AKAMAI TECHNOLOGIES, INC.,
Issuer,
and
STATE STREET BANK AND TRUST COMPANY,
Trustee
------------------------
INDENTURE
Dated as of June 20, 2000
------------------------
$250,000,000
5-1/2% Convertible Subordinated Notes Due 2007
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS; TRUST INDENTURE ACT.................................. 1
SECTION 1.01. DEFINITIONS................................................ 1
SECTION 1.02. OTHER DEFINITIONS.......................................... 5
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.......... 6
SECTION 1.04. RULES OF CONSTRUCTION...................................... 7
ARTICLE II THE NOTES........................................................ 7
SECTION 2.01. FORM AND DATING............................................ 7
SECTION 2.02. EXECUTION AND AUTHENTICATION............................... 11
SECTION 2.03. REGISTRAR AND PAYING AGENT................................. 11
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST........................ 12
SECTION 2.05. HOLDER LISTS............................................... 12
SECTION 2.06. TRANSFER AND EXCHANGE...................................... 12
SECTION 2.07. REPLACEMENT NOTES.......................................... 17
SECTION 2.08. OUTSTANDING NOTES.......................................... 18
SECTION 2.09. TREASURY NOTES............................................. 18
SECTION 2.10. TEMPORARY NOTES; GLOBAL NOTES.............................. 18
SECTION 2.11. CANCELLATION............................................... 19
SECTION 2.12. DEFAULTED INTEREST......................................... 19
SECTION 2.13. CUSIP NUMBERS.............................................. 19
ARTICLE III REDEMPTION...................................................... 20
SECTION 3.01. NOTICES TO TRUSTEE......................................... 20
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.......................... 20
SECTION 3.03. NOTICE OF REDEMPTION....................................... 20
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION............................. 21
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE................................ 21
SECTION 3.06. NOTES REDEEMED IN PART..................................... 21
SECTION 3.07. OPTIONAL REDEMPTION........................................ 22
SECTION 3.08. MANDATORY REDEMPTION....................................... 22
SECTION 3.09. PURCHASE OFFER............................................. 22
ARTICLE IV COVENANTS........................................................ 24
SECTION 4.01. PAYMENT OF NOTES........................................... 24
SECTION 4.02. REPORTS.................................................... 24
SECTION 4.03. COMPLIANCE CERTIFICATE..................................... 24
SECTION 4.04. STAY, EXTENSION AND USURY LAWS............................. 25
SECTION 4.05. CORPORATE EXISTENCE........................................ 25
SECTION 4.06. TAXES...................................................... 26
SECTION 4.07. FUNDAMENTAL CHANGE......................................... 26
SECTION 4.08. LIMITATION ON STATUS AS INVESTMENT COMPANY................. 26
SECTION 4.09. SPECIAL INTEREST........................................... 26
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ARTICLE V CONVERSION........................................................ 26
SECTION 5.01. CONVERSION PRIVILEGE....................................... 26
SECTION 5.02. CONVERSION PROCEDURE....................................... 27
SECTION 5.03. FRACTIONAL SHARES.......................................... 28
SECTION 5.04. TAXES ON CONVERSION........................................ 28
SECTION 5.05. COMPANY TO PROVIDE STOCK................................... 28
SECTION 5.06. ADJUSTMENT OF CONVERSION PRICE............................. 29
SECTION 5.07. NO ADJUSTMENT.............................................. 32
SECTION 5.08. OTHER ADJUSTMENTS.......................................... 32
SECTION 5.09. ADJUSTMENTS FOR TAX PURPOSES............................... 32
SECTION 5.10. NOTICE OF ADJUSTMENT....................................... 32
SECTION 5.11. NOTICE OF CERTAIN TRANSACTIONS............................. 33
SECTION 5.12. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS,
MERGERS OR SALES ON CONVERSION PRIVILEGE .................. 33
SECTION 5.13. TRUSTEE'S DISCLAIMER....................................... 34
ARTICLE VI SUBORDINATION.................................................... 34
SECTION 6.01. AGREEMENT TO SUBORDINATE AND RANKING....................... 34
SECTION 6.02. NO PAYMENT ON NOTES IF SENIOR DEBT IN DEFAULT.............. 35
SECTION 6.03. DISTRIBUTION ON ACCELERATION OF NOTES; DISSOLUTION AND
REORGANIZATION; SUBROGATION OF NOTES ...................... 36
SECTION 6.04. RELIANCE BY SENIOR DEBT ON SUBORDINATION PROVISIONS........ 38
SECTION 6.05. NO WAIVER OF SUBORDINATION PROVISIONS...................... 39
SECTION 6.06. TRUSTEE'S RELATION TO SENIOR DEBT.......................... 39
SECTION 6.07. OTHER PROVISIONS SUBJECT HERETO............................ 40
ARTICLE VII SUCCESSORS...................................................... 40
SECTION 7.01. LIMITATION ON MERGER, SALE OR CONSOLIDATION................ 40
SECTION 7.02. SUCCESSOR CORPORATION SUBSTITUTED.......................... 41
ARTICLE VIII DEFAULTS AND REMEDIES.......................................... 41
SECTION 8.01. EVENTS OF DEFAULT.......................................... 41
SECTION 8.02. ACCELERATION............................................... 43
SECTION 8.03. OTHER REMEDIES............................................. 43
SECTION 8.04. WAIVER OF PAST DEFAULTS.................................... 44
SECTION 8.05. CONTROL BY MAJORITY........................................ 44
SECTION 8.06. LIMITATION ON SUITS........................................ 44
SECTION 8.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT....................... 45
SECTION 8.08. COLLECTION SUIT BY TRUSTEE................................. 45
SECTION 8.09. TRUSTEE MAY FILE PROOFS OF CLAIM........................... 45
SECTION 8.10. PRIORITIES................................................. 45
SECTION 8.11. UNDERTAKING FOR COSTS...................................... 45
ARTICLE IX TRUSTEE.......................................................... 46
SECTION 9.01. DUTIES OF TRUSTEE.......................................... 46
SECTION 9.02. RIGHTS OF TRUSTEE.......................................... 46
SECTION 9.03. INDIVIDUAL RIGHTS OF TRUSTEE............................... 47
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SECTION 9.04. TRUSTEE'S DISCLAIMER....................................... 47
SECTION 9.05. NOTICE OF DEFAULTS......................................... 47
SECTION 9.06. REPORTS BY TRUSTEE TO HOLDERS.............................. 48
SECTION 9.07. COMPENSATION AND INDEMNITY................................. 48
SECTION 9.08. REPLACEMENT OF TRUSTEE..................................... 49
SECTION 9.09. SUCCESSOR TRUSTEE BY MERGER, ETC........................... 50
SECTION 9.10. ELIGIBILITY; DISQUALIFICATION.............................. 50
SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.......... 50
ARTICLE X DISCHARGE OF INDENTURE............................................ 50
SECTION 10.01. TERMINATION OF COMPANY'S OBLIGATIONS...................... 50
SECTION 10.02. REPAYMENT TO COMPANY...................................... 50
ARTICLE XI AMENDMENTS, SUPPLEMENTS AND WAIVERS.............................. 50
SECTION 11.01. WITHOUT CONSENT OF HOLDERS................................ 50
SECTION 11.02. WITH CONSENT OF HOLDERS................................... 51
SECTION 11.03. COMPLIANCE WITH TRUST INDENTURE ACT....................... 52
SECTION 11.04. REVOCATION AND EFFECT OF CONSENTS......................... 52
SECTION 11.05. NOTATION ON OR EXCHANGE OF NOTES.......................... 52
SECTION 11.06. TRUSTEE PROTECTED......................................... 53
ARTICLE XII MISCELLANEOUS................................................... 53
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.............................. 53
SECTION 12.02. NOTICES................................................... 53
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS............... 54
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT........ 54
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION............. 54
SECTION 12.06. RULES BY TRUSTEE AND AGENTS............................... 54
SECTION 12.07. LEGAL HOLIDAYS............................................ 54
SECTION 12.08. NO RECOURSE AGAINST OTHERS................................ 55
SECTION 12.09. COUNTERPARTS AND FACSIMILE SIGNATURES..................... 55
SECTION 12.10. VARIABLE PROVISIONS....................................... 55
SECTION 12.11. GOVERNING LAW, SUBMISSION TO JURISDICTION................. 56
SECTION 12.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS............. 56
SECTION 12.13. SUCCESSORS................................................ 57
SECTION 12.14. SEVERABILITY.............................................. 57
SECTION 12.15. TABLE OF CONTENTS, HEADINGS, ETC.......................... 57
Exhibits
Exhibit A Form of Legends and Notes......................................... A1
Exhibit B Form of Transfer Certificate for Transfer From Rule 144A Global
Note or Restricted Note to Regulation S Global Note....................... B1
Exhibit C Form of Transfer Certificate for Transfer From Regulation S Global
Note or Restricted Note to Rule 144A Global Note.......................... C1
Exhibit D Form of Transfer Certificate for Transfer from Global Note or
Restricted Note to Restricted Note........................................ D1
Exhibit E Form of Letter to be Delivered by Institutional Accredited
Investors ................................................................ E1
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INDENTURE, dated as of June 20, 2000, between Akamai
Technologies, Inc., a Delaware corporation (the "COMPANY"), and State
Street Bank and Trust Company, a Massachusetts Trust Company, as
trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders (as defined
in Section 1.01 hereof) of the Company's 5-1/2% Convertible
Subordinated Notes due 2007 (the "NOTES"):
ARTICLE I
DEFINITIONS; TRUST INDENTURE ACT
SECTION 1.01 DEFINITIONS.
