EMCORE CORP. FY'05 10-K EX-4.6 NOVEMBER 2005 INDENTURE
Published on December 14, 2005
Exhibit
4.6
EMCORE
CORPORATION
5%
CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2011
INDENTURE
Dated
as
of November 16, 2005
Deutsche
Bank Trust Company Americas
Trustee
TABLE
OF CONTENTS
ARTICLE
1. DEFINITIONS AND INCORPORATION BY REFERENCE
Section
1.01. Definitions
Section
1.02. Other
Definitions
Section
1.03. Incorporation
by Reference of Trust Indenture Act
Section
1.04. Rules
of
Construction
ARTICLE
2. THE NOTES
Section
2.01. Form
and
Dating
Section
2.02. Execution
and Authentication
Section
2.03. Registrar,
Paying Agent and Conversion Agent
Section
2.04. Paying
Agent to Hold Money in Trust
Section
2.05. Holder
Lists
Section
2.06. Transfer
and Exchange
Section
2.07. Replacement
Notes
Section
2.08. Outstanding
Notes
Section
2.09. Treasury
Notes
Section
2.10. Temporary
Notes
Section
2.11. Cancellation
Section
2.12. Additional
Transfer and Exchange Requirements
Section
2.13. CUSIP
Numbers
Section
2.14. Defaulted
Interest
ARTICLE
3. REDEMPTION AND PREPAYMENT
Section
3.01. Notices
to Trustee
Section
3.02. Selection
of Notes to Be Redeemed
Section
3.03. Notice
of
Redemption
Section
3.04. Effect
of
Notice of Redemption
Section
3.05. Deposit
of Redemption Price
Section
3.06. Notes
Redeemed in Part
Section
3.07. Provisional
Redemption
Section
3.08. Early
Call Premium
Section
3.09. Mandatory
Redemption
ARTICLE
4. CONVERSION
Section
4.01. Conversion
Privilege
Section
4.02. Conversion
Procedure
Section
4.03. Fractional
Shares
Section
4.04. Taxes
on
Conversion
Section
4.05. Company
to Provide Stock
Section
4.06. Adjustment
of Conversion Price
Section
4.07. No
Adjustment
Section
4.08. Other
Adjustments
Section
4.09. Adjustments
for Tax Purposes
Section
4.10. Notice
of
Adjustment
Section
4.11. Notice
of
Certain Transactions
Section
4.12. Effect
of
Reclassifications, Consolidations, Mergers or Sales on
Conversion
Privilege
Section
4.13. Trustee’s
Disclaimer
Section
4.14. Voluntary
Reduction
ARTICLE
5. SUBORDINATION
Section
5.01. Agreement
to Subordinate
Section
5.02. Liquidation;
Dissolution; Bankruptcy
Section
5.03. Default
on Designated Senior Indebtedness
Section
5.04. Acceleration
of Notes
Section
5.05. When
Distribution Must Be Paid Over
Section
5.06. Notice
by
Company
Section
5.07. Subrogation
Section
5.08. Relative
Rights
Section
5.09. Subordination
May Not Be Impaired by Company
Section
5.10. Distribution
or Notice to Representative
Section
5.11. Rights
of
Trustee and Paying Agent
Section
5.12. Authorization
to Effect Subordination
Section
5.13. Amendments
Section
5.14. Agreement
to Subordinate Unaffected
Section
5.15. Certain
Conversions Deemed Payment
ARTICLE
6. COVENANTS
Section
6.01. Payment
of Notes
Section
6.02. Maintenance
of Office or Agency
Section
6.03. Reports
Section
6.04. Information
Requirement
Section
6.05. Compliance
Certificate
Section
6.06. Taxes
Section
6.07. Stay,
Extension and Usury Laws
Section
6.08. Corporate
Existence
Section
6.09. Offer
to
Repurchase Upon Change of Control
ARTICLE
7. SUCCESSORS
Section
7.01. Merger,
Consolidation, or Sale of Assets
Section
7.02. Successor
Corporation Substituted
ARTICLE
8. DEFAULTS AND REMEDIES
Section
8.01. Events
of
Default
Section
8.02. Acceleration
Section
8.03. Other
Remedies
Section
8.04. Waiver
of
Past Defaults
Section
8.05. Control
by Majority
Section
8.06. Limitation
on Suits
Section
8.07. Rights
of
Holders of Notes to Receive Payment
Section
8.08. Collection
Suit by Trustee
Section
8.09. Trustee
May File Proofs of Claim
Section
8.10. Priorities
Section
8.11. Undertaking
for Costs
ARTICLE
9. TRUSTEE
Section
9.01. Duties
of
Trustee
Section
9.02. Rights
of
Trustee
Section
9.03. Individual
Rights of Trustee
Section
9.04. Trustee’s
Disclaimer
Section
9.05. Notice
of
Defaults
Section
9.06. Reports
by Trustee to Holders of the Notes
Section
9.07. Compensation
and Indemnity
Section
9.08. Replacement
of Trustee
Section
9.09. Successor
Trustee by Merger, etc
Section
9.10. Eligibility;
Disqualification
Section
9.11. Preferential
Collection of Claims Against Company
ARTICLE
10. SATISFACTION AND DISCHARGE
Section
10.01. Satisfaction
and Discharge
Section
10.02. Application
of Trust Money
Section
10.03. Repayment
to Company
Section
10.04. Reinstatement
ARTICLE
11. AMENDMENT, SUPPLEMENT AND WAIVER
Section
11.01. Without
Consent of Holders of Notes
Section
11.02. With
Consent of Holders of Notes
Section
11.03. Compliance
with Trust Indenture Act
Section
11.04. Revocation
and Effect of Consents
Section
11.05. Notation
on or Exchange of Notes
Section
11.06. Trustee
to Sign Amendments, etc.
ARTICLE
12. MISCELLANEOUS
Section
12.01. Trust
Indenture Act Controls
Section
12.02. Notices
Section
12.03. Communication
by Holders of Notes with Other Holders of Notes
Section
12.04. Certificate
and Opinion as to Conditions Precedent
Section
12.05. Statements
Required in Certificate or Opinion
Section
12.06. Rules
by
Trustee and Agents
Section
12.07. No
Personal Liability of Directors, Officers, Employees and
Stockholders
Section
12.08. Governing
Law
Section
12.09. No
Adverse Interpretation of Other Agreements
Section
12.10. Successors
Section
12.11. Severability
Section
12.12. Counterpart
Originals
Section
12.13. Table
of
Contents, Headings, etc
EXHIBITS
Exhibit
A FORM
OF
NOTE
Exhibit
B CERTIFICATE
INDENTURE
dated as of November 16, 2005 between EMCORE Corporation, a New Jersey
corporation (the “Company”),
and
Deutsche Bank Trust Company Americas, as trustee (the “Trustee”).
The
Company and the Trustee agree as follows for the benefit of each other and
for
the equal and ratable benefit of the Holders of the 5% Convertible Senior
Subordinated Notes due 2011 (the “Notes”):
ARTICLE
1.
DEFINITIONS
AND INCORPORATION
BY
REFERENCE
| Section 1.01. |
Definitions
|
“144A
Global Note”
means a
global note substantially in the form of Exhibit A hereto bearing the
Global Note Legend and the Private Placement Legend and deposited with or
on
behalf of, and registered in the name of, the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount
of
the Notes sold in reliance on Rule 144A.
“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 purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control
with”), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise; provided, however, that beneficial ownership of
10%
or more of the voting securities of a Person shall be deemed to be
control.
“Agent”
means
any Registrar, Paying Agent or co-registrar.
“Applicable
Procedures”
means,
with respect to any transfer or exchange of or for beneficial interests in
any
Global Note, the rules and procedures of the Depositary, Euroclear and Cedel
that apply to such transfer or exchange.
“Bankruptcy
Law”
means
Title 11, U.S. Code or any similar federal or state law for the relief of
debtors.
“Board
of Directors”
means
the Board of Directors of the Company, or any authorized committee of the
Board
of Directors.
“Business
Day”
means
any day other than a Legal Holiday.
“Capital
Lease Obligation”
means,
at the time any determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at such time be required to be
capitalized on a balance sheet in accordance with GAAP.
“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.
“Cedel”
means
Cedel Bank, SA., and any and all successors thereto.
“Closing
Sale Price”
means
the last reported sales price or, in case no such reported sale takes place
on
such date, the average of the reported closing bid and asked prices in either
case on The Nasdaq National Market or, if the Common Stock is not listed
or
admitted to trading on The Nasdaq National Market, on the principal national
securities exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on The Nasdaq National Market or
any
national securities exchange, the last reported sales price of the Common
Stock
as quoted on The Nasdaq National Market or, in case no reported sales takes
place, the average of the closing bid and asked prices as quoted on The Nasdaq
National Market or any comparable system or, if the Common Stock is not quoted
on The Nasdaq National Market or any comparable system, the closing sales
price
or, in case no reported sale takes place, the average of the closing bid
and
asked prices, as furnished by any two members of the National Association
of
Securities Dealers, Inc. selected from time to time by the Company for that
purpose.
“Company”
means
the issuer, and any and all successors thereto.
“Common
Stock” means
the
common stock, no par value per share, of the Company.
“Corporate
Trust Office of the Trustee”
shall be
at the address of the Trustee specified in Section 12.02 hereof or such other
address as to which the Trustee may give notice to the Company.
“Custodian”
means
the Trustee, as custodian with respect to the Global Notes or any successor
entity thereto.
“Default”
means
any event that is or with the passage of time or the giving of notice or
both
would be an Event of Default.
“Definitive
Note”
means a
certificated Note registered in the name of the Holder thereof and issued
in
accordance with Section 2.06 hereof, substantially in the form of Exhibit
A
hereto except that such Note shall not bear the Global Note Legend and shall
not
have the “Schedule of Exchanges of Interests in the Global Note” attached
thereto.
“Depositary”
means,
with respect to any Global Notes, the Person specified in Section 2.03 hereof
as
the Depositary with respect to such Global Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant
to the
applicable provision of this Indenture.
“Designated
Senior Indebtedness”
means
any Senior Indebtedness permitted hereunder the principal amount of which
is
$10.0 million or more and that has been designated by the Company as “Designated
Senior Indebtedness.”
“Equity
Interests”
means
Capital Stock and all warrants, options or other rights to acquire Capital
Stock
(but excluding any debt security that is convertible into, or exchangeable
for,
Capital Stock).
“Euroclear”
means
Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the
Euroclear system, and any and all successors thereto.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Existing
2006 Notes”
means
the Company’s 5% Convertible Subordinated Notes due 2006 issued under the
Existing 2006 Notes Indenture.
“Existing
2006 Notes Indenture”
means
that Indenture, dated as of May 7, 2001, between the Company and Wilmington
Trust Company.
“Existing
2011 Notes”
means
the Company’s 5% Convertible Senior Subordinated Notes due 2011 issued under the
Existing 2011 Notes Indenture.
“Existing
2011 Notes Indenture”
means
that Indenture, dated as of February 24, 2004, between the Company and Deutsche
Bank Trust Company Americas.
“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,
which
are in effect on the date of this Indenture.
“Global
Note”
means a
permanent global Note substantially in the form of Exhibit A hereto issued
in
accordance with this Indenture, that is deposited with or on behalf of and
registered in the name of the Depositary and that bears the Global Note Legend
and has the “Schedule of Exchanges of Notes” attached thereto.
“Global
Note Legend”
means
the legend set forth under the heading “Global Note Legend” in Exhibit A hereto,
which is required to be placed on all Global Notes issued under this
Indenture.
“Government
Securities”
means
direct obligations of, or obligations guaranteed by, the United States of
America, and the payment for which the United States pledges its full faith
and
credit.
“Holder”
means a
Person in whose name a Note is registered.
“Indebtedness”
means,
with respect to any Person, without duplication, (a) all indebtedness,
obligations and other liabilities (contingent or otherwise) of such Person
for
borrowed money (including obligations of such Person in respect of overdrafts,
foreign exchange contracts, currency exchange agreements, interest rate
protection agreements, and any loans or advances from banks, whether or not
evidenced by notes or similar instruments) or evidenced by credit or loan
agreements, bonds, debentures, notes or other written obligations (whether
or
not the recourse of the lender is to the whole of the assets of such Person
or
to only a portion thereof) (other than any accounts payable or other accrued
current liability or obligation incurred in the ordinary course of business
in
connection with the obtaining of materials or services), (b) all reimbursement
obligations and other liabilities (contingent or otherwise) of such Person
with
respect to letters of credit, bank guarantees or bankers’ acceptances, (c) all
obligations and liabilities (contingent or otherwise) of such Person in respect
of leases of such Person required, in conformity with generally accepted
accounting principles, to be accounted for as Capitalized Lease Obligations
on
the balance sheet of such Person, (d) all obligations of such Person evidenced
by a note or similar instrument given in connection with the acquisition
of any
business, properties or assets of any kinds, (e) all obligations of such
Person
issued or assumed as the deferred purchase price of property or services
(excluding trade account payables and accrued liabilities arising in the
ordinary course of business), (f) all obligations (contingent or otherwise)
of
such Person under any lease or related document (including a purchase agreement)
in connection with the lease of real property or improvements (or any personal
property included as part of any such lease) which provides that such Person
is
contractually obligated to purchase or cause a third party to purchase the
leased property and thereby guarantee a minimum residual value of the leased
property to the lessor and the obligations of such Person under such lease
or
related document to purchase or to cause a third party to purchase such leased
property (whether or not such lease transaction is characterized as an operating
lease or a capitalized lease in accordance with generally accepted accounting
principles), (g) all obligations (contingent or otherwise) of such Person
with
respect to any interest rate, currency or other swap, cap, floor or collar
agreement, hedge agreement, forward contract, or other similar instrument
or
agreement or foreign currency hedge, exchange, purchase or similar instrument
or
agreement, (h) all direct or indirect guaranties, agreements to be jointly
liable or similar agreements by such Person in respect of, and obligations
or
liabilities (contingent or otherwise) of such Person to purchase or otherwise
acquire or otherwise assure a creditor against loss in respect of, indebtedness,
obligations or liabilities of another Person of the kind described in clauses
(a) through (g), and (i) any and all deferrals, renewals, extensions and
refundings of, or amendments, modifications or supplements to, any indebtedness,
obligation or liability of the kind described in clauses (a) through (h).
“Indenture”
means
this Indenture, as amended or supplemented from time to time.
“Indirect
Participant”
means a
Person who holds a beneficial interest in a Global Note through a
Participant.
“Legal
Holiday”
means a
Saturday, a Sunday or a day on which banking institutions in the City of
New
York or at a place of payment are authorized by law, regulation or executive
order to remain closed. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that
is
not a Legal Holiday, and no interest shall accrue on such payment for the
intervening period.
“Non-U.S.
Person”
means a
Person who is not a U.S. Person.
“Notes”
has the
meaning assigned to it in the preamble to this Indenture.
“Obligations”
means
any principal, interest, penalties, fees, indemnifications, reimbursements,
fees
and expenses, damages and other liabilities payable under the documentation
governing any Indebtedness.
“Officer”
means,
with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
or any Vice-President of such Person.
“Officers’
Certificate”
means a
certificate signed on behalf of the Company by two Officers of the Company,
one
of whom must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Company,
that
meets the requirements of Section 12.05 hereof.
“Opinion
of Counsel”
means an
opinion from legal counsel who is reasonably acceptable to the Trustee, that
meets the requirements of Section 12.05 hereof. The counsel may be an employee
of or counsel to the Company, any Subsidiary of the Company or the
Trustee.
“Participant”
means,
with respect to the Depositary, Euroclear or Cedel, a Person who has an account
with the Depositary, Euroclear or Cedel, respectively (and, with respect
to DTC,
shall include Euroclear and Cedel).
“Permitted
Junior Securities”
means
Equity Interests in the Company or debt securities that are subordinated
to all
Senior Indebtedness (and any debt securities issued in exchange for Senior
Indebtedness) to substantially the same extent as, or to a greater extent
than,
the Notes are subordinated to Senior Indebtedness pursuant to the
Indenture.
“Person”
means
any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets
of any
such entity, subdivision or business).
“Private
Placement Legend”
means
the legend set forth under the heading “Private Placement Legend” in Exhibit A
hereto to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
“QIB”
means a
“qualified institutional buyer” as defined in Rule 144A.
“Regulation
S”
means
Regulation S promulgated under the Securities Act.
“Regulation
S Global Note”
means a
global Note bearing the Private Placement Legend and deposited with or on
behalf
of the Depositary and registered in the name of the Depositary or its nominee,
issued in a denomination equal to the outstanding principal amount of the
Notes
initially sold in reliance on Rule 903 of Regulation S.
“Representative”
means
the indenture trustee or other trustee, agent or representative for any Senior
Indebtedness.
“Responsible
Officer,”
when
used with respect to the Trustee, means any officer within the Corporate
Trust
Administration of the Trustee (or any successor group of the Trustee) with
direct responsibilities for the administration of this Indenture and also
means,
with respect to a particular corporate trust matter, any other officer to
whom
such matter is referred because of his knowledge of and familiarity with
the
particular subject.
“Restricted
Definitive Note”
means a
Definitive Note bearing the Private Placement Legend.
“Restricted
Global Note”
means a
Global Note bearing the Private Placement Legend.
“Restricted
Period”
means
the 40-day restricted period as defined in Regulation S.
“Rule
144”
means
Rule 144 promulgated under the Securities Act.
“Rule
144A”
means
Rule 144A promulgated under the Securities Act.
“Rule
903”
means
Rule 903 promulgated under the Securities Act.
“Rule
904”
means
Rule 904 promulgated the Securities Act.
“SEC”
means
the Securities and Exchange Commission.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Senior
Indebtedness”
means
(i) the principal of, premium, if any, interest including all interest accruing
subsequent to the commencement of any bankruptcy or similar proceeding, whether
or not a claim for post-petition interest is allowable as a claim in any
such
proceeding, and rent payable on or in connection with, Indebtedness of the
Company unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Notes, and (ii) all Obligations with respect to any of the
foregoing, whether secured or unsecured, absolute or contingent, due or to
become due, outstanding on the date hereof or hereafter credited, incurred,
assumed, guaranteed or in effect guaranteed by the Company, including all
deferrals, renewals, extensions and refundings of or amendments, modifications
or supplements to, the foregoing. Notwithstanding anything to the contrary
in
the foregoing, Senior Indebtedness shall not include (x) any of the Existing
2006 Notes, (y) any of the Existing 2011 Notes, (z) any Indebtedness of the
Company to any of its Subsidiaries or other Affiliates, (aa) any Indebtedness
incurred for the purchase of goods or materials or for services obtained
in the
ordinary course of business (other than with the proceeds of revolving credit
borrowings permitted hereby) and (bb) any Indebtedness that is incurred in
violation of this Indenture.
