<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------------------
FORM 10-Q
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1998
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER: 000-23747
GETTY IMAGES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 98-0177556
(State of Incorporation) (I.R.S. Employer Identification No.)
----------------------------------------------
2101 FOURTH AVENUE 101 BAYHAM STREET
FIFTH FLOOR LONDON, ENGLAND
SEATTLE, WASHINGTON 98121 NW1 OAG
(206) 695 3400 (001 44 171) 544 3456
(Addresses, including zip code, and telephone numbers, including area code,
of principal executive offices)
----------------------------------------------
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding twelve months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past ninety days. Yes x No
As of August 10, 1998, there were 30,459,117 shares of the Registrant's
common stock, par value $0.01 per share, outstanding.
<PAGE>
GETTY IMAGES, INC.
INDEX TO QUARTERLY REPORT ON FORM 10-Q
FOR THE
THREE MONTHS ENDED JUNE 30, 1998
<TABLE>
<CAPTION>
PAGE
<S> <C>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements 3
Item 2. Management's Discussions and Analysis of Financial Condition
and Results of Operations 16
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 26
Item 2. Changes in Securities and Use of Proceeds 26
Item 6. Exhibits and Reports on Form 8-K 27
</TABLE>
2
<PAGE>
GETTY IMAGES, INC.
PART I.
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
GETTY IMAGES, INC.
UNAUDITED CONSOLIDATED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
THREE MONTHS ENDED
-----------------------------------------------------
JUNE 30, 1998 JUNE 30, 1997(1)
$ $
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C>
Sales 48,126 25,737
Cost of sales 13,909 9,695
------- ------
Gross profit 34,217 16,042
------- ------
Selling, general and administrative expenses 25,837 11,381
Amortization of intangibles 10,007 713
Depreciation 3,547 1,833
Non-recurring integration/restructuring costs 9,137 -
------- ------
48,528 13,927
------- ------
Operating (loss)/income (14,311) 2,115
Net interest (expense)/income (768) 446
Exchange gain/(loss) 296 (240)
------- ------
(Loss)/income before income taxes (14,783) 2,321
Income taxes 712 (1,140)
------- ------
Net (loss)/income before extraordinary items (14,071) 1,181
Extraordinary items (830) -
------- ------
Net (loss)/income (14,901) 1,181
------- ------
------- ------
Basic (loss)/earnings per share (2) $(0.49) $0.03
Diluted earnings per share (2) N/A $0.03
Basic earnings per ADS (2) N/A $0.06
Diluted earnings per ADS (2) N/A $0.06
</TABLE>
(1) Reflects the unaudited consolidated statement of operations of Getty
Communications plc (the predecessor company) for the quarter ended
June 30, 1997.
(2) The comparatives for the quarter ended June 30, 1997 reflect the share
structure of Getty Communications plc (the predecessor company). Each
American Depositary Share (ADS) represented two ordinary shares.
The accompanying notes are an integral part to these consolidated financial
statements.
3
<PAGE>
GETTY IMAGES, INC.
UNAUDITED CONSOLIDATED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
SIX MONTHS ENDED
-------------------------------------------
JUNE 30, 1998(1) JUNE 30, 1997(2)
$ $
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C>
Sales 86,057 48,718
Cost of sales 25,516 18,337
------- ------
Gross profit 60,541 30,381
------- ------
Selling, general and administrative expenses 45,585 21,364
Amortization of intangibles 16,903 1,349
Depreciation 6,445 3,623
Non-recurring integration/restructuring costs 9,137 -
------- ------
78,070 26,336
------- ------
Operating (loss)/income (17,529) 4,045
Net interest (expense)/income (1,319) 782
Exchange loss (59) (312)
------- ------
(Loss)/income before income taxes (18,907) 4,515
Income taxes (369) (2,078)
------- ------
Net (loss)/income before extraordinary items (19,276) 2,437
Extraordinary items (830) -
------- ------
Net (loss)/income (20,106) 2,437
------- ------
------- ------
Basic (loss)/earnings per share (3) $(0.72) $0.06
Diluted earnings per share (3) N/A $0.06
Basic earnings per ADS (3) N/A $0.13
Diluted earnings per ADS (3) N/A $0.13
</TABLE>
(1) Reflects the combination of the unaudited consolidated statement of
operations of Getty Communications plc (the predecessor company) for the
period January 1, 1998 through February 9, 1998 and the unaudited
consolidated statement of operations of Getty Images, Inc. for the
period February 10, 1998 through June 30, 1998.
(2) Reflects the unaudited consolidated statement of operations of Getty
Communications plc (the predecessor company) for the six month period ended
June 30, 1997.
(3) The comparatives for the six month period ended June 30, 1997 reflect
the share structure of Getty Communications plc (the predecessor
company). Each American Depository Share (ADS) represented two ordinary
shares.
The accompanying notes are an integral part to these consolidated financial
statements.
4
<PAGE>
GETTY IMAGES, INC.
UNAUDITED CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
JUNE 30, 1998 DECEMBER 31, 1997(1)
$ $
(IN THOUSANDS) (IN THOUSANDS)
ASSETS
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents 36,163 29,234
Accounts receivable 34,109 23,431
Prepaid expenses and other assets 14,622 7,839
Inventories 3,070 -
------- -------
TOTAL CURRENT ASSETS 87,964 60,504
Fixed assets, net 52,919 39,853
Intangible assets 344,189 66,870
Deferred assets 6,574 4,411
------- -------
TOTAL ASSETS 491,646 171,638
------- -------
------- -------
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable 31,915 21,461
Accrued expenses 20,072 10,305
Income taxes payable 4,149 3,580
Current portion of long-term debt 260 2,096
------- -------
TOTAL CURRENT LIABILITIES 56,396 37,442
Long term debt 72,014 14,657
------- -------
TOTAL LIABILITIES 128,410 52,099
------- -------
SHAREHOLDERS' EQUITY
Common stock 299 608
Additional paid-in capital 365,139 108,049
Retained (losses)/earnings (11,734) 8,124
Cumulative translation adjustments 9,532 2,758
------- -------
TOTAL SHAREHOLDERS' EQUITY 363,236 119,539
------- -------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY 491,646 171,638
------- -------
------- -------
</TABLE>
(1) Extracted from the audited consolidated balance sheet of Getty
Communications plc (the predecessor company) at December 31, 1997.
The accompanying notes are an integral part to these consolidated financial
statements.
5
<PAGE>
GETTY IMAGES, INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
SIX MONTHS ENDED
-------------------------------------------
JUNE 30, 1998(1) JUNE 30, 1997(2)
$ $
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C>
Net cash flows from operating activities 5,220 7,334
------- -------
Cash flows from investing activities
Business acquisitions, net of cash acquired (75,172) (7,166)
Purchase of fixed assets (8,495) (6,553)
------- -------
Net cash used in investing activities (83,667) (13,719)
------- -------
Cash flows from financing activities
Proceeds from debt 119,569 -
Payments of principal balance of debt (67,093) (2,119)
Proceeds from issuance of ordinary shares 32,477 -
------- -------
Net cash provided by/(used in) financing activities 84,953 (2,119)
------- -------
Net increase/(decrease) in cash and cash equivalents 6,506 (8,504)
Exchange rate differences arising from translation of foreign
currency balances 423 (1,737)
Cash and cash equivalents
- - beginning of period 29,234 58,938
------- -------
- - end of period 36,163 48,697
------- -------
------- -------
</TABLE>
(1) Reflects the combination of the unaudited condensed consolidated
statement of cash flows of Getty Communications plc (the predecessor
company) for the period January 1, 1998 through February 9, 1998 and the
unaudited condensed consolidated statement of cash flows of Getty
Images, Inc. for the period February 10, 1998 through June 30, 1998.
(2) Reflects the unaudited condensed consolidated statement of cash flows of
Getty Communications plc (the predecessor company) for the six month period
ended June 30, 1997.
The accompanying notes are an integral part to these consolidated financial
statements.
6
<PAGE>
GETTY IMAGES, INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
EXPLANATORY NOTE
On February 9, 1998, the entire issued share capital of Getty Communications
plc ("Getty Communications") was acquired via a Scheme of Arrangement by
Getty Images, Inc. ("Getty Images" or the "Company"), a company incorporated
in Delaware and whose principal executive offices are located in Seattle,
Washington and London, England. Under the Scheme of Arrangement, each issued
Getty Communications Class B Ordinary Share was converted into one Getty
Communications Class A Ordinary Share and each holder of Getty Communications
"A" Ordinary Shares was issued one share of Getty Images Common Stock, par
value $0.01 ("Common Stock") for every two Getty Communications "A" Ordinary
Shares held.
The Scheme of Arrangement was accounted for as a transaction between entities
under common control, therefore purchase accounting has not been applied.
On February 9, 1998, a wholly owned subsidiary of Getty Images merged with
PhotoDisc, Inc., a Washington corporation ("PhotoDisc"). The purchase
consideration was $244.6 million, including expenses, which included the
issue of 8,083,831 shares of Getty Images Common Stock, at a total market
value of $171.8 million.
On February 10, 1998, Getty Images purchased the entire issued and
outstanding share capital of Allsport Photographic plc, a public limited
company organized under the laws of England & Wales ("Allsport"). The
purchase consideration was $51.1 million, including expenses, which included
the issue of 1,137,916 shares of Getty Images Common Stock, at a total market
value of $24.2 million.
Descriptions of these transactions were included in (i) the Current Report on
Form 8-K dated February 9, 1998 and the Current Report on Form 8-K dated
February 24, 1998 (as amended by the Amendment to Current Report on Form
8-K/A dated April 27, 1998), filed with the Securities and Exchange
Commission (the "Commission") by Getty Images (collectively, the "Reports")
and (ii) the Registration Statement on Form S-4 (No.333-38777) that the
Company filed with the Commission (as amended, the "Registration Statement")
in connection with the meetings of shareholders of Getty Communications and
the special meetings of the shareholders of PhotoDisc that were required to
approve the transactions and the offering of securities in connection
therewith.
As a result of such transactions, Getty Images became the successor to Getty
Communications. Trading in Getty Communications American Depository Shares
("ADSs") on the Nasdaq National Market (NASDAQ-GETTY) terminated on February
9, 1998 and trading subsequently commenced in shares of Getty Images Common
Stock on the Nasdaq National Market (NASDAQ-GETY). Registration of the Getty
Communications Ordinary Shares and ADSs under the Securities Exchange Act of
1934, as amended, has been terminated.
7
<PAGE>
GETTY IMAGES, INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
Also as described in the Reports, on February 9, 1998, Getty Investments
L.L.C. ("Getty Investments") completed a subscription for 1,518,644 shares of
Getty Images Common Stock at a purchase price of $18.4375 per share or an
aggregate of $28 million (the "Getty Investments Subscription").