"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.
"AGENT" means any Registrar, Paying Agent, New York Presenting
Agent or Conversion Agent.
"BOARD OF DIRECTORS" means the Board of Directors of the
Company or any authorized committee of the Board of Directors.
"BOARD RESOLUTION" means a duly authorized resolution of the
Board of Directors.
"BUSINESS DAY" means any day that is not a Legal Holiday.
"CAPITAL STOCK" means any and all shares, interests,
participations, rights or other equivalents, however designated, of
corporate stock, including, without limitation, partnership interests.
"COMMON STOCK" means the common stock, par value $0.01 per
share, of the Company as the same exists at the date of the execution
of this Indenture or as such stock may be constituted from time to
time.
"COMPANY" means the party named as such above until a
successor replaces it in accordance with Article VII and thereafter
means the successor.
"DAILY MARKET PRICE" means the price of a share of Common
Stock on the relevant date, determined (a) on the basis of the last
reported sale price regular way of the Common Stock as reported on the
Nasdaq Stock Market's National Market (the "NNM"), or if
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the Common Stock is not then listed on the NNM, as reported on such
national securities exchange upon which the Common Stock is listed, or
(b) if there is no such reported sale on the day in question, on the
basis of the average of the closing bid and asked quotations regular
way as so reported, or (c) if the Common Stock is not listed on the NNM
or on any national securities exchange, on the basis of the average of
the high bid and low asked quotations regular way on the day in
question in the over-the-counter market as reported by the National
Association of Securities Dealers Automated Quotation System, or if not
so quoted, as reported by National Quotation Bureau, Incorporated, or a
similar organization.
"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.
"DEPOSITARY" shall mean The Depository Trust Company, its
nominees and their respective successors.
"DESIGNATED SENIOR DEBT" means Senior Debt in which the
instrument creating or evidencing the same or the assumption or
guarantee thereof (or related agreements or documents to which the
Company is a party) expressly provides that such Senior Debt shall be
"Designated Senior Debt" for the purposes of the Indenture (provided
that such instrument, agreement or other document may place limitations
and conditions on the right of such Senior Debt to exercise the rights
of Designated Senior Debt).
"EQUITY INTERESTS" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock, but excluding any
Indebtedness that is convertible into, or exchangeable for, Capital
Stock.
"EXCESS PAYMENT" means the excess of (A) the aggregate of the
cash and value of other consideration paid by the Company or any of its
Subsidiaries with respect to shares of the Company acquired in a tender
offer or other negotiated transaction over (B) the market value of such
acquired shares after giving effect to the completion of a tender offer
or other negotiated transaction.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE RATE CONTRACT" means, with respect to any Person,
any currency swap agreements, forward exchange rate agreements, foreign
currency futures or options, exchange rate collar agreements, exchange
rate insurance and other agreements or arrangements, or combination
thereof, the principal purpose of which is to provide protection
against fluctuations in currency exchange rates. An Exchange Rate
Contract may also include an Interest Rate Agreement.
"FUNDAMENTAL CHANGE" means the occurrence of any transaction
or event in connection with which all or substantially all of the
Common Stock shall be exchanged for, converted into, acquired for or
constitute in all material respects solely the right to receive
consideration, whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise, which is not all or substantially all
common stock that is, or upon issuance will be, (i) listed on a United
States national securities exchange, or (ii) approved for quotation on
the NASDAQ
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National Market or any similar United States system of automated
dissemination of quotations of securities prices.
"FUNDAMENTAL CHANGE OFFER" means a Purchase Offer.
"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 approved by a
significant segment of the accounting profession, which are in effect
on the Issuance Date and are applied on a consistent basis.
"GUARANTEE" means a guarantee, other than by endorsement of
negotiable instruments for collection in the ordinary course of
business, direct or indirect, in any manner, including, without
limitation, letters of credit and reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"HOLDER" means a Person in whose name a Note is registered in
the register referred to in Section 2.03.
"INDEBTEDNESS" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit, or reimbursement agreements in
respect thereof, or representing the balance deferred and unpaid of the
purchase price of any property (which purchase price is due more than
six months after the placing into service or delivery of such property)
including pursuant to capital leases and sale-and-leaseback
transactions, or representing any hedging obligations under an Exchange
Rate Contract or an Interest Rate Agreement, except any such balance
that constitutes an accrued expense or trade payable, if and to the
extent any of the foregoing indebtedness, other than obligations under
an Exchange Rate Contract or an Interest Rate Agreement, would appear
as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, and also includes, to the extent not otherwise
included, the Guarantee of items which would be included within this
definition if incurred directly by such Person. The amount of any
Indebtedness outstanding as of any date shall be the accreted value
thereof, in the case of any Indebtedness issued with original issue
discount. Indebtedness shall not include liabilities for taxes of any
kind.
"INDENTURE" means this Indenture, as amended from time to
time.
"INITIAL PURCHASERS" means Donaldson, Lufkin & Jenrette
Securities Corporation, Morgan Stanley & Co. Incorporated, Salomon
Smith Barney Inc. and Thomas Weisel Partners LLC.
"INTEREST RATE AGREEMENT" means, with respect to any Person,
any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement or other similar agreement the principal purpose
of which is to protect the party indicated therein against fluctuations
in interest rates.
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"ISSUANCE DATE" means the date on which the Notes are first
authenticated and issued.
"NOTES" has the meaning set forth in the preamble hereto.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"OFFICER" means the Chairman of the Board, the President, any
Vice President, the Treasurer, the Secretary, any Assistant Treasurer
or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate of the Company
signed by two Officers, one of whom must be the Chairman of the Board,
the President, the Treasurer or a Vice President of the Company.
"OPINION OF COUNSEL" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be
an employee of or counsel to the Company or the Trustee.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization, limited liability company or government or any agency or
political subdivision thereof.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of
June 15, 2000, among the Company and the Initial Purchasers.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2
of the Notes.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement relating to the Notes and the underlying Common Stock, dated
June 20, 2000, among the Company and the Initial Purchasers party
thereto.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR DEBT" means the principal of, interest on and other
amounts due on (i) Indebtedness of the Company, whether outstanding on
the date hereof or thereafter created, incurred, assumed or guaranteed
by the Company, for money borrowed from banks or other financial
institutions; (ii) Indebtedness of the Company, whether outstanding on
the date hereof or thereafter created, incurred, assumed or guaranteed
by the Company; and (iii) Indebtedness of the Company under interest
rate swaps, caps or similar hedging agreements and foreign exchange
contracts, currency swaps or similar agreements: unless, in the
instrument creating or evidencing or pursuant to which Indebtedness
under (i) or (ii) is outstanding, it is expressly provided that such
Indebtedness is not senior in right of payment to the Notes. Senior
Debt includes, with respect to the obligations described in clauses (i)
and (ii) above, interest accruing, pursuant to the terms of such Senior
Debt, on or after the filing of
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any petition in bankruptcy or for reorganization relating to the
Company, whether or not post-filing interest is allowed in such
proceeding, at the rate specified in the instrument governing the
relevant obligation. Notwithstanding anything to the contrary in the
foregoing, Senior Debt shall not include: (a) Indebtedness of or
amounts owed by the Company for compensation to employees, or for goods
or materials purchased in the ordinary course of business, or for
services; and (b) Indebtedness of the Company to any Subsidiary of the
Company.
"SHELF REGISTRATION STATEMENT" shall have the meaning set
forth in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Company
which is a "significant subsidiary" as defined in Rule 1-02(w) of
Regulation S-X under the Securities Act and the Exchange Act, as such
Regulation is in effect on the date hereof.
"SPECIAL INTEREST" has the meaning set forth in Section 2 of
the Notes.
"SUBSIDIARY" means 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 any Person or one or more of the other Subsidiaries of
that Person or a combination thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of execution of this
Indenture.