“Subsidiary”
means,
with respect to any Person, any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency) to vote
in
the election of directors, managers or trustees thereof is at the time owned
or
controlled, directly or indirectly, by such Person or one or more of the
other
Subsidiaries of such Person or a combination thereof.
“TIA”
means
the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on
the date on which this Indenture is qualified under the TIA; provided,
however,
that in
the event the Trust Indenture Act of 1939 is amended after such date, “TIA”
means, to the extent required by any such amendment, the Trust Indenture
Act of
1939 as so amended.
“Trading
Day”
means a
day on which trades may be made on The Nasdaq National Market.
“Trustee”
means
the party named as such above until a successor replaces it in accordance
with
the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.
“Unrestricted
Global Note”
means a
permanent Global Note substantially in the form of Exhibit A attached hereto
that bears the Global Note Legend and that is deposited with or on behalf
of and
registered in the name of the Depositary, representing a series of Notes
that do
not bear the Private Placement Legend.
“Unrestricted
Definitive Note”
means
one or more Definitive Notes that do not bear and are not required to bear
the
Private Placement Legend.
“U.S.
Person”
means a
U.S. person as defined in Rule 902(o) under the Securities Act.
“Voting
Stock”
of
a
Person means any class or classes of Capital Stock pursuant to which the
holders
of capital stock under ordinary circumstances have the power to vote in the
election of the board of directors, managers or trustees thereof of such
Person
or other persons performing similar functions irrespective of whether or
not, at
the time Capital Stock of any other class or classes shall have, or might
have,
voting power by reason of the happening of any contingency.
| Section 1.02. |
Other
Definitions
|
|
Defined
in
|
|
|
Term
|
Section
|
|
“Authentication
Order”
|
2.02
|
|
“Change
of Control”
|
6.08
|
|
“Change
of Control Offer”
|
6.08
|
|
“Change
of Control Payment”
|
6.08
|
|
“Change
of Control Payment Date”
|
6.08
|
|
“Change
of Control Payment Notice”
|
6.08
|
|
“Conversion
Price”
|
4.01
|
|
“Determination
Date”
|
4.06
|
|
“Early
Call Premium”
|
3.08
|
|
“Event
of Default”
|
8.01
|
|
“Expiration
Date”
|
4.06
|
|
“Expiration
Date”
|
4.06
|
|
“Notice
Date”
|
3.07
|
|
“Paying
Agent”
|
2.03
|
|
“Provisional
Redemption”
|
3.07
|
|
“Provisional
Redemption Date”
|
3.07
|
|
“Provisional
Redemption Notice”
|
3.07
|
|
“Provisional
Redemption Notice Date”
|
3.07
|
|
“Provisional
Redemption Price”
|
3.07
|
|
“Purchased
Shares”
|
4.06
|
|
“Registrar”
|
2.03
|
|
“tender
offer”
|
4.06
|
|
“Triggering
Distribution”
|
4.06
|
| Section 1.03. |
Incorporation
by Reference of Trust Indenture
Act
|
Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
The
following TIA terms used in this Indenture have the following
meanings:
“indenture
securities”
means
the Notes;
“indenture
security Holder”
means a
Holder of a Note;
“indenture
to be qualified”
means
this Indenture;
“indenture
trustee”
or
“institutional
trustee”
means
the Trustee; and
“obligor”
on the
Notes means the Company and any successor obligor upon the Notes.
All
other
terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
| Section 1.04. |
Rules
of Construction
|
Unless
the context otherwise requires:
(a)
a
term
has the meaning assigned to it;
(b)
an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c)
“or”
is
not exclusive;
(d)
words
in
the singular include the plural, and in the plural include the
singular;
(e)
provisions
apply to successive events and transactions; and
(f)
references
to sections of or rules under the Securities Act shall be deemed to include
substitute, replacement of successor sections or rules adopted by the SEC
from
time to time.
ARTICLE
2.
THE
NOTES
| Section 2.01. |
Form
and Dating
|
(a)
General.
The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note shall
be
dated the date of its authentication. The Notes shall be in denominations
of
$1,000 and integral multiples thereof.
The
terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision
of any
Note conflicts with the express provisions of this Indenture, the provisions
of
this Indenture shall govern and be controlling.
(b)
Global
Notes.
Notes
issued in global form shall be substantially in the form of Exhibit A
attached hereto (including the Global Note Legend thereon and the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A attached
hereto
(but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Each Global Note
shall represent such of the outstanding Notes as shall be specified therein
and
each shall provide that it shall represent the aggregate principal amount
of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to
time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Custodian, at the direction of
the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.13 hereof.
(c)
Euroclear
and Cedel Procedures Applicable.
The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Cedel Bank” and “Customer Handbook” of Cedel Bank shall be applicable to
transfers of beneficial interests in the Regulation S Global Notes that are
held
by Participants through Euroclear or Cedel Bank.
| Section 2.02. |
Execution
and Authentication
|
An
Officer shall sign the Notes for the Company by manual or facsimile signature.
The Company’s seal shall be reproduced on the Notes and may be in facsimile
form.
If
an
Officer whose signature is on a Note no longer holds that office at the time
a
Note is authenticated, the Note shall nevertheless be valid.
A
Note
shall not be valid until authenticated by the manual signature of the Trustee.
The signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The
Trustee shall, upon receipt of a written order of the Company signed by an
Officer (an “Authentication
Order”),
authenticate Notes for original issue in the aggregate principal amount
specified in the Authentication Order. The Authentication Order shall specify
the amount of Notes to be authenticated, shall provide that all Notes will
be
represented by a Restricted Global Note and the date on which each original
issue of Notes is to be authenticated. The aggregate principal amount of
Notes
which may be authenticated and delivered pursuant to this Indenture is
unlimited.
The
Trustee shall act as initial authenticating agent. Thereafter, the Trustee
may
appoint an authenticating agent acceptable to the Company to authenticate
Notes.
An authenticating agent may authenticate Notes whenever the Trustee may do
so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights
as an
Agent to deal with the Company or an Affiliate of the Company.
| Section 2.03. |
Registrar,
Paying Agent and Conversion
Agent
|
The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”),
an
office or agency where Notes may be presented for payment (“Paying
Agent”),
an
office or agency where Notes may be presented for conversion (“Conversion
Agent”)
and an
office or agent where notices and demands to or upon the Company in respect
of
the Notes and this Indenture may be served. The Registrar shall keep a register
of the Notes and of their registration of transfer and exchange. The Company
may
appoint one or more co-registrars and one or more additional paying agents
and
conversion agents. The term “Registrar” includes any co-registrar, the term
“Paying Agent” includes any additional paying agent and the term “Conversion
Agent” includes any additional conversion agent. The Company may change any
Paying Agent, Conversion Agent or Registrar without notice to any Holder.
The
Company shall notify the Trustee in writing of the name and address of any
Agent
not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar, Paying Agent, Conversion Agent or agent for
service
of notices and demands in any place required by this Indenture, or fails
to give
the foregoing notice, the Trustee shall act as such. The Company or any of
its
Subsidiaries may act as Paying Agent, Conversion Agent or
Registrar.
The
Company initially appoints The Depository Trust Company (“DTC”)
to act
as Depositary with respect to the Global Notes.
The
Company initially appoints the Trustee to act as the Registrar, Paying Agent
and
Conversion Agent and to act as Custodian with respect to the Global
Notes.
| Section 2.04. |
Paying
Agent to Hold Money in Trust
|
Prior
to
10:00 a.m., New York City time, on each due date of the principal of, premium,
if any, or interest, on any Notes, the Company shall deposit with the Paying
Agent a sum sufficient to pay such principal, premium, if any, or interest
so
becoming due. The Company shall require each Paying Agent other than the
Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit
of
Holders or the Trustee all money held by the Paying Agent for the payment
of
principal, premium or interest on the Notes, and will notify the Trustee
of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by
it to
the Trustee. The Company at any time may require a Paying Agent to pay all
money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary) shall have no further liability
for
the money. If the Company or a Subsidiary acts as Paying Agent, it shall
before
10:00 a.m. New York City time on each due date of the principal of, premium,
if
any, or interest, segregate and hold in a separate trust fund for the benefit
of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve
as
Paying Agent for the Notes.
| Section 2.05. |
Holder
Lists
|
The
Trustee shall preserve in as current a form as is reasonably practicable
the
most recent list available to it of the names and addresses of all Holders
and
shall otherwise comply with TIA § 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least seven Business
Days
before each interest payment date and at such other times as the Trustee
may
request in writing, a list in such form and as of such date as the Trustee
may
reasonably require of the names and addresses of the Holders of Notes and
the
Company shall otherwise comply with TIA § 312(a).
| Section 2.06. |
Transfer
and Exchange
|
(a)
Subject
to compliance with any applicable additional requirements contained in Section
2.12, when a Note is presented to a Registrar with a request to register
a
transfer thereof or to exchange such Note for an equal principal amount of
Notes
of other authorized denominations, the Registrar shall register the transfer
or
make the exchange as requested; provided,
however,
that
every Note presented or surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by an assignment form and, if applicable,
a transfer certificate each in the form included in Exhibit A, and in form
satisfactory to the Registrar duly executed by the Holder thereof or its
attorney duly authorized in writing. To permit registration of transfers
and
exchanges, upon surrender of any Note for registration of transfer or exchange
at an office or agency maintained pursuant to Section 2.03, the Company shall
execute and the Trustee shall authenticate Notes of a like aggregate principal
amount at the Registrar’s request. Any exchange or registration of transfer
shall be without charge, except that the Company or the Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
that
may be imposed in relation thereto, and provided, that this sentence shall
not
apply to any exchange pursuant to Section 2.07, 2.10, 2.12(a), 3.06, 4.02
(last
paragraph), 6.08(a)(7) or 11.05.
Neither
the Company, any Registrar nor the Trustee shall be required to exchange
or
register a transfer of (a) any Notes for a period of 15 days next preceding
any
mailing of a notice of Notes to be redeemed, (b) any Notes or portions thereof
selected or called for redemption (except, in the case of redemption of a
Note
in part, the portion not to be redeemed) or (c) any Notes or portions
thereof in respect of which a Note has been delivered and not withdrawn by
the
Holder thereof (except, in the case of the purchase of a Note in part, the
portion not to be purchased).
All
Notes
issued upon any registration of transfer or exchange of Notes shall be valid
obligations of the Company, evidencing the same debt and entitled to the
same
benefits under this Indenture, as the Notes surrendered upon such registration
of transfer or exchange.
(b)
Any
Registrar appointed pursuant to Section 2.03 hereof shall provide to the
Trustee
such information as the Trustee may reasonably require in connection with
the
delivery by such Registrar of Notes upon registration of transfer or exchange
of
Notes.
(c)
Each
Holder of a Note agrees to indemnify the Company, the Registrar and the Trustee
against any liability that may result from the registration of transfer,
exchange or assignment of such Holder’s Note in violation of any provision of
this Indenture and/or applicable United States federal or state securities
law.
The
Trustee shall have no obligation or duty to monitor, determine or inquire
as to
compliance with any restrictions on registration of transfer imposed under
this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Participants or other
beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the
terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
| Section 2.07. |
Replacement
Notes
|
If
any
mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Note, the Company shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Note if the Trustee’s requirements are
met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee
and the
Company to protect the Company, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The
Company may charge for its expenses in replacing a Note.
Every
replacement Note is an additional obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
| Section 2.08. |
Outstanding
Notes
|
The
Notes
outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section
as
not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not
cease to be outstanding because the Company or an Affiliate of the Company
holds
the Note.
If
a Note
is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding
unless
the Trustee receives proof satisfactory to it that the replaced Note is held
by
a protected purchaser.
If
the
principal amount of any Note is considered paid under Section 6.01 hereof,
it
ceases to be outstanding and interest on it ceases to accrue.
If
the
Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date, a Change of Control Payment Date or
maturity date, money sufficient to pay Notes payable on that date, then on
and
after that date such Notes shall be deemed to be no longer outstanding and
shall
cease to accrue interest.
| Section 2.09. |
Treasury
Notes
|
In
determining whether the Holders of the required principal amount of Notes
have
concurred in any notice, direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled
by or
under direct or indirect common control with the Company, shall be considered
as
though not outstanding, except that for the purposes of determining whether
the
Trustee shall be protected in relying on any such notice, direction, waiver
or
consent, only Notes that the Trustee knows are so owned shall be so
disregarded.
| Section 2.10. |
Temporary
Notes
|
Until
certificates representing Notes are ready for delivery, the Company may prepare
and execute, and the Trustee, upon receipt of an Authentication Order, shall
authenticate and deliver temporary Notes. Temporary Notes shall be substantially
in the form of definitive Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and
the
Trustee, upon receipt of an Authentication Order, shall authenticate and
deliver
definitive Notes in exchange for temporary Notes.
Holders
of temporary Notes shall be entitled to all of the benefits of this
Indenture.
| Section 2.11. |
Cancellation
|
The
Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar, Paying Agent and Conversion Agent shall forward to the Trustee
any
Notes surrendered to them for registration of transfer, exchange, redemption,
payment or conversion. The Trustee and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, redemption, payment,
conversion, replacement or cancellation and shall destroy canceled Notes
(subject to the record retention requirement of the Exchange Act), in accordance
with their normal procedures. All Notes which are redeemed, purchased or
otherwise acquired by the Company or any of its Subsidiaries prior to the
maturity date shall be delivered to the Trustee for cancellation. Certification
of the destruction of all canceled Notes shall be delivered to the Company.
The
Company may not hold or resell such Notes or issue new Notes to replace Notes
that it has purchased or otherwise acquired or that have been delivered to
the
Trustee for cancellation.
| Section 2.12. |
Additional
Transfer and Exchange
Requirements
|
(a)
Transfer
And Exchange Of Global Notes.
(1) Definitive
Notes shall be issued in exchange for interests in the Global Notes only
if (x)
the Depositary notifies the Company that it is unwilling or unable to continue
as depositary for the Global Notes or if it at any time ceases to be a “clearing
agency” registered under the Exchange Act, if so required by applicable law or
regulation and a successor depositary is not appointed by the Company within
90
days, or (y) an Event of Default has occurred and is continuing. In either
case,
the Company shall execute, and the Trustee shall, upon receipt of an
Authentication Order (which the Company agrees to delivery promptly),
authenticate and deliver Definitive Notes in an aggregate principal amount
equal
to the principal amount of such Global Notes in exchange therefor. Only
Restricted Definitive Notes shall be issued in exchange for beneficial interests
in Restricted Global Notes, and only Unrestricted Definitive Notes shall
be
issued in exchange for beneficial interests in Unrestricted Global Notes.
Definitive Notes issued in exchange for beneficial interests in Global Notes
shall be registered in such names and shall be in such authorized denominations
as the Depositary, pursuant to instructions from its direct or Indirect
Participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver
or cause to be delivered such Definitive Notes to the persons in whose names
such Notes are so registered. Such exchange shall be effected in accordance
with
the Applicable Procedures.
(2) Notwithstanding
any other provisions of this Indenture other than the provisions set forth
in
Section 2.12(a)(1), a Global Note may not be transferred as a whole except
by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary
or
any such nominee to a successor Depositary or a nominee of such successor
Depositary.
(b)
Transfer
And Exchange Of Definitive Notes.
In the
event that Definitive Notes are issued in exchange for beneficial interests
in
Global Notes in accordance with Section 2.12(a)(1) of this Indenture, on
or
after such event when Definitive Notes are presented by a Holder to a Registrar
with a request:
(x) to
register the transfer of the Definitive Notes to a person who will take delivery
thereof in the form of Definitive Notes only; or
(y) to
exchange such Definitive Notes for an equal principal amount of Definitive
Notes
of other authorized denominations,
such
Registrar shall register the transfer or make the exchange as requested;
provided, however, that the Definitive Notes presented or surrendered for
register of transfer or exchange:
(1) shall
be
duly endorsed or accompanied by a written instrument of transfer in accordance
with the proviso to the first paragraph of Section 2.06(a); and
(2) in
the
case of a Restricted Definitive Note, such request shall be accompanied by
the
following additional information and documents, as applicable:
(i) if
such
Restricted Definitive Note is being delivered to the Registrar by a Holder
for
registration in the name of such Holder, without transfer, or such Restricted
Definitive Note is being transferred to the Company or a Subsidiary of the
Company, a certification to that effect from such Holder (in substantially
the
form set forth in the Transfer Certificate);
(ii) if
such
Restricted Definitive Note is being transferred to a person the Holder
reasonably believes is a QIB in accordance with Rule 144A or is being
transferred to a Non-U.S. Person in an offshore transaction in accordance
with
Rule 903 or Rule 904 or pursuant to an effective registration statement under
the Securities Act, a certification to that effect from such Holder (in
substantially the form set forth in the Transfer Certificate); or
(iii) if
such
Restricted Definitive Note is being transferred (A) pursuant to an exemption
from the registration requirements of the Securities Act in accordance with
Rule
144 or (B) pursuant to an exemption from the registration requirements of
the
Securities Act (other than pursuant to Rule 144A, Rule 144, Rule 903 or Rule
904) and as a result of which, in the case of a Note transferred pursuant
to
this clause (B), such Note shall cease to be a “restricted security” within the
meaning of Rule 144, a certification to that effect from the Holder (in
substantially the form set forth in the Transfer Certificate) and, if the
Company or such Registrar so requests, a customary opinion of counsel,
certificates and other information reasonably acceptable to the Company and
such
Registrar to the effect that such transfer is in compliance with the
registration requirements of the Securities Act.
(c)
Transfer
of a Beneficial Interest in a Restricted Global Note for a Beneficial Interest
in an Unrestricted Global Note.
