such stockholder rights plan), then in each such case the
Conversion Rate shall be adjusted so that the same shall equal the rate
determined by multiplying the current Conversion Rate by a fraction of which the
numerator shall be the Current Market Price per share of the Common Stock on the
record date mentioned below and the denominator shall be the Current Market
Price per share of the Common Stock on such record date less the fair market
value on such record date (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value and which
shall be evidenced by an Officers' Certificate delivered to the Trustee) of the
portion of the capital stock, evidences of indebtedness or other non-cash assets
so distributed or of such rights or warrants applicable to one share of Common
Stock (determined on the basis of the number of shares of Common Stock
outstanding on the record date). Such adjustment shall be made successively
whenever any such distribution is made and shall become effective immediately
after the record date for the determination of shareholders entitled to receive
such distribution.
In the event the then fair market value (as so determined) of the
portion of the Capital Stock, evidences of indebtedness or other non-cash assets
so distributed or of such rights or warrants applicable to one share of Common
Stock is equal to or greater than the Current Market Price per share of the
Common Stock on such record date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of a Security shall have the right
to receive upon conversion the amount of Capital Stock, evidences of
indebtedness or other non-cash assets so distributed or of such rights or
warrants such holder would have received had such holder converted each Security
on such record date. In the event that such dividend or distribution is not so
paid or made, the Conversion Rate shall again be adjusted to be the Conversion
Rate which would then be in effect if such dividend or distribution had not been
declared. If the Board of Directors determines the fair market value of any
distribution for purposes of this Section 13.06 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.
In the event that the Company has in effect a preferred shares rights
plan ("RIGHTS PLAN"), upon conversion of the Securities into Common Stock, to
the extent that the Rights Plan is still in effect upon such conversion, the
holders of Securities will receive, in addition to the Common Stock, the rights
described
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therein (whether or not the rights have separated from the Common Stock at the
time of conversion), subject to the limitations set forth in the Rights Plan.
Any distribution of rights or warrants pursuant to a Rights Plan complying with
the requirements set forth in the immediately preceding sentence of this
paragraph shall not constitute a distribution of rights or warrants pursuant to
this Article 13.
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
Company's Capital Stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("TRIGGER EVENT"): (i) are deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 13.06 (and no adjustment to the Conversion Rate under
this Section 13.06 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 13.06(e). 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 13.06 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 or holders
of Common Stock with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all 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.
(d) In case the Company shall, by dividend or otherwise, at any
time distribute (a "TRIGGERING DISTRIBUTION") to all or substantially all
holders of its Common Stock cash, the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying such Conversion Rate in
effect on
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the Business Day (the "DETERMINATION DATE") immediately preceding the day on
which such Triggering Distribution is declared by the Company by a fraction of
which the numerator shall be the Current Market Price per share of the Common
Stock on the Determination Date, and the denominator shall be the Current Market
Price per share of the Common Stock on the Determination Date less the aggregate
amount of cash so distributed applicable to one share of Common Stock
(determined on the basis of the number of shares of Common Stock outstanding on
the Determination Date), such increase to become effective immediately prior to
the opening of business on the day following the date on which the Triggering
Distribution is paid. It is expressly understood that a stock buyback,
repurchase or similar transaction or program shall in no event be considered a
Triggering Distribution for purposes of this Section 13.06(d) or Section
13.06(e).