"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.
"TRUST OFFICER" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust
matters.
"WHOLLY-OWNED SUBSIDIARY" of any specified Person means a
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more
Wholly-Owned Subsidiaries of such Person and one or more Wholly-Owned
Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
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DEFINED
TERM IN SECTION
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"AGENT MEMBER"................................................................. 2.01
"BANKRUPTCY LAW"............................................................... 8.01
"CLEARSTREAM".................................................................. 2.01
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"COMMENCEMENT DATE"............................................................ 3.09
"CONVERSION AGENT"............................................................. 2.03
"CONVERSION DATE".............................................................. 5.02
"CONVERSION PRICE"............................................................. 5.01
"CONVERSION SHARES"............................................................ 5.06
"CUSTODIAN".................................................................... 8.01
"DISTRIBUTION DATE"............................................................ 5.06
"DISTRIBUTION RECORD DATE"..................................................... 5.06
"EUROCLEAR".................................................................... 2.01
"EVENT OF DEFAULT"............................................................. 8.01
"FUNDAMENTAL CHANGE PAYMENT".................................................. 4.07
"GLOBAL NOTE".................................................................. 2.01
"GLOBAL NOTES LEGEND".......................................................... 2.01
"LEGAL HOLIDAY"................................................................ 12.08
"NEW YORK PRESENTING AGENT".................................................... 2.03
"OFFER AMOUNT"................................................................. 3.09
"PAYING AGENT"................................................................. 2.03
"PAYMENT BLOCKAGE NOTICE"...................................................... 6.02
"PAYMENT BLOCKAGE PERIOD"...................................................... 6.02
"PAYMENT DEFAULT".............................................................. 8.01
"PURCHASE DATE"................................................................ 3.09
"PURCHASE OFFER"............................................................... 3.09
"QIBs"......................................................................... 2.01
"REGULATION S" ................................................................ 2.01
"REGULATION S GLOBAL NOTE"..................................................... 2.01
"REGISTRAR".................................................................... 2.03
"RESTRICTED NOTES"............................................................. 2.01
"RESTRICTED NOTES LEGEND"...................................................... 2.01
"RIGHTS"....................................................................... 5.06
"RULE 144A".................................................................... 2.01
"RULE 144A GLOBAL NOTE"........................................................ 2.01
"TENDER PERIOD"................................................................ 3.09
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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;
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"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee;
and
"OBLIGOR" on the Notes means the Company or any other obligor
on 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 consistently applied;
(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;
(f) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement or
successor sections or rules adopted by the SEC from time to
time; and
(g) a reference to "$" or U.S. Dollars is to United States
dollars.
ARTICLE II
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, which is hereby
incorporated by reference and expressly made a part of this Indenture.
The Notes may have notations, legends or endorsements required by law,
stock exchange rule, agreements to which the Company is subject, if
any, or usage (provided that any such notation, legend or endorsement
is in a form acceptable to the Company). The Company shall furnish any
such legend not contained in Exhibit A to the Trustee in writing. 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 of the Notes set forth in Exhibit A are part of this
Indenture and to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby. However, to the extent
any provision
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of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) GLOBAL NOTES.
The Notes are being offered and sold by the Company pursuant
to the Purchase Agreement. The Notes shall be offered and sold
primarily to Qualified Institutional Buyers ("QIBs") in reliance on
Rule 144A under the Securities Act ("RULE 144A"), as provided in the
Purchase Agreement. The Notes shall be issued initially in the form of
one or more permanent Global Notes in definitive, fully registered form
without interest coupons with the Global Notes Legend ("GLOBAL NOTES
LEGEND") and Restricted Notes Legend ("RESTRICTED NOTES LEGEND") set
forth in Exhibit A hereto ("RULE 144A GLOBAL NOTE"), which shall be
deposited on behalf of the purchasers of the Notes represented thereby
with the Trustee, as custodian for the Depositary, and registered in
the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Rule 144A Global Note
may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depositary or its nominee as
hereinafter provided.
Notes transferred in reliance on Regulation S under the
Securities Act ("REGULATION S") as provided in Section 2.06(a)(ii) and
(v) hereof, shall be issued in the form of one or more permanent Global
Notes in definitive, fully registered form without interest coupons
with the Global Notes Legend and Restricted Notes Legend set forth in
Exhibit A hereto (the "REGULATION S GLOBAL NOTE"), which shall be
deposited on behalf of the transferees of the Notes represented thereby
with the Trustee, as custodian, for the Depositary, and registered in
the name of the Depositary or the nominee of the Depositary for the
accounts of designated agents holding on behalf of the Euroclear System
("EUROCLEAR") or Clearstream Banking ("CLEARSTREAM"), duly executed by
the Company and authenticated by the Trustee as hereinafter provided.
The aggregate principal of the Regulation S Global Note may from time
to time be increased or decreased by adjustments made on the records of
the Trustee and the Depositary or its nominee as hereinafter provided.
So long as any Global Note is outstanding, owners of
beneficial interests therein may transfer their interests therein only
in reliance on Regulation S or to QIBs in reliance on Rule 144A in
accordance with Section 2.06.
(c) BOOK-ENTRY PROVISIONS.
This Section 2.01(c) shall apply only to the Rule 144A Global
Note and the Regulation S Global Note issued in the form of one or more
permanent Global Notes (collectively, the "GLOBAL NOTES") deposited
with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(c), authenticate and deliver initially one or
more Global Notes that (a) shall be registered in the name of the
Depositary for such Global Note or Global Notes or the nominee
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of such Depositary and (b) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions or held by the
Trustee as custodian for the Depositary.
Members of, or participants in, the Depositary ("AGENT
MEMBERS") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary or by the Trustee as
the custodian of the Depositary or under such Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the
rights of an owner of a beneficial interest in any Global Note.
(d) CERTIFICATED NOTES.
So long as the Depositary or its nominee is the registered
owner of a Note, the Depositary or such nominee, as the case may be,
will be considered the sole owner or Holder of the Notes represented by
the Global Notes for all purposes under the Indenture. Except as
provided below, owners of beneficial interests in a Global Note will
not be entitled to have Notes represented by such Global Note
registered in their names, will not receive or be entitled to receive
physical delivery of certificated Notes, and will not be considered the
owners or holders thereof under the Indenture for any purpose,
including with respect to the giving of any directions, instructions or
approvals to the Trustee thereunder.
Other than as set forth below in this Section, certificated
Notes will be issued to owners of beneficial interests in Global Notes
in exchange for their interests in Global Notes only if (1) the Company
notifies the Trustee in writing that the Depositary is no longer
willing or able to act as a depositary and the Company is unable to
locate a qualified successor within 90 days, or (2) the Company, at its
option, notifies the Trustee in writing that it elects to cause the
issuance of Notes in definitive form under the Indenture. In either
case, upon surrender by the Depositary of the Global Notes,
certificated Notes will be issued to each Person that the Depositary
identifies as the beneficial owner of the Notes represented by the
Global Notes. In addition, the Company will issue certificated Notes in
exchange for interests in Global Notes upon the request of an owner of
such an interest if an Event of Default has occurred and is continuing,
in which case, upon receipt of such request and necessary information
from the Depositary in accordance with its procedures, the principal
Registrar shall instruct the Depositary as to the corresponding
reduction to be made in the principal amount of the relevant Global
Note. Finally, at such time as all Global Notes cease to be outstanding
pursuant to clause (1) or (2) above, certificated Notes may be issued
in accordance with paragraphs (vi) and (vii) of Section 2.06(a). Upon
any such issuance, the Trustee shall register such certificated Notes
in the name of such Person or Persons (or the nominee of any thereof),
and cause the same to be delivered thereto. All such certificated Notes
shall bear the Restricted Notes Legend set forth in Exhibit A hereto
(collectively with the Accredited Investor Restricted Notes defined
below, the "RESTRICTED NOTES") unless otherwise provided in this
Section 2.01(d) and Section 2.06(b) hereof.
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Notes offered and sold to "accredited investors" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act), as provided in the Purchase Agreement, shall be issued in the
form of one or more certificated Notes (subject to a minimum initial
purchase amount of $100,000) in definitive, fully registered form
without interest coupons with the Restricted Notes Legend set forth in
Exhibit A hereto ("ACCREDITED INVESTOR RESTRICTED NOTES"), which shall
be registered in the name of such Accredited Investor or its nominee,
duly executed by the Company and authenticated by the Trustee as
hereinafter provided. So long as Global Notes have not ceased to be
outstanding pursuant to clause (1) or (2) in the immediately preceding
paragraph above (and unless such Accredited Investor Restricted Notes
have been exchanged for certificated Notes without a Restricted Notes
Legend pursuant to the last paragraph in this Section, if applicable),
such Accredited Investor Restricted Notes may only be transferred in
reliance on Regulation S (pursuant to Section 2.06(a)(iv))or to QIBs in
reliance on Rule 144A (pursuant to Section 2.06(a)(v)). After such time
as Global Notes have ceased to be outstanding pursuant to clauses (1)
or (2) in the immediately preceding paragraph, Accredited Investor
Restricted Notes may be transferred to transferees who hold the
transferred interests in the form of certificated Notes in accordance
with Section 2.06(a)(vii) or Section 2.06(b).