Any
person having a beneficial interest in a Restricted Global Note may upon
request, subject to the Applicable Procedures, transfer such beneficial interest
to a person who is required or permitted to take delivery thereof in the
form of
a beneficial interest in an Unrestricted Global Note. Upon receipt by the
Trustee of written instructions, or such other form of instructions as is
customary for the Depositary, from the Depositary or its nominee on behalf
of
any person having a beneficial interest in a Restricted Global Note and the
following additional information and documents in such form as is customary
for
the Depositary from the Depositary or its nominee on behalf of the person
having
such beneficial interest in the Restricted Global Note (all of which may
be
submitted by facsimile or electronically):
(1) if
such
beneficial interest is being transferred pursuant to an effective registration
statement under the Securities Act, a certification to that effect from the
transferor (in substantially the form set forth in the Transfer Certificate);
or
(2) if
such
beneficial interest is being transferred (i) pursuant to an exemption from
the
registration requirements of the Securities Act in accordance with Rule 144
or
(ii) pursuant to an exemption from the registration requirements of the
Securities Act (other than pursuant to Rule 144A, Rule 144, Rule 903 or Rule
904) and as a result of which, in the case of a Note transferred pursuant
to
this clause (ii), such Note shall cease to be a “restricted security” within the
meaning of Rule 144, a certification to that effect from the transferor (in
substantially the form set forth in the Transfer Certificate) and, if the
Company or the Trustee so requests, a customary opinion of counsel, certificates
and other information reasonably acceptable to the Company and the Trustee
to
the effect that such transfer is in compliance with the registration
requirements of the Securities Act.
The
Trustee, as a Registrar and Custodian, shall reduce or cause to be reduced
the
aggregate principal amount of the Restricted Global Note by the appropriate
principal amount and shall increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note by a like principal amount.
Such transfer shall otherwise be effected in accordance with the Applicable
Procedures. If no Unrestricted Global Note is then outstanding, the Company
shall execute and the Trustee shall, upon receipt of an Authentication Order
(which the Company agrees to deliver promptly), authenticate and deliver
an
Unrestricted Global Note.
(d)
Transfer
of a Beneficial Interest in an Unrestricted Global Note for a Beneficial
Interest In a Restricted Global Note.
Any
person having a beneficial interest in an Unrestricted Global Note may upon
request, subject to the Applicable Procedures, transfer such beneficial interest
to a person who is required or permitted to take delivery thereof in the
form of
a Restricted Global Note (it being understood that only QIBs may own beneficial
interests in Restricted Global Notes). Upon receipt by the Trustee of written
instructions or such other form of instructions as is customary for the
Depositary, from the Depositary or its nominee, on behalf of any person having
a
beneficial interest in an Unrestricted Global Note and, in such form as is
customary for the Depositary, from the Depositary or its nominee on behalf
of
the person having such beneficial interest in the Unrestricted Global Note
(all
of which may be submitted by facsimile or electronically) a certification
from
the transferor (in substantially the form set forth in the Transfer Certificate)
to the effect that such beneficial interest is being transferred to a person
that the transferor reasonably believes is a QIB in accordance with Rule
144A.
The Trustee, as a Registrar and Custodian, shall reduce or cause to be reduced
the aggregate principal amount of the Unrestricted Global Note by the
appropriate principal amount and shall increase or cause to be increased
the
aggregate principal amount of the Restricted Global Note by a like principal
amount. Such transfer shall otherwise be effected in accordance with the
Applicable Procedures. If no Restricted Global Note is then outstanding,
the
Company shall execute and the Trustee shall, upon receipt of an Authentication
Order (which the Company agrees to deliver promptly), authenticate and deliver
a
Restricted Global Note.
(e)
Transfers
of Definitive Notes for Beneficial Interest in Global Notes.
In the
event that Definitive Notes are issued in exchange for beneficial interests
in
Global Notes and, thereafter, the events or conditions specified in Section
2.12(a)(1) which required such exchange shall cease to exist, the Company
shall
mail notice to the Trustee and to the Holders stating that Holders may exchange
Definitive Notes for interests in Global Notes by complying with the procedures
set forth in this Indenture and briefly describing such procedures and the
events or circumstances requiring that such notice be given. Thereafter,
if
Definitive Notes are presented by a Holder to a Registrar with a request:
(x) to
register the transfer of such Definitive Notes to a person who will take
delivery thereof in the form of a beneficial interest in a Global Note, which
request shall specify whether such Global Note will be a Restricted Global
Note
or an Unrestricted Global Note; or
(y) to
exchange such Definitive Notes for an equal principal amount of beneficial
interests in a Global Note, which beneficial interests will be owned by the
Holder transferring such Definitive Notes (provided that in the case of such
an
exchange, Restricted Definitive Notes may be exchanged only for Restricted
Global Notes and Unrestricted Definitive Notes may be exchanged only for
Unrestricted Global Notes),
the
Registrar shall register the transfer or make the exchange as requested by
canceling such Definitive Note and causing, or directing the Custodian to
cause,
the aggregate principal amount of the applicable Global Note to be increased
accordingly and, if no such Global Note is then outstanding, the Company
shall
issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate and deliver a new Global Note; provided, however, that the
Definitive Notes presented or surrendered for registration of transfer or
exchange:
(1) shall
be
duly endorsed or accompanied by a written instrument of transfer in accordance
with the proviso to Section 2.06; and
(2) in
the
case of a Definitive Note to be transferred or exchanged for a beneficial
interest in a Global Note, such request need not be accompanied by any
additional information or documents.
(f)
Legends.
(1) Except
as
permitted by the following paragraphs (2) and (3), each Global Note and
Definitive Note (and all Notes issued in exchange therefor or upon registration
of transfer or replacement thereof) shall bear a Private Placement Legend
(each
a “Restricted Global Note” for so long as it is required by this Indenture to
bear such legend). Each Restricted Global Note shall have attached thereto
a
certificate (a “Transfer Certificate”) in substantially the form called for by
Exhibit B hereto.
(2) Upon
any
sale or transfer of a Restricted Global Note (w) after the expiration of
the
holding period applicable to sales of the Notes under Rule 144(k) of the
Securities Act, (x) pursuant to Rule 144, (y) pursuant to an effective
registration statement under the Securities Act or (z) pursuant to any other
available exemption (other than Rule 144A) from the registration requirements
of
the Securities Act and as a result of which, in the case of a Note transferred
pursuant to this clause (z), such Note shall cease to be a “restricted security”
within the meaning of Rule 144:
(i) in
the
case of any Restricted Definitive Note, any Registrar shall permit the Holder
thereof to exchange such Restricted Definitive Note for an Unrestricted
Definitive Note, or (under the circumstances described in Section 2.12(e))
to
transfer such Restricted Definitive Note to a transferee who shall take such
Note in the form of a beneficial interest in an Unrestricted Global Note,
and in
each case shall rescind any restriction on the transfer of such Note; provided,
however, that the Holder of such Restricted Definitive Note shall, in connection
with such exchange or transfer, comply with the other applicable provisions
of
this Section 2.12; and
(ii) in
the
case of any beneficial interest in a Restricted Global Note, the Trustee
shall
permit the beneficial owner thereof to transfer such beneficial interest
to a
transferee who shall take such interest in the form of a beneficial interest
in
an Unrestricted Global Note and shall rescind any restriction on transfer
of
such beneficial interest; provided, that such Unrestricted Global Note shall
continue to be subject to the provisions of Section 2.12(a)(2); and provided,
further, that the owner of such beneficial interest shall, in connection
with
such transfer, comply with the other applicable provisions of this Section
2.12.
(3) Upon
the
exchange, registration of transfer or replacement of Notes not bearing the
legend described in paragraph (1) above, the Company shall execute, and the
Trustee shall authenticate and deliver Notes that do not bear such legend
and
that do not have a Transfer Certificate attached thereto.
(4) After
the
expiration of the holding period pursuant to Rule 144(k) of the Securities
Act,
the Company may with the consent of the Holder of a Restricted Global Note
or
Restricted Definitive Note, remove any restriction of transfer on such Note,
and
the Company shall execute, and the Trustee shall authenticate and deliver
Notes
that do not bear such legend and that do not have a Transfer Certificate
attached thereto.
(g)
Transfers
to the Company.
Nothing
in this Indenture or in the Notes shall prohibit the sale or other transfer
of
any Notes (including beneficial interests in Global Notes) to the Company
or any
of its Subsidiaries, which Notes shall thereupon be cancelled in accordance
with
Section 2.11.
| Section 2.13. |
CUSIP
Numbers
|
The
Company in issuing the Notes may use “CUSIP” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption or
purchase as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either
as
printed on the Notes or as contained in any notice of a redemption or purchase
and that reliance may be placed only on the other identification numbers
printed
on the Notes, and any such redemption or purchase shall not be affected by
any
defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the “CUSIP” numbers.
| Section 2.14. |
Defaulted
Interest
|
If
the
Company defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the
Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing
of
the amount of defaulted interest proposed to be paid on each Note and the
date
of the proposed payment. The Company shall fix or cause to be fixed each
such
special record date and payment date, provided
that no
such special record date shall be less than 10 days prior to the related
payment
date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee
in
the name and at the expense of the Company) shall mail or cause to be mailed
to
Holders a notice that states the special record date, the related payment
date
and the amount of such interest to be paid.
ARTICLE
3.
REDEMPTION
AND PREPAYMENT
| Section 3.01. |
Notices
to Trustee
|
If
the
Company elects to redeem Notes pursuant to the provisional or optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 20 days but not more than 60 days before a redemption date, an
Officers’ Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
| Section 3.02. |
Selection
of Notes to Be Redeemed
|
If
less
than all of the Notes are to be redeemed or purchased in an offer to purchase
at
any time, the Trustee shall select the Notes to be redeemed or purchased
among
the Holders of the Notes in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if
the
Notes are not so listed, on a pro
rata
basis,
by lot or in accordance with any other method the Trustee considers fair
and
appropriate. In the event of partial redemption by lot, the particular Notes
to
be redeemed shall be selected, unless otherwise provided herein, not less
than
20 nor more than 60 days prior to the redemption date by the Trustee from
the
outstanding Notes not previously called for redemption.
The
Trustee shall promptly notify the Company in writing of the Notes selected
for
redemption and, in the case of any Note selected for partial redemption,
the
principal amount thereof to be redeemed. Notes and portions of Notes selected
shall be in amounts of $1,000 or whole multiples of $1,000; except that if
all
of the Notes of a Holder are to be redeemed, the entire outstanding amount
of
Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed.
Except as provided in the preceding sentence, provisions of this Indenture
that
apply to Notes called for redemption also apply to portions of Notes called
for
redemption.
| Section 3.03. |
Notice
of Redemption
|
At
least
20 days but not more than 60 days before a redemption date, the Company shall
mail or cause to be mailed, by first class mail, a notice of redemption to
each
Holder whose Notes are to be redeemed at its registered address.
The
notice shall identify the Notes to be redeemed and shall state:
(a)
the
redemption date;
(b)
the
redemption price;
(c)
the
then
current Conversion Price;
(d)
if
any
Note is being redeemed in part, the portion of the principal amount of such
Note
to be redeemed and that, after the redemption date upon surrender of such
Note,
a new Note or Notes in principal amount equal to the unredeemed portion shall
be
issued upon cancellation of the original Note;
(e)
the
name
and address of the Paying Agent and Conversion Agent;
(f)
that
Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(g)
that
Notes called for redemption must be presented and surrendered to a Paying
Agent
to collect the Redemption Price;
(h)
that
Holders who wish to convert Notes must surrender such Notes for conversion
no
later than the close of business on the Business Day immediately preceding
the
Redemption Date and must satisfy the other requirements in paragraph 8 of
the
Notes;
(i)
that,
unless the Company defaults in making such redemption payment, interest on
Notes
called for redemption ceases to accrue on and after the redemption
date;
(j)
the
paragraph of the Notes and/or Section of this Indenture pursuant to which
the
Notes called for redemption are being redeemed; and
(k)
that
no
representation is made as to the correctness or accuracy of the CUSIP number,
if
any, listed in such notice or printed on the Notes.
At
the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided,
however,
that
the Company shall have delivered to the Trustee, at least 40 days prior to
the
redemption date, an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
| Section 3.04. |
Effect
of Notice of Redemption
|
Once
notice of redemption is mailed in accordance with Section 3.03 hereof, Notes
called for redemption become irrevocably due and payable on the redemption
date
at the redemption price. A notice of redemption may not be
conditional.
| Section 3.05. |
Deposit
of Redemption Price
|
One
Business Day prior to the redemption date, the Company shall deposit with
the
Trustee or with the Paying Agent money sufficient to pay the redemption price
of
and accrued interest on all Notes to be redeemed on that date. The Trustee
or
the Paying Agent shall promptly return to the Company any money deposited
with
the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption price of, and accrued interest on, all Notes
to
be redeemed.
If
the
Company complies with the provisions of the preceding paragraph, on and after
the redemption date, interest shall cease to accrue on the Notes or the portions
of Notes called for redemption. If a Note is redeemed on or after an interest
record date but on or prior to the related interest payment date, then any
accrued and unpaid interest shall be paid to the Person in whose name such
Note
was registered at the close of business on such record date. If any Note
called
for redemption shall not be so paid upon surrender for redemption because
of the
failure of the Company to comply with the preceding paragraph, interest shall
be
paid on the unpaid principal, from the redemption date until such principal
is
paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section
6.01
hereof.
| Section 3.06. |
Notes
Redeemed in Part
|
Upon
surrender of a Note that is redeemed in part, the Company shall issue and,
upon
the Company’s written request, the Trustee shall authenticate for the Holder at
the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
| Section 3.07. |
Provisional
Redemption
|
(a)
The
Notes
may be redeemed at the election of the Company, as a whole or in part from
time
to time, at any time (a “Provisional
Redemption”),
upon
at least 20 and not more than 60 days’ notice by mail to the Holders of the
Notes (a “Provisional
Redemption Notice”)
at a
redemption price equal to $1,000 per $1,000 principal amount of the Notes
redeemed plus accrued and unpaid interest, if any (such amount, together
with
the Early Call Premium described below, the “Provisional
Redemption Price”),
to
but excluding the date of redemption (the “Provisional
Redemption Date”)
if the
Closing Sale Price of the Common Stock has exceeded 150% of the Conversion
Price
for at least 20 Trading Days within a period of any 30 consecutive Trading
Days
ending on the Trading Day prior to the date of mailing of the notice of
Provisional Redemption (the “Provisional
Redemption Notice Date”).
(b)
Except
as
set forth in clause (a) of this Section 3.07, the Company shall not have
the
option to redeem the Notes pursuant to this Section 3.07.
(c)
Any
redemption pursuant to this Section 3.07 shall be made pursuant to the
provisions of Section 3.01 through 3.06 hereof.
| Section 3.08. |
Early
Call Premium
|
If
the
Company delivers a Provisional Redemption Notice pursuant to Section 3.07(a)
on
or prior to May 15, 2007, the Company shall make an additional payment, at
its
option, in cash or Common Stock or a combination of cash and Common Stock
(the
“Early Call Premium”) with respect to the Notes called for redemption to holders
on the Provisional Redemption Notice Date in an amount equal to $150.00 per
$1,000 principal amount of the Notes, less the amount of any interest actually
paid (including, if the Provisional Redemption Date occurs after a record
date
but before an interest payment date, any interest paid or to be paid in
connection with such interest payment date) on such Notes prior to the
Provisional Redemption Date. Payments made in Common Stock will be valued
at 95%
of the average closing sales prices of Common Stock for the five Trading
Days
ending on and including the third day prior to the Provisional Redemption
Date.
The Company shall pay the Early Call Premium on all Notes called for Provisional
Redemption, including those Notes converted into Common Stock between the
Provisional Redemption Notice Date and the Provisional Redemption
Date.
| Section 3.09. |
Mandatory
Redemption
|
The
Company shall not be required to make mandatory redemption payments with
respect
to the Notes.
ARTICLE
4.
Conversion
| Section 4.01. |
Conversion
Privilege
|
A
Holder
of a Note may convert it into fully paid and nonassessable shares of Common
Stock at any time prior to maturity at the Conversion Price then in effect,
except that, with respect to any Note called for redemption or submitted
or
presented for purchase pursuant to Section 6.08, such conversion right shall
terminate at the close of business on the Business Day immediately preceding
the
Redemption Date or Change of Control Payment Date, as the case may be (unless
the Company shall default in making the redemption payment or Change
of
Control
Payment when it becomes due, in which case the conversion right shall terminate
on the date such default is cured and such Note is redeemed or purchased,
as the
case may be). The number of shares of Common Stock issuable upon conversion
of a
Note is determined by dividing the principal amount of such Note by the
conversion price in effect on the Conversion Date (the “Conversion
Price”).
The
initial Conversion Price is stated in Section 9 of the Notes and is subject
to
adjustment as provided in this Article 4.
A
Holder
may convert a portion of a Note equal to any integral multiple of $1,000.
Provisions of this Indenture that apply to conversion of all of a Note also
apply to conversion of a portion of it.
A
Note in
respect of which a Holder has delivered a Change of Control Payment Notice
pursuant to Section 6.08 exercising the option of such Holder to require
the
Company to purchase such Note may be converted only if such Change of Control
Payment Notice is withdrawn by a written notice of withdrawal delivered to
a
Paying Agent prior to the close of business on the Business Day immediately
preceding the Change of Control Payment Date in accordance with Section 6.08.
A
Holder
of Notes is not entitled to any rights of a holder of Common Stock until
such
Holder has converted its Notes to Common Stock, and only to the extent such
Notes are deemed to have been converted into Common Stock pursuant to this
Article 4.
| Section 4.02. |
Conversion
Procedure
|
To
convert a Note, a Holder must satisfy the requirements in Section 9 of the
Notes. The date on which the Holder satisfies all of those requirements is
the
conversion date (the “Conversion
Date”).
As
soon as practicable after the Conversion Date, the Company shall deliver
to the
Holder through the Conversion Agent a certificate for the number of whole
shares
of Common Stock issuable upon the conversion and a check for any fractional
share determined pursuant to Section 4.03 hereof. The Person in whose name
the
certificate is registered shall become the stockholder of record on the
Conversion Date and, as of such date, such Person’s rights as a Holder shall
cease; provided,
however,
that no
surrender of a Note on any date when the stock transfer books of the Company
shall be closed shall be effective to constitute the Person entitled to receive
the shares of Common Stock upon such conversion as the stockholder of record
of
such shares of Common Stock on such date, but such surrender shall be effective
to constitute the Person entitled to receive such shares of Common Stock
as the
stockholder of record thereof for all purposes at the close of business on
the
next succeeding day on which such stock transfer books are open; provided
further, however,
that
such conversion shall be at the Conversion Price in effect on the date that
such
Note shall have been surrendered for conversion, as if the stock transfer
books
of the Company had not been closed.