1. BASIS OF PREPARATION
The unaudited consolidated financial statements presented herein have been
prepared in accordance with the instructions to Form 10-Q and do not include
all the information and note disclosures required by generally accepted
accounting principles. The statements should be read in conjunction with the
consolidated financial statements and notes thereto included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1997 (the "Annual
Report"), Commission file No. 000-23747, that was filed with the Commission
on March 31, 1998 (as amended by the Company's Report on Form 10-K/A that was
filed with the Commission on April 28,1998). In the opinion of management,
the accompanying consolidated financial statements include all adjustments
(consisting only of normal recurring adjustments) necessary to present fairly
the Company's financial position and results of operations. The results of
the operations for the three and six month periods ended June 30, 1998 may
not be indicative of the results that may be expected for the full fiscal
year.
RECENTLY ISSUED ACCOUNTING STANDARDS
In July 1997, the FASB issued SFAS No. 131, Disclosures About Segments of
Enterprise and Related Information. SFAS No. 131 requires certain financial
and supplementary information to be disclosed on an annual and interim basis
for each reportable segment of an enterprise. SFAS No. 131 is effective for
fiscal years beginning after December 15, 1997, but interim reporting is not
required until interim periods beginning after December 15, 1998. Unless
impracticable, companies would be required to restate prior period
information upon adoption. Management does not expect the adoption of this
standard to have a material impact on the Company and its operations.
SOP 98-1 "Accounting for the Costs of Computer Software Developed or Obtained
for Internal Use" was issued in March 1998 and is effective for financial
statements for periods beginning after December 15, 1998. This statement
identifies the characteristics of internal-use software and provides guidance
on when costs incurred for internal use computer software are and are not
capitalized. Costs incurred prior to initial application will not be
retrospectively adjusted to comply with the provision of this SOP. The
Company is evaluating the impact of SOP 98-1.
8
<PAGE>
GETTY IMAGES, INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
2. PRINCIPLES OF CONSOLIDATION
The accompanying consolidated financial statements include Getty Images, Inc.
and its subsidiaries, all of which are 100% owned, from the date of
acquisition. All material intercompany amounts and transactions have been
eliminated in the consolidated financial statements.
3. NON-RECURRING INTEGRATION AND RESTRUCTURING CHARGES
During the three month period ended June 30, 1998, the Company approved and
commenced its program to integrate the businesses of the Group following the
acquisitions of PhotoDisc and Allsport in February 1998. This has resulted in
integration and restructuring charges, which are incremental and
non-recurring, being incurred.
Integration charges in the three month period ended June 30, 1998 amounted to
$1.3 million and are associated with the activities of teams responsible for
integrating the various businesses of the Group for the benefit of future
operations and include items such as consulting and professional fees,
systems and process integration costs and contract renegotiation costs. These
costs are expensed as incurred.
The provision for restructuring costs, amounting to $7.8 million in the three
month period ended June 30, 1998, is for estimated exit costs associated with
the closure of certain facilities operated by the Group, including property
related exit costs and asset writedowns and the termination of employees.
Non-recurring integration and restructuring costs have been incurred as follows:
<TABLE>
<CAPTION>
$'000
<S> <C>
Total charges 9,137
Cash expenditure (253)
Non-cash write offs (3,437)
------
Provision at June 30, 1998 5,447
------
------
</TABLE>
The balance at June 30, 1998 relates principally to employee termination
and premises closure costs that will be substantially paid in the
remainder of 1998.
9
<PAGE>
GETTY IMAGES, INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
In accordance with US GAAP, further costs associated with the integration and
restructuring program, which the Company anticipates will amount to up to
$2.4 million, will be recognized when the appropriate recognition criteria
have been met. These costs are expected to be incurred in the next quarter.
It is anticipated that the integration and restructuring program will be
substantially complete by December 31, 1998.
4. EXTRAORDINARY ITEMS
On May 20, 1998, the Company completed the issue of $75 million 4.75%
convertible subordinated notes, the proceeds of which were partially applied
to the repayment of $49 million of term debt due to Midland Bank plc. The
early payment of such debt resulted in an extraordinary charge of $830,000
consisting of the following:
<TABLE>
<CAPTION>
$'000
<S> <C>
Write off of unamortized loan costs 1,238
Income tax benefit (408)
-----
830
-----
-----
</TABLE>
5. PROVISION FOR INCOME TAXES
In accordance with generally accepted accounting principles, the Company
provides for income taxes on an interim basis using its estimated annual
income tax rate. The Company is providing for income taxes in 1998 at an
effective tax rate of 36.1% of net income before amortization of goodwill,
non-recurring integration and restructuring charges and extraordinary items,
which are largely non-tax deductible. The comparative rate for the year ended
December 31, 1997 was 35.4%.
6. EARNINGS PER SHARE
Basic and diluted earnings per share (EPS) are computed in accordance with
FAS No. 128, "Earnings per Share", which is effective for fiscal periods
ending after December 15, 1997. Prior periods have been restated to conform
with the provisions of this standard.
Diluted earnings per share are not given for the three month period ended
June 30, 1998 and the six month period ended June 30, 1998 due to the loss
incurred in those periods. Basic loss per share for the three month period
ended June 30, 1998 and six month period ended June 30, 1998 are computed on
the basis of weighted average number of shares in issue respectively.
10
<PAGE>
GETTY IMAGES, INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
The numerators and denominators of the basic and diluted per share
computations are reconciled below:
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, 1997 THREE MONTHS ENDED JUNE 30, 1998
INCOME INCOME
(NUMERATOR) SHARES PER SHARE (NUMERATOR) SHARES PER SHARE
$ (DENOMINATOR) AMOUNT $ (DENOMINATOR) AMOUNT
(IN THOUSANDS) (IN THOUSANDS) $ (IN THOUSANDS) (IN THOUSANDS) $
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS
Income available to common
stockholders 1,181 37,699 0.03 (14,901) 30,352 (0.49)
EFFECT OF DILUTIVE SHARES
Share options - 900 - N/A
---------------------------------------------------------------------------------------------
DILUTED EPS
Income available to common
stockholders and assumed option
exercises 1,181 38,599 0.03 N/A N/A N/A
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30, 1997 SIX MONTHS ENDED JUNE 30, 1998
INCOME INCOME
(NUMERATOR) SHARES PER SHARE (NUMERATOR) SHARES PER SHARE
$ (DENOMINATOR) AMOUNT $ (DENOMINATOR) AMOUNT
(IN THOUSANDS) (IN THOUSANDS) $ (IN THOUSANDS) (IN THOUSANDS) $
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS
Income available to common
stockholders 2,425 37,572 0.06 (20,106) 27,787 (0.72)
EFFECT OF DILUTIVE SHARES
Share options - 903 - N/A
----------------------------------------------------------------------------------------------
DILUTED EPS
Income available to common
stockholders and assumed option
exercises 2,425 38,475 0.06 N/A N/A N/A
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
</TABLE>
11
<PAGE>
7. ACQUISITIONS
On February 9, 1998, a wholly owned subsidiary of Getty Images merged with
PhotoDisc. The purchase consideration was $244.6 million including expenses,
which included the issue of 8,083,831 shares of Getty Images Common Stock, at
a total market value of $171.8 million.
<TABLE>
<CAPTION>
$
(IN THOUSANDS)
<S> <C>
PURCHASE PRICE OF PHOTODISC
Cash consideration to holders of PhotoDisc Common Stock and Series A
Preferred Stock 34,076
Getty Images' transaction expenses 9,000
-------
Cash costs of the acquisition 43,076
Stock consideration - Shares of Getty Images Common Stock issued
(8,083,831 @ $21.25) 171,781
Fair value of options over shares of PhotoDisc Common Stock converted to options
over shares of Getty Images Common Stock 29,701
-------
Total purchase price 244,558
PhotoDisc net assets at February 9, 1998 (5,216)
-------
Excess of purchase price over net assets acquired 239,342
-------
-------
Amount allocated to specific intangibles (amortized over 2 to 3 years) 46,387
Amount allocated to goodwill (amortized over 20 years) 192,955
-------
239,342
-------
-------
</TABLE>
12
<PAGE>
GETTY IMAGES, INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
On February 10, 1998 Getty Images purchased the entire issued share capital
of Allsport. The purchase consideration was $51.1 million, including
expenses, which included the issue of 1,137,916 shares of Getty Images Common
Stock at a total market value of $24.2 million.
<TABLE>
<CAPTION>
$
(IN THOUSANDS)
<S> <C>
PURCHASE PRICE OF ALLSPORT
Cash consideration to holders of Allsport Ordinary Shares at closing 26,998
Getty Images' transaction expenses 900
--------
Cash costs of the acquisition 27,898
Stock consideration - Shares of Getty Images Common Stock issued
(691,899 @ $21.25) (1) 14,703
Fair value of options for Allsport Ordinary Shares, which
shares were held by an Employee Benefit Trust, converted
to options over shares of Getty Images Common Stock(1)
8,511
--------
Total purchase price 51,112
Allsport net assets at February 10, 1998 (631)
--------
Excess of purchase price over net assets acquired 50,481
--------
--------
Amount allocated to specific intangibles (amortized over 1 to 3 years) 4,571
--------
Amount allocated to goodwill (amortized over 20 years) 45,910
--------
50,481
--------
--------
</TABLE>
(1) Of the stock consideration of 1,137,916 shares of Getty Images Common
Stock, 446,017 were issued to an Employee Benefit Trust established on
behalf of certain employees of Allsport. Such shares of Getty Images
Common Stock have not been valued for the purpose of calculating the
stock consideration, but the underlying options over Allsport Ordinary
Shares, which converted into options over shares of Getty Images Common
Stock, have been valued by reference to the Black-Scholes option pricing
model.
13
<PAGE>
GETTY IMAGES, INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
8. ADDITIONAL PAID IN CAPITAL
Additional paid in capital includes the following adjustments relating to the
conversion of options for shares of PhotoDisc Common Stock and Allsport
Ordinary Shares into options for shares of Getty Images Common Stock and the
acquisition of the entire issued share capital of Getty Communications.
<TABLE>
<CAPTION>
$
(IN THOUSANDS)
<S> <C>
Fair value of options for Allsport Ordinary Shares less market value of Getty Images
Common Stock issued to the Employee Benefit Trust (967)
Elimination of Getty Communications Ordinary Shares at par, net of the
conversion to shares of Getty Images Common Stock 416
Elimination of additional paid-in capital of Getty Communications 108,049
Fair value of options over shares of PhotoDisc Common Stock converted to options
over shares of Getty Images Common Stock 29,701
-------
137,199
-------
-------
</TABLE>
9. REFINANCING
On May 20, 1998, the Company completed the issue of $75 million convertible
notes. These notes carry a coupon of 4.75% and are convertible into 2.6
million shares of Getty Images Common Stock, subject to adjustment. These
notes are general unsecured subordinated obligations of the Company. The
proceeds from the sale of the notes were partially applied to the repayment
of $49 million of term debt, of which $17 million existed at December 31,
1997.
10. STOCK OPTIONS
Under the Scheme of Arrangement, the existing stock options granted by Getty
Communications were vested immediately, with the right to exercise the
options for a period of three months from February 17, 1998, which was
subject to extension at the discretion of the Company. As an alternative to
exercising options, option holders had the right to exchange their existing
options for Getty Communications Class "A" Ordinary Shares for new options
over Getty Images Common Stock at a ratio of 2 for 1.