Notwithstanding the foregoing, Notes offered and sold on the
Issuance Date to "accredited investors" (as defined above) shall be
issued initially in the form of one or more permanent Global Notes in
definitive, fully registered form without interest coupons with the
Global Notes Legend and Restrictive Notes Legend set forth in Exhibit A
(the "Accredited Investor Global Note"), which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the
Trustee, as custodian for the Depositary, and registered in the name of
the Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. Such
Accredited Investor Global Note shall be deemed to be a Global Note for
all purposes of this Indenture. Promptly after the Issuance Date, the
Company shall cause the purchasers of the Accredited Investor Global
Note to arrange with the Depositary for the exchange of such Accredited
Investor Global Note for Accredited Investor Restricted Notes. Upon
receipt by the principal Registrar of instructions from the Depositary
directing the principal Registrar to authenticate and deliver one or
more Accredited Investor Restricted Notes of the same aggregate
principal amount as the beneficial interest in the Accredited Investor
Global Note to be exchanged, such instructions to contain the name or
names of the Holder or Holders of such Accredited Investor Restricted
Note or Notes, the authorized denominations of the Accredited Investor
Restricted Note or Notes to be so issued and appropriate delivery
instructions, the principal Registrar will instruct the Depositary to
reduce the Accredited Investor Global Note by the aggregate principal
amount of the beneficial interest therein to be exchanged and to debit
from the account of the Person making such exchange the beneficial
interest in the Accredited Investor Global Note that is being
exchanged, and concurrently with such reduction and debit the Company
shall execute, and the Trustee shall authenticate and deliver, one or
more Accredited Investor Restricted Notes of the same aggregate
principal amount in accordance with the instructions referred to above.
Certificated Notes may be issued as aforesaid notwithstanding any other
provision of this Indenture to the contrary restricting the issuance of
certificated Notes.
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After a transfer of any Notes during the period of the
effectiveness of a Shelf Registration Statement with respect to the
Notes and pursuant thereto, all requirements for Restricted Notes
Legends on such Notes will cease to apply; and, in this case a
certificated Note without a Restricted Notes Legend will be available
to the Holder of such Restricted Notes upon request (and surrender of
such Note bearing the Restricted Notes Legend for cancellation). The
Company shall give written notice to the Trustee, in the form of an
Officer's Certificate, of the effectiveness of the Shelf Registration
Statement, on which the Trustee and Registrant may rely.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time the Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the manual
signature of an authorized officer of the Trustee. The signature shall
be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall, upon a written order of the Company signed
by an Officer, authenticate one or more Notes for original issue up to
an aggregate principal amount stated in Section 6 of the Notes. The
aggregate principal amount of Notes outstanding at any time may not
exceed $300,000,000 except as provided in Section 2.07; provided that
Notes in excess of $250,000,000 shall not be issued other than pursuant
to the over-allotment option granted by the Company to the Initial
Purchasers as provided in the Purchase Agreement. In the event thereof,
the Company shall certify to the Trustee in an Officer's Certificate
that such issuance is pursuant to such over-allotment option granted by
the Initial Purchasers under the Purchase Agreement.
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 Holders, the Company or an Affiliate.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain in the Borough of Manhattan, City
of New York, State of New York, an office or agency where the Notes may
be presented for registration of transfer or for exchange, payment and
conversion (collectively, the "NEW YORK PRESENTING AGENT"). The Company
initially designates STATE STREET BANK AND TRUST COMPANY, N.A., an
affiliate of the Trustee, at its corporate trust offices in the Borough
of Manhattan, City of New York, State of New York to act as New York
Presenting Agent. The Trustee is initially appointed to act as Note
registrar to maintain a register of transfers of the Notes (the "NOTE
REGISTRAR") and to act as paying agent with respect to the Notes
("PAYING AGENT") and to act as agent for conversion of the Notes
("CONVERSION AGENT"). The Registrar shall keep a register of the Notes
and of their transfer and exchange. The Company may
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appoint one or more co-Registrars, one or more additional Paying Agents
and one or more additional Conversion Agents in such other locations as
it shall determine. 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, Registrar, New York Presenting
Agent or Conversion Agent without prior notice to any Holder. The
Company shall notify the Trustee 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, New York Presenting
Agent or Conversion Agent, the Trustee shall act as such. The Company
or any of its Affiliates may act as Paying Agent, Registrar, New York
Presenting Agent or Conversion Agent.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
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 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 and to account
for any money disbursed by it. 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 an
Affiliate of the Company) shall have no further liability for the
money. If the Company or an Affiliate of the Company acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent.
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 Holders. If the Trustee is not the Registrar,
the Company shall furnish to the Trustee on or 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 Holders.
SECTION 2.06. TRANSFER AND EXCHANGE.
Whenever Notes are presented to the Registrar or a
co-Registrar with a request to register a transfer or to exchange them
for an equal principal amount of Notes of other denominations, the
Registrar shall register the transfer or make the exchange if its
requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee shall
authenticate Notes at the Registrar's request. No service charge shall
be made to a Holder for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.10, 3.06 or 11.05 hereof).
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The Company shall not be required (i) to issue, register the
transfer of or exchange any Note for a period beginning at the opening
of business 15 days before the day of any selection of Notes to be
redeemed under Section 3.02 hereof and ending at the close of business
on the day of selection, or (ii) to register the transfer, or exchange,
of any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(a) Notwithstanding any provision to the contrary herein, so
long as a Global Note remains outstanding and is held by or on behalf
of the Depositary, transfers of a Global Note, in whole or in part, or
of any beneficial interest therein, shall only be made in reliance on
Regulation S or to QIBs in reliance on Rule 144A in accordance with
Section 2.01(b), Section 2.01(d), Section 2.06(a) and Section 2.06(b);
provided, however, that beneficial interests in a Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Global Note in accordance with the
transfer restrictions set forth in the Restricted Notes Legend and
under the heading "Notice to Investors" in the Company's Offering
Memorandum dated June 15, 2000.
(i) Transfer of Global Note to Depositary. Except for
transfers or exchanges made in accordance with clauses
(ii) through (vii) of this Section 2.06(a), transfers of
a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to nominees of the
Depositary or to a successor of the Depositary or such
successor's nominee.
(ii) Rule 144A Global Note To Regulation S Global
Note. If an owner of a beneficial interest in the Rule
144A Global Note deposited with the Depositary or the
Trustee as custodian for the Depositary wishes at any
time to transfer its interest in such Rule 144A Global
Note in reliance on Regulation S to a Person whose
purchase or acceptance thereof would not qualify as a
transaction exempt from registration requirements under
144A, such owner may, subject to the rules and procedures
of the Depositary, exchange or cause the exchange of such
interest for an equivalent beneficial interest in the
Regulation S Global Note. Upon receipt by the principal
Registrar of (1) instructions given in accordance with
the Depositary's procedures from an Agent Member
directing the principal Registrar to credit or cause to
be credited a beneficial interest in the Regulation S
Global Note in an amount equal to the beneficial interest
in the Rule 144A Global Note to be exchanged, (2) a
written (or electronic) order given in accordance with
the Depositary's procedures containing information
regarding the participant account of the Depositary (and
which may include the Euroclear or Clearstream account)
to be credited with such increase and (3) a certificate
in the form of Exhibit B attached hereto given by the
holder of such account interest, then the principal
Registrar shall instruct the Depositary to reduce or
cause to be reduced the principal amount of the Rule 144A
Global Note and to increase or cause to be increased the
principal amount of the Regulation S Global Note by the
aggregate principal amount of the beneficial interest in
the Rule 144A Global Note equal to the beneficial
interest in the Regulation S Global Note to be exchanged
or transferred and to debit or cause to be debited from
the account of the Person making such exchange or
transfer the beneficial interest in the Rule 144A Global
Note that is being exchanged or transferred.