No
payment or other adjustment shall be made for accrued interest or dividends
or
distributions on any Common Stock issued upon conversion of the Notes. If
any
Notes are converted during any period after any record date for the payment
of
an installment of interest but before the next interest payment date, interest
for such notes will be paid on the next interest payment date, notwithstanding
such conversion, to the Holders of such Notes. Any Notes that are, however,
delivered to the Company for conversion after any record date but before
the
next interest payment date must, except as described in the next sentence,
be
accompanied by a payment equal to the interest payable on such interest payment
date on the principal amount of Notes being converted. The payment to the
Company described in the preceding sentence shall not be required if, during
that period between a record date and the next interest payment date, a
conversion occurs on or after the date that the Company has issued a redemption
notice or Change of Control Offer and prior to the date of redemption stated
in
such notice or the Change on Control Payment Date, as the case may be. No
fractional shares will be issued upon conversion, but a cash adjustment will
be
made for any fractional shares.
If
a
Holder converts more than one Note at the same time, the number of whole
shares
of Common Stock issuable upon the conversion shall be based on the total
principal amount of Notes converted.
Upon
surrender of a Note that is converted in part, the Trustee shall authenticate
for the Holder a new Note equal in principal amount to the unconverted portion
of the Note surrendered.
| Section 4.03. |
Fractional
Shares
|
The
Company will not issue fractional shares of Common Stock upon conversion
of a
Note. In lieu thereof, the Company will pay an amount in cash based upon
the
Closing Sale Price of the Common Stock on the last trading day prior to the
date
of conversion.
| Section 4.04. |
Taxes
on Conversion
|
The
issuance of certificates for shares of Common Stock upon the conversion of
any
Note shall be made without charge to the converting Holder for such certificates
or for any tax in respect of the issuance of such certificates, and such
certificates shall be issued in the respective names of, or in such names
as may
be directed by, the Holder or Holders of the converted Note; provided,
however,
that in
the event that certificates for shares of Common Stock are to be issued in
a
name other than the name of the Holder of the Note converted, such Note,
when
surrendered for conversion, shall be accompanied by an instrument of transfer,
in form satisfactory to the Company, duly executed by the registered holder
thereof or his duly authorized attorney; and provided
further, however,
that the
Company shall not be required to pay any tax which may be payable in respect
of
any transfer involved in the issuance and delivery of any such certificates
in a
name other than that of the Holder of the converted Note, and the Company
shall
not be required to issue or deliver such certificates unless or until the
Person
or Persons requesting the issuance thereof shall have paid to the Company
the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid or is not applicable.
| Section 4.05. |
Company
to Provide Stock
|
The
Company shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, solely for the purpose
of issuance upon conversion of Notes as herein provided, a sufficient number
of
shares of Common Stock to permit the conversion of all outstanding Notes
for
shares of Common Stock. All shares of Common Stock which may be issued upon
conversion of the Notes shall be duly authorized, validly issued, fully paid
and
nonassessable and free of preemptive rights and free of any lien or adverse
claim when so issued.
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 Notes, if any, and will list or cause to have quoted such shares of Common
Stock on each national securities exchange or on The Nasdaq National Market
or
other over-the-counter market or such other market on which the Common Stock
is
then listed or quoted; provided,
however,
that if
rules of such automated quotation system or exchange permit the Company to
defer
the listing of such Common Stock until the first conversion of the Notes
into
Common Stock in accordance with the provisions of this Indenture, the Company
covenants to list such Common Stock issuable upon conversion of the Notes
in
accordance with the requirements of such automated quotation system or exchange
at such time.
| Section 4.06. |
Adjustment
of Conversion Price
|
The
Conversion Price shall be subject to adjustment from time to time as
follows:
(a)
Stock
split and combinations.
In case
the Company, at any time or from time to time after the issuance date of
the
Notes (a) subdivides or splits the outstanding shares of its Common Stock,
(b) combines or reclassifies the outstanding shares of its Common Stock
into a smaller number of shares or (c) issues by reclassification of the
shares of its Common Stock any shares of its capital stock, then the Conversion
Price in effect immediately prior to that event or the record date for that
event, whichever is earlier, will be adjusted so that the holder of any Notes
thereafter surrendered for conversion will be entitled to receive the number
of
shares of the Company’s Common Stock or of its other securities which the Holder
would have owned or have been entitled to receive after the occurrence of
any of
the events described above, had those Notes been surrendered for conversion
immediately before the occurrence of that event or the record date for that
event, whichever is earlier.
(b)
Stock
Dividends in Common Stock.
In case
the Company, at any time or from time to time after the issuance date of
the
Notes, pays a dividend or makes a distribution in shares of its Common Stock
on
any class of its capital stock other than dividends or distributions of shares
of Common Stock or other securities with respect to which adjustments are
provided in paragraph (a) above or with respect to payments of interest or
dividend obligations with respect to a particular series of capital stock
in
accordance with the terms of such capital stock, the Conversion Price will
be
adjusted so that the Holder of each Note will be entitled to receive, upon
conversion of that Note, the number of shares of the Company’s Common Stock
determined by multiplying (a) the Conversion Price by (b) a fraction,
the numerator of which will be the number of shares of Common Stock outstanding
and the denominator of which will be the sum of that number of shares and
the
total number of shares issued in that dividend or distribution;
(c)
Issuance
of rights or warrants.
In case
the Company issues to all holders of its Common Stock rights or warrants
entitling those holders for a period of not more than 60 days to subscribe
for
or purchase its Common Stock or securities convertible into its Common Stock
at
a price per share or conversion price per share less than the Current Market
Price, the Conversion Price in effect immediately before the close of business
on the record date fixed for determination of shareholders entitled to receive
those rights or warrants will be reduced by multiplying the Conversion Price
by
a fraction, the numerator of which is the sum of the number of shares of
the
Company’s Common Stock outstanding at the close of business on that record date
and the number of shares of Common Stock that the aggregate offering price
of
the total number of shares of the Company’s Common Stock so offered for
subscription or purchase would purchase at the Current Market Price and the
denominator of which is the sum of the number of shares of Common Stock
outstanding at the close of business on that record date and the number of
additional shares of the Company’s Common Stock so offered for subscription or
purchase. For purposes of this paragraph (c), the issuance of rights or warrants
to subscribe for or purchase securities convertible into shares of the Company’s
Common Stock will be deemed to be the issuance of rights or warrants to purchase
shares of the Company’s Common Stock into which those securities are convertible
at an aggregate offering price equal to the sum of the aggregate offering
price
of those securities and the minimum aggregate amount, if any, payable upon
conversion of those securities into shares of the Company’s Common Stock. This
adjustment will be made successively whenever any such event
occurs.
(d)
Distribution
of indebtedness, securities or assets.
In case
the Company shall distribute to all or substantially all holders of its Common
Stock any shares of capital stock of the Company (other than Common Stock),
evidences of indebtedness or other non-cash assets (including securities
of any
person other than the Company but excluding (1) dividends or distributions
paid exclusively in cash or (2) dividends or distributions referred to in
subsection (b) of this Section 4.06), 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 (c) of this Section 4.06 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 Price
shall be adjusted so that the same shall equal the price determined by
multiplying the current Conversion Price by a fraction of which the numerator
shall be the current market price per share (as defined in subsection (g)
of
this Section 4.06) of the Common Stock on the record date mentioned below
less
the fair market value on such record date (as determined by the Board of
Directors, whose determination shall be conclusive evidence of such fair
market
value and which shall be evidenced by an Officers’ Certificate delivered to the
Trustee) of the portion of the capital stock, evidences of indebtedness or
other
non-cash assets so distributed or of such rights or warrants applicable to
one
share of Common Stock (determined on the basis of the number of shares of
Common
Stock outstanding on the record date), and of which the denominator shall
be the
current market price per share (as defined in subsection (g) of this Section
4.06) of the Common Stock on such record date. Such adjustment shall be made
successively whenever any such distribution is made and shall become effective
immediately after the record date for the determination of shareholders entitled
to receive such distribution.
(e)
In
case
the Company shall, by dividend or otherwise, at any time distribute (a
“Triggering
Distribution”)
to all
or substantially all holders of its Common Stock cash in an aggregate amount
that, together with the aggregate amount of (A) any cash and the fair
market value (as determined by the Board of Directors, whose determination
shall
be conclusive evidence thereof and which shall be evidenced by an Officers’
Certificate delivered to the Trustee) of any other consideration payable
in
respect of any tender offer by the Company or a Subsidiary of the Company
for
Common Stock consummated within the 12 months preceding the date of payment
of
the Triggering Distribution and in respect of which no Conversion Price
adjustment pursuant to this Section 4.06 has been made and (B) all other
cash distributions to all or substantially all holders of its Common Stock
made
within the 12 months preceding the date of payment of the Triggering
Distribution and in respect of which no Conversion Price adjustment pursuant
to
this Section 4.06 has been made, exceeds an amount equal to 10.0% of the
product
of the current market price per share of Common Stock (as determined in
accordance with subsection (g) of this Section 4.06) on the Business Day
(the
“Determination
Date”)
immediately preceding the day on which such Triggering Distribution is declared
by the Company multiplied by the number of shares of Common Stock outstanding
on
the Determination Date (excluding shares held in the treasury of the Company),
the Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying such Conversion Price in effect immediately prior
to
the Determination Date by a fraction of which the numerator shall be the
current
market price per share of the Common Stock (as determined in accordance with
subsection (g) of this Section 4.06) on the Determination Date less the sum
of
the aggregate amount of cash and the aggregate fair market value (determined
as
aforesaid in this Section 4.06(d)) of any such other consideration so
distributed, paid or payable within such 12 months (including, without
limitation, the Triggering Distribution) applicable to one share of Common
Stock
(determined on the basis of the number of shares of Common Stock outstanding
on
the Determination Date) and the denominator shall be such current market
price
per share of the Common Stock (as determined in accordance with subsection
(g)
of this Section 4.06) on the Determination Date, such reduction to become
effective immediately prior to the opening of business on the day following
the
date on which the Triggering Distribution is paid.
(f)
In
case
any tender offer made by the Company or any of its Subsidiaries for Common
Stock
shall expire and such tender offer (as amended upon the expiration thereof)
shall involve the payment of aggregate consideration in an amount (determined
as
the sum of the aggregate amount of cash consideration and the aggregate fair
market value (as determined by the Board of Directors, whose determination
shall
be conclusive evidence thereof and which shall be evidenced by an Officers’
Certificate delivered to the Trustee thereof) of any other consideration)
that,
together with the aggregate amount of (A) any cash and the fair market
value (as determined by the Board of Directors, whose determination shall
be
conclusive evidence thereof and which shall be evidenced by an Officers’
Certificate delivered to the Trustee) of any other consideration payable
in
respect of any other tender offers by the Company or any Subsidiary of the
Company for Common Stock consummated within the 12 months preceding the date
of
the Expiration Date (as defined below) and in respect of which no Conversion
Price adjustment pursuant to this Section 4.06 has been made and (B) all
cash distributions to all or substantially all holders of its Common Stock
made
within the 12 months preceding the Expiration Date and in respect of which
no
Conversion Price adjustment pursuant to this Section 4.06 has been made,
exceeds an amount equal to 10.0% of the product of the current market price
per
share of Common Stock (as determined in accordance with subsection (g) of
this
Section 4.06) as of the last date (the “Expiration
Date”)
tenders could have been made pursuant to such tender offer (as it may be
amended) (the last time at which such tenders could have been made on the
Expiration Date is hereinafter sometimes called the “Expiration
Time”)
multiplied by the number of shares of Common Stock outstanding (including
tendered shares but excluding any shares held in the treasury of the Company)
at
the Expiration Time, then, immediately prior to the opening of business on
the
day after the Expiration Date, the Conversion Price shall be reduced so that
the
same shall equal the price determined by multiplying the Conversion Price
in
effect immediately prior to close of business on the Expiration Date by a
fraction of which the numerator shall be the product of the number of shares
of
Common Stock outstanding (including tendered shares but excluding any shares
held in the treasury of the Company) at the Expiration Time multiplied by
the
current market price per share of the Common Stock (as determined in accordance
with subsection (g) of this Section 4.06) on the Trading Day next succeeding
the
Expiration Date and the denominator shall be the sum of (x) the aggregate
consideration (determined as aforesaid) payable to stockholders based on
the
acceptance (up to any maximum specified in the terms of the tender offer)
of all
shares validly tendered and not withdrawn as of the Expiration Time (the
shares
deemed so accepted, up to any such maximum, being referred to as the
“Purchased
Shares”)
and
(y) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares and excluding any shares held in the treasury of the
Company) at the Expiration Time and the current market price per share of
Common
Stock (as determined in accordance with subsection (g) of this Section 4.06)
on
the Trading Day next succeeding the Expiration Date, such reduction to become
effective immediately prior to the opening of business on the day following
the
Expiration Date. In the event that the Company is obligated to purchase shares
pursuant to any such tender offer, but the Company is permanently prevented
by
applicable law from effecting any or all such purchases or any or all such
purchases are rescinded, the Conversion Price shall again be adjusted to
be the
Conversion Price which would have been in effect based upon the number of
shares
actually purchased. If the application of this Section 4.06(f) to any tender
offer would result in an increase in the Conversion Price, no adjustment
shall
be made for such tender offer under this Section 4.06(f).
For
purposes of this Section 4.06(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.
(g)
For
the
purpose of any computation under subsections (b), (c), (d) and (e) of this
Section 4.06, the current market price per share of Common Stock on any date
shall be deemed to be the average of the daily Closing Sale Prices for the
30
consecutive Trading Days commencing 45 Trading Days before (i) the
Determination Date or the Expiration Date, as the case may be, with respect
to
distributions or tender offers under subsections (d) and (e) of this Section
4.06 or (ii) the record date with respect to distributions, issuances or
other events requiring such computation under subsection (c), (d) or (e)
of this
Section 4.06. If no such prices are available, the current market price per
share shall be the fair value of share of Common Stock as determined by the
Board of Directors (which shall be evidenced by an Officers’ Certificate
delivered to the Trustee).
(h)
If
any
distribution in respect of which an adjustment to the Conversion Price is
required to be made as of the record date or Determination Date or Expiration
Date therefor is not thereafter made or paid by the Company for any reason,
the
Conversion Price shall be readjusted to the Conversion Price which would
then be
in effect if such record date had not been fixed or such effective date or
Determination Date or Expiration Date had not occurred.
| Section 4.07. |
No
Adjustment
|
No
adjustment in the Conversion Price shall be required until cumulative
adjustments amount to 1% or more of the Conversion Price as last adjusted;
provided,
however,
that
any adjustments which by reason of this Section 4.07 are not required to
be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this Article 4 shall be made to the nearest cent or
to
the nearest one-hundredth of a share, as the case may be. No adjustment need
be
made for rights to purchase Common Stock pursuant to a Company plan for
reinvestment of dividends or interest. No adjustment need be made for a change
in the par value or no par value of the Common Stock.
| Section 4.08. |
Other
Adjustments
|
(a)
In
the
event that, as a result of an adjustment made pursuant to Section 4.06 hereof,
the Holder of any Note thereafter surrendered for conversion shall become
entitled to receive any shares of Capital Stock of the Company other than
shares
of its Common Stock, thereafter the Conversion Price of such other shares
so
receivable upon conversion of any Note shall be subject to adjustment from
time
to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in this Article 4.
(b)
In
the
event that shares of Common Stock are not delivered after the expiration
of any
of the rights or warrants referred to in Section 4.06(b) and Section 4.06(c)
hereof, the Conversion Price shall be readjusted to the Conversion Price
which
would otherwise be in effect had the adjustment made upon the issuance of
such
rights or warrants been made on the basis of delivery of only the number
of
shares of Common Stock actually delivered.
| Section 4.09. |
Adjustments
for Tax Purposes
|
The
Company may make such reductions in the Conversion Price, in addition to
those
required by Section 4.06 hereof, as it determines in its discretion to be
advisable in order that any stock dividend, subdivision of shares, distribution
or rights to purchase stock or securities or distribution of securities
convertible into or exchangeable for stock made by the Company to its
stockholders will not be taxable to the recipients thereof.
| Section 4.10. |
Notice
of Adjustment
|
Whenever
the Conversion Price is adjusted, the Company shall promptly mail to Holders
at
the addresses appearing on the Registrar’s books 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. The certificate
shall
be conclusive evidence of the correctness of such adjustment. Unless and
until a
Trust Officer of the Trustee shall receive written notice of an adjustment
of
the Conversion Price, the Trustee may assume without inquiry that the Conversion
Price has not been adjusted and that the last Conversion Price of which it
has
knowledge remains in effect.
| Section 4.11. |
Notice
of Certain Transactions
|
In
the
event that:
(1) the
Company takes any action which would require an adjustment in the Conversion
Price;
(2) the
Company takes any action that would require a supplemental indenture pursuant
to
Section 4.12; or
(3) there
is
a dissolution or liquidation of the Company;
the
Company shall mail to Holders at the addresses appearing on the Registrar’s
books and the Trustee a notice stating the proposed record or effective date,
as
the case may be, to permit a Holder of a Note to convert such Note into shares
of Common Stock prior to the record date for or the effective date of the
transaction in order to receive the rights, warrants, securities or assets
which
a holder of shares of Common Stock on that date may receive. The Company
shall
mail the notice at least 15 days before such date; however, failure to mail
such
notice or any defect therein shall not affect the validity of any transaction
referred to in clause (1), (2) or (3) of this Section 4.11.
| Section 4.12. |
Effect
of Reclassifications, Consolidations, Mergers or Sales on Conversion
Privilege
|
If
any of
the following shall occur, namely: (i) any reclassification or change of
outstanding shares of Common Stock issuable upon conversion of Notes (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 as a result
of a
reincorporation of the Company in another jurisdiction), (ii) any consolidation
or merger 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 a change in name, or par value,
or
from par value to no par value, or from no par value to par value or as a
result
of a subdivision or combination) in, outstanding shares of Common Stock or
(iii) any sale or conveyance of all or substantially all of the property or
business of the Company as an entirety, then the Company, or such successor
or
purchasing corporation, as the case may be, shall, as a condition precedent
to
such reclassification, change, consolidation, merger, sale or conveyance,
execute and deliver to the Trustee a supplemental indenture in form reasonably
satisfactory to the Trustee providing that the Holder of each Note then
outstanding shall have the right to convert such Note into the kind and amount
of shares of stock and other securities and property (including cash) receivable
upon such reclassification, change, consolidation, merger, sale or conveyance
by
a Holder of the number of shares of Common Stock deliverable upon conversion
of
such Note immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance. In the event that the shares of Common Stock
are
exchanged or substituted for other securities in connection with any such
reclassification, change, consolidation, merger, sale or conveyance, such
supplemental indenture shall provide for adjustments of the Conversion Price
which shall be as nearly equivalent as may be practicable to the adjustments
of
the Conversion Price provided for in this Article 4. If, in the case of any
such consolidation, merger, sale or conveyance, the stock or other securities
and property (including cash) receivable thereupon by a Holder of Common
Stock
includes shares of stock or other securities and property of a corporation
other
than the successor or purchasing corporation, as the case may be, in such
consolidation, merger, sale or conveyance, then such supplemental indenture
shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the Holders of the Notes
as
the Board of Directors of the Company shall reasonably consider necessary
by
reason of the foregoing. The provision of this Section 4.12 shall similarly
apply to successive consolidations, mergers, sales or conveyances.