(e) In case the Company or any of its Subsidiaries shall purchase
any shares of the Company's Common Stock by means of a tender offer, then,
effective immediately prior to the opening of business on the day after the last
date (the "EXPIRATION DATE") tenders could have been made pursuant to such
tender offer (as it may be amended) (the last time at which such tenders could
have been made on the Expiration Date is hereinafter sometimes called the
"EXPIRATION TIME"), the Conversion Rate shall be increased so that the same
shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the close of business on the Expiration Date by a fraction
of which the numerator shall be the sum of (x) the aggregate consideration
(determined as set forth below) payable to stockholders of the Company based on
the acceptance (up to any maximum specified in the terms of the tender offer) of
all shares validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the
"PURCHASED SHARES") and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares and excluding any shares held in the
treasury of the Company) immediately prior to the Expiration Time and the
Current Market Price per share of Common Stock (as determined in accordance with
subsection (f)of this Section 13.06), and the denominator shall be the product
of the number of shares of Common Stock outstanding (including Purchased Shares
but excluding any shares held in the treasury of the Company) immediately prior
to the Expiration Time multiplied by the Current Market Price per share of the
Common Stock (as determined in accordance with subsection (f)of this Section
13.06). For purposes of this Section 13.06(e), the aggregate consideration in
any such tender offer shall equal the sum of the aggregate amount of cash
consideration and the aggregate fair market value (as determined by the Board of
Directors, whose determination shall be conclusive evidence thereof and which
shall be evidenced by an Officers' Certificate delivered to the Trustee) of any
other consideration payable in such tender offer. In the event that the Company
is obligated to purchase shares pursuant to any such tender offer, but the
Company is permanently prevented by applicable law
87
from effecting any or all such purchases or any or all such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate
which would have been in effect based upon the number of shares actually
purchased. If the application of this Section 13.06(e) to any tender offer would
result in a decrease in the Conversion Rate, no adjustment shall be made for
such tender offer under this Section 13.06(e). For purposes of this Section
13.06(e), the term "tender offer" shall mean and include both tender offers and
exchange offers, all references to "purchases" of shares in tender offers (and
all similar references) shall mean and include both the purchase of shares in
tender offers and the acquisition of shares pursuant to exchange offers, and all
references to "tendered shares" (and all similar references) shall mean and
include shares tendered in both tender offers and exchange offers.
(f) For the purpose of any computation under subsections (b), (c)
and (d) of this Section 13.06, the current market price (the "CURRENT MARKET
PRICE") per share of Common Stock on any date shall be deemed to be the average
of the daily Closing Prices for the ten (10) consecutive Trading Days commencing
eleven (11) Trading Days before (i) the Determination Date, with respect to
distributions under subsection (c) of this Section 13.06 or (ii) the record date
with respect to distributions, issuances or other events requiring such
computation under subsection (b) or (d) of this Section 13.06. For purposes of
any computation under subsection (e) of this Section 13.06, the Current Market
Price per share of Common Stock shall be deemed to be the average of the daily
Closing Prices for the ten (10) consecutive Trading Days commencing on the
Trading Day next succeeding the Expiration Date.
(g) In any case in which this Section 13.06 shall require that an
adjustment be made following a record date, an announcement date or a
Determination Date or Expiration Date, as the case may be, established for
purposes of this Section 13.06, the Company may elect to defer (but only until
five Business Days following the filing by the Company with the Trustee of the
certificate described in Section 13.09) issuing to the Holder of any Security
converted after such record date or announcement date or Determination Date or
Expiration Date the shares of Common Stock and other capital stock of the
Company issuable upon such conversion over and above the shares of Common Stock
and other capital stock of the Company issuable upon such conversion only on the
basis of the Conversion Rate prior to adjustment; and, in lieu of the shares the
issuance of which is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence prepared by the Company
of the right to receive such shares. If any distribution in respect of which an
adjustment to the Conversion Rate is required to be made as of the record date
or announcement date or Determination Date or Expiration Date therefor is not
thereafter made or paid by the Company for any reason, the Conversion Rate shall
be readjusted to the Conversion Rate which would then be in effect if such
record
88
date had not been fixed or such announcement date or effective date or
Determination Date or Expiration Date had not occurred.
(h) No adjustment shall be made pursuant to this Section 13.06 if
the Holders may participate in the transaction that would otherwise give rise to
an adjustment pursuant to this Section 13.06.
Section 13.07. No Adjustment. No adjustment need be made for issuances
of Common Stock pursuant to a Company plan for reinvestment of dividends or
interest or for a change in the par value or a change to no par value of the
Common Stock.