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(iii) Regulation S Global Note To Rule 144A Global
Note. If an owner of a beneficial interest in the
Regulation S Global Note deposited with the Depositary or
with the Trustee as custodian for the Depositary wishes
at any time to transfer its interest in such Regulation S
Global Note in reliance on Rule 144A to a Person whose
purchase or acceptance thereof would not qualify as a
transaction exempt from registration requirements under
Regulation S, such Holder may, subject to the rules and
procedures of Euroclear or Clearstream, as the case may
be, and the Depositary, exchange or cause the exchange of
such interest for an equivalent beneficial interest in
the Rule 144A Global Note. Upon receipt by the principal
Registrar of (1) instructions from the Depositary
directing the principal Registrar to credit or cause to
be credited a beneficial interest in the Rule 144A Global
Note equal to the beneficial interest in the Regulation S
Global Note to be exchanged or transferred, (2) a written
(or electronic) order given in accordance with the
Depositary's procedures containing information regarding
the participant account of the Depositary to be credited
and (3) a certificate in the form of Exhibit C attached
hereto given by the owner of such account interest then
the principal Registrar will instruct the Depositary to
reduce or cause to be reduced the Regulation S Global
Note and to increase or cause to be increased the
principal amount of the Rule 144A Global Note by the
aggregate principal amount of the beneficial interest in
the Regulation S Global Note to be exchanged or
transferred.
(iv) Accredited Investor Restricted Note or Other
Restricted Note to Rule 144A Global Note. If an owner of
an Accredited Investor Restricted Note or Other
Restricted Note registered in the name of such owner
wishes at any time to transfer such Restricted Note to a
Person in reliance on Rule 144A, such Holder may, subject
to the rules and procedures of the Depositary, exchange
or cause the exchange of such Restricted Note for an
equivalent beneficial interest in the Rule 144A Global
Note. Upon receipt by the principal Registrar of (1)
surrender of the Restricted Note to be transferred or
exchanged, (2) instructions from the Company, directing
the principal Registrar (A) to credit or cause to be
credited a beneficial interest in the Rule 144A Global
Note equal to the principal amount of the Restricted Note
to be exchanged or transferred and (B) to cancel such
Restricted Note to be exchanged or transferred, (3) a
written (or electronic) order given in accordance with
the Depositary's procedures containing information
regarding the participant account of the Depositary to be
credited and (4) a certificate in the form of Exhibit C
attached hereto given by the Holder of such Restricted
Note, then the principal Registrar will instruct the
Trustee to cancel such Restricted Note and will instruct
the Depositary to increase or cause to be increased the
principal amount of the Rule 144A Global Note by the
principal amount of the Restricted Note to be exchanged
or transferred.
(v) Accredited Investor Restricted or Other Restricted
Note To Regulation S Global Note. If an owner of a
Restricted Note registered in the name of such owner
wishes at any time to transfer such Restricted Note to a
Person in reliance on Regulation S, such owner may,
subject to the rules and procedures of the Euroclear or
Clearstream, as the case may be, exchange or cause the
exchange of such Restricted Note for an equivalent
beneficial interest in the Regulation S Global Note. Upon
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<PAGE> 19
receipt by the principal Registrar of (1) surrender of
the Restricted Note to be transferred or exchanged, (2)
instructions from the Company, directing the principal
Registrar (A) to credit or cause to be credited a
beneficial interest in the Regulation S Global Note equal
to the principal amount of the Restricted Note to be
exchanged or transferred and (B) to cancel such
Restricted Note to be exchanged or transferred, (3) a
written (or electronic) order given in accordance with
the Depositary's procedures containing information
regarding the participant account of the Depositary (and
which may include a Euroclear or Clearstream account) to
be credited with such increase and (4) a certificate in
the form of Exhibit B attached hereto given by the Holder
of such Restricted Note, then the principal Registrar
will instruct the Trustee to cancel such Restricted Note
and will instruct the Depositary to increase or cause to
be increased the principal amount of the Regulation S
Global Note by the principal amount of the Restricted
Note to be exchanged or transferred.
(vi) Global Note To Restricted Note. On and after such
time as owners of beneficial interests in Global Notes
are permitted under Section 2.01(d) to exchange their
interests in Global Notes for certificated Notes, if an
owner of a beneficial interest in a Global Note deposited
with the Depositary or with the Trustee as custodian for
the Depositary wishes to transfer its interest in such
Global Note to a Person who is required to take delivery
thereof in the form of a Restricted Note under Section
2.06(b), such owner may, subject to the rules and
procedures of the Depositary, cause the transfer of such
interest for one or more Restricted Notes of any
authorized denomination or denominations and of the same
aggregate principal amount. Subject to the terms of
Section 2.01(d) regarding the circumstances under which
owners of beneficial interests in Global Notes are
entitled to exchange such interests for certificated
Notes, upon receipt by the principal Registrar of (1)
instructions from the Depositary directing the principal
Registrar to authenticate and deliver one or more
Restricted Notes of the same aggregate principal amount
as the beneficial interest in the Global Note to be
transfered, such instructions to contain the name or
names of the designated transferee or transferees, the
authorized denomination or denominations of the
Restricted Notes to be so issued and appropriate delivery
instructions, (2) a certificate in the form of Exhibit D
attached hereto given by the owner of such beneficial
interest to the effect set forth therein, (3) a
certificate in the form of Exhibit E attached hereto
given by the Person acquiring the Restricted Notes for
which such interest is being transferred, to the effect
set forth therein, and (4) such other certifications,
legal opinions or other information as the Company may
reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the
Securities Act, then the principal Registrar will
instruct the Depositary to reduce or cause to be reduced
such Global Note by the aggregate principal amount of the
beneficial interest therein to be exchanged and to debit
or cause to be debited from the account of the Person
making such transfer the beneficial interest in the
Global Note that is being transferred, and concurrently
with such reduction and debit the Company shall execute,
and the Trustee shall authenticate and deliver, one or
more Restricted Notes of the same aggregate principal
amount in accordance with the instructions referred to
above. In the event that certificated Notes are issued in
place of beneficial interests in Global Notes pursuant to
2.01(d) prior to the effectiveness of a Shelf
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Registration Statement with respect to such Notes, such
Notes may be exchanged only in accordance with such
procedures as are substantially consistent with the
provisions of clauses (ii) and (iii) above (including the
certification requirements intended to ensure that such
transfers comply with Rule 144A, Regulation S, Rule 144,
or any other available exemption from registration, as
the case may be) and such other procedures as may from
time to time be adopted by the Company.
(vii) Restricted Note To Restricted Note. On and after
such time as Holders of Accredited Investor Restricted
Notes or other Restricted Notes are permitted to transfer
such Notes other than in reliance on Regulation S or to
QIBs in reliance on Rule 144A in certificated form
pursuant to Section 2.01(d), if a Holder of a Restricted
Note wishes to transfer such Restricted Note to a Person
who is required to take delivery thereof in the form of a
Restricted Note, such Holder may, subject to the
restrictions on transfer set forth herein and in such
Restricted Note, cause the exchange of such Restricted
Note for one or more Restricted Notes of any authorized
denomination or denominations and of the same aggregate
principal amount. Upon receipt by the principal Registrar
of (1) such Restricted Note, duly endorsed as provided
herein, (2) instructions from such Holder directing the
principal Registrar to authenticate and deliver one or
more Restricted Notes of the same aggregate principal
amount as the Restricted Note to be exchanged, such
instructions to contain the name or authorized
denomination or denominations of the Restricted Notes to
be so issued and appropriate delivery instructions, (3) a
certificate from the Holder of the Restricted Note to be
exchanged in the form of Exhibit D attached hereto, (4) a
certificate in the form of Exhibit E attached hereto
given by the Person acquiring the Restricted Notes for
which such interest is being exchanged, if such Person is
an "accredited investor" as defined and to the effect set
forth therein, and (5) such other certifications, legal
opinions or other information as the Company may
reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the
Securities Act, then the Registrar shall cancel or cause
to be canceled such Restricted Note and concurrently
therewith, the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Restricted
Notes of the same aggregate principal amount, in
accordance with the instructions referred to above.
(b) Upon any sale of a Note bearing the Restricted Notes
Legend (or any interest in a Global Note subject to the
Restricted Notes Legend) pursuant to Rule 144 under the
Securities Act or an effective registration statement under
the Securities Act:
(i) (A) in the case of any Note that is a certificated
Note or a beneficial interest in a Global Note, the
Registrar shall permit the Holder thereof to exchange
such Note or interest for a certificated Note or a
beneficial interest in a Global Note, as the case may be,
that does not bear or is subject to, as the case may be,
the legend set forth above and rescind any restriction on
the transfer of such Note or interest (1) in the case of
a sale or transfer pursuant to Rule 144 under the
Securities Act, upon delivery to the Company such
satisfactory evidence, which may include an opinion of
counsel licensed to practice law in the State of New
York, as may be reasonably required by the Company, that
neither the legend nor the restrictions on transfer set
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<PAGE> 21
forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A, Rule
144, Regulation S or any other available exemption from
registration under the Securities Act or, with respect to
Restricted Notes, that such Notes are not "restricted"
within the meaning of Rule 144 under the Securities Act
or (2) in the case of a sale or transfer pursuant to an
effective registration statement under the Securities
Act; and
(ii) any Global Note shall not be subject to the
Restricted Notes Legend (such sales or transfers being
subject only to the provisions of Section 2.06(a)(i) and
Section 2.01(d)).