Pursuant to the acquisition of PhotoDisc, 1.8 million options for Getty
Images Common Stock were granted to existing holders of options over
PhotoDisc Common Stock.
On February 9, 1998, Getty Images granted 3.1 million options to acquire
Getty Images Common Stock at $20.91 per share. Further options were granted
on April 1 and June 2, 1998 of 81,000 at $25.88 and 255,000 at $19.22,
respectively. These options are exercisable within one to ten years from date
of grant.
14
<PAGE>
REPORT ON UNAUDITED INTERIM FINANCIAL INFORMATION
To the Board of Directors of Getty Images, Inc.
We have reviewed the accompanying interim consolidated financial statements of
Getty Images, Inc. and consolidated subsidiaries as of June 30, 1998, and for
the three-month and six-month period then ended as set out on pages 3 to 14.
These interim financial statements are the responsibility of the company's
management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures
to financial data and making inquiries of persons responsible for financial
and accounting matters. It is substantially less in scope that an audit
conducted in accordance with generally accepted auditing standards, the
objective of which is the expression of an opinion regarding the financial
statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that
should be made to the accompanying interim financial statements for them to
be in conformity with generally accepted accounting principles.
PricewaterhouseCoopers
Chartered Accountants
LONDON
England
August 14, 1998
15
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
THE FOLLOWING SHOULD BE READ IN CONJUNCTION WITH THE UNAUDITED CONSOLIDATED
FINANCIAL STATEMENTS OF GETTY IMAGES, INC. AND THE NOTES THERETO, AND OTHER
FINANCIAL INFORMATION CONTAINED ELSEWHERE IN THIS REPORT ON FORM 10-Q.
THE STATEMENTS IN THIS SECTION THAT ARE NOT HISTORICAL FACTS ARE
FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION 27A OF THE
SECURITIES ACT OF 1933, AS AMENDED, AND SECTION 27E OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED, THAT INVOLVE RISKS AND UNCERTAINTIES, SUCH
AS STATEMENTS OF THE COMPANY'S PLANS, OBJECTIVES, EXPECTATIONS AND
INTENTIONS. THE CAUTIONARY STATEMENTS MADE IN THIS QUARTERLY REPORT SHOULD BE
READ AS BEING APPLICABLE TO ALL RELATED FORWARD-LOOKING STATEMENTS AS A
RESULT OF A VARIETY OF FACTORS, INCLUDING THOSE SET FORTH UNDER "ITEM 1:
BUSINESS - H. BUSINESS RISK FACTORS" IN THE ANNUAL REPORT.
THE FOLLOWING DISCUSSION INCORPORATES THE POST-MERGER AND POST-ACQUISITION
RESULTS OF PHOTODISC AND ALLSPORT, WHICH WERE ACQUIRED BY GETTY IMAGES ON
FEBRUARY 9, 1998 AND FEBRUARY 10, 1998, RESPECTIVELY.
OVERVIEW
Getty Images commenced operations on February 9, 1998 following the Scheme of
Arrangement with Getty Communications and the acquisition of PhotoDisc. On
February 10, 1998 the Company acquired Allsport.
Getty Images' sales are primarily derived from the marketing of image
reproduction and broadcasting rights to a range of business customers. Sales
generally comprise a large number of relatively small transactions involving
the sale either of single images, video and film clips or of CD-ROM products
containing between 100 and 300 images. Getty Images utilizes a variety of
digital and analog distribution platforms, including electronic commerce via
the Internet, CD-ROMS, 35mm film, video and traditional analog
transparencies. Prices are determined by the extent of rights granted over
the use of the image or clip and can vary significantly across geographic
markets and customer groups. Sales are also generated from subscription or
bulk purchase deals where customers are provided access to imagery on-line.
Getty Images' cost of sales consists primarily of payments to contributing
photographers and cinematographers. These suppliers are under contract to the
Company and receive payments of up to 50% of sales depending on the product
sold and the location of the sale. Minimal payments are due for sales of
Hulton Getty's and Allsport's imagery as sales of most of the images in these
collections do not require commission payments. This is also the case
16
<PAGE>
with approximately 25% of the footage at Energy Film Library. Also included
in cost of sales is the cost of CD-ROM production at PhotoDisc.
Getty Images' selling, general and administrative expenses include salaries
and related staff costs, premises and utility costs and marketing and catalog
costs. These costs have increased recently largely as a result of
acquisitions and also to support the growth of the business. In the case of
Allsport, staff costs include salaries of photographers who are employed
directly by the Company.
Getty Images amortizes goodwill and other intangibles and depreciates the
cost of the investment in dupes, digital files, the archival picture
collection, computer systems and other fixed assets over their expected
useful lives. The acquisition of PhotoDisc and Allsport generated $239
million of goodwill that will be amortized over twenty years and $51 million
of other intangibles that will be amortized over periods varying from one to
three years.
As a result of Getty Images' various acquisitions and their consequential
financial and accounting effects on net income, Getty Images believes that
EBITDA provides investors and analysts with an appropriate measure of the
operating performance of Getty Images. Getty Images defines EBITDA as
earnings before interest, taxes, exchange gains/(losses), depreciation,
amortization, non-recurring and extraordinary costs.
The Company experienced an increase in the rate of demand for the digital
search, selection and fulfillment of imagery during 1997 and the first two
quarters of 1998, particularly in North America, and believes this trend will
continue, especially in more developed markets. As a result, the Company
intends to increase the rate of capital expenditures in digitization in 1998
and 1999, building on the significant investment made in 1997.
At the same time, the Company is integrating various parts of the business
following the acquisitions of PhotoDisc and Allsport. It is anticipated that
non-recurring integration and restructuring costs of up to $11.5 million will
be incurred in the three month periods ended June 30 and September 30, 1998.
$9.1 million of this charge was incurred in the three month period ended June
30, 1998. The charge will cover the one-time charges arising from the
acquisitions of PhotoDisc and Allsport and their integration and the related
reorganization of the Company's businesses, as well as exit costs associated
with the closure of certain facilities operated by the Group.
17
<PAGE>
BASIS OF PRESENTATION
Getty Images reports in U.S. dollars. Getty Communications previously
reported in pounds sterling. To facilitate comparison of the results of Getty
Images with the historical results of Getty Communications, the historical
results of Getty Communications have been translated into U.S. dollars using
the exchange rates set out below.
Noon Buying rates for pounds sterling expressed in U.S. dollars per pound
sterling:
<TABLE>
<CAPTION>
<S> <C>
Average for period ended June 30, 1997: 1.6335
Period end rate at June 30, 1997: 1.6650
Average for period ended June 30, 1998: 1.6504
Period end rate of June 30, 1998 1.6685
</TABLE>
18
<PAGE>
UNAUDITED RESULTS OF OPERATIONS:
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30
--------------------------------------------------------------------------
% OF % OF
1997 NET REVENUES 1998 NET REVENUES
(IN THOUSANDS, EXCEPT PERCENTAGES)
<S> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Sales $48,718 100.0% $86,057 100.0%
Gross profit 30,381 62.4% 60,541 70.3%
Non-recurring integration and restructuring costs - - (9,137) (10.6%)
Amortization and depreciation (4,972) (10.2%) (23,348) (27.0%)
Operating income/(loss) 4,045 8.3% (17,529) (20.4%)
Net interest income/(expense) 782 1.6% (1,319) (1.5%)
Extraordinary item - - (830) (1.0%)
Net income/(loss) 2,437 5.0% (20,106) (23.4%)
OPERATING DATA:
EBITDA(1) 9,017 18.5% 14,956 17.4%
</TABLE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30
--------------------------------------------------------------------------
% OF % OF
1997 NET REVENUES 1998 NET REVENUES
(IN THOUSANDS, EXCEPT PERCENTAGES)
<S> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Sales $25,737 100.0% $48,126 100.0%
Gross profit 16,042 62.3% 34,217 71.1%
Non-recurring integration and restructuring costs - - (9,137) (19.0%)
Amortization and depreciation (2,546) (9.9%) (13,554) (28.2%)
Operating income/(loss) 2,115 8.2% (14,311) (29.7%)
Net interest income/(expense) 446 1.7% (768) (1.6%)
Extraordinary item - - (830) (1.7%)
Net income/(loss) 1,181 4.6% (14,901) (31.0%)
OPERATING DATA:
EBITDA(1) 4,661 18.1% 8,380 17.4%
</TABLE>
(1) "EBITDA" is defined as earnings before interest, taxes, exchange
gains/(losses), depreciation, amortization, non-recurring and
extraordinary charges. EBITDA should not be considered as an alternative
to operating income as an indicator of Getty Image's operating
performance or to cash flows as a measure of Getty Images' liquidity.
19
<PAGE>
SALES
Getty Images' sales increased from $48.7 million in the six month period
ended June 30, 1997 to $86.1 million in the six month period ended June 30,
1998, an increase of 77%, and from $25.7 million in the three month period
ended June 30, 1997 to $48.1 million in the three month period ended June 30,
1998, an increase of 87%. The increase was attributable mainly to $30.2
million and $19.1 million in sales in the six and three month periods ended
June 30, 1998 respectively from the acquisitions in February 1998 of
PhotoDisc and Allsport.
Excluding the contribution from the acquisitions made in the six and three
month periods ended June 30, 1998, reported sales of the existing businesses
grew by 15% and 13% respectively over the corresponding periods in 1997. Had
the 1997 equivalent exchange rates been applied to the 1998 non-US dollar
currency revenues, sales growth for the six and three month periods ended
June 30, 1998, excluding the contributions from the acquisitions, would have
been 18% and 15% respectively over the corresponding periods in 1997.
All the major businesses of Getty Images reported growth compared with the
equivalent period of 1997:
Tony Stone Images has performed within management's expectations in the six
and three month periods ended June 30, 1998, and generated growth by
increases in both volume and price. Growth was strong in the advertising and
magazine publishing markets and has benefited by the continuing economic
strength of the leading economies. In addition to the macroeconomic factors,
this continued growth has been the result of a mixture of initiatives,
including focused sales development programs and the continued success of the
catalogs.
Growth in digital sales continued during the year, accounting for
approximately 28% and 32% of the Company's sales in the six and three month
periods ended June 30, 1998 at $23.9 million and $15.3 million respectively.
PhotoDisc's on-line sales of $8.5 million and $4.6 million in the six and
three month periods ended June 30, 1998, represented growth of 224% and 203%
over the equivalent periods of 1997. While growth to date in web sales has
predominantly been in North America, web sales in Europe and Asia are
accelerating as a result of the introduction of websites for these particular
markets.
Allsport's strong sales growth in the quarter was driven by a number of major
sporting events in the period, particularly the soccer World Cup.
Subscription revenue has been strong on the completion of a number of deals
with some prestigious clients, including Pinnacle, the market leader in the
trading card industry in the USA.