To the extent that the Securities become convertible into the right to
receive cash, no adjustment need be made thereafter as to the cash. Interest
will not accrue on the cash due.
Section 13.08. Adjustment for Tax Purposes. The Company shall be
entitled to make such increases in the Conversion Rate, in addition to those
required by Section 13.06, as it in its discretion shall determine to be
advisable in order that any stock dividends, subdivisions of shares,
distributions of rights to purchase stock or securities or distributions of
securities convertible into or exchangeable for stock hereafter made by the
Company to its stockholders shall not be taxable.
Section 13.09. Notice of Conversion Rate Adjustment. Whenever the
Conversion Rate or conversion privilege is adjusted, the Company shall promptly
mail to Securityholders a notice of the adjustment and file with the Trustee an
Officers' Certificate briefly stating the facts requiring the adjustment and the
manner of computing it. Unless and until the Trustee shall receive an Officers'
Certificate setting forth an adjustment of the Conversion Rate, the Trustee may
assume without inquiry that the Conversion Rate has not been adjusted and that
the last Conversion Rate of which it has knowledge remains in effect.
Section 13.10. Notice of Certain Transactions. In the event that:
(1) the Company takes any action which would require an adjustment
in the Conversion Rate;
(2) the Company consolidates or merges with, or transfers all or
substantially all of its property and assets to, another corporation and
shareholders of the Company must approve the transaction; or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
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the notice at least ten days before such date. Failure to mail such notice or
any defect therein shall not affect the validity of any transaction referred to
in clause (1), (2) or (3) of this Section 13.10.
Section 13.11. Effect of Reclassification, Consolidation, Merger or
Sale on Conversion Privilege. If any of the following shall occur, namely: (a)
any reclassification or change of shares of Common Stock issuable upon
conversion of the Securities (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination, or any other change for which an adjustment is
provided in Section 13.06); (b) any consolidation or merger or combination to
which the Company is a party other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or
change (other than in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination) in,
outstanding shares of Common Stock; or (c) any sale or conveyance as an entirety
or substantially as an entirety of the property and assets of the Company,
directly or indirectly, to any Person, then the Company, or such successor,
purchasing or transferee corporation, as the case may be, shall, as a condition
precedent to such reclassification, change, combination, consolidation, merger,
sale or conveyance, execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding shall have the right
to convert such Security into the kind and amount of shares of stock and other
securities and property (including cash) receivable upon such reclassification,
change, combination, consolidation, merger, sale or conveyance by a holder of
the number of shares of Common Stock deliverable upon conversion of such
Security immediately prior to such reclassification, change, combination,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments of the Conversion Rate which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Rate
provided for in this Article 13. If, in the case of any such consolidation,
merger, combination, sale or conveyance, the stock or other securities and
property (including cash) receivable thereupon by a holder of Common Stock
include shares of stock or other securities and property of a person other than
the successor, purchasing or transferee corporation, as the case may be, in such
consolidation, merger, combination, sale or conveyance, then such supplemental
indenture shall also be executed by such other person and shall contain such
additional provisions to protect the interests of the Holders of the Securities
as the Board of Directors shall reasonably consider necessary by reason of the
foregoing. The provisions of this Section 13.11 shall similarly apply to
successive reclassifications, changes, combinations, consolidations, mergers,
sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 13.11, the Company shall promptly file with the Trustee
(x) an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of
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shares of stock or other securities or property (including cash) receivable by
Holders of the Securities upon the conversion of their Securities after any such
reclassification, change, combination, consolidation, merger, sale or
conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with and (y) an Opinion of Counsel that
all conditions precedent have been complied with, and shall promptly mail notice
thereof to all Holders.
Section 13.12. Trustee's Disclaimer. The Trustee shall have no duty to
determine when an adjustment under this Article 13 should be made, how it should
be made or what such adjustment should be, but may accept as conclusive evidence
of that fact or the correctness of any such adjustment, and shall be protected
in relying upon, an Officers' Certificate including the Officers' Certificate
with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 13.09. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company's failure
to comply with any provisions of this Article 13.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 13.11, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 13.11.