In
the
event the Company shall execute a supplemental indenture pursuant to this
Section 4.12, the Company shall promptly file with the Trustee an Officers’
Certificate briefly stating the reasons therefor, the kind or amount of shares
of stock or securities or property (including cash) receivable by Holders
of the
Notes upon the conversion of their Notes after any such reclassification,
change, consolidation, merger, sale or conveyance and any adjustment to be
made
with respect thereto.
| Section 4.13. |
Trustee’s
Disclaimer
|
The
Trustee has no duty to determine when an adjustment under this Article 4
should
be made, how it should be made or what such adjustment should be, but may
accept
as conclusive evidence of the correctness of any such adjustment, and shall
be
protected in relying upon, the Officers’ Certificate with respect thereto which
the Company is obligated to file with the Trustee pursuant to Section 4.10
hereof. The Trustee makes no representation as to the validity or value of
any
securities or assets issued upon conversion of Notes, and the Trustee shall
not
be responsible for the Company’s failure to comply with any provisions of this
Article 4.
The
Trustee shall not be under any responsibility to determine the correctness
of
any provisions contained in any supplemental indenture executed pursuant
to
Section 4.12, but may accept as conclusive evidence of the correctness thereof,
and shall be protected in relying upon, the Officers’ Certificate with respect
thereto which the Company is obligated to file with the Trustee pursuant
to
Section 4.12 hereof.
| Section 4.14. |
Voluntary
Reduction
|
The
Company from time to time may reduce the Conversion Price by any amount for
any
period of time if the period is at least 20 days and if the reduction is
irrevocable during the period if the Board of Directors determines that such
reduction would be in the best interest of the Company and the Company provides
15 days prior notice of any reduction in the Conversion Price; provided,
however, that in no event may the Company reduce the Conversion Price to
be less
than the par value of a share of Common Stock.
ARTICLE
5.
SUBORDINATION
| Section 5.01. |
Agreement
to Subordinate
|
(a)
The
Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes (including the principal of, premium,
if
any, and interest on all the Notes and the redemption price and Early Call
Premium, if any, with respect to any Notes being called for redemption and
the
Change of Control Payment with respect to all Notes subject to purchase pursuant
to Section 6.08 hereof) is subordinated in right of payment, to the extent
and
in the manner provided in this Article 5, to the prior payment in full of
all
Senior Indebtedness (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is
for the
benefit of the holders of Senior Indebtedness. No provision of this Section
5
shall prevent the occurrence of any Default or Event of Default.
(b)
The
Notes
issued under this Indenture shall be “Senior Indebtedness” (as such term is
defined in the Existing Notes Indenture) for purposes of the Existing 2006
Notes
and the Existing 2006 Notes Indenture, and in furtherance thereof, the Company
agrees that the Notes shall be senior to the Existing 2006 Notes, and that
nothing contained in this Indenture or in the definition of Senior Indebtedness
under this Indenture is meant or shall be construed to provide that the Notes
issued under this Indenture are not senior to the Existing 2006
Notes.
(c)
The
Notes
issued under this Indenture shall rank pari passu with the Existing 2011
Notes.
| Section 5.02. |
Liquidation;
Dissolution; Bankruptcy
|
Upon
any
distribution to creditors of the Company in a liquidation or dissolution
of the
Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property, in an assignment for
the
benefit of creditors or any marshaling of the Company’s assets and
liabilities:
(i) holders
of Senior Indebtedness shall be entitled to receive payment in full of all
Obligations due in respect of such Senior Indebtedness (including interest
after
the commencement of any such proceeding at the rate specified in the applicable
Senior Indebtedness) before Holders of the Notes shall be entitled to receive
any payment with respect to the Notes (except that Holders may receive Permitted
Junior Securities); and
(ii) until
all
Obligations with respect to Senior Indebtedness (as provided in clause (i)
above) are paid in full, any distribution to which Holders would be entitled
but
for this Article 5 shall be made to holders of Senior Indebtedness (except
that
Holders of Notes may receive Permitted Junior Securities), as their interests
may appear.
| Section 5.03. |
Default
on Designated Senior
Indebtedness
|
(a)
The
Company may not make any payment or distribution to the Trustee or any Holder
in
respect of Obligations with respect to the Notes and may not acquire from
the
Trustee or any Holder any Notes for cash or property (other than Permitted
Junior Securities) until all principal and other Obligations with respect
to the
Senior Indebtedness have been paid in full if:
(i) a
default
in the payment of any principal or other Obligations with respect to Designated
Senior Indebtedness occurs and is continuing beyond any applicable grace
period
in the agreement, indenture or other document governing such Designated Senior
Indebtedness; or
(ii) a
default, other than a payment default, on Designated Senior Indebtedness
occurs
and is continuing that then permits holders of the Designated Senior
Indebtedness to accelerate its maturity and the Trustee receives a notice
of the
default (a “Payment
Blockage Notice”)
from a
Person who may give it pursuant to Section 5.12 hereof. If the Trustee receives
any such Payment Blockage Notice, no subsequent Payment Blockage Notice shall
be
effective for purposes of this Section unless and until (A) at least 360
days
shall have elapsed since the issuance of the immediately prior Payment Blockage
Notice and (B) all scheduled payments of principal, premium, if any, and
interest on the Notes that have come due have been paid in full in cash.
No
nonpayment default that existed or was continuing on the date of delivery
of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for
a
subsequent Payment Blockage Notice unless such default shall have been waived
for a period of not less than 180 days.
(b)
The
Company may and shall resume payments on and distributions in respect of
the
Notes and may acquire them upon the earlier of:
(i) the
date
upon which the Trustee receives notice from the Company that the default
is
cured or waived or ceases to exist, or
(ii) in
the
case of a default referred to in clause (ii) of Section 5.03(a) hereof, 179
days
pass after the Payment Blockage Notice is received if the maturity of such
Designated Senior Indebtedness has not been accelerated,
if
this
Article 5 otherwise permits the payment, distribution or acquisition at the
time
of such payment or acquisition.
| Section 5.04. |
Acceleration
of Notes
|
If
payment of the Notes is accelerated because of an Event of Default, the Company
shall promptly notify holders of Senior Indebtedness of the
acceleration.
| Section 5.05. |
When
Distribution Must Be Paid Over
|
In
the
event that the Trustee or any Holder receives any payment of any Obligations
or
distribution of assets of the Company of any kind or character (other than
Permitted Junior Securities pursuant to Section 5 hereof), whether in cash,
property or securities (including, without limitation, by way of setoff or
otherwise) with respect to the Notes at a time when the Trustee or such Holder,
as applicable, has actual knowledge that such payment is prohibited by Section
5.03 hereof, such payment shall be held by the Trustee or such Holder, in
trust
for the benefit of, and shall be paid forthwith over and delivered, upon
written
request, to, the holders of Senior Indebtedness as their interests may appear
or
their Representative under the indenture or other agreement (if any) pursuant
to
which Senior Indebtedness may have been issued, as their respective interests
may appear, for application to the payment of all Obligations with respect
to
Senior Indebtedness remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to
any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
With
respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform
only such obligations on the part of the Trustee as are specifically set
forth
in this Article 5, and no implied covenants or obligations with respect to
the
holders of Senior Indebtedness shall be read into this Indenture against
the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
if
the Trustee shall pay over or distribute to or on behalf of Holders or the
Company or any other Person money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article 5, except if such
payment is made as a result of the willful misconduct or gross negligence
of the
Trustee.
| Section 5.06. |
Notice
by Company
|
The
Company shall promptly notify the Trustee and the Paying Agent of any facts
known to the Company that would cause a payment of any Obligations with respect
to the Notes to violate this Article 5, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Indebtedness
as
provided in this Article 5.
| Section 5.07. |
Subrogation
|
After
all
Senior Indebtedness is paid in full in cash or other payment satisfactory
to the
holders of the Senior Indebtedness and until the Notes are paid in full,
Holders
of Notes shall be subrogated (equally and ratably with all other Indebtedness
pari
passu
with the
Notes and entitled to similar rights of subrogation) to the rights of holders
of
Senior Indebtedness to receive payments or distributions applicable to Senior
Indebtedness to the extent that payments or distributions otherwise payable
to
the Holders of Notes have been applied to the payment of Senior Indebtedness.
A
distribution made under this Article 5 to holders of Senior Indebtedness
that
otherwise would have been made to Holders of Notes (whether by the Company,
any
Holder, the Trustee or otherwise) is not, as between the Company and Holders,
a
payment by the Company on the Notes.
| Section 5.08. |
Relative
Rights
|
This
Article 5 defines the relative rights of Holders of Notes and holders of
Senior
Indebtedness. Nothing in this Indenture shall:
(i) impair,
as between the Company and Holders of Notes, the obligation of the Company,
which is absolute and unconditional, to pay principal of, premium, if any,
and
interest on the Notes in accordance with their terms;
(ii) affect
the relative rights of Holders of Notes and creditors of the Company other
than
their rights in relation to holders of Senior Indebtedness; or
(iii) prevent
the Trustee or any Holder of Notes from exercising its available remedies
upon a
Default or Event of Default, subject to the rights of holders and owners
of
Senior Indebtedness to receive distributions and payments otherwise payable
to
Holders of Notes.
If
the
Company fails because of this Article 5 to pay principal of, premium, if
any, or
interest on a Note on the due date, the failure is still a Default or Event
of
Default.
| Section 5.09. |
Subordination
May Not Be Impaired by Company
|
No
right
of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure
to
act by the Company or any Holder or by the failure of the Company or any
Holder
to comply with this Indenture.
| Section 5.10. |
Distribution
or Notice to Representative
|
Whenever
a distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given to their
Representative.
Upon
any
payment or distribution of assets of the Company referred to in this Article
5,
the Trustee and the Holders of Notes shall be entitled to rely upon any order
or
decree made by any court of competent jurisdiction or upon any certificate
of
such Representative or of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the Holders of Notes for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness
of
the Company, the amount thereof or payable thereon, the amount or amounts
paid
or distributed thereon and all other facts pertinent thereto or to this Article
5.
| Section 5.11. |
Rights
of Trustee and Paying Agent
|
Notwithstanding
the provisions of this Article 5 or any other provision of this Indenture,
the
Trustee shall not at any time be charged with knowledge of the existence
of any
facts that would prohibit the making of any payment or distribution by the
Trustee, and the Trustee and the Paying Agent may continue to make payments
on
the Notes, unless the Trustee shall have received at its Corporate Trust
Office
at least five Business Days prior to the date of such payment written notice
of
facts that would cause the payment of any Obligations with respect to the
Notes
to violate this Article 5. Only the Company or a Representative may give
the
notice. Nothing in this Article 5 shall impair the claims of, or payments
to,
the Trustee under or pursuant to Section 9.07 hereof.
The
Trustee in its individual or any other capacity may hold Senior Indebtedness
with the same rights it would have if it were not Trustee. Any Agent may
do the
same with like rights.
| Section 5.12. |
Authorization
to Effect Subordination
|
Each
Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the
Trustee on such Holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article 5,
and
appoints the Trustee to act as such Holder’s attorney-in-fact for any and all
such purposes. If the Trustee does not file a proper proof of claim or proof
of
debt in the form required in any proceeding referred to in Section 8.09 hereof
at least 30 days before the expiration of the time to file such claim, the
holders of any Designated Senior Indebtedness are hereby authorized to file
an
appropriate claim for and on behalf of the Holders of the Notes.
| Section 5.13. |
Amendments
|
The
provisions of this Article 5 shall not be amended or modified without the
written consent of the holders of all Senior Indebtedness.
| Section 5.14. |
Agreement
to Subordinate Unaffected
|
The
provisions of this Article 5 shall remain in full force and effect irrespective
of (a) any amendment, modification, or supplement of, or any waiver or consent
to, any of the terms of the Senior Indebtedness or the agreement or instrument
governing the Senior Indebtedness, (b) the release or non-perfection of any
collateral securing the Senior Indebtedness or (c) the manner of sale or
other
disposition of the collateral securing the Senior Indebtedness or the
application of the proceeds upon such sale.
| Section 5.15. |
Certain
Conversions Deemed Payment
|
For
the
purposes of this Article 5 only, (1) the issuance and delivery of Permitted
Junior Securities upon conversion of Notes in accordance with Article 4 shall
not be deemed to constitute a payment or distribution on account of the
principal of, or premium, if any, or interest on the Notes or on account
of the
purchase or other acquisition of Notes, and (2) the payment, issuance or
delivery of cash (except in satisfaction of fractional shares pursuant to
Section 4.03), property or securities (other than Permitted Junior Securities)
upon conversion of a Note shall be deemed to constitute payment on account
of
the principal of such Note. Nothing contained in this Article 5 or elsewhere
in
this Indenture or in the Notes is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Indebtedness and the
Holders, the right, which is absolute and unconditional, of the Holder of
any
Note to convert such Note in accordance with Article 4.
ARTICLE
6.
COVENANTS
| Section 6.01. |
Payment
of Notes
|
The
Company shall pay or cause to be paid the principal of, premium, if any,
and
interest on the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest shall be considered paid on the
date
due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient
to pay
all principal, premium, if any, and interest then due.
The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal at the rate borne by the Notes
to
the extent lawful; it shall pay interest (including post-petition interest
in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
| Section 6.02. |
Maintenance
of Office or Agency
|
The
Company shall maintain in the Borough of Manhattan, the City of New York,
a
Paying Agent, Conversion Agent, Registrar and an office or agency (which
may be
an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer
or for
exchange and where notices and demands to or upon the Company in respect
of the
Notes and this Indenture may be served. 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.
The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; 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.
The
Company hereby designates the Corporate Trust Office of the Trustee as one
such
office or agency of the Company in accordance with Section 2.03.
| Section 6.03. |
Reports
|
The
Company shall furnish to the Holders of Notes copies of the annual reports
and
of the information, documents and other reports (or copies of such portions
of
any of the foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Company may be required to file with the SEC pursuant
to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if
the
Company is not required to file information, documents or reports pursuant
to
either of said Sections, then it shall file with the Trustee and the SEC,
in
accordance with rules and regulations prescribed from time to time by the
SEC,
such of the supplementary and periodic information, documents and reports
which
may be required pursuant to Section 13 of the Securities Exchange Act of
1934 in
respect of a security listed and registered on a national securities exchange
as
may be prescribed from time to time in such rules and regulations; provided,
that if the Company files the reports required by this Section 6.03 with
the SEC
and such reports are publicly available, it shall be deemed to have satisfied
its obligation to furnish such reports to the Holders pursuant to this Section
6.03. The Company shall at all times comply with TIA § 314(a).
| Section 6.04. |
Information
Requirement
|
Within
the period prior to the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor provision),
the Company covenants and agrees that it shall, during any period in which
it is
not subject to Section 13 or 15(d) under the Exchange Act, make available
to any
Holder or beneficial holder of Notes or any Common Stock issued upon conversion
thereof which continue to be Restricted Notes in connection with any sale
thereof and any prospective purchaser of Notes or such Common Stock designated
by such Holder or beneficial holder, the information required pursuant to
Rule
144A(d)(4) under the Securities Act upon the request of any Holder or beneficial
holder of the Notes or such Common Stock and it will take such further action
as
any Holder or beneficial holder of such Notes or such Common Stock may
reasonably request, all to the extent required from time to time to enable
such
Holder or beneficial holder to sell its Notes or Common Stock without
registration under the Securities Act within the limitation of the exemption
provided by Rule 144A, as such Rule may be amended from time to time. Upon
the
request of any Holder or any beneficial holder of the Notes or such Common
Stock, the Company will deliver to such Holder a written statement as to
whether
it has complied with such requirements.
| Section 6.05. |
Compliance
Certificate
|
(a)
The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year, an Officers’ Certificate stating that a review of the activities of
the Company and its Subsidiaries during the preceding fiscal year has been
made
under the supervision of the signing Officers with a view to determining
whether
the Company has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of
the
terms, provisions and conditions of this Indenture (or, if a Default or Event
of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking
or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes
is
prohibited or if such event has occurred, a description of the event and
what
action the Company is taking or proposes to take with respect
thereto.
(b)
The
Company shall, so long as any of the Notes are outstanding, deliver to the
Trustee, forthwith upon any Officer becoming aware of any Default or Event
of
Default, an Officers’ Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
| Section 6.06. |
Taxes
|
The
Company shall pay, and shall cause each of its Subsidiaries to pay, prior
to
delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by appropriate proceedings or where
the
failure to effect such payment is not adverse in any material respect to
the
Holders of the Notes.
| Section 6.07. |
Stay,
Extension and Usury Laws
|
The
Company covenants (to the extent that it may lawfully do so) that it shall
not
at any time insist upon, plead, or in any manner whatsoever claim or take
the
benefit or advantage of, any stay, extension or usury law wherever enacted,
now
or at any time hereafter in force, that 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 shall not, by resort to any such law, hinder,
delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law
has
been enacted.
| Section 6.08. |
Corporate
Existence
|
Subject
to Article 7 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Subsidiaries, in accordance with the respective organizational documents
(as the
same may be amended from time to time) of the Company or any such Subsidiary
and
(ii) the rights (charter and statutory), licenses and franchises of the Company
and its Subsidiaries; provided,
however,
that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Subsidiaries,
if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse
in any
material respect to the Holders of the Notes.
| Section 6.09. |
Offer
to Repurchase Upon Change of
Control
|
(a)
Upon
the
occurrence of a Change of Control, the Company shall make an offer (a
“Change
of Control Offer”)
to each
Holder to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder’s Notes at a purchase price equal to 100% of the
aggregate principal amount thereof plus accrued and unpaid interest thereon,
if
any, to, but excluding, the date of purchase (the “Change
of Control Payment”).