COST OF SALES
Getty Images' cost of sales, which largely comprises amounts payable to
contributing photographers and cinematographers, increased from $18.3 million
in the six month period ended June 30, 1997 to $25.5 million, in the six
month period ended June 30, 1998 and from $9.7 million in the three month
period ended June 30, 1997 to $13.9 million in the three month period ended
June 30, 1998. As a percentage of sales, cost of sales declined from 38% in
the six month period ended June 30, 1997 to 30% in the six month period ended
June
20
<PAGE>
30, 1998 and from 38% in the three month period ended June 30, 1997 to 29% in
the three month period ended June 30, 1998.
The reduction in cost of sales as a percentage of sales primarily reflected
the higher proportion of sales of owned imagery following the acquisition of
Allsport, (where a substantial part of the image collection does not give
rise to payments to photographers), and the addition of PhotoDisc sales into
the mix (where cost of sales is lower as a result of a larger percentage of
on-line sales). A similar situation exists in respect of most of Hulton
Getty's imagery and approximately 25% of Energy Film Library's footage. In
line with the Company's strategy of increasing its sales of wholly owned
content, the proportion of sales of wholly owned imagery increased from
approximately 5% in both the three and six month periods ended June 30, 1997
to approximately 16% and 19% in the six and three month periods ended June
30, 1998 respectively.
Within Tony Stone Images, new contracts with contributing photographers have
been endorsed by the Photographers' Advisory Groups, consultative but
non-binding groups of US and European contributing photographers. This new
contract includes a new rate for on-line sales: 40% for in-territory sales
and 30% for out-of-territory sales, which compares to the rate for analog
sales of 50% for in-territory sales and 30% for out-of-territory sales.
Management expects this agreement to improve gross margin as a higher
proportion of sales move to the web. The principal cost of entering into this
new contract is a change to the cash payment terms to the photographers which
will result in a one-time cash payment of approximately $5 million in the
fourth quarter of 1998. This sum represents purely an acceleration of the
payments due to them and hence will not affect EBITDA or operating income.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Getty Images' selling, general and administrative expenses increased from
$21.4 million in the six month period ended June 30, 1997 to $45.6 million in
the six month period ended June 30, 1998 and from $11.4 million in the three
month period ended June 30, 1997 to $25.8 million in the three month period
ended June 30, 1998. As a percentage of sales, selling, general and
administrative expenses increased from 43.9% in the six month period ended
June 30, 1997 to $53.0% in the six month period ended June 30, 1998 and from
44.2% in the three month period ended June 30, 1997 to 53.7% in the three
month period ended June 30, 1998.
The increase in selling, general and administrative expenses as a percentage
of sales was mainly attributable to the inclusion of PhotoDisc and Allsport.
These businesses have substantially higher selling, general and
administrative expenses than the existing businesses. Both businesses have
been making substantial investment in sales, marketing and information
technology infrastructure to allow the companies to grow at accelerated rates
into new markets and, in PhotoDisc's case, to develop the web business. As
these businesses mature, this cost, as a percentage of sales, is expected to
diminish. In addition, management expects that the application of existing
businesses cost management disciplines should result in further savings over
the long term.
Excluding PhotoDisc and Allsport, selling, general and administrative
expenses increased moderately as a percentage of sales principally as a
result of investments in management
21
<PAGE>
and new business systems, including those required for the new Tony Stone
Images' e-commerce site. Management expect these investments will give rise
to enhanced sales and allow these businesses to become more competitive.
Benefits have started to be realized within Tony Stone Images on "Compass",
the advanced internal search and selection software, and "Client Preview"
which allows customers to review the results of a Compass search through the
web. Further service improvements are expected as a result of Tony Stone
Images website, which management expects will become fully operational in the
fourth quarter of 1998.
AMORTIZATION OF INTANGIBLES
Amortization of intangibles was $16.9 million and $10.0 million in the six
and three month periods ended June 30, 1998 respectively compared to $1.3
million and $0.7 million in the six and three month periods ended June 30,
1997. These increases in amortization arise from the inclusion of
amortization relating to the acquisitions of PhotoDisc and Allsport.
Intangibles of $239 million and $51 million, respectively, arose on
consolidation of these acquisitions. A substantial part of these intangibles,
$239 million, has been attributed to goodwill which is being amortized over
20 years. Other intangibles of $51 million are being amortized over periods
varying from one to three years.
DEPRECIATION
Depreciation increased from $3.6 million and $1.8 million in the six and
three month periods ended June 30, 1997 respectively to $6.4 million and $3.5
million in the six and three month periods ended June 30, 1998. These
increases primarily arose from the acquisitions, together with continued
investment in capital expenditure. The merger with PhotoDisc has provided the
opportunity to accelerate Getty Images' digital strategy, which management
anticipates will require capital expenditures both in 1998 and 1999 of
approximately $28 million in the aggregate. Depreciation charges are
therefore expected to increase in the medium term.
NON-RECURRING INTEGRATION AND RESTRUCTURING COSTS
During the three month period ended June 30, 1998, Getty Images approved and
commenced its program to integrate the business of the Group. This has
resulted in non-recurring integration and restructuring costs of $9.1 million
in the quarter.
Integration costs in the quarter amounted to $1.3 million and were associated
with the activities of teams responsible for integrating the various
businesses of the Group for the benefit of future operations and include
items such as consulting and professional fees, systems and process
integration costs and contract renegotiation costs.
The provision for restructuring costs, amounting to $7.8 million in the three
month period ended June 30, 1998 were for estimated exit costs associated
with the closure of certain facilities operated by the Group, including asset
writedowns and termination costs. The largest element of the asset writedown
comprises systems assets, namely hardware and software, which have shortened
lives as a result of the restructuring plans. The termination costs arise in
relation to property related exit costs, agents and photographer contracts and
22
<PAGE>
employees. The property related lease costs arise from the consolidation of
offices where the Company has multiple sites in one location and the
terminated employees mainly relate to certain senior managers who have now
departed. Management changes in the quarter include the appointment of Group
Services Director, Don Smith, as the new Managing Director of Tony Stone
Images. Stephen Warshaw, Managing Director of Tony Stone Images, has left the
company. Bob Chamberlain, Co-President of PhotoDisc, has also left the
company. Sally von Bargen remains as President of PhotoDisc.
In accordance with US GAAP, further costs associated with the non-recurring
integration and restructuring programs, which the management anticipates will
amount to up to $2.4 million, will be recognized in the three month period
ended September 30, 1998. It is anticipated that the non-recurring
integration and restructuring program will be substantially complete by
December 31, 1998. Management expects that the total cash outlay will amount
to approximately $8 million.
NET INTEREST INCOME/(EXPENSE)
Net interest expense was $1.3 million and $768,000 in the six and three month
period ended June 30, 1998 respectively compared with interest income of
$782,000 and $446,000 in the six and three month periods ended June 30, 1997
respectively.
Interest has arisen in 1998 on $30 million of interest bearing term debt
drawn down to meet the cash consideration of the acquisitions of PhotoDisc
and Allsport and on the $75 million convertible notes issued on May 20, 1998,
part of the proceeds of which were used to repay the term debt.
NET EXCHANGE GAINS/(LOSSES)
Getty Images had net exchange losses of $59,000 in the six month period ended
June 30, 1998 and net exchange gains of $296,000 in the three month period
ended June 30, 1998 and net exchange losses of $312,000 and $240,000 in the
six and three month periods ended June 30, 1997 respectively. These credits
and costs are largely unrealized and arise from revaluation of currency
balances residing in Getty Images' subsidiaries' books.
Getty Images hedges a majority of contracted net receivables and payables
using a combination of internal hedging, forward exchange contracts and
foreign currency term loans.
INCOME TAXES
In the six month period ended June 30, 1998 and 1997, Getty Images had tax
charges of $369,000 and $2.1 million respectively. In the three month period
ended June 30, 1998, Getty Images had an income tax credit of $712,000,
compared to a tax charge of $1.1 million in the three month period ended June
30, 1997. Excluding the tax credit of $2.2 million arising on the
non-recurring integration and restructuring costs and the amortization of
intangibles, which is largely non-tax deductible, Getty Images had effective
tax rates of 36.1% and 35.2% for the six and three month periods ended June
30, 1998 and 35.4% and 37.6% for the six and three month periods ended June
30, 1997.
The changes in the effective rate of tax, excluding the impact of
amortization of intangibles, was due to a variation in profit mix and tax
rates in the countries in which Getty Images operates.
23
<PAGE>
EXTRAORDINARY ITEMS
The repayment of the term debt due to Midland Bank plc from the proceeds of
the $75 million 4.75% convertible subordinated notes resulted in an
extraordinary charge of $0.8 million in the three month period ended June 30,
1998 comprising the write off of unamortized loan arrangement costs net of
the associated income tax benefit.
NET (LOSS)/INCOME
As a result of the foregoing, the net losses for the six and three month
periods ended June 30, 1998 were $20.1 million and $14.9 million respectively
compared to net income of $2.4 million and $1.2 million respectively in the
six and three month periods ended June 30, 1997.
EBITDA
EBITDA increased from $9.0 million and $4.7 million in the six and three
month periods ended June 30, 1997 to $15.0 million and $8.4 million in the
six and three month periods ended June 30, 1998 respectively, an increase of
66% and 80%.
"EBITDA" is defined as earnings before interest, taxes, exchange
gains/(losses), depreciation, amortization, non-recurring and extraordinary
charges. Thus, EBITDA with respect to Getty Images comprises sales less cost
of sales and selling, general and administrative expenses. Getty Images
believes that EBITDA provides a measure of operating income unaffected by the
financing of the business and the accounting effects of acquisitions and
assists in explaining trends in the operating performance of Getty Images.
EBITDA should not be considered as an alternative to operating income as an
indicator of Getty Images' operating performance or to cash flows as a
measure of Getty Images' liquidity.
LIQUIDITY AND CAPITAL RESOURCES
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30
1997 1998
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C>
Net cash provided by/(used in):
Operating activities $7,334 $5,220
Investing activities (13,719) (83,667)
Financing activities (2,119) 84,953
Exchange differences (1,737) 423
------------------------------------------------------------
Net increase/(decrease) in cash and cash
equivalents (10,241) 6,929
------------------------------------------------------------
------------------------------------------------------------
</TABLE>
24
<PAGE>
Getty Images' cash resources increased by $6.9 million in the six month
period ended June 30, 1998 compared to a decrease of $10.2 million in the six
month period ended June 30, 1997.
Net cash provided by operating activities amounted to $5.2 million in the six
month period ended June 30, 1998 compared to $7.3 million in the six month
period ended June 30, 1997. The cash generated was less in 1998 as a result
of adverse movements in working capital arising from timing differences
between the two periods. In particular, substantially more deferred
expenditure in the six month period ended June 30, 1998 due to the timing and
production of catalogs than occurred in the six month period ended June 30,
1997. In the six month period ended June 30, 1998, Getty Images invested $8.5
million in fixed assets compared to $6.5 million in the six month period
ended June 30, 1997.