Upon provision of such satisfactory evidence, the Trustee, at
the direction of the Company, shall authenticate and deliver Notes that
do not bear the Restricted Notes Legend.
(c) Neither the Company nor the Trustee shall have any
responsibility for any actions taken or not taken by the Depositary and
the Company shall have no responsibility for any actions taken or not
taken by the Trustee as agent or custodian of the Depositary.
(d) Notwithstanding anything contained herein to the contrary,
neither the Trustee nor the Note Registrar shall be responsible for
ascertaining whether any purchase or transfer complies with the
registration provisions of or exemptions from the Securities Act, Rule
144A, Rule 144, Regulation S, or any applicable state securities laws;
provided, that if a certificate or other written representation is
specifically required by the express terms of this Section 2.06 to be
delivered to the Registrar or Trustee by a transferee of a Note prior
to registration of such transfer, the Trustee or Note Registrar, as the
case may be, shall be under a duty to receive and examine the same to
determine whether it conforms on its face to the requirements of this
Section 2.06.
(e) Transfers of any Notes in certificated form not bearing
the Restricted Notes Legend shall not be subject to the restrictions
and requirements set forth in Section 2.06(a)(vii).
(f) Any transfer or exchange of a Note in certificated form
shall be accompanied by surrender of the certificated Note, endorsed or
accompanied by an instrument of transfer acceptable to the Registrar,
executed by the Holder or an attorney in fact acting on its behalf.
SECTION 2.07. REPLACEMENT NOTES.
If the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken or if such Note is mutilated and is
surrendered to the Trustee, the Company shall issue and the Trustee
shall authenticate a replacement Note if the Trustee's and the
Company'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 both to protect the Company, the Trustee,
any Agent or any authenticating agent from any loss which any of them
may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, or is about to be
purchased by the Company pursuant to Article III
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hereof, the Company in its discretion may, instead of issuing
a new Note, pay or purchase such Note, as the case may be.
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, and those described in this Section
as not outstanding.
If a Note is replaced, paid or purchased pursuant to Section
2.07 hereof, it ceases to be outstanding unless the Trustee receives
proof satisfactory to it that the replaced, paid or purchased Note is
held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
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.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company or an Affiliate of the Company shall be
considered as though they are not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes that the
Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES; GLOBAL NOTES.
(a) Until definitive Notes are ready for delivery, the Company
may prepare and the Trustee shall authenticate 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. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes. Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture.
(b) A Global Note deposited with the Depositary or with the
Trustee as custodian for the Depositary pursuant to Section 2.01 shall
be transferred to the beneficial owners thereof in the form of
certificated Notes only (i) in accordance with Section 2.01(d), and
(ii) provided that such transfer complies with the applicable
provisions of Section 2.06(b).
(c) Any Global Note that is re-issued to the beneficial owners
thereof in the form of certificated Notes pursuant to Section 2.01(d)
and this Section 2.10 shall be surrendered by
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the Depositary to the Trustee to be so transferred without charge, and
the Trustee shall authenticate and deliver, upon such transfer of each
portion of such Global Note, an equal aggregate principal amount of
Notes of authorized denominations in the form of certificated Notes.
Any portion of a Global Note transferred pursuant to this Section 2.10
shall be executed, authenticated and delivered as the Depositary shall
direct. Any Note in the form of certificated Notes delivered in
exchange for an interest in the Global Notes shall, except as otherwise
provided by Section 2.06(c), bear the Restricted Notes Legend set forth
in Exhibit A hereto.
(d) Upon the occurrence of any of the events set forth in
Section 2.01(d) requiring the issuance of certificated Notes in place
of all beneficial interests in Global Notes then outstanding, the
Company will promptly make available to the Trustee a reasonable supply
of certificated Notes in definitive, fully registered form without
interest coupons.
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 or payment. The Trustee shall promptly cancel all
Notes surrendered for registration of transfer, exchange, payment,
conversion, replacement or cancellation and shall dispose of canceled
Notes as the Company directs. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company fails to make a payment of interest on the
Notes, it shall pay such defaulted interest plus any interest payable
on the defaulted interest, in any lawful manner. It may pay such
defaulted interest, plus any such interest payable on it, to the
Persons who are Holders on a subsequent special record date. The
Company shall fix any such record date and payment date, provided that
no such record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before any
such record date, the Company shall mail to Holders a notice that
states the special record date, the related payment date and amount of
such interest to be paid.
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 and other notices as a convenience to
holders of Notes; 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
notice of a Purchase Offer and that reliance may be placed only on the
other identification numbers printed on the Notes, and any redemption
or Purchase Offer 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.
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ARTICLE III
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of the Notes and Section 3.07 hereof, it shall
notify the Trustee in writing of the redemption date and the principal
amount of Notes to be redeemed. The Company shall give the notice
provided for in this Section 3.01 at least 45 days before the
redemption date, unless a shorter notice period shall be satisfactory
to the Trustee. The Company may not give notice of any redemption if
the Company has defaulted in payment of interest and the default is
continuing.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
selection of Notes shall be made by the Trustee on a pro rata basis or
by lot or by a method that complies with the requirements of any
exchange on which the Notes are listed and that the Trustee considers
fair and appropriate, provided that no Notes of $1,000 or less shall be
redeemed in part. The Trustee shall make the selection not more than 60
days and not less than 30 days before the redemption date from Notes
outstanding not previously called for redemption. Notes and portions of
Notes selected shall be in amounts of $1,000 or integral multiples of
$1,000. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. The
Trustee shall notify the Company promptly of the Notes or portions of
Notes to be called for redemption.
If any Note selected for partial redemption is converted in
part after such selection, the converted portion of such Note shall be
deemed (so far as may be) to be the portion to be selected for
redemption. The Notes (or portions thereof) so selected shall be deemed
duly selected for redemption for all purposes hereunder,
notwithstanding that any such Note is converted in whole or in part
before the mailing of the notice of redemption. Upon any redemption of
less than all the Notes, the Company and the Trustee may treat as
outstanding any Notes surrendered for conversion during the period 15
days next preceding the mailing of a notice of redemption and need not
treat as outstanding any Note authenticated and delivered during such
period in exchange for the unconverted portion of any Note converted in
part during such period.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail, 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;
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(c) if any Note is to be redeemed in part only, the portion of
the principal amount thereof redeemed, and that, after the redemption
date, upon surrender of such Note, a new Note in principal amount equal
to the unredeemed portion thereof shall be issued in the name of the
Holder thereof upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price plus accrued interest,
if any;
(f) that interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph of the Notes pursuant to which the Notes
called for redemption are being redeemed; and
(h) the "CUSIP" number of the Notes to be redeemed; and
(i) the current Conversion Price and the date on which the
right to convert such Notes or portions thereof into Common Stock of
the Company will expire.
At the Company's request, the Trustee shall give notice of
redemption in the Company's name and at the Company's expense; provided
that the Company shall have delivered to the Trustee, at least 45 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 due and payable on the
redemption date at the price set forth in the Note. A notice of
redemption may not be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 1:00 pm (Boston time) on the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money
(in immediately available funds) sufficient to pay the redemption price
of and accrued interest on all Notes to be redeemed on that date unless
theretofore converted into Common Stock pursuant to the provisions
hereof. The Trustee or the Paying Agent shall return to the Company any
money not required for that purpose.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and 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.
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SECTION 3.07. OPTIONAL REDEMPTION.
The Company may redeem all or any portion of the Notes, upon
the terms and at the redemption prices set forth in the Notes. 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. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
payments or sinking fund payments with respect to the Notes.
SECTION 3.09. PURCHASE OFFER.
(a) In the event that, pursuant to Section 4.07 hereof, the
Company shall commence an offer to all Holders of the Notes to purchase
Notes (the "PURCHASE OFFER"), the Company shall follow the procedures
in this Section 3.09.
(b) The Purchase Offer shall remain open for a period
specified by the Company which shall be no less than 30 calendar days
and no more than 45 calendar days following its commencement (the
"COMMENCEMENT DATE") (as determined in accordance with Section 4.07
hereof), except to the extent that a longer period is required by
applicable law (the "TENDER PERIOD"). Upon the expiration of the Tender
Period (the "PURCHASE DATE"), the Company shall purchase the principal
amount of all of the Notes required to be purchased pursuant to Section
4.07 hereof (the "OFFER AMOUNT").