Within
10 business days following any Change of Control, the Company shall mail
a
notice to each Holder stating: (1) that the Change of Control Offer is being
made pursuant to this Section 6.09 and that all Notes tendered will be accepted
for payment; (2) the purchase price and the purchase date, which shall be
30 business days after the occurrence of a Change of Control (the “Change
of Control Payment Date”);
(3)
that any Note not tendered will continue to accrue interest; (4) the name
and
address of each Paying Agent and Conversion Agent, (5) the Conversion Price
and
any adjustments thereto, (6) that Notes as to which a Change of Control Payment
Notice has been given may be converted into Common Stock pursuant to Article
4
of this Indenture only to the extent that the Change of Control Payment Notice
has been withdrawn in accordance with the terms of this Indenture, (7) that,
unless the Company defaults in the payment of the Change of Control Payment,
all
Notes accepted for payment pursuant to the Change of Control Offer shall
cease
to accrue interest after the Change of Control Payment Date; (8) that Holders
electing to have any Notes purchased pursuant to a Change of Control Offer
will
be required to surrender the Notes, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the
Business Day preceding the Change of Control Payment Date; (9) that Holders
will
be entitled to withdraw their election if the Paying Agent receives, not
later
than the close of business on the Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission, letter or any other
written form setting forth the name of the Holder, the principal amount of
Notes
delivered for purchase, and a statement that such Holder is withdrawing his
election to have the Notes purchased; and (10) that Holders whose Notes are
being purchased only in part will be issued new Notes equal in principal
amount
to the unpurchased portion of the Notes surrendered, which unpurchased portion
must be equal to $1,000 in principal amount or an integral multiple thereof.
The
Company shall comply with the requirements of Rule 13e-4 and Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder
to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes in connection with a Change of Control.
A
“Change
of Control” shall be deemed to have occurred if any of the following occurs
after the date hereof:
(i) any
“person” or “group” (as such terms are defined below) is or becomes the
“beneficial owner” (as defined below), directly or indirectly (other than as a
direct result of repurchases of stock by the Company), of shares of Voting
Stock
of the Company representing 50% or more of the total voting power of all
outstanding classes of Voting Stock of the Company or such person or group
(other than the “management group”) has the power, directly or indirectly, to
elect a majority of the members of the Board of Directors of the Company;
provided, that Voting Stock acquired in an exempt transaction shall not
constitute a Change of Control;
(ii) the
Company consolidates with, or merges with or into, another Person or the
Company
sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the assets of the Company, or any Person consolidates
with,
or merges with or into, the Company, in any such event other than (a) pursuant
to a transaction in which the Persons that “beneficially owned” (as defined
below), directly or indirectly, shares of Voting Stock of the Company
immediately prior to such transaction “beneficially own” (as defined below),
directly or indirectly, shares of Voting Stock of the Company representing
at
least a majority of the total voting power of all outstanding classes of
Voting
Stock of the surviving or transferee Person or (b) an exempt transaction;
or
(iii) there
shall occur the liquidation or dissolution of the Company.
For
the
purpose of the definition of “Change of Control”, (i) “person” and “group” have
the meanings given such terms under Section 13(d) and 14(d) of the Exchange
Act
or any successor provision to either of the foregoing, and the term “group”
includes any group acting for the purpose of acquiring, holding or disposing
of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act
(or any
successor provision thereto), (ii) a “beneficial owner” shall be determined in
accordance with Rule 13d-3 under the Exchange Act, as in effect on the date
of
this Indenture, except that the number of shares of Voting Stock of the Company
shall be deemed to include, in addition to all outstanding shares of Voting
Stock of the Company and Unissued Shares deemed to be held by the “person” or
“group” (as such terms are defined above) or other Person with respect to which
the Change of Control determination is being made, all Unissued Shares deemed
to
be held by all other Persons, and (iii) the terms “beneficially owned” and
“beneficially own” shall have meanings correlative to that of “beneficial
owner”. The term “Unissued Shares” means shares of Voting Stock not outstanding
that are subject to options, warrants, rights to purchase or conversion
privileges exercisable within 60 days of the date of determination of a Change
of Control. The term “exempt transaction” means any purchase from the Company of
equity interests in the Company by the management group; provided that the
management group does not collectively beneficially own more than 65% of
the
total Voting Stock of all outstanding classes of Voting Stock of the Company
following such purchase. The term “management group” means any of Thomas
Russell, The AER 1997 Trust, Robert Louis - Dreyfus, Gallium Enterprises,
Inc.
and Reuben Richards.
Notwithstanding
anything to the contrary set forth in this Section 6.08, a Change of Control
will not be deemed to have occurred if either:
(i) the
Closing Sale Price of the Common Stock for any five Trading Days during the
period of the ten Trading Days immediately preceding the Change of Control
is at
least equal to 105% of the Conversion Price in effect on such day; or
(ii) in
the
case of a merger or consolidation, all of the consideration (excluding cash
payments for fractional shares in the merger or consolidation constituting
the
Change of Control) consists of common stock traded on a United States national
securities exchange or quoted on The Nasdaq National Market (or which will
be so
traded or quoted when issued or exchanged in connection with such Change
of
Control) and as a result of such transaction or transactions the Notes become
convertible solely into such common stock.
(b)
A
Holder
may exercise its rights pursuant to this Section 6.09 upon delivery of a
written
notice (which shall be in substantially the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Notes and which may be delivered by
letter, overnight courier, hand delivery, facsimile transmission or in any
other
written form and, in the case of Global Notes, may be delivered electronically
or by other means in accordance with the Depositary’s customary procedures) of
the exercise of such rights (a “Change
of Control Payment Notice”)
to any
Paying Agent at any time prior to the close of business on the Business Day
next
preceding the Change of Control Purchase Date.
Notwithstanding
anything herein to the contrary, any Holder delivering to a Paying Agent
the
Change of Control Payment Notice contemplated by this Section 6.09(b) shall
have
the right to withdraw such Change of Control Payment Notice in whole or in
a
portion thereof that is a principal amount of $1,000 or in an integral multiple
thereof at any time prior to the close of business on the Business Day next
preceding the Change of Control Payment Date by delivery of a written notice
of
withdrawal to the Paying Agent in accordance with Section 6.09(a) hereof.
Upon
receipt by any Paying Agent of the Change of Control Payment Notice specified
in
this Section 6.09(b), the Holder of the Security in respect of which such
Change
of Control Payment Notice was given shall (unless such Change of Control
Payment
Notice is withdrawn as specified below) thereafter be entitled to receive
the
Change of Control Payment Price with respect to such Note. Such Change of
Control Payment Price shall be paid to such Holder promptly following the
later
of (i) the Change of Control Payment Date with respect to such Note (provided
the conditions in this Section 6.08(b) have been satisfied) and (ii) the
time of
delivery of such Note to a Paying Agent by the Holder thereof in the manner
required by this Section 6.09(b). Notes in respect of which a Change of Control
Payment Notice has been given by the Holder thereof may not be converted
into
shares of Common Stock on or after the date of the delivery of such Change
of
Control Payment Notice unless such Change of Control Payment Notice has first
been validly withdrawn.
(c)
On
the
Change of Control Payment Date, the Company shall, to the extent lawful,
(1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent
an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to
the
Trustee the Notes so accepted together with an Officers’ Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by
the
Company. The Paying Agent shall promptly mail to each Holder of Notes so
tendered payment in an amount equal to the purchase price for the Notes,
and the
Trustee shall promptly authenticate and mail (or cause to be transferred
by book
entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered by such Holder, if any; provided,
that
each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the
Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
If
a
Paying Agent holds, in accordance with the terms hereof, money sufficient
to pay
the Change of Control Payment Price of any Note for which a Change of Control
Payment Notice has been tendered and not withdrawn in accordance with this
Indenture then, on the Change of Control Payment Date, such Note will cease
to
be outstanding and the rights of the Holder in respect thereof shall terminate
(other than the right to receive the Change of Control Payment Price as
aforesaid).
(d)
Notwithstanding
anything to the contrary in this Section 6.09, the Company shall not be required
to make a Change of Control Offer upon a Change of Control if a third party
makes the Change of Control Offer in the manner, at the times and otherwise
in
compliance with the requirements set forth in this Section 6.09 hereof and
all
other provisions of this Indenture applicable to a Change of Control Offer
made
by the Company and purchases all Notes validly tendered and not withdrawn
under
such Change of Control Offer.
ARTICLE
7.
SUCCESSORS
| Section 7.01. |
Merger,
Consolidation, or Sale of
Assets
|
The
Company shall not, directly or indirectly, consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, another Person
unless (i) the Company is the surviving corporation or the Person formed by
or surviving any such consolidation or merger (if other than the Company)
or to
which such sale, assignment, transfer, conveyance or other disposition shall
have been made is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia, (ii) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, conveyance
or
other disposition shall have been made assumes all the obligations of the
Company under the Registration Rights Agreement, the Notes and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to
the
Trustee, (iii) immediately after such transaction, no Default or Event of
Default exists and (iv) the Company or the surviving corporation, as the
case
may be, shall have delivered to the Trustee and Officers’ Certificate and an
Opinion of Counsel, each stating that such merger, consolidation, conveyance,
transfer or lease comply with this Article Seven and that all conditions
precedent herein provided for relating to such transaction have been
satisfied.
| Section 7.02. |
Successor
Corporation Substituted
|
Upon
any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance
or
other disposition of all or substantially all of the assets of the Company
in
accordance with Section 7.01 hereof, the successor corporation formed by
such
consolidation or into or with which the Company is merged or to which such
sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the “Company” shall refer instead to
the successor corporation and not to the Company), 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; provided,
however,
that
the predecessor Company shall not be relieved from the obligation to pay
the
principal of and interest on the Notes except in the case of a sale, assignment,
transfer, conveyance or other disposition of all of the Company’s assets that
meets the requirements of Section 7.01 hereof.
ARTICLE
8.
DEFAULTS
AND REMEDIES
| Section 8.01. |
Events
of Default
|
An
“Event
of Default” occurs if:
(a)
the
Company defaults in the payment when due of interest on the Notes and such
default continues for a period of 30 days;
(b)
the
Company defaults in the payment when due of principal of or premium, if any,
on
the Notes when the same becomes due and payable at maturity, upon redemption
(including in connection with an offer to purchase) or otherwise;
(c)
the
Company fails to comply with any of the provisions of Section 6.08
hereof;
(d)
the
Company fails to observe or perform any other covenant, representation, warranty
or other agreement in this Indenture or the Notes for 60 days after notice
to
the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class;
(e)
the
Company fails to provide timely notice of a Change of Control;
(f)
the
Company:
(i) commences
a voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary
case,
(iii) consents
to the appointment of a custodian of it or for all or substantially all of
its
property,
(iv) makes
a
general assignment for the benefit of its creditors, or
(v) generally
is not paying its debts as they become due; or
(g)
a
court
of competent jurisdiction enters an order or decree under any Bankruptcy
Law
that:
(i) is
for
relief against the Company in an involuntary case;
(ii) appoints
a custodian of the Company or for all or substantially all of the property
of
the Company; or
(iii) orders
the liquidation of the Company;
and
the
order or decree remains unstayed and in effect for 60 consecutive
days.
| Section 8.02. |
Acceleration
|
If
any
Event of Default (other than an Event of Default specified in clause (f)
or (g)
of Section 8.01 hereof with respect to the Company) occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.
Upon any such declaration, the Notes shall become due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause
(f) or
(g) of Section 8.01 hereof occurs with respect to the Company, all outstanding
Notes shall be due and payable immediately without further action or notice.
The
Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may on behalf of all of the Holders
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due
solely
because of the acceleration) have been cured or waived.
| Section 8.03. |
Other
Remedies
|
If
an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, premium, if any, and interest
on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the
Notes
or does not produce any of them in the proceeding. A delay or omission by
the
Trustee or any Holder of a Note 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. All remedies are cumulative to
the
extent permitted by law.
| Section 8.04. |
Waiver
of Past Defaults
|
Subject
to Section 8.02, Holders of not less than a majority in aggregate principal
amount of the then outstanding Notes by notice to the Trustee may on behalf
of
the Holders of all of the Notes waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the principal of, premium, if any, or interest on, the
Notes
(including in connection with an offer to purchase) or a failure by the Company
to convert any Notes into Common Stock (provided,
however,
that
the Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). 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 8.05. |
Control
by Majority
|
Holders
of a majority in principal amount of the then outstanding Notes may direct
the
time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with
law
or this Indenture that the Trustee determines may be unduly prejudicial to
the
rights of other Holders of Notes or that may involve the Trustee in personal
liability.
| Section 8.06. |
Limitation
on Suits
|
A
Holder
of a Note may pursue a remedy with respect to this Indenture or the Notes
only
if:
(a)
the
Holder of a Note gives to the Trustee written notice of a continuing Event
of
Default;
(b)
the
Holders of at least 25% in principal amount of the then outstanding Notes
make a
written request to the Trustee to pursue the remedy;
(c)
such
Holder of a Note or Holders of Notes offer and, if requested, provide to
the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or
expense;
(d)
the
Trustee does not comply with the request within 60 days after receipt of
the
request and the offer and, if requested, the provision of indemnity;
and
(e)
during
such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
request.
A
Holder
of a Note may not use this Indenture to prejudice the rights of another Holder
of a Note or to obtain a preference or priority over another Holder of a
Note.
| Section 8.07. |
Rights
of Holders of Notes to Receive
Payment
|
Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note
to
receive payment of principal, premium and interest on the Note, on or after
the
respective due dates expressed in the Note (including in connection with
an
offer to purchase), to convert such Note in accordance with Article 4 or
to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such
Holder.
| Section 8.08. |
Collection
Suit by Trustee
|
If
an
Event of Default specified in Section 8.01(a) or (b) occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee
of
an express trust against the Company for the whole amount of principal of,
premium and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest and such further amount as
shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
| Section 8.09. |
Trustee
May File Proofs of Claim
|
The
Trustee is authorized to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Company (or any
other
obligor upon the Notes), its creditors or its property and shall be entitled
and
empowered to collect, receive and distribute any money or other property
payable
or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of
such
payments directly to the Holders, to pay to the Trustee any amount due to
it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 9.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and
any other amounts due the Trustee under Section 9.07 hereof out of the estate
in
any such proceeding, shall be denied for any reason, payment of the same
shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any
plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be
deemed to authorize the Trustee to authorize or consent to or accept or adopt
on
behalf of any Holder any plan of reorganization, arrangement, adjustment
or
composition affecting the Notes or the rights of any Holder, or to authorize
the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
| Section 8.10. |
Priorities
|
If
the
Trustee collects any money pursuant to this Article, it shall pay out the
money
in the following order:
First: to
the
Trustee, its agents and attorneys for amounts due under Section 9.07 hereof,
including payment of all compensation, expense and liabilities incurred,
and all
advances made, by the Trustee and the costs and expenses of
collection;
Second: to
Holders of Notes for amounts due and unpaid on the Notes for principal, premium
and interest, ratably, without preference or priority of any kind, according
to
the amounts due and payable on the Notes for principal, premium and interest,
respectively; and
Third: to
the
Company or to such party as a court of competent jurisdiction shall
direct.
The
Trustee may fix a record date and payment date for any payment to Holders
of
Notes pursuant to this Section 8.10.
| Section 8.11. |
Undertaking
for Costs
|
In
any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as a Trustee,
a
court in its discretion may require the filing by any party litigant in the
suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith
of
the claims or defenses made by the party litigant. This Section does not
apply
to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section
8.07
hereof, or a suit by Holders of more than 10% in principal amount of the
then
outstanding Notes.
ARTICLE
9.
TRUSTEE
| Section 9.01. |
Duties
of Trustee
|
(a)
If
an
Event of Default has occurred and is continuing, the Trustee shall exercise
such
of the rights and powers vested in it by this Indenture, and use the same
degree
of care and skill in its exercise, as a prudent person would exercise or
use
under the circumstances in the conduct of such person’s own
affairs.
(b)
Except
during the continuance of an Event of Default:
(i) the
duties of the Trustee shall be determined solely by the express provisions
of
this Indenture and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to
the
requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c)
The
Trustee may not be relieved from liabilities for its own negligent action,
its
own negligent failure to act, or its own willful misconduct, except
that:
(i) this
paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith
by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action it takes or omits
to take
in good faith in accordance with a direction received by it pursuant to Section
7.05 hereof.
(d)
Whether
or not therein expressly so provided, every provision of this Indenture that
in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c)
of
this Section.
(e)
No
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or incur any liability. The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture at the request
of any
Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or
expense.
(f)
The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Company. Money held in trust by
the
Trustee need not be segregated from other funds except to the extent required
by
law.
| Section 9.02. |
Rights
of Trustee
|
(a)
The
Trustee may conclusively rely upon any document believed by it to be genuine
and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b)
Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers’ Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel
shall
be full and complete authorization and protection from liability in respect
of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c)
The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due
care.
(d)
The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Indenture.
(e)
Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an
Officer
of the Company.
(f)
The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the
Holders
unless such Holders shall have offered to the Trustee reasonable security
or
indemnity against the costs, expenses and liabilities that might be incurred
by
it in compliance with such request or direction.
(g) The
Trustee shall not be charged with knowledge of any Default or Event of Default
with respect to the Notes unless either (1) a Responsible Officer shall have
actual knowledge of such Default or Event of Default or (2) written notice
of
such Default or Event of Default shall have been given to the Trustee by
the
Company or by any Holder of the Notes.
| Section 9.03. |
Individual
Rights of Trustee
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the
Company
with the same rights it would have if it were not Trustee. However, in the
event
that the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as trustee
or resign. Any Agent may do the same with like rights and duties. The Trustee
is
also subject to Sections 9.10 and 9.11 hereof.
| Section 9.04. |
Trustee’s
Disclaimer
|
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Company’s use of the proceeds from the Notes or any money paid to the
Company or upon the Company’s direction under any provision of this Indenture,
it shall not be responsible for the use or application of any money received
by
any Paying Agent other than the Trustee, and it shall not be responsible
for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
| Section 9.05. |
Notice
of Defaults
|
If
a
Default or Event of Default occurs and is continuing and if it is known to
the
Trustee, the Trustee shall mail to Holders of Notes a notice of the Default
or
Event of Default within 90 days after it occurs. Except in the case of a
Default
or Event of Default in payment of principal of, premium, if any, or interest
on
any Note, the Trustee may withhold the notice if and so long as a committee
of
its Responsible Officers in good faith determines that withholding the notice
is
in the interests of the Holders of the Notes.
| Section 9.06. |
Reports
by Trustee to Holders of the
Notes
|
Within
60
days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall
mail
to the Holders of the Notes a brief report dated as of such reporting date
that
complies with TIA § 313(a) (but if no event described in TIA § 313(a)
has occurred within the twelve months preceding the reporting date, no report
need be transmitted). The Trustee also shall comply with TIA § 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA
§ 313(c).