The acquisitions of PhotoDisc and Allsport in February 1998 resulted in a
cash outflow of $75.2 million, including expenses. To fund this, Getty Images
raised a net additional $30 million of debt and Getty Investments L.L.C.
subscribed for an additional 1.5 million shares, providing $28 million of
additional capital. On May 20, the Company raised $75 million from the issue
of 4.75% convertible subordinated notes. $49 million of this was applied to
the repayment of term debt and costs of approximately $3.6 million were
incurred. Also in the six month period ended June 30, 1998 the Company raised
$4 million from the exercise of options.
At June 30, 1998, Getty Images had outstanding long term debt of $75.9
million and cash of $36.2 million.
FACTORS THAT MAY AFFECT FUTURE RESULTS AND FINANCIAL CONDITION
The Company operates in a rapidly changing business that involves a number of
uncertainties, some of which are beyond the Company's control. In addition to
the uncertainties described elsewhere in this report, there are many factors
that will affect the Company's future results and business which may cause
the actual results to differ from those currently expected. Potential risks
and uncertainties that could affect the Company's future operating results
and financial condition include, among other things, the developmental nature
of the visual content industry, rapid technological change in the visual
content industry, competition in the visual content industry, potential
difficulties in integrating the operations of PhotoDisc and Allsport and
other acquired companies and in managing any growth and expansion, risks
related to the Company's acquisition strategy, risks related to the Company's
recognition of goodwill pursuant to its acquisitions of PhotoDisc and
Allsport, the influence of certain principal stockholders of the Company, the
Company's levels of indebtedness, risks related to electronic image delivery
systems, the impact in changes in foreign exchange rates, the potential loss
of rights to Getty trademarks, the possible volatility of the Company's stock
price and the impact of future sales of substantial number of shares on the
market price of the Company's stock and certain antitakeover considerations.
For a discussion of these and other factors affecting the Company's future
results and financial condition, see "Item 1 - Business, in the Company's 1997
Form 10-K.
25
<PAGE>
PART II.
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company has and may continue to be subject to legal claims from time to
time in the ordinary course of business, including those related to the
alleged infringement by the Company of the trademarks and other intellectual
property rights of third parties, such as failure to secure model releases.
Presently, there are no pending legal proceedings to which the Company is a
party or to which any of its property is subject which, either individually
or in the aggregate, are expected by the Company to have a material adverse
effect on its consolidated financial position or results of the operations or
its liquidity.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
On May 20, 1998, the Company completed the sale of a new issue of $75 million
aggregate principal amount of 4.75% Convertible Subordinated Notes due 2003
(the "Notes"). The Notes are convertible into the Company's common stock at a
conversion price of $28.5075 per share, subject to adjustments in certain
events. The Notes were sold by the Company to BT Alex. Brown International,
BancAmerica Robertson Stephens, Donaldson, Lufkin & Jenrette Securities
Corporation and Hambrecht & Quist LLC, as initial purchasers (collectively,
the "Initial Purchasers") in an unregistered private placement. The Company
was advised by the Initial Purchasers that the Notes were resold only to
qualified institutional buyers (as defined in Rule 144A under the Securities
Act) in compliance with Rule 144A and to a limited number of institutional
accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
The Company has used approximately $49 million of the net proceeds to prepay
the Company's term loan facilities with Midland Bank plc, and has used or
expects to use the balance for general corporate purposes, including capital
expenditures, the ongoing digitization of portions of its visual images
collections and working capital requirements or the possible acquisition of
complementary businesses, products or technologies.
26
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
Reference is made to the Index of Exhibits beginning on page 28 for a
list of all exhibits filed as part of this report.
(b) Reports on Form 8-K.
Form 8-K/A filed on April 27,1998, amending Item 7 to the Current
Report on Form 8-K filed on February 24, 1997.
Form 8-K filed on April 29, 1998, reporting Item 5 and 7.
Form 8-K filed on May 6, 1998, reporting Item 5 and 7.
Form 8-K filed on May 8, 1998, reporting Item 5, 7 and 9.
Form 8-K filed on May 13, 1998, reporting Item 5 and 7.
Form 8-K filed on August 13, 1998, reporting Item 5 and 7.
27
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GETTY IMAGES, INC.
DATE: August 14, 1998 BY: /s/ Lawrence Gould
-------------------------------
LAWRENCE GOULD
CHIEF FINANCIAL OFFICER
* Signing on the behalf of the Registrant as a principal financial officer
28
<PAGE>
GETTY IMAGES, INC.
QUARTERLY REPORT ON FORM 10-K
FOR THE THREE MONTHS ENDED JUNE 30, 1998
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
NUMBER ASSIGNED IN
REGULATION S-K, ITEM 601 DESCRIPTION OF EXHIBIT
- ------------------------ ----------------------
<S> <C>
(1)3.1 Amended and Restated Certificate of Incorporation of Getty Images (3.1)
(1)3.2 Bylaws of Getty Images (3.2)
4.1 Indenture relating to the Company's 4.75% Convertible Subordinated Notes
due 2003, dated as of May 27, 1998, between Getty Images, Inc. and
The Bank of New York, as Trustee.
10.1 Registration Rights Agreement, dated as of May 27, 1998, among
Getty Images, Inc. and BT Alex. Brown Incorporated, BancAmerica
Robertson Stephens, Donaldson, Lufkin & Jenrette Securities
Corporation and Hambrecht & Quist LLC.
27.1 Financial Data Schedule
</TABLE>
- --------------------------------------------------------
(1) Incorporated by reference from the Exhibits to the Form S-4 Registration
Statement No. 333-38777 of the Registrant. (Exhibit number in the Form
S-4 is set forth in italics.)
29
<PAGE>
EXECUTION COPY
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
INDENTURE
-----------------------------
Dated as of May 27, 1998
-----------------------------
between
GETTY IMAGES, INC.
as Issuer,
and
THE BANK OF NEW YORK
as Trustee
$75,000,000
(With an Over-Allotment Option for an Additional $11,250,000)
4.75% Convertible Subordinated Notes due 2003
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE
TIA SECTION . . . . . . . . . . . . . . INDENTURE SECTION
310(a)(1) . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . 7.8; 7.10; 13.2
(b) . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . 13.3
(c) . . . . . . . . . . . . . . . . . . . 13.3
313(a) . . . . . . . . . . . . . . . . . . 7.6
(b)(1) . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . 7.6; 13.2
(d) . . . . . . . . . . . . . . . . . . . 7.6
314(a) . . . . . . . . . . . . . . . . 4.6; 4.7; 13.2
(b) . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . 2.2; 7.2; 8.1; 13.4
(c)(2) . . . . . . . . . . . . . . . . . 7.2; 13.4
(c)(3) . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . 13.5
(f) . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . 7.1(b)
(b) . . . . . . . . . . . . . . . . . . 7.5; 13.2
(c) . . . . . . . . . . . . . . . . . . 7.1(a)
(d) . . . . . . . . . . . . . . . 2.8; 6.11; 7.1(b)(c)
(e) . . . . . . . . . . . . . . . . . . . 6.13
316(a) (last sentence) . . . . . . . . . . . . . . 2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . 6.11
(a)(1)(B) . . . . . . . . . . . . . . . . . 6.12
(a)(2) . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . 6.7; 6.8; 6.12
316(c) . . . . . . . . . . . . . . . . . . N.A.
317(a)(1) . . . . . . . . . . . . . . . . . 6.3
(a)(2) . . . . . . . . . . . . . . . . . . 6.4
(b) . . . . . . . . . . . . . . . . . . . 2.4
318(a) . . . . . . . . . . . . . . . . . . 13.1
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . 1
SECTION 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Incorporation by Reference of TIA. . . . . . . . . . . . . . . 10
SECTION 1.3. Rules of Construction. . . . . . . . . . . . . . . . . . . . . 10
ARTICLE II. THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.1. Form and Dating. . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.2. Execution and Authentication . . . . . . . . . . . . . . . . . 12
SECTION 2.3. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . 13
SECTION 2.4. Paying Agent to Hold Assets in Trust . . . . . . . . . . . . . 13
SECTION 2.5. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.6. Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.7. Replacement Securities . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.8. Outstanding Securities . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.9. Treasury Securities. . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.10. Temporary Securities . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.12. Interest and Defaulted Interest. . . . . . . . . . . . . . . . 24
SECTION 2.13 CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE III. REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.1. Right of Redemption. . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.2. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.3. Selection of Securities to Be Redeemed . . . . . . . . . . . . 26
SECTION 3.4. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.5. Effect of Notice of Redemption . . . . . . . . . . . . . . . . 28
SECTION 3.6. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . 28
SECTION 3.7. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . 29
SECTION 3.8. Conversion Arrangement on Call for Redemption. . . . . . . . . 29
ARTICLE IV. COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.1. Payment of Securities. . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.2. Maintenance of Office or Agency. . . . . . . . . . . . . . . . 30
SECTION 4.3. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.4. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . 31
SECTION 4.5. Maintenance of Properties and Insurance. . . . . . . . . . . . 31
SECTION 4.6. Compliance Certificate; Notice of Default. . . . . . . . . . . 32
SECTION 4.7. Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.8. Limitation on Status as Investment Company . . . . . . . . . . 33
SECTION 4.9. Waiver of Stay, Extension and Usury Laws . . . . . . . . . . . 33
SECTION 4.10. Rule 144A Information Requirement. . . . . . . . . . . . . . . 34
SECTION 4.11. Qualification of Indenture . . . . . . . . . . . . . . . . . . 34
SECTION 4.12. Registration Rights. . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE V. SUCCESSOR CORPORATION. . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.1. Limitation on Merger, Sale or Consolidation. . . . . . . . . . 34
SECTION 5.2. Successor Corporation Substituted. . . . . . . . . . . . . . . 35
ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . 35
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SECTION 6.1. Events of Default. . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.2. Acceleration of Maturity Date; Rescission and Annulment. . . . 38
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.4. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . 39
SECTION 6.5. Trustee May Enforce Claims Without Possession of Securities. . 40
SECTION 6.6. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.7. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.8. Unconditional Right of Holders to Receive Payments and to
Convert. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.9. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . 42
SECTION 6.10. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . 42
SECTION 6.11. Control by Holders. . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.12. Waiver of Past Default. . . . . . . . . . . . . . . . . . . . 43
SECTION 6.13. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.14. Restoration of Rights and Remedies. . . . . . . . . . . . . . 44
ARTICLE VII. TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.1. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.2. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.3. Individual Rights of Trustee . . . . . . . . . . . . . . . . . 47
SECTION 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.5. Notice of Default. . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.6. Reports by Trustee to Holders. . . . . . . . . . . . . . . . . 47
SECTION 7.7. Compensation and Indemnity . . . . . . . . . . . . . . . . . . 47
SECTION 7.8. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.9. Successor Trustee by Merger, Etc . . . . . . . . . . . . . . . 50
SECTION 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . . . . 50
SECTION 7.11. Preferential Collection of Claims Against Company. . . . . . . 50
ARTICLE VIII. SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . 50
SECTION 8.1. Satisfaction and Discharge of Indenture. . . . . . . . . . . . 50
SECTION 8.2. Repayment to the Company . . . . . . . . . . . . . . . . . . . 51
ARTICLE IX. AMENDMENTS, SUPPLEMENTS AND WAIVERS. . . . . . . . . . . . . . . 51
SECTION 9.1. Supplemental Indentures Without Consent of Holders . . . . . . 51
SECTION 9.2. Amendments, Supplemental Indentures and Waivers with Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.3. Compliance with TIA. . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.4. Revocation and Effect of Consents. . . . . . . . . . . . . . . 53
SECTION 9.5. Notation on or Exchange of Securities. . . . . . . . . . . . . 54
SECTION 9.6. Trustee to Sign Amendments, Etc. . . . . . . . . . . . . . . . 54
ARTICLE X. RIGHT TO REQUIRE REPURCHASE UPON A CHANGE OF CONTROL. . . . . . 54
SECTION 10.1. Repurchase of Securities at Option of the Holder Upon a