(c) If the Purchase Date is on or after an interest payment
record date and on or before the related interest payment date, any
accrued interest shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no
additional interest will be payable to Holders who tender Notes
pursuant to the Purchase Offer.
(d) The Company shall provide the Trustee with written notice
of the Purchase Offer at least 10 days before the Commencement Date.
(e) On or before the Commencement Date, the Company or the
Trustee (at the written request and expense of the Company, the Company
having provided to the Trustee the requisite information therefor)
shall send, by first class mail, a notice to each of the Holders, which
shall govern the terms of the Purchase Offer and shall state:
(i) that the Purchase Offer is being made pursuant to
this Section 3.09 and Section 4.07 hereof, that all Notes
validly tendered will be accepted for payment and the length
of time the Purchase Offer will remain open;
(ii) the purchase price (as determined in accordance
with Section 4.07 hereof) and the Purchase Date, and that all
Notes tendered will be accepted for payment;
(iii) that any Note or portion thereof not tendered
or accepted for payment will continue to accrue interest;
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(iv) that, unless the Company defaults in the payment
of the purchase price, any Note or portion thereof accepted
for payment pursuant to the Purchase Offer will cease to
accrue interest after the Purchase Date;
(v) that Holders electing to have a Note or portion
thereof purchased pursuant to any Purchase Offer will be
required to surrender the Note, with the form entitled "Option
of Holder to Elect Purchase" on the reverse of the Note
completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the
notice prior to the close of business on the third Business
Day preceding the Purchase Date;
(vi) that Holders will be entitled to withdraw their
election if the Company, depositary or Paying Agent, as the
case may be, receives, not later than the close of business on
the second Business Day preceding the Purchase Date, or such
longer period as may be required by law, a letter or a
telegram, telex or facsimile transmission (receipt of which is
confirmed and promptly followed by a letter) setting forth the
name of the Holder, the principal amount of the Note or
portion thereof the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have
the Note or portion thereof purchased;
(vii) that Holders whose Notes were purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered and
(viii) the "CUSIP" number of the Notes to be
purchased.
(f) On or prior to 1:00 pm (Boston time) on the
Purchase Date, the Company shall irrevocably deposit with the Trustee
or a Paying Agent in immediately available funds an amount equal to
the Offer Amount to be held for payment in accordance with the terms
of this Section 3.09. On the Purchase Date, the Company shall, to the
extent lawful, (i) accept for payment the Notes or portions thereof
properly tendered pursuant to the Purchase Offer, (ii) deliver or
cause the Depositary or Paying Agent to deliver to the Trustee Notes
so accepted and (iii) deliver to the Trustee an Officers' Certificate
stating such Notes or portions thereof have been accepted for payment
by the Company in accordance with the terms of this Section 3.09. The
Depositary, the Paying Agent or the Company, as the case may be, shall
promptly (but in any case not later than ten (10) calendar days after
the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Note equal in
principal amount to any unpurchased portion of the Note surrendered.
Any Notes not so accepted shall be promptly mailed or delivered by or
on behalf of the Company to the Holder thereof. The Company will
publicly announce in a newspaper of general circulation the results of
the Purchase Offer on or as soon as practicable after the Purchase
Date.
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The Purchase Offer shall be made by the Company in compliance
with all applicable provisions of the Exchange Act, and all applicable
tender offer rules promulgated thereunder, and shall include all
instructions and materials necessary to enable such Holders to tender
their Notes.
ARTICLE IV
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay the principal of, and 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 (other than the Company or an
Affiliate of the Company) holds on that date money designated for and
sufficient to pay all principal, premium, if any, and interest then
due. To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
(i) overdue principal and premium, if any, at the rate borne by the
Notes, compounded semiannually; and (ii) overdue installments of
interest (without regard to any applicable grace period) at the same
rate, compounded semiannually.
Whenever in this Indenture or the Notes there is mentioned, in
any context, the payment of principal (and premium, if any), Offer
Amount, interest or any other amount payable under or with respect to
any Note, such mention shall be deemed to include mention of the
payment of Special Interest provided for in Section 2 of the Notes to
the extent that, in such context, Special Interest is, was or would be
payable in respect thereof pursuant to the provisions of Section 2 of
the Notes, and express mention of the payment of Special Interest (if
applicable) in any provisions hereof shall not be construed as
excluding Special Interest in those provisions hereof where such
express mention is not made (if applicable).
SECTION 4.02 REPORTS.
Whether or not required by the rules and regulations of the
SEC, so long as any Notes are outstanding, the Company shall file with
the SEC and furnish to the Trustee and to the Holders of Notes, all
quarterly and annual financial information required to be contained in
a filing with the SEC on Forms 10-Q and 10-K, including a "Management's
Discussion and Analysis of Results of Operations and Financial
Condition" and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants, in each
case, as required by the rules and regulations of the SEC as in effect
on the Issuance Date. The Trustee shall be under no obligation or duty
to review such reports, such delivery to it being for the purpose of
having the same on file with the Trustee and available for examination.
SECTION 4.03. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year of the Company, an
Officers' Certificate stating that a review of the activities
of the
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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, and
complied with the covenants and conditions contained in, this
Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge
the Company has kept, observed, performed and fulfilled each
and every covenant, and complied with the covenants and
conditions contained in this Indenture and is not in default
in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or
Events of Default of which he may have knowledge) and that to
the best of his knowledge no event has occurred and remains in
existence by reason of which payments on account of the
principal or of interest, if any, on the Notes are prohibited.
One of the Officers signing such Officers' Certificate shall
be either the Company's principal executive officer, principal
financial officer or principal accounting officer.
The Company will, so long as any of the Notes are
outstanding, deliver to the Trustee forthwith upon becoming
aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default.
Immediately upon the occurrence of any Registration
Default giving rise to Special Interest or the cure of any
such Registration Default, the Company shall give the Trustee
written notice thereof and of the event giving rise to such
Registration Default or the cure of any such Registration
Default (such notice to be contained in an Officers'
Certificate) and prior to receipt of such Officers'
Certificate the Trustee shall be entitled to assume that no
such Registration Default has occurred or been cured, as the
case may be.
SECTION 4.04. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may
lawfully do so) that it will 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, which may
affect the covenants or the performance of this Indenture; and
the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 4.05. CORPORATE EXISTENCE.
Subject to Article VII hereof, to the extent
permitted by law the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect
its corporate existence and the corporate, partnership or
other existence of each subsidiary of the Company in
accordance with the respective organizational documents of
each subsidiary and the rights (charter and statutory),
licenses and franchises of the Company; 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 subsidiary, if the preservation thereof
is no
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longer desirable in the conduct of the business of the Company
and its subsidiaries taken as a whole.
SECTION 4.06. TAXES.
The Company shall, and shall cause each of its
subsidiaries to, pay prior to delinquency all material taxes,
assessments and governmental levies, except as contested in
good faith and by appropriate proceedings.
SECTION 4.07. FUNDAMENTAL CHANGE.
(a) Upon the occurrence of a Fundamental Change, each
Holder of Notes shall have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of such Holder's Notes pursuant to the
Purchase Offer at a purchase price equal to 100% of the
principal amount thereof plus accrued and unpaid interest to
the date of purchase (the "FUNDAMENTAL CHANGE PAYMENT").
(b) Within 25 days following any Fundamental Change,
the Company shall give written notice to the Trustee and shall
mail to each Holder the notice provided by Section 3.09(e).
SECTION 4.08. LIMITATION ON STATUS AS INVESTMENT COMPANY.
The Company shall not, and shall not permit any
Subsidiary to, conduct its business in a fashion that would
cause the Company to be required to be registered as an
"investment company" (as that term is defined in the
Investment Company Act of 1940, as amended).
SECTION 4.09. SPECIAL INTEREST.
If Special Interest is payable by the Company
pursuant to Section 2 of the Notes, the Company shall deliver
to the Trustee a certificate to that effect stating (i) the
amount of such Special Interest that is payable and (ii) the
date on which such Special Interest is payable. Unless and
until a Trust Officer of the Trustee receives such a
certificate, the Trustee may assume without inquiry that no
such Special Interest is payable. If the Company has paid
Special Interest directly to the persons entitled to it, the
Company shall deliver to the Trustee a certificate setting
forth the particulars of such payment.
ARTICLE V
CONVERSION
SECTION 5.01. CONVERSION PRIVILEGE.