A
copy of
each report at the time of its mailing to the Holders of Notes shall be mailed
to the Company and filed with the SEC and each stock exchange on which the
Notes
are listed in accordance with TIA § 313(d). The Company shall promptly
notify the Trustee when the Notes are listed on any stock exchange.
| Section 9.07. |
Compensation
and Indemnity
|
The
Company shall pay to the Trustee from time to time reasonable compensation
for
its acceptance of this Indenture and services hereunder. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee
of an
express trust. The Company shall reimburse the Trustee promptly upon request
for
all reasonable disbursements, advances and expenses incurred or made by it
in
addition to the compensation for its services. Such expenses shall include
the
reasonable compensation, disbursements and expenses of the Trustee’s agents and
counsel.
The
Company shall indemnify the Trustee and its officers, directors, employees,
representatives and agents against any and all losses, liabilities or expenses
incurred by it, including in any Agent capacity in which it acts, arising
out of
or in connection with the acceptance or administration of its duties under
this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 9.07) and defending itself against any
claim
(whether asserted by the Company or any Holder or any other person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by
the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee
shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need
not
pay for any settlement made without its consent, which consent shall not
be
unreasonably withheld.
The
obligations of the Company under this Section 9.07 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, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on particular Notes.
Such Lien shall survive the satisfaction and discharge of this
Indenture.
When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 8.01(g) or (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 any Bankruptcy
Law.
The
Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent
applicable.
| Section 9.08. |
Replacement
of Trustee
|
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section.
The
Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by
so
notifying the Trustee and the Company in writing. The Company may remove
the
Trustee if:
(a)
the
Trustee fails to comply with Section 9.10 hereof;
(b)
the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered
with respect to the Trustee under any Bankruptcy Law;
(c)
a
custodian or public officer takes charge of the Trustee or its property;
or
(d)
the
Trustee becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority
in
principal amount of the then outstanding Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
If
a
successor Trustee does not take office within 60 days after the retiring
Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders
of at
least 10% in principal amount of the then outstanding Notes may petition
any
court of competent jurisdiction for the appointment of a successor
Trustee.
If
the
Trustee, after written request by any Holder who has been a Holder for at
least
six months, fails to comply with Section 9.10, such Holder may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Company. Thereupon, the resignation or removal
of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture.
The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, provided
all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 9.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 9.08, the Company’s obligations under Section 9.07 hereof shall
continue for the benefit of the retiring Trustee.
| Section 9.09. |
Successor
Trustee by Merger, etc
|
If
the
Trustee consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business or assets to, another corporation or
banking
association, the successor corporation or banking association without any
further act shall be the successor Trustee; provided, however, that such
corporation or banking association shall be otherwise eligible under Section
9.10 of the Indenture.
| Section 9.10. |
Eligibility;
Disqualification
|
There
shall at all times be a Trustee hereunder that is a corporation organized
and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee
power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $100 million as set
forth in its most recent published annual report of condition.
This
Indenture shall always have a Trustee who satisfies the requirements of TIA
§ 310(a)(1), (2) and (5). The Trustee is subject to TIA
§ 310(b).
| Section 9.11. |
Preferential
Collection of Claims Against
Company
|
The
Trustee is subject to TIA § 311(a), excluding any creditor relationship
listed in TIA § 311(b). A Trustee who has resigned or been removed shall be
subject to TIA § 311(a) to the extent indicated therein.
ARTICLE
10.
SATISFACTION
AND DISCHARGE
| Section 10.01. |
Satisfaction
and Discharge
|
This
Indenture will be discharged and will cease to be of further effect as to
all
Notes issued hereunder, when:
|
(1)
|
either:
|
(a) all
Notes
that have been authenticated (except lost, stolen or destroyed Notes that
have
been replaced or paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have been delivered
to
the Trustee for cancellation; or
(b) all
Notes
that have not been delivered to the Trustee for cancellation have become
due and
payable by reason of the making of a notice of redemption or otherwise or
will
become due and payable within one year and the Company has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust solely
for
the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient
without consideration of any reinvestment of interest, to pay and discharge
the
entire indebtedness on the Notes not delivered to the Trustee for cancellation
for principal, premium and accrued interest to the date of maturity or
redemption;
|
(2)
|
no
Default or Event of Default shall have occurred and be continuing
on the
date of such deposit or shall occur as a result of such deposit
and such
deposit will not result in a breach or violation of, or constitute
a
default under, any other instrument to which the Company is a party
or by
which the Company is bound;
|
|
(3)
|
the
Company has paid or caused to be paid all sums payable by it under
this
Indenture; and
|
|
(4)
|
the
Company has delivered irrevocable instructions to the Trustee under
this
Indenture to apply the deposited money toward the payment of the
Notes at
maturity or the redemption date, as the case may
be.
|
In
addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and
discharge have been satisfied.
Notwithstanding
the satisfaction and discharge of this Indenture, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section, the provisions of Section 10.02 shall survive.
| Section 10.02. |
Application
of Trust Money
|
All
money
deposited with the Trustee pursuant to Section 10.01 shall be held in trust
and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium,
if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to
the
extent required by law.
If
the
Trustee or Paying Agent is unable to apply any money or Government Securities
in
accordance with Section 10.01 by reason of any legal proceeding or by reason
of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s obligations
under this Indenture and the Notes shall be revived and reinstated as though
no
deposit had occurred pursuant to Section 10.01; provided
that if
the Company has made any payment of principal of, premium, if any, or interest
on any Notes because of the reinstatement of its obligations, the Company
shall
be subrogated to the rights of the Holders of such Notes to receive such
payment
from the money or Government Securities held by the Trustee or Paying
Agent.
| Section 10.03. |
Repayment
to Company
|
The
Trustee and each Paying Agent shall promptly pay to the Company upon request
any
excess money (i) deposited with them pursuant to Section 10.1 and (ii) held
by
them at any time.
The
Trustee and each Paying Agent shall pay to the Company upon request any money
held by them for the payment of principal or interest that remains unclaimed
for
two years after a right to such money has matured; provided, however, that
the
Trustee or such Paying Agent, before being required to make any such payment,
may at the expense of the Company cause to be mailed to each Holder entitled
to
such money notice that such money remains unclaimed and that after a date
specified therein, which shall be at least 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will be repaid
to
the Company. After payment to the Company, Holders entitled to money must
look
to the Company for payment as general unsecured creditors.
| Section 10.04. |
Reinstatement
|
If
the
Trustee or any Paying Agent is unable to apply any money in accordance with
Section 10.2 by reason of any legal proceeding or by reason of any order
or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company’s obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 10.1 until such time as the Trustee
or
such Paying Agent is permitted to apply all such money in accordance with
Section 10.2; provided, however, that if the Company has made any payment
of the
principal of or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of
such Notes to receive any such payment from the money held by the Trustee
or
such Paying Agent.
ARTICLE
11.
AMENDMENT,
SUPPLEMENT AND WAIVER
| Section 11.01. |
Without
Consent of Holders of Notes
|
Notwithstanding
Section 11.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder
of a
Note:
(a)
to
cure
any ambiguity, defect or inconsistency;
(b)
to
provide for uncertificated Notes in addition to or in place of certificated
Notes or to alter the provisions of Article 2 hereof (including the related
definitions) in a manner that does not materially adversely affect any
Holder;
(c)
to
provide for the assumption of the Company’s obligations to the Holders of the
Notes by a successor to the Company pursuant to Article 7 hereof;
(d)
to
make
any change that would provide any additional rights or benefits to the Holders
of the Notes or that does not adversely affect the legal rights hereunder
of any
Holder of the Note;
(e)
to
comply
with requirements of the SEC in order to effect or maintain the qualification
of
this Indenture under the TIA; or
(f)
to
provide for the issuance of additional Notes pursuant to the purchasers option
set forth in the Purchase Agreement.
Upon
the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture,
and
upon receipt by the Trustee of the documents described in Section 9.02 hereof,
the Trustee shall join with the Company in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may
be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
| Section 11.02. |
With
Consent of Holders of Notes
|
Except
as
provided below in this Section 11.02, the Company and the Trustee may amend
or
supplement this Indenture (including Section 6.08 hereof) and the Notes with
the
consent of the Holders of at least a majority in principal amount of the
Notes
then outstanding voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 8.04 and 8.07 hereof, any existing Default
or
Event of Default (other than a Default or Event of Default in the payment
of the
principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Notes may be waived with the
consent
of the Holders of a majority in principal amount of the then outstanding
Notes
voting as a single class (including consents obtained in connection with
a
tender offer or exchange offer for, or purchase of, the Notes). Section
2.08 hereof shall determine which Notes are considered to be “outstanding” for
purposes of this Section 11.02.
Upon
the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture,
and
upon the filing with the Trustee of evidence satisfactory to the Trustee
of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of
the documents described in Section 9.02 hereof, the Trustee shall join with
the
Company in the execution of such amended or supplemental Indenture unless
such
amended or supplemental Indenture directly affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into
such
amended or supplemental Indenture.
It
shall
not be necessary for the consent of the Holders of Notes under this Section
11.02 to approve the particular form of any proposed amendment or waiver,
but it
shall be sufficient if such consent approves the substance thereof.
After
an
amendment, supplement or waiver under this Section becomes effective, the
Company shall mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company
to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amended or supplemental Indenture or waiver.
Subject to Sections 8.04 and 8.07 hereof, the Holders of a majority in aggregate
principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision
of
this Indenture or the Notes. However, without the consent of each Holder
affected, an amendment or waiver under this Section 11.02 may not (with respect
to any Notes held by a non-consenting Holder):
(a)
reduce
the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;
(b)
reduce
the principal of or change the fixed maturity of any Note or alter or waive
any
of the provisions with respect to the redemption of the Notes except as provided
above with respect to Section 6.08 hereof;
(c)
reduce
the rate of or change the time for payment of interest, including default
interest, on any Note;
(d)
waive
a
Default or Event of Default in the payment of principal of or premium, if
any,
or interest on the Notes (except a rescission of acceleration of the Notes
by
the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes and a waiver of the payment default that resulted from
such
acceleration);
(e)
make
any
Note payable in money other than that stated in the Notes;
(f)
make
any
change in the provisions of this Indenture relating to waivers of past Defaults
or the rights of Holders of Notes to receive payments of principal of or
interest on the Notes; or
(g)
make
any
change in Section 8.04 or 8.07 hereof or in the foregoing amendment and waiver
provisions.
| Section 11.03. |
Compliance
with Trust Indenture Act
|
Every
amendment or supplement to this Indenture or the Notes shall be set forth
in an
amended or supplemental Indenture that complies with the TIA as then in
effect.
| Section 11.04. |
Revocation
and Effect of Consents
|
Until
an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder’s Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice
of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
| Section 11.05. |
Notation
on or Exchange of Notes
|
The
Trustee may place an appropriate notation about an amendment, supplement
or
waiver on any Note thereafter authenticated. The Company in exchange for
all
Notes may issue and the Trustee shall, upon receipt of an Authentication
Order,
authenticate new Notes that reflect the amendment, supplement or
waiver.
Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
| Section 11.06. |
Trustee
to Sign Amendments, etc.
|
The
Trustee shall sign any amended or supplemental Indenture authorized pursuant
to
this Article Nine if the amendment or supplement does not adversely affect
the
rights, duties, liabilities or immunities of the Trustee. The Company may
not
sign an amendment or supplemental Indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 9.01 hereof) shall be
fully
protected in relying upon, in addition to the documents required by Section
12.04 hereof, an Officer’s Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE
12.
MISCELLANEOUS
| Section 12.01. |
Trust
Indenture Act Controls
|
If
any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by TIA §318(c), the imposed duties shall control.
| Section 12.02. |
Notices
|
Any
notice or communication by the Company or the Trustee to the others is duly
given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others’
address:
If
to the
Company:
EMCORE
Corporation
145
Belmont Drive
Somerset,
New Jersey 08873
Telecopier
No.: (732) 271-9686
Attention:
Chief Financial Officer
With
a
copy to:
Jenner
& Block LLP
601
Thirteenth Street, N.W.
Washington,
D.C. 20005
Telecopier
No.: (202) 637-6374
Attention:
John E. Welch, Esq.
If
to the
Trustee:
Deutsche
Bank Trust Company Americas
60
Wall
Street
27th
Floor - MSNYC60-2710
New
York,
NY 10005
Telecopier
No.: (212) 454-2223
Attention:
Corporate Trust & Services Agency
The
Company or the Trustee, by notice to the others may designate additional
or
different addresses for subsequent notices or communications.
All
notices and communications (other than those sent to Holders) shall be deemed
to
have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier,
if
sent by overnight air courier guaranteeing next day delivery.
Any
notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept
by the
Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not
affect
its sufficiency with respect to other Holders.
If
a
notice or communication is mailed in the manner provided above within the
time
prescribed, it is duly given, whether or not the addressee receives
it.
If
the
Company mails a notice or communication to Holders, it shall mail a copy
to the
Trustee and each Agent at the same time.
| Section 12.03. |
Communication
by Holders of Notes with Other Holders of
Notes
|
Holders
may communicate pursuant to TIA § 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee,
the
Registrar and anyone else shall have the protection of TIA
§ 312(c).
| Section 12.04. |
Certificate
and Opinion as to Conditions
Precedent
|
Upon
any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(a)
an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b)
an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
| Section 12.05. |
Statements
Required in Certificate or
Opinion
|
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant
to
TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and
shall include:
(a)
a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(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 such Person, he or she has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d)
a
statement as to whether or not, in the opinion of such Person, such condition
or
covenant has been satisfied.
| Section 12.06. |
Rules
by Trustee and Agents
|
The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
| Section 12.07. |
No
Personal Liability of Directors, Officers, Employees and
Stockholders
|
No
past,
present or future director, officer, employee, incorporator or stockholder
of
the Company, as such, shall have any liability for any obligations of the
Company under the Notes, this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.
| Section 12.08. |
Governing
Law
|
THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS
INDENTURE THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
| Section 12.09. |
No
Adverse Interpretation of Other
Agreements
|
This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any
such
indenture, loan or debt agreement may not be used to interpret this
Indenture.
| Section 12.10. |
Successors
|
All
agreements of the Company in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
| Section 12.11. |
Severability
|
In
case
any provision in this Indenture or in the Notes shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
| Section 12.12. |
Counterpart
Originals
|
The
parties may sign any number of copies of this Indenture. Each signed copy
shall
be an original, but all of them together represent the same
agreement.
| Section 12.13. |
Table
of Contents, Headings, etc
|
The
Table
of Contents, Cross-Reference Table and Headings of the Articles and Sections
of
this Indenture have been inserted for convenience of reference only, are
not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[Signature
page follows]
SIGNATURES
Dated
as
of November 16, 2005
|
EMCORE
Corporation
By:
/s/ Howard W. Brodie
Howard
W. Brodie
Executive
Vice President and Chief Legal Officer
|
|
|
Deutsche
Bank Trust Company Americas,
as
Trustee
By:
/s/ Wanda Camacho
Wanda
Camacho
Vice
President
|
|
Exhibit
A
Form
of Note
[Global
Note Legend]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN. THIS NOTE IS A GLOBAL NOTE WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL
IT
IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY AND TRANSFERS
OF
PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH SECTION 2.12 OF THE INDENTURE.
[Private
Placement Legend]
THIS
NOTE
(OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES
ACT”), AND THIS NOTE AND THE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE
IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE 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 NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE
AND
THE NOTE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON
WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED
IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF
RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) 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 NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED
TO
IN (A) ABOVE. IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY,
ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THE NOTES EXCEPT AS PERMITTED
UNDER THE SECURITIES ACT.
EMCORE
CORPORATION
CUSIP: [_________] R-1
5%
CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2011
EMCORE
Corporation, a New Jersey corporation (the “Company”, which term shall include
any successor corporation under the Indenture referred to on the reverse
hereof), promises to pay to Cede & Co., or registered assigns, the principal
sum of [____________]
Dollars
($[_______])
on
[_______],
2011 or
such greater or lesser amount as is indicated on the Schedule of Exchanges
of
Notes on the other side of this Note.
Interest
Payment Dates: May 15 and November 15
Record
Dates: May 1 and November 1
This
Note
is convertible as specified on the other side of this Note. Additional
provisions of this Note are set forth on the other side of this Note.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
EMCORE
Corporation
By:
Name:
Title
Attest:
By:
Name:
Title:
Dated:
Trustee’s
Certificate of Authentication: This is one of the Notes referred to in the
within-mentioned Indenture.
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Trustee
By:
Name:
Title:
Authorized Signer
[REVERSE
SIDE OF SECURITY]
EMCORE
CORPORATION
5%
CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2011
| 1. |
INTEREST
|
EMCORE
Corporation, a New Jersey corporation (the “Company,” which term shall include
any successor corporation under the Indenture hereinafter referred to), promises
to pay interest on the principal amount of this Note at the rate of 5% per
annum. The Company shall pay interest semiannually on May 15 and November 15
of
each year, commencing May 15, 2006, unless such date is not a business day,
in
which case, we shall pay interest on the next succeeding business day and such
payment shall be deemed to have been paid on such interest payment date and
no
interest shall accrue during the additional period of time. Interest on the
Notes shall accrue from the most recent date to which interest has been paid
or,
if no interest has been paid, from [_______],
2006;
provided, however, that if there is not an existing default in the payment
of
interest and if this Note is authenticated between a record date referred to
on
the face hereof and the next succeeding interest payment date, interest shall
accrue from such interest payment date. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
| 2. |
METHOD
OF PAYMENT
|
The
Company shall pay interest on this Note (except defaulted interest) to the
person who is the Holder of this Note at the close of business on May 1 or
November 1, as the case may be, next preceding the related interest payment
date. The Holder must surrender this Note to a Paying Agent to collect payment
of principal. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. The Company may, however, pay principal and interest in respect
of any Definitive Note by check or wire payable in such money; provided,
however, that a Holder with an aggregate principal amount in excess of
$2,000,000 will be paid by wire transfer in immediately available funds at
the
election of such Holder. The Company may mail an interest check to the Holder’s
registered address. Notwithstanding the foregoing, so long as this Note is
registered in the name of a Depositary or its nominee, all payments hereon
shall
be made by wire transfer of immediately available funds to the account of the
Depositary or its nominee.
| 3. |
PAYING
AGENT, REGISTRAR AND CONVERSION
AGENT
|
Initially,
Deutsche Bank Trust Company Americas (the “Trustee,” which term shall include
any successor trustee under the Indenture hereinafter referred to) will act
as
Paying Agent, Registrar and Conversion Agent. The Company may change any Paying
Agent, Registrar or Conversion Agent without notice to the Holder. The Company
or any of its Subsidiaries may, subject to certain limitations set forth in
the
Indenture, act as Paying Agent or Registrar.
| 4. |
INDENTURE,
LIMITATIONS
|
This
Note
is one of a duly authorized issue of Notes of the Company designated as its
5%
Convertible Senior Subordinated Notes due 2011 (the “Notes”), issued under an
Indenture dated as of [_______],
2005
(together with any supplemental indentures thereto, the “Indenture”), between
the Company and the Trustee. The terms of this Note include those stated in
the
Indenture and those required by or made part of the Indenture by reference
to
the Trust Indenture Act of 1939, as amended, as in effect on the date of the
Indenture. This Note is subject to all such terms, and the Holder of this Note
is referred to the Indenture and said Act for a statement of them. All
capitalized terms used but not defined herein shall have the meaning ascribed
to
such term in the Indenture.