Change of Control. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.2. Election to Pay Repurchase Price in Common Stock . . . . . . . 57
ARTICLE XI. SUBORDINATION. . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.1. Securities Subordinated to Senior Indebtedness. . . . . . . . 58
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SECTION 11.2. No Payment on Securities in Certain Circumstances. . . . . . . 59
SECTION 11.3. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization . 60
SECTION 11.4. Securityholders to Be Subrogated to Rights of Holders of
Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.5. Obligations of the Company Unconditional. . . . . . . . . . . 62
SECTION 11.6. Trustee Entitled to Assume Payments Not Prohibited in Absence
of Notice. . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.7. Application by Trustee of Assets Deposited with It. . . . . . 63
SECTION 11.8. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness. . . . . . . . 64
SECTION 11.9. Securityholders Authorize Trustee to Effectuate Subordination
of Securities. . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.10. Right of Trustee to Hold Senior Indebtedness . . . . . . . . . 64
SECTION 11.11. Article XI Not to Prevent Events of Default. . . . . . . . . . 65
SECTION 11.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE XII. CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . 65
SECTION 12.1. Conversion Privilege . . . . . . . . . . . . . . . . . . . . . 65
SECTION 12.2. Exercise of Conversion Privilege . . . . . . . . . . . . . . . 66
SECTION 12.3. Fractional Interests . . . . . . . . . . . . . . . . . . . . . 67
SECTION 12.4. Conversion Price . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 12.5. Adjustment of Conversion Price . . . . . . . . . . . . . . . . 68
SECTION 12.6. Continuation of Conversion Privilege in Case of
Reclassification, Merger, Consolidation or Sale of Assets. . 74
SECTION 12.7. Notice of Certain Events . . . . . . . . . . . . . . . . . . . 75
SECTION 12.8. Taxes on Conversion. . . . . . . . . . . . . . . . . . . . . . 76
SECTION 12.9. Company to Provide Stock . . . . . . . . . . . . . . . . . . . 77
SECTION 12.10. Disclaimer of Responsibility for Certain Matters . . . . . . . 77
SECTION 12.11. Return of Funds Deposited for Redemption of Converted
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE XIII. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 13.1. TIA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 13.2. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 13.3. Communications by Holders with Other Holders . . . . . . . . . 79
SECTION 13.4. Certificate and Opinion as to Conditions Precedent . . . . . . 79
SECTION 13.5. Statements Required in Certificate or Opinion. . . . . . . . . 79
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar. . . . . . . . . . . 80
SECTION 13.7. Payment Dates. . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 13.8. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 80
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SECTION 13.9. No Adverse Interpretation of Other Agreements . . . . . . . . 80
SECTION 13.10. No Recourse Against Others. . . . . . . . . . . . . . . . . . 80
SECTION 13.11. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.12. Duplicate Originals. . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.13. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.14. Table of Contents, Headings, Etc. . . . . . . . . . . . . . . 81
EXHIBITS
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EXHIBIT A Form of Security. . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Investor Letter of Representation . . . . . . . . . . . . . . . B-1
EXHIBIT C Form of Conversion Notice . . . . . . . . . . . . . . . . . . . C-1
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INDENTURE, dated as of May 27, 1998, between GETTY IMAGES, INC. a
Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee."
Each party hereto agrees as follows for the benefit of each other party
and for the equal and ratable benefit of the Holders of the Company's 4.75%
Convertible Subordinated Notes due 2003.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Acceleration Notice" shall have the meaning specified in Section 6.2.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
For purposes of this definition, the term "control" means the power to direct
the management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by
contract, or otherwise.
"Agent" means any Registrar, Paying Agent or co-Registrar or any
successor thereto.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal,
state or foreign law for the relief of debtors.
"beneficial owner" for purposes of the definition of Change of
Control has the meaning attributed to it in Rules 13d-3 and 13d-5 under the
Exchange Act (as in effect on the Issue Date), whether or not applicable,
except that a "Person" shall be deemed to have "beneficial ownership" of all
shares that any such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time or upon the
occurrence of certain events.
"Board of Directors" means, with respect to any Person, the Board
of Directors of such Person or any committee of the Board of Directors of
such Person authorized, with respect to any particular matter, to exercise
the power of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New
York, New York, are authorized or obligated by law or executive order to
close.
<PAGE>
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"Capitalized Lease Obligation" means, as to any Person, the
obligation of such Person to pay rent or other amounts under a lease to which
such Person is a party that is required to be classified and accounted for as
a capital lease obligation under GAAP.
"Cash" means such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts.
"Change of Control" means:
(i) an event or series of events as a result of which any "person" or
"group" (as such terms are used in Sections 13(d)(3) and 14(d) of the
Exchange Act) (excluding the Company or any wholly-owned subsidiary
thereof) is or becomes, directly or indirectly, the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, whether or not
applicable) of more than 50% of the combined voting power of the then
outstanding securities entitled to vote generally in elections of
directors, managers or trustees, as applicable, of the Company or any
successor entity ("Voting Stock"); or
(ii) the completion of any consolidation with or merger of the
Company into any other Person, or conveyance, transfer or lease by the
Company of all or substantially all of its assets to any Person, or any
merger of any other Person into the Company in a single transaction or
series of related transactions, and, in the case of any such transaction or
series of related transactions, the outstanding Common Stock of the Company
is changed or exchanged as a result, unless the stockholders of the Company
immediately before such transaction own, directly or indirectly,
immediately following such transaction, at least a majority of the combined
voting power of the outstanding Voting Stock of the Person resulting from
such transaction in substantially the same proportion as their ownership of
the Voting Stock immediately before such transaction;
provided that a Change of Control shall not be deemed to have occurred if the
Last Sale Price of the Common Stock for any five Trading Days during the 10
Trading Days immediately preceding the Change of Control is at least equal to
105% of the Conversion Price in effect on each such trading day.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Company's common stock, par value $.01 per
share, or as such stock may be reconstituted from time to time.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the Indenture, and thereafter means such
successor.
"Conversion Price" shall have the meaning specified in Section 12.4.
"Conversion Shares" shall have the meaning specified in Section
12.5(1).
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Date of Conversion" shall have the meaning specified in Section
12.2.
"Default" means any event or condition that, after notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in Section
2.12.
"Definitive Securities" means Securities that are in the form of
Security attached hereto as Exhibit A that do not include the information
called for by footnotes 1 and 2 thereof.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in global form, the Person specified in Section
2.3 as the Depositary with respect to the Securities, until a successor shall
have been appointed and become such pursuant to the applicable provision of
this Indenture, and, thereafter, "Depositary" shall mean or include such
successor.
"Designated Senior Indebtedness" means the Company's obligations
under its revolving credit facility, dated 9th February 1998, with Midland
Bank plc, and the Company's obligations under any other Senior Indebtedness
in which the instrument creating or evidencing the same or any assumption or
guarantee thereof (or related agreements or documents to which the Company is
a party) expressly provides that such Senior Indebtedness shall be
"Designated Senior Indebtedness" for the purposes of this Indenture; provided
that any such instrument, agreement or other document may place limitations
and conditions on the rights of the holders of such Senior Indebtedness to
exercise the rights of the holders of Designated Senior Indebtedness.
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"Disqualified Capital Stock" means, with respect to the Company,
Capital Stock of the Company that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or
upon the happening of an event or the passage of time would be, required to
be redeemed or repurchased (including at the option of the holder thereof) by
the Company, in whole or in part, on or prior to the Stated Maturity of the
Notes, provided that only the portion of such Capital Stock which is so
convertible, exercisable, exchangeable or redeemable or subject to repurchase
prior to such Stated Maturity shall be deemed to be Disqualified Capital
Stock.
"Distribution Date" shall have the meaning specified in Section 12.5.
"DTC" shall have the meaning specified in Section 2.3.
"Event of Default" shall have the meaning specified in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Expiration Date" shall have the meaning specified in Section 12.5.
"GAAP" means United States 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
("FASB") or in such other statements by such other entity as approved by a
significant segment of the accounting profession which are in effect in the
United States.
"Global Security" means a Security that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote
2 to the form of Security attached hereto as Exhibit A. There shall be one
or more Global Securities to evidence interests in the Securities held (x) by
"qualified institutional buyers", as defined in Rule 144A under the
Securities Act, and (y) by institutional "accredited investors" as defined in
Rule 501(a)(1), (2), (3) or (7) under Regulation D of the Securities Act.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" of any Person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of any such Person, (i)
in respect of borrowed money (whether or not the lender has recourse to all
or any portion of the assets of such Person), (ii) evidenced by credit or
loan agreements, bonds, notes, debentures or similar
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instruments (including, without limitation, notes or similar instruments
given in connection with the acquisition of any business, properties or
assets of any kind), (iii) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (iv) for the payment of money
relating to a Capitalized Lease Obligation, or (v) evidenced by a letter of
credit or reimbursement obligation of such Person with respect to any letter
of credit; (b) all obligations of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business);
(c) all net obligations of such Person under Interest Swap and Hedging
Obligations; (d) all liabilities of others of the kind described in the
preceding clause (a), (b) or (c) that such Person has guaranteed or that is
otherwise its legal liability, or which is secured by a lien on property of
such Person; and (e) any and all deferrals, renewals, extensions,
modifications, replacements, restatements, refinancings and refundings
(whether direct or indirect) of, or any indebtedness or obligation issued in
exchange for, any liability of the kind described in any of the preceding
clauses (a), (b), (c) or (d), or this clause (e), whether or not between or
among the same parties.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"interest" means and includes stated interest on the Securities
and, to the extent applicable, Liquidated Damages.
"Institutional Accredited Investor" means any Person that is an
institutional "accredited investor" as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act.
"Initial Purchasers" means the Persons designated as such in the
Purchase Agreement.
"Interest Payment Date" means the stated due date of an installment
of interest on the Securities.
"Interest Swap and Hedging Obligations" means the obligations of
any Person under any interest rate protection agreement, interest rate future
agreement, interest rate option agreement, interest rate swap agreement,
interest rate cap agreement or other interest rate hedge agreement, interest
rate collar agreement or other similar agreement or arrangement to which such
Person is a party or beneficiary.
"Issue Date" means the date of first issuance of the Securities
under this Indenture.
"Junior Securities" means any Qualified Capital Stock and any
Indebtedness of the Company that is at least as subordinated in right of
payment to Senior Indebtedness as the Securities and has no scheduled
installment of principal due,
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by redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of the Securities.