Section 13.13. Voluntary Increase. 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 and if the increase is irrevocable during the period if the
Board of Directors determines that such increase would be in the best interest
of the Company or the Board of Directors deems it advisable to avoid or diminish
income tax to holders of shares of our Common Stock in connection with any stock
or rights dividend or distribution or similar event, and the Company provides 15
days prior notice of any increase in the Conversion Rate.
Section 13.14. Company Determination Final. Any determination that the
Company or the Board of Directors must make pursuant to this Article 13 shall be
conclusive if made in good faith and in accordance with the provisions of this
Article 13, absent manifest error, and set forth in a resolution of the Board of
Directors.
91
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
CADENCE DESIGN SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
[Trustee Signature Follows]
X.X. XXXXXX TRUST COMPANY,
National Association, as Trustee
By: /s/ Xxxxx Xxxx
--------------------------------
EXHIBIT A
Form of Repurchase Notice
_______________, ____
X.X. Xxxxxx Trust Company, National Association
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000.
Attention: Institutional Trust Services
Re: Cadence Design Systems, Inc. (the "COMPANY")
Zero Coupon Zero Yield Senior Convertible Notes Due 2023
This is a Repurchase Notice as defined in Section 11.08 of the
Indenture dated as of August 15, 2003 (the "INDENTURE") between the Company and
X.X. Xxxxxx Trust Company, National Association, 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 Securities
for purchase by the Company pursuant to Section 11.08 of the Indenture
(in multiples of $1,000):
$______________________________
I hereby agree that the Securities will be purchased as of the
Repurchase Date pursuant to the terms and conditions thereof and of the
Indenture.
Signed: ________________________
A-1
EXHIBIT B
Form of Fundamental Change Repurchase Notice
_______________, ____
X.X. Xxxxxx Trust Company, National Association
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000.
Attention: Institutional Trust Services
Re: Cadence Design Systems, Inc. (the "COMPANY")
Zero Coupon Zero Yield Senior Convertible Notes Due 2023
This is a Fundamental Change Repurchase Notice as defined in Section
11.09 of the Indenture dated as of August 15, 2003 (the "Indenture") between the
Company and X.X. Xxxxxx Trust Company, National Association, 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 11.09 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: ________________________
1
Certain Sections of this Indenture relating to Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
----------- -------
Section 310(a)(1) ........................................................... 6.09
(a)(2) ........................................................... 6.09
(a)(3) ........................................................... Not Applicable
(a)(4) ........................................................... Not Applicable
(b) ........................................................... 6.08
........................................................... 6.10
Section 311(a) ........................................................... 6.13
(b) ........................................................... 6.13
Section 312(a) ........................................................... 7.01
........................................................... 7.02(a)
(b) ........................................................... 7.02(b)
(c) ........................................................... 7.02(c)
Section 313(a) ........................................................... 7.03(a)
(b) ........................................................... 7.03(a)
(c) ........................................................... 7.03(a)
(d) ........................................................... 7.03(b)
Section 314(a) ........................................................... 7.04
(b) ........................................................... Not Applicable
(c)(1) ........................................................... 1.02
(c)(2) ........................................................... 1.02
(c)(3) ........................................................... Not Applicable
(d) ........................................................... Not Applicable
(e) ........................................................... 1.02
Section 315(a) ........................................................... 6.01
(b) ........................................................... 6.02
(c) ........................................................... 6.01
(d) ........................................................... 6.01
(e) ........................................................... 5.14
Section 316(a)(1)(A) ........................................................... 5.12
(a)(1)(B) ........................................................... 5.13
(a)(2) ........................................................... Not Applicable
(b) ........................................................... 5.08
(c) ........................................................... 1.04(c)
Section 317(a)(1) ........................................................... 5.03
(a)(2) ........................................................... 5.04
(b) ........................................................... 10.03
Section 318(a) ........................................................... 1.07
--------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
i