A Holder of a Note may convert it into fully paid and
nonassessable shares of Common Stock at any time following the Issuance
Date and prior to maturity at the Conversion Price then in effect,
except that, with respect to any Note called for redemption, such
conversion right shall terminate at the close of business on the
Business Day immediately preceding the redemption date (unless the
Company shall default in making the redemption payment when it becomes
due, in which case the conversion right shall terminate
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on the date such default is cured). 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 12 of the
Notes and is subject to adjustment as provided in this Article V.
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.
SECTION 5.02. CONVERSION PROCEDURE.
To convert a Note, a Holder must satisfy the requirements in
Section 12 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
5.03 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 of Notes hereunder shall
cease (such Person's rights as a Holder of Transfer Restricted
Securities, if any, under the Registration Rights Agreement, however,
shall continue so long as such Person holds such Transfer Restricted
Securities); 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 adjustment will be made for accrued and unpaid
interest on a converted Note, but if any Holder surrenders a Note for
conversion after the close of business on the record date for the
payment of an installment of interest and prior to the opening of
business on the next interest payment date, then, notwithstanding such
conversion, the interest payable on such interest payment date shall be
paid to the Holder of such Note on such record date. 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 convertible 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 and prior to the date of redemption stated in such
notice. If any Notes are converted after an interest payment date but
on or before the next
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record date, no interest will be paid on those Notes. 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 5.03. 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 Daily Market Price of the Common Stock on
the trading day prior to the date of conversion.
SECTION 5.04. 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 5.05. 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 when so issued. Shares of Common Stock issuable upon
conversion of a Restricted Note shall bear such restrictive legends as
the Company shall provide in accordance with applicable law. If shares
of Common Stock are to be issued upon conversion of a Restricted Note
and they are to be registered in a name other than that of the holder
of such Restricted Note, then the Person in whose name such shares of
Common Stock are to be registered must deliver to the Trustee a
certificate satisfactory to the
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Company and signed by such Person as to compliance with the
restrictions on transfer contained in such restrictive legends.
SECTION 5.06. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price shall be subject to adjustment from time
to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of
Common Stock to holders of Common Stock, (2) make a distribution in
shares of Common Stock to holders of Common Stock, (3) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock or (4) combine its outstanding shares of Common Stock into
a smaller number of shares of Common Stock, the Conversion Price in
effect immediately prior to such action shall be adjusted so that the
Holder of any Note thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock which he would
have owned immediately following such action had such Notes been
converted immediately prior thereto. Any adjustment made pursuant to
this subsection (a) shall become effective immediately after the record
date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a
subdivision or combination.
(b) In case the Company shall issue rights or warrants to
substantially all holders of Common Stock entitling them (for a period
commencing no earlier than the record date for the determination of
holders of Common Stock entitled to receive such rights or warrants and
expiring not more than 45 days after such record date) to subscribe for
or purchase shares of Common Stock (or securities convertible into
Common Stock) at a price per share less than the current market price
(as determined pursuant to subsection (f) below) of the Common Stock on
such record date, the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to such record date by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding on such record date, plus the number of shares of Common
Stock which the aggregate offering price of the offered shares of
Common Stock (or the aggregate conversion price of the convertible
securities so offered) would purchase at such current market price, and
of which the denominator shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional shares of
Common Stock offered (or into which the convertible securities so
offered are convertible). Such adjustments shall become effective
immediately after such record date.
(c) In case the Company shall distribute to all holders of
Common Stock shares of capital stock of the Company other than Common
Stock, evidences of indebtedness or other assets (other than cash
dividends out of current or retained earnings), or shall distribute to
substantially all holders of Common Stock rights or warrants to
subscribe for securities (other than those referred to in subsection
(b) above), then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
date of such distribution by a fraction of which the numerator shall be
the current market price (determined as provided in subsection (f)
below) of the Common Stock on the record date mentioned below less the
then fair market value (as determined by the Board of Directors, whose
determination shall be
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conclusive evidence of such fair market value and described in a Board
Resolution) of the portion of the assets so distributed or of such
subscription rights or warrants applicable to one share of Common
Stock, and of which the denominator shall be such current market price
of the Common Stock. Such adjustment shall become effective immediately
after the record date for the determination of the holders of Common
Stock entitled to receive such distribution. Notwithstanding the
foregoing, in the event that the Company shall distribute rights or
warrants (other than those referred to in subsection (b) above)
("RIGHTS") pro rata to holders of Common Stock, the Company may, in
lieu of making any adjustment pursuant to this Section 5.06, make
proper provision so that each Holder of a Note who converts such Note
(or any portion thereof) after the record date for such distribution
and prior to the expiration or redemption of the Rights shall be
entitled to receive upon such conversion, in addition to the shares of
Common Stock issuable upon such conversion (the "CONVERSION SHARES"), a
number of Rights to be determined as follows: (i) if such conversion
occurs on or prior to the date for the distribution to the holders of
Rights of separate certificates evidencing such Rights (the
"DISTRIBUTION DATE"), the same number of Rights to which a holder of a
number of shares of Common Stock equal to the number of Conversion
Shares is entitled at the time of such conversion in accordance with
the terms and provisions of and applicable to the Rights; and (ii) if
such conversion occurs after the Distribution Date, the same number of
Rights to which a holder of the number of shares of Common Stock into
which the principal amount of the Note so converted was convertible
immediately prior to the Distribution Date would have been entitled on
the Distribution Date in accordance with the terms and provisions of
and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at
any time distribute to all holders of its Common Stock cash (including
any distributions of cash out of current or retained earnings of the
Company but excluding any cash that is distributed as part of a
distribution requiring a Conversion Price adjustment pursuant to
paragraph (c) of this Section 5.06) in an aggregate amount that,
together with the sum of (x) the aggregate amount of any other
distributions to all holders of its Common Stock made in cash plus (y)
all Excess Payments, in each case made within the 12 months preceding
the date fixed for determining the stockholders entitled to such
distribution (the "DISTRIBUTION RECORD DATE") and in respect of which
no Conversion Price adjustment pursuant to paragraphs (c) or (e) of
this Section 5.06 or this paragraph (d) has been made, exceeds 15% of
the product of the current market price per share (determined as
provided in paragraph (f) of this Section 5.06) of the Common Stock on
the Distribution Record Date times the number of shares of Common Stock
outstanding on the Distribution Record 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 effectiveness of
the Conversion Price reduction contemplated by this paragraph (d) by a
fraction of which the numerator shall be the current market price per
share (determined as provided in paragraph (f) of this Section 5.06) of
the Common Stock on the Distribution Record Date less the amount of
such cash and other consideration (including any Excess Payments) so
distributed applicable to one share (based on the pro rata portion of
the aggregate amount of such cash and other consideration (including
any Excess Payments), divided by the shares of Common Stock outstanding
on the Distribution Record Date) of Common Stock and the denominator
shall be such current market price per share (determined as provided in
paragraph (f) of this Section 5.06) of the Common Stock on the
Distribution
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Record Date, such reduction to become effective immediately prior to
the opening of business on the day following the Distribution Record
Date.
(e) In case a tender offer or other negotiated transaction
made by the Company or any Subsidiary for all or any portion of the
Common Stock shall be consummated, if an Excess Payment is made in
respect of such tender offer or other negotiated transaction and the
amount of such Excess Payment, together with the sum of (x) the
aggregate amount of all Excess Payments plus (y) the aggregate amount
of all distributions to all holders of the Common Stock made in cash
(specifically including distributions of cash out of retained
earnings), in each case made within the 12 months preceding the date of
payment of such current negotiated transaction consideration or
expiration of such current tender offer, as the case may be (the
"PURCHASE DATE"), and as to which no adjustment pursuant to paragraph
(c) or paragraph (d) of this Section 5.06 or this paragraph (e) has
been made, exceeds 15% of the product of the current market price per
share (determined as provided in paragraph (f) of this Section 5.06) of
the Common Stock on the Purchase Date times the number of shares of
Common Stock outstanding (including any tendered shares but excluding
any shares held in the treasury of the Company) on the Purchase Date,
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 effectiveness of the Conversion Price
reduction contemplated by this paragraph (e) by a fraction of which the
numerator shall be the current market price per share (determined as
provided in paragraph (f) of this Section 5.06) of the Common Stock on
the Purchase Date less the amount of such Excess Payments and such cash
distributions, if any, applicable to one share (based on the pro rata
portion of the aggregate amount of such Excess Payments and such cash
distributions, divided by the shares of Common Stock outstanding on the
Purchase Date) of Common Stock and the denominator shall be such
current market price per share (determined as provided in paragraph (f)
of this Section 5.06) of the Common Stock on the Purchase Date, such
reduction to become effective immediately prior to the opening of
business on the day following the Purchase Date.
(f) The current market price per share of Common Stock on any
date shall be deemed to be the average of the Daily Market Prices for
the shorter of (i) ten consecutive business days ending on the last
full trading day on the