"Last Sale Price" shall have the meaning specified in Section 12.3.
"Lien" means any mortgage, lien, pledge, charge, security interest
or other encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement and any lease deemed to constitute a security interest
and any option or other agreement to give any security interest).
"Liquidated Damages" shall have the meaning specified in the
Registration Rights Agreement.
"non-electing share" shall have the meaning specified in Section
12.6.
"Non-Payment Default" shall have the meaning specified in Section
11.2.
"Notice of Default" shall have the meaning specified in Section
6.1(3).
"Offer" shall have the meaning specified in Section 12.5.
"Officer" means, with respect to the Company, the Chairman or any
Co-Chairman, the Chief Executive Officer, the President, any Vice President,
the Chief Financial Officer, the Treasurer, the Controller or the Secretary
of the Company.
"Officers' Certificate" means, with respect to the Company, a
certificate signed by two Officers or by an Officer and an Assistant
Secretary of the Company and otherwise complying with the requirements of
Section 2.2, if applicable, and the applicable provisions of Sections 13.4
and 13.5.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee and which complies with the
applicable requirements of Sections 13.4 and 13.5.
"Paying Agent" shall have the meaning specified in Section 2.3.
"Payment Blockage Notice" shall have the meaning specified in
Section 11.2.
"Payment Blockage Period" shall have the meaning specified in
Section 11.2.
"Payment Default" shall have the meaning specified in Section 11.2.
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"Person" means any corporation, individual, limited liability
company, joint stock company, joint venture, partnership, unincorporated
association, governmental regulatory entity, country, state or political
subdivision thereof, trust, municipality or other entity.
"PORTAL Market" means the Private Offerings, Resales and Trading
through Automated Linkages Market operated by the National Association of
Securities Dealers, Inc. or any successor thereto.
"property" means any right or interest in or to property or assets
of any kind whatsoever, whether real, personal or mixed and whether tangible
or intangible.
"Purchase Agreement" means that certain Purchase Agreement, dated
May 20, 1998, by and among the Company and the Initial Purchasers, as such
agreement may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Purchased Shares" shall have the meaning specified in Section 12.5.
"Qualified Capital Stock" means any Capital Stock of the Company
that is not Disqualified Capital Stock.
"QIB" means a Person that is a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act.
"Record Date" means a Record Date specified in the Securities
whether or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and the form of Security.
"Redemption Price," when used with respect to any Security to be
redeemed, means the redemption price for such redemption pursuant to
Paragraph 5 in the form of Security, which shall include, without
duplication, in each case, accrued and unpaid interest, if any, to and
including the Redemption Date.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated the date hereof, by and among the Initial Purchasers and the
Company, as such agreement may be amended, modified or supplemented from time
to time in accordance with the terms thereof.
"Repurchase Date" shall have the meaning specified in Section 10.1.
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"Repurchase Offer" shall have the meaning specified in Section 10.1.
"Repurchase Offer Period" shall have the meaning specified in
Section 10.1.
"Repurchase Price" shall have the meaning specified in Section 10.1.
"Repurchase Put Date" shall have the meaning specified in Section
10.1.
"Restricted Security" means a Security, unless or until it has been
(i) disposed of in a transaction effectively registered under the Securities
Act or (ii) distributed to the public pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act.
"SEC" means the Securities and Exchange Commission and any other
Person hereafter succeeding to the duties thereof under the Securities Act,
the TIA or the Exchange Act.
"Securities" means, collectively, the 4.75% Convertible
Subordinated Notes due 2003, as supplemented from time to time in accordance
with the terms hereof, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Securities Custodian" means the Trustee, as custodian with respect
to the Securities in global form, or any successor entity thereto.
"Senior Indebtedness" means all obligations of the Company to pay
the principal of, premium, if any, interest (including all interest accruing
subsequent to the commencement of any bankruptcy or similar proceeding,
whether or not a claim for post-petition interest is allowable as a claim in
any such proceeding) on, and all fees, costs, expenses and other amounts
accrued or due on or in connection with, any Indebtedness of the Company,
whether outstanding on the date of this Indenture or thereafter created,
incurred, assumed, guaranteed or in effect guaranteed by the Company, unless
the instrument creating or evidencing such Indebtedness provides that such
Indebtedness is not senior or superior in right of payment to the Securities
or is pari passu with, or subordinated to, the Securities; provided that in
no event shall Senior Indebtedness include (a) Indebtedness of the Company
owed or owing to any Subsidiary of the Company or any officer, director or
employee of the Company or any Subsidiary of the Company, (b) Indebtedness
representing or with respect to any account payable or other accrued current
liability or obligation incurred in the ordinary course of business in
connection with the obtaining of materials or services or (c) any liability
for taxes owed or owing by the Company or any Subsidiary of the Company.
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"Shelf Registration Statement" shall have the meaning specified in
the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" of the Company within the meaning of Rule 1-02(w) of
Regulation S-X under the Securities Act promulgated by the Commission as in
effect as of the date of the Indenture.
"Special Record Date" for payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity" when used with respect to any Security, means
June 1, 2003.
"Subsidiary" with respect to any Person, means (i) a corporation a
majority of whose Capital Stock with voting power normally entitled to vote
in the election of directors is at the time, directly or indirectly, owned by
such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, (ii) a partnership in which such
Person or a Subsidiary of such Person is, at the time, a general partner and
owns alone or together with one or more Subsidiaries of such Person a
majority of the partnership interests, or (iii) any other Person (other than
a corporation) in which such Person, one or more Subsidiaries of such Person,
or such Person and one or more Subsidiaries of such Person, directly or
indirectly, at the date of determination thereof, has at least majority
ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa- 77bbbb) as in effect on the date of the execution of this
Indenture unless otherwise specified herein.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the NASDAQ
National Market (or, if the Common Stock is not admitted to trading thereon,
on the principal national securities exchange on which the Common Stock is at
the time listed or admitted to trading).
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 2.6 hereof.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
division (or any successor group) of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at that time shall be such officers, and also means, with respect
to a particular corporate trust matter, any other
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officer of the Trustee to whom such trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"U.S. Government Obligations" means direct non-callable obligations
of, or non-callable obligations that are fully guaranteed by, the United
States of America, for the payment of which obligation or guarantee the full
faith and credit of the United States of America is pledged.
"Voting Stock" means the then outstanding securities entitled to
vote generally in elections of directors, managers or trustees, as
applicable, of the Company or any successor entity.
SECTION 1.2. INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
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:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them thereby.
SECTION 1.3. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
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(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(7) references to Sections or Articles mean references to such
Section or Article in this Indenture, unless stated otherwise; and
(8) references to statutes or regulations include successor
provisions thereto and recodifications thereof unless the context otherwise
expressly requires.
ARTICLE II.
THE SECURITIES
SECTION 2.1. FORM AND DATING.
The Securities and the Trustee's certificate of authentication in
respect thereof, shall be substantially in the form of Exhibit A hereto,
which Exhibit is part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company shall approve the form of the Securities and any notation, legend or
endorsement on them. Any such notations, legends or endorsements not
contained in the form of Security attached as Exhibit A hereto shall be
delivered in writing to the Trustee. Each Security shall be dated the date
of its authentication.
The terms and provisions contained in the forms of Securities shall
constitute, and are hereby expressly made, a 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.
Every Security shall bear interest from the date of initial
issuance, at the annual rate as specified on the face of the Form of Note
attached as Exhibit A hereto. Interest on Securities shall be paid on June 1
and December 1, commencing December 1, 1998, to Holders of record at the
close of business on the immediately preceding Record Date unless redeemed,
repurchased or converted earlier pursuant to the terms of this Indenture.
Interest on the Securities shall be computed on the basis of a 360-day year
comprised of twelve 30 day months.
The Person in whose name any Security (or its predecessor Security)
is registered at the close of business on any Record Date with respect to any
Interest Payment Date (including any security that is converted after the
Record Date and on or before the Interest Payment Date) shall be
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entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer, exchange
or conversion subsequent to the Record Date and on or prior to such Interest
Payment Date. Interest may, at the option of the Company, be paid by check
mailed to the address of such Person on the Security register; provided that,
with respect to any Holder of Securities with an aggregate principal amount
equal to or in excess of $5,000,000, at the request of such Holder in writing
to the Company at least fifteen (15) days prior to the date set for payment
of interest (who shall then furnish written notice to such effect to the
Trustee), interest on such Holder's Securities shall be paid by wire transfer
in immediately available funds in accordance with the wire transfer
instructions supplied by such Holder to the Trustee and paying agent (if
different from the Trustee).
SECTION 2.2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless
and the Company shall nevertheless be bound by the terms of the Securities
and this Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security, but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate the Securities for original issue in
the aggregate principal amount of up to $86,250,000 upon receipt of one or
more written orders of the Company in the form of an Officers' Certificate.
The Officers' Certificate shall specify the amount of Securities to be
authenticated and the date on which the Securities are to be authenticated.
The aggregate principal amount of Securities outstanding at any time may not
exceed $86,250,000, except as provided in Section 2.7; provided, that
Securities in excess of $75,000,000 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. Upon the written order of the Company
in the form of an Officers' Certificate, the Trustee shall authenticate
Securities in substitution of Securities originally issued to reflect any
name change of the Company; provided, however, that in connection with the
Company order for authentication of Securities dated the date hereof, the
Officers' Certificate and Opinion of Counsel pursuant to Section 13.4 shall
not be required.
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The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company, any Affiliate of the
Company, or any of their respective Subsidiaries.
Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.3. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer, conversion or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying
Agent") and where notices and demands to or upon the Company in respect of
the Securities may be served. The Company may act as Registrar or Paying
Agent, except that, for the purposes of Articles III, VIII and X and as
otherwise specified in the Indenture, neither the Company nor any Affiliate
of the Company shall act as Paying Agent. The Registrar shall keep a
register of the Securities and of their transfer and exchange and conversion.
The Company may have one or more co-Registrars and one or more additional
Paying Agents. The term "Paying Agent" includes any additional Paying Agent.
The Company hereby initially appoints the Trustee as Registrar, Paying Agent
and conversion agent, and the Trustee hereby initially agrees so to act.
The Company shall enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall promptly notify the Trustee in writing of the name and address
of any such Agent. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as Securities
Custodian with respect to the Global Securities.
SECTION 2.4. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that each Paying Agent shall hold in trust for the
benefit of Holders and the Trustee all assets held by the Paying Agent for
the payment of any amounts due on the Securities (whether such assets have
been delivered to it by the Company or any other obligor on the
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Securities), and shall notify the Trustee in writing of any Default in making
any such payment. If either of the Company or a Subsidiary of the Company
acts as Paying Agent, it shall segregate such assets and hold them as a
separate trust fund for the benefit of the Holders and the Trustee. The
Company at any time may require a Paying Agent to deliver all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any payment Default, upon written request
to a Paying Agent, require such Paying Agent to deliver all assets held by it
to the Trustee and to account for any assets delivered to it. Upon delivery
to the Trustee of all assets that shall have been delivered by the Company to
the Paying Agent, the Paying Agent (if other than the Company or an Affiliate
of the Company) shall have no further liability for such assets.