The
Notes
are subordinated unsecured obligations of the Company. The aggregate principal
amount of Notes which may be authenticated and delivered pursuant to the
Indenture is unlimited. The Indenture does not limit other debt of the Company,
secured or unsecured, including Senior Indebtedness.
| 5. |
PROVISIONAL
REDEMPTION
|
The
Notes
may be redeemed at the election of the Company, as a whole or in part from
time
to time, at any time (a “Provisional
Redemption”),
upon
at least 20 and not more than 60 days’ notice by mail to the Holders of the
Notes (a “Provisional
Redemption Notice”)
at a
redemption price equal to $1,000 per $1,000 principal amount of the Notes
redeemed plus accrued and unpaid interest, if any (such amount, together with
the Early Call Premium described below, the “Provisional
Redemption Price”),
to
but excluding the date of redemption (the “Provisional
Redemption Date”)
if the
Closing Sale Price of the Common Stock has exceeded 150% of the Conversion
Price
for at least 20 Trading Days within a period of any 30 consecutive Trading
Days
ending on the Trading Day prior to the date of mailing of the notice of
Provisional Redemption (the “Provisional
Redemption Notice Date”).
Except
as
set forth above, the Company shall not have the option to redeem the
Notes.
| 6. |
EARLY
CALL PREMIUM
|
If
the
Company delivers a Provisional Redemption Notice on or prior to January
[
],
2007,
the Company shall make an additional payment, at its option, in cash or Common
Stock or a combination of cash and Common Stock (the “Early
Call Premium”)
with
respect to the Notes called for redemption to holders on the Provisional
Redemption Notice Date in an amount equal to $150.00 per $1,000 principal amount
of the Notes, less the amount of any interest actually paid (including, if
the
Provisional Redemption Date occurs after a record date but before an interest
payment date, any interest paid or to be paid in connection with such interest
payment date) on such Notes prior to the Provisional Redemption Date. Payments
made in Common Stock will be valued at 95% of the average closing sales prices
of Common Stock for the five Trading Days ending on the third day prior to
the
Provisional Redemption Date. The Company shall pay the Early Call Premium on
all
Notes called for Provisional Redemption on or prior to January [
],
2007,
including those Notes converted into Common Stock between the Provisional
Redemption Notice Date and the Provisional Redemption Date.
| 7. |
NOTICE
OF REDEMPTION
|
Notice
of
redemption will be mailed by first-class mail at least 20 days but not more
than
60 days before the Redemption Date to each Holder of Notes to be redeemed at
its
registered address. Notes in denominations larger than $1,000 may be redeemed
in
part, but only in whole multiples of $1,000. On and after the Redemption Date,
subject to the deposit with the Paying Agent of funds sufficient to pay the
Redemption Price plus accrued interest, if any, accrued to, but not including,
the Redemption Date, interest shall cease to accrue on Notes or portions of
them
called for redemption.
| 8. |
PURCHASE
OF NOTES AT OPTION OF HOLDER UPON A CHANGE OF CONTROL
|
At
the
option of the Holder and subject to the terms and conditions of the Indenture,
the Company shall become obligated to purchase all or any part specified by
the
Holder (so long as the principal amount of such part is $1,000 or an integral
multiple of $1,000 in excess thereof) of the Notes held by such Holder on the
date that is 30 Business Days after the occurrence of a Change of Control,
at a
purchase price equal to 100% of the principal amount thereof together with
accrued interest up to, but excluding, the Change of Control Purchase Date.
The
Holder shall have the right to withdraw any Change of Control Purchase Notice
(in whole or in a portion thereof that is $1,000 or an integral multiple
thereof) at any time prior to the close of business on the Business Day next
preceding the Change of Control Purchase Date by delivering a written notice
of
withdrawal to the Paying Agent in accordance with the terms of the
Indenture.
| 9. |
CONVERSION
|
A
Holder
of a Note may convert the principal amount of such Note (or any portion thereof
equal to $1,000 or any integral multiple of $1,000 in excess thereof) into
shares of Common Stock at any time prior to the close of business on May 15,
2011; provided, however, that if the Note is called for redemption or subject
to
purchase upon a Change of Control, the conversion right will terminate at the
close of business on the Business Day immediately preceding the redemption
date
or the Change of Control Purchase Date, as the case may be, for such Note or
such earlier date as the Holder presents such Note for redemption or purchase
(unless the Company shall default in making the redemption payment or Change
of
Control Purchase Price, as the case may be, when due, in which case the
conversion right shall terminate at the close of business on the date such
default is cured and such Note is redeemed or purchased).
The
initial Conversion Price is $[ ]
per
share, subject to adjustment under certain circumstances. The number of shares
of Common Stock issuable upon conversion of a Note is determined by dividing
the
principal amount of the Note or portion thereof converted by the Conversion
Price in effect on the Conversion Date. No fractional shares will be issued
upon
conversion; in lieu thereof, an amount will be paid in cash based upon the
Closing Price (as defined in the Indenture) of the Common Stock on the Trading
Day immediately prior to the Conversion Date.
To
convert a Note, a Holder must (a) complete and manually sign the conversion
notice set forth below and deliver such notice to a Conversion Agent, (b)
surrender the Note to a Conversion Agent, (c) furnish appropriate endorsements
and transfer documents if required by a Registrar or a Conversion Agent, and
(d)
pay any transfer or similar tax, if required. Notes so surrendered for
conversion (in whole or in part) during the period from the close of business
on
any regular record date to the opening of business on the next succeeding
interest payment date (excluding Notes or portions thereof called for redemption
or subject to purchase upon a Change of Control on a Redemption Date or Change
of Control Purchase Date, as the case may be, during the period beginning at
the
close of business on a regular record date and ending at the opening of business
on the first Business Day after the next succeeding interest payment date,
or if
such interest payment date is not a Business Day, the second such Business
Day)
shall also be accompanied by payment in funds acceptable to the Company of
an
amount equal to the interest payable on such interest payment date on the
principal amount of such Note then being converted, and such interest shall
be
payable to such registered Holder notwithstanding the conversion of such Note,
subject to the provisions of this Indenture relating to the payment of defaulted
interest by the Company. If the Company defaults in the payment of interest
payable on such interest payment date, the Company shall promptly repay such
funds to such Holder. A Holder may convert a portion of a Note equal to $1,000
or any integral multiple thereof.
A
Note in
respect of which a Holder had delivered a Change of Control Purchase Notice
exercising the option of such Holder to require the Company to purchase such
Note may be converted only if the Change of Control Purchase Notice is withdrawn
in accordance with the terms of the Indenture.
| 10. |
SUBORDINATION
|
The
indebtedness evidenced by the Notes is, to the extent and in the manner provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full in cash of all Senior Indebtedness. Any Holder by accepting
this
Note agrees to and shall be bound by such subordination provisions and
authorizes the Trustee to give them effect. In addition to all other rights
of
Senior Indebtedness described in the Indenture, the Senior Indebtedness shall
continue to be Senior Indebtedness and entitled to the benefits of the
subordination provisions irrespective of any amendment, modification or waiver
of any terms of any instrument relating to the Senior Indebtedness or any
extension or renewal of the Senior Indebtedness. The indebtedness evidenced
by
the Notes shall rank pari passu with the Company’s 5% Convertible Senior
Subordinated Notes due 2011 issued under that certain Indenture dated as of
February 24, 2004, between the Company and the Trustee.
| 11. |
DENOMINATIONS,
TRANSFER, EXCHANGE
|
The
Notes
are in registered form without coupons in denominations of $1,000 and integral
multiples thereof. A Holder may register the transfer of or exchange Notes
in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes or other governmental charges that may be imposed in relation thereto
by law or permitted by the Indenture.
| 12. |
PERSONS
DEEMED OWNERS
|
The
Holder of a Note may be treated as the owner of it for all
purposes.
| 13. |
UNCLAIMED
MONEY
|
If
money
for the payment of principal or interest remains unclaimed for two years, the
Trustee or Paying Agent will pay the money back to the Company at its written
request. After that, Holders entitled to money must look to the Company for
payment.
| 14. |
AMENDMENT,
SUPPLEMENT AND WAIVER
|
Subject
to certain exceptions, the Indenture or the Notes may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount
of
the Notes then outstanding, and an existing default or Event of Default and
its
consequence or compliance with any provision of the Indenture or the Notes
may
be waived in a particular instance with the consent of the Holders of a majority
in principal amount of the Notes then outstanding. Without the consent of or
notice to any Holder, the Company and the Trustee may amend or supplement the
Indenture or the Notes to, among other things, cure any ambiguity, defect or
inconsistency or make any other change that does not adversely affect the rights
of any Holder.
| 15. |
SUCCESSOR
CORPORATION
|
When
a
successor corporation assumes all the obligations of its predecessor under
the
Notes and the Indenture in accordance with the terms and conditions of the
Indenture, the predecessor corporation will (except in certain circumstances
specified in the Indenture) be released from those obligations.
| 16. |
DEFAULTS
AND REMEDIES
|
Under
the
Indenture, an Event of Default includes: (i) default for 30 days in payment
of
any interest on any Notes; (ii) default in payment of any principal (including,
without limitation, any premium, if any) on the Notes when due; (iii) failure
by
the Company for 60 days after notice, given in accordance with the terms of
the
indenture, to it to comply with any of its other agreements contained in the
Indenture or the Notes; (iv) the Company fails to comply with any of the
provisions of Section 6.08 of the Indenture; (v) the Company fails to provide
timely notice of a change of control; and (vi) certain events of bankruptcy,
insolvency or reorganization of the Company. If an Event of Default (other
than
as a result of certain events of bankruptcy, insolvency or reorganization of
the
Company) occurs and is continuing, the Trustee or the Holders of at least 25%
in
principal amount of the Notes then outstanding may declare all unpaid principal
to the date of acceleration on the Notes then outstanding to be due and payable
immediately, all as and to the extent provided in the Indenture. If an Event
of
Default occurs as a result of certain events of bankruptcy, insolvency or
reorganization of the Company, unpaid principal of the Notes then outstanding
shall become due and payable immediately without any declaration or other act
on
the part of the Trustee or any Holder, all as and to the extent provided in
the
Indenture. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may require indemnity satisfactory to it before
it
enforces the Indenture or the Notes. Subject to certain limitations, Holders
of
a majority in principal amount of the Notes then outstanding may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company is required to file periodic reports with the Trustee
as
to the absence of default.
| 17. |
TRUSTEE
DEALINGS WITH THE COMPANY
|
Deutsche
Bank Trust Company Americas, the Trustee under the Indenture, in its individual
or any other capacity, may make loans to, accept deposits from and perform
services for the Company or an Affiliate of the Company, and may otherwise
deal
with the Company or an Affiliate of the Company, as if it were not the
Trustee.
| 18. |
NO
RECOURSE AGAINST OTHERS
|
A
director, officer, employee or shareholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Notes or the
Indenture nor for any claim based on, in respect of or by reason of such
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of
the
consideration for the issuance of this Note.
| 19. |
AUTHENTICATION
|
This
Note
shall not be valid until the Trustee or an authenticating agent manually signs
the certificate of authentication on the other side of this Note.
| 20. |
ABBREVIATIONS
AND DEFINITIONS
|
Customary
abbreviations may be used in the name of the Holder or an assignee, such as:
TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST
(=
Custodian) and UGMA (= Uniform Gifts to Minors Act).
All
terms
defined in the Indenture and used in this Note but not specifically defined
herein are defined in the Indenture and are used herein as so
defined.
| 21. |
INDENTURE
TO CONTROL; GOVERNING LAW
|
In
the
case of any conflict between the provisions of this Note and the Indenture,
the
provisions of the Indenture shall control. This Note shall be governed by,
and
construed in accordance with, the laws of the State of New York, without regard
to principles of conflicts of law.
The
Company will furnish to any Holder, upon written request and without charge,
a
copy of the Indenture. Requests may be made to: EMCORE Corporation, 145 Belmont
Drive, Somerset, New Jersey 08873, Attention: Chief Financial
Officer.
ASSIGNMENT
FORM
To
assign
this Note, fill in the form below:
I
or we
assign and transfer this Note to
(Insert
assignee’s soc. sec. or tax I.D. no.)
(Print
or
type assignee’s name, address and zip code)
and
irrevocably appoint
agent
to
transfer this Note on the books of the Company. The agent may substitute another
to act for him or her.
Your
Signature:
Date:
(Sign
exactly as your name appears on the other side of this Note)
*Signature
guaranteed by:
By:
|
*
|
The
signature must be guaranteed by an institution which is a member
of one of
the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock
Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program
(SEMP); or (iv) such other guaranty program acceptable to the Trustee.
|
CONVERSION
NOTICE
To
convert this Note into Common Stock of the Company, check the
box: ྡྷ
To
convert only part of this Note, state the principal amount to be converted
(must
be $1,000 or an integral multiple thereof): $____________.
If
you
want the stock certificate made out in another person’s name, fill in the form
below:
(Insert
assignee’s soc. sec. or tax I.D. no.)
(Print
or
type assignee’s name, address and zip code)
Your
Signature:
Date:
(Sign
exactly as your name appears on the other side of this Note)
*Signature
guaranteed by:
By:
|
*
|
The
signature must be guaranteed by an institution which is a member
of one of
the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock
Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program
(SEMP); or (iv) such other guaranty program acceptable to the
Trustee.OPTION
TO ELECT REPURCHASE UPON A CHANGE OF
CONTROL
|
To: EMCORE
Corporation
The
undersigned registered owner of this Note hereby irrevocably acknowledges
receipt of a notice from EMCORE Corporation (the “Company”) as to the occurrence
of a Change of Control with respect to the Company and requests and instructs
the Company to redeem the entire principal amount of this Note, or the portion
thereof (which is $1,000 or an integral multiple thereof) below designated,
in
accordance with the terms of the Indenture referred to in this Note at the
Change of Control Purchase Price, together with accrued interest to, but
excluding, such date.
Dated:
Signature(s)
Signature(s)
must be guaranteed by a qualified guarantor institution with membership in
an
approved signature guarantee program pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934.
Signature
Guaranty
Principal
amount to be redeemed
(in
an
integral multiple of $1,000, if less than all):
NOTICE:
The signature to the foregoing Election must correspond to the Name as written
upon the face of this Note in every particular, without alteration or any change
whatsoever.
SCHEDULE
OF EXCHANGES OF NOTES
The
following exchanges, redemptions, repurchases or conversions of a part of this
global Note have been made:
|
Principal
Amount of this Global Note Following Such Decrease Date of
Exchange
(or Increase)
|
Authorized
Signatory of
Custodian
|
Amount
of Decrease in Principal Amount of this
Global Note
|
Amount
of Increase in Principal Amount of this
Global Note
|
Exhibit
B
CERTIFICATE
TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF
TRANSFER OF TRANSFER RESTRICTED SECURITIES
Re: 5%
Convertible Subordinated Notes due 2011 (the “Notes”) of EMCORE
Corporation.
This
certificate relates to $_______ principal amount of Notes owned in (check
applicable box)
ྡྷ
book-entry or ྡྷ definitive form by __________________________ (the
“Transferor”).
The
Transferor has requested a Registrar or the Trustee to exchange or register
the
transfer of such Notes.
In
connection with such request and in respect of each such Note, the Transferor
does hereby certify that the Transferor is familiar with transfer restrictions
relating to the Notes as provided in Section 2.12 of the Indenture dated
as of
November __, 2005 between EMCORE Corporation and Deutsche Bank Trust Company
Americas, (the “Indenture”), and the transfer of such Note is being made
pursuant to an effective registration statement under the Securities Act
of
1933, as amended (the “Securities Act”) (check applicable box) or the transfer
or exchange, as the case may be, of such Note does not require registration
under the Securities Act because (check applicable box):
ྡྷ
Such
Note
is being transferred pursuant to an effective registration statement under
the
Securities Act.
ྡྷ
Such
Note
is being acquired for the Transferor’s own account, without
transfer.
ྡྷ
Such
Note
is being transferred to the Company or a Subsidiary (as defined in the
Indenture) of the Company.
ྡྷ
Such
Note
is being transferred to a person the Transferor reasonably believes is a
“qualified institutional buyer” (as defined in Rule 144A or any successor
provision thereto (“Rule 144A”) under the Securities Act) that is purchasing for
its own account or for the account of a “qualified institutional buyer”, in each
case to whom notice has been given that the transfer is being made in reliance
on such Rule 144A, and in each case in reliance on Rule 144A.
ྡྷ
Such
Note
is being transferred pursuant to and in accordance with Rule 903 or Rule
904
under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the transferee was
outside the United States or such Transferor and any Person acting on its
behalf
reasonably believed and believes that the transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities
of a
designated offshore securities market and neither such Transferor nor any
Person
acting on its behalf knows that the transaction was prearranged with a buyer
in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S
under the Securities Act and (iii) the transaction is not part of a plan
or
scheme to evade the registration requirements of the Securities Act and (iv)
if
the proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account
or
benefit of a U.S. Person (other than an Initial Purchaser).
ྡྷ
Such
Note
is being transferred pursuant to and in compliance with an exemption from
the
registration requirements under the Securities Act in accordance with Rule
144
(or any successor thereto) (“Rule 144”) under the Securities Act.
ྡྷ
Such
Note
is being transferred pursuant to and in compliance with an exemption from
the
registration requirements of the Securities Act (other than an exemption
referred to above) and as a result of which such Note will, upon such transfer,
cease to be a “restricted security” within the meaning of Rule 144 under the
Securities Act.
The
Transferor acknowledges and agrees that, if the transferee will hold any
such
Notes in the form of beneficial interests in a global Note which is a
“restricted security” within the meaning of Rule 144 under the Securities Act,
then such transfer can only be made pursuant to Rule 144A under the Securities
Act and such transferee must be a “qualified institutional buyer” (as defined in
Rule 144A).
Date:
(Insert
Name of Transferor)