SECTION 2.5. SECURITYHOLDER 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 the third Business Day preceding 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 reasonably may require
of the names and addresses of Holders.
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) GLOBAL SECURITIES. So long as the Securities are eligible for
book-entry settlement with the Depositary, unless otherwise required by law,
all Securities (i) to be traded on the PORTAL Market or (ii) sold (A) to a
QIB or (B) to an Institutional Accredited Investor that, prior to such
transfer, is required to furnish to the Trustee a signed letter containing
certain representations and agreements relating to the restrictions on
transfer of the Security ("Investment Letter"), shall be represented by one
or more Global Securities registered in the name of the Depositary or the
nominee of the Depositary. The transfer and exchange of beneficial interests
in any Global Security, which does not involve the issuance of a Security in
certificated form, shall be effected through the Depositary, in accordance
with this Indenture (including restrictions on transfer set forth herein) and
the procedures of the Depositary therefor.
At any time at the request of the beneficial owner of an interest
in Global Security to obtain a Security in certificated form, such beneficial
owner shall be entitled to obtain a Security in certificated form upon
written request to the Trustee in accordance with the standing instructions
and procedures existing between the Trustee and Depositary for the issuance
thereof. Upon receipt of any such request, the Trustee will cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Trustee, the aggregate principal amount of the Global
Security to be reduced by the principal amount of the Security issued in
certificated form upon such request to such
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beneficial owner and, following such reduction, the Company will execute and
the Trustee will authenticate and make available for delivery to such
beneficial owner (or its nominee) a Security or Securities in certificated
form in the appropriate aggregate principal amount in the name of such
beneficial owner (or its nominee) as the Holder thereof and bearing such
restrictive legends as may be required by this Indenture.
Any transfer of a beneficial interest in the Global Security which
cannot be effected through book-entry settlement must be effected by the
delivery to the transferee (or its nominee) of a Security or Securities in
certificated form registered in the name of the transferee (or its nominee)
on the books maintained by the Registrar in accordance with the transfer
restrictions set forth herein. With respect to any such transfer, the
Trustee will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Trustee, the aggregate
principal amount of the Global Security to be reduced by the principal amount
of the respective beneficial interest in the Global Security being
transferred and, following such reduction, the Company will execute and the
Trustee will authenticate and make available for delivery to the transferee
(or such transferee's nominee, as the case may be), a Security or Securities
in certificated form (bearing such restrictive legends as may be required by
this Indenture) in the appropriate aggregate principal amount in the name of
such transferee (or its nominee) as the Holder thereof may request.
(b) TRANSFER. So long as the Securities are eligible for
book-entry settlement, or unless otherwise required by law, upon any transfer
of a Security in certificated form to a QIB in accordance with Rule 144A or
an Institutional Accredited Investor that is required to deliver an
Investment Letter, and upon receipt of the Security or Securities in
certificated form being so transferred, together with a certification from
the transferor that the transferee is a QIB or an Institutional Accredited
Investor (and, in the case of an Institutional Accredited Investor, that such
transferee has delivered an Investment Letter), the Trustee shall make an
endorsement on the Global Security to reflect an increase in the aggregate
principal amount of the Securities represented by the Global Security, and
the Trustee shall cancel such Security or Securities in certificated form and
cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Trustee, the aggregate principal amount of
Securities represented by the Global Security to be increased accordingly;
provided that no Security in certificated form, or portion thereof, in
respect of which the Company or an Affiliate of the Company held any
beneficial interest shall be included in the Global Security until such
Security in certificated form is freely tradable in accordance with Rule
144(k) and provided, further, that the Trustee shall issue Securities in
certificated form upon any transfer of a beneficial interest in the Global
Security to the Securities or an Affiliate of the Company."
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Any Global Security may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Indenture as may be required by the Depositary or by
the National Association of Securities Dealers, Inc. in order for the
Securities to be tradable on the PORTAL Market or as may be required for the
Securities to be tradable on any other market developed for trading of
securities pursuant to Rule 144A under the Securities Act or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange or automated quotation system upon
which the Securities may be listed or traded or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions
to which any particular Securities are subject.
(c) LEGEND ON SECURITIES. Every Security that bears or is
required under this Section 2.6(c) to bear the legend set forth in this
Section 2.6(c) (together with any Common Stock issued upon conversion of the
Securities and required to bear the legend set forth in Section 2.6(d)),
shall be subject to the restrictions on transfer set forth in this Section
2.6(c) (including those set forth in the legend set forth below) unless such
restrictions on transfer shall be waived by written consent of the Company
(with written notice to the Trustee), and the Holder of each such Restricted
Security, by such Securityholder's acceptance thereof, agrees to be bound by
all such restrictions on transfer. As used in Section 2.6(c) and 2.6(d), the
term "transfer" encompasses any sale, pledge, transfer or other disposition
whatsoever of any Restricted Security.
Until two years after the original issuance date of any Security,
any certificate evidencing such Security (and all Securities in exchange
therefor or substitution thereof, other than Common Stock, if any, issued
upon conversion thereof, which shall bear the legend set forth in Section
2.6(d), if applicable) shall bear a legend in substantially the following
form, unless otherwise agreed by the Company in writing, with written notice
thereof to the Trustee:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD, EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER: (1) REPRESENTS THAT (A) IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN COMPLIANCE WITH RULE 144A OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER
THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT
IT WILL NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(k)
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UNDER THE SECURITIES ACT (THE "RESTRICTION TERMINATION DATE") RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE,
AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY
EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE), (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM REGISTRATION PROVIDED UNDER THE SECURITIES ACT,
OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE
AT THE TIME OF SUCH TRANSFER); AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY
BEFORE THE RESTRICTION TERMINATION DATE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE BANK OF NEW YORK, AS TRUSTEE
(OR A SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS
PURSUANT TO CLAUSE (C) OR (D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(E) ABOVE OR UPON THE
RESTRICTION TERMINATION DATE.
Any Security (or security issued in exchange or substitution therefor)
as to which such restrictions on transfer shall have expired in accordance with
their terms or as to which the conditions for removal of the foregoing legend
set forth therein have been satisfied may, upon surrender of such Security for
exchange to the Registrar in accordance with the provisions of this Section 2.6,
be exchanged for a new Security or Securities, of like tenor and aggregate
principal amount and authorized denominations, which shall not bear the
restrictive legend required by this Section 2.6(c).
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Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in the second paragraph of Section 2.6(a) and in
this Section 2.6(c)), a Global Security may not be transferred as a whole or
in part except by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Global Securities. Initially, the
Global Security shall be issued to the Depositary, registered in the name of
Cede & Co., as the nominee of the Depositary, and deposited with the
Securities Custodian on behalf of Cede & Co.
The Trustee is hereby authorized and requested to execute and
deliver a Letter of Representation to the Depositary and, in connection with
any successor nominee for the Depositary or any successor Depositary, enter
into comparable arrangements, and shall have the same rights with respect to
its actions thereunder as it has with respect to its actions under this
Indenture.
If at any time the Depositary for the Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for the
Security, the Company may appoint a successor Depositary with respect to such
Security. If a successor Depositary is not appointed by the Company within
90 days after the Company receives such notice, the Company will execute, and
the Trustee, upon receipt of an Officers' Certificate for the authentication
and delivery of Securities, will authenticate and make available for
delivery, Securities in certificated form, in an aggregate principal amount
equal to the outstanding principal amount of the Global Security, in exchange
for the Global Security.
If a Security in certificated form is issued in exchange for any
portion of a Global Security after the close of business at the office or
agency where such exchange occurs on any Record Date and before the opening
of business at such office or agency on the next succeeding Interest Payment
Date, interest will not be payable to the Holder on such Interest Payment
Date in respect of such Security, but will be payable on such Interest
Payment Date only to the Person to whom interest in respect of such portion
of such Global Security is payable in accordance with the provisions of this
Indenture.
Securities in certificated form issued in exchange for all or a
part of a Global Security pursuant to this Section 2.6 shall be registered in
such names and in such authorized denominations as the Depositary, pursuant
to instruction from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. Upon execution and authentication, the
Trustee shall make such Securities available for delivery in certificated
form to the
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Person in whose names such Securities in certificated form are so registered.
At such time as all interests in a Global Security have been
redeemed, repurchased, converted, canceled, exchanged for Securities in
certificated form, or transferred to a transferee who receives Securities in
certificated form, such Global Security shall, upon receipt thereof, be
canceled by the Trustee. At any time prior to such cancellation, if any
interest in a Global Security is exchanged for Securities in certificated
form, redeemed, converted, repurchased or canceled, or transferred to a
transferee who receives Securities in certificated form therefor or any
Security in certificated form is exchanged or transferred for part of a
Global Security, the principal amount of such Global Security shall, in
accordance with the standing procedures and instructions existing between the
Depositary and the Custodian, be appropriately reduced or increased, as the
case may be, and an endorsement shall be made on such Global Security, by the
Trustee, to reflect such reduction or increase. In the event of any transfer
of any beneficial interest between one Global Security and another in
accordance with the standing procedures and instructions between the
Depositary and the Trustee and the transfer restrictions required herein, the
aggregate principal amount of each Global Security shall be appropriately
increased or decreased, as the case may be, and an endorsement shall be made
on each Global Security by the Trustee or the Securities Custodian, at the
direction of the Trustee, to reflect such reduction or increase.
(d) LEGEND ON COMMON STOCK. Until two years after the original
issuance date of any Security, any stock certificate representing Common
Stock issued upon conversion of such Security shall bear a legend in
substantially the following form, unless such Common Stock has been
transferred pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at
the time of such transfer) or such Common Stock has been issued upon
conversion of Securities that have been transferred pursuant to a
registration statement that has been declared effective under the Securities
Act, or unless otherwise agreed by the Company in writing with written notice
thereof to the transfer agent:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD, EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE.
THE HOLDER HEREOF AGREES THAT UNTIL THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(k) UNDER THE SECURITIES ACT (THE "RESTRICTION TERMINATION DATE"):
(1)IT WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED
HEREBY
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EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN COMPLIANCE WITH RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE BANK OF
NEW YORK, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE COMMON STOCK
EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRANSFER AGENT OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION PROVIDED UNDER
THE SECURITIES ACT, OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO
SUCH TRANSFER BEFORE THE RESTRICTION TERMINATION DATE (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 1(E) ABOVE), IT WILL FURNISH THE BANK OF NEW
YORK, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE),
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) IT WILL DELIVER
TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(E) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE 1(E) ABOVE OR UPON THE
RESTRICTION TERMINATION DATE.
Any such Common Stock as to which such restrictions on transfer
shall have expired in accordance with their terms or as to which the
conditions for removal of the foregoing legend set forth therein have been
satisfied may, upon surrender of the certificates representing such shares of
Common Stock for exchange in accordance with the procedures of the transfer
agent for the Common Stock, be exchanged for a new certificate or
certificates for a like number of shares of Common Stock, which shall not
bear the restrictive legend required by this Section 2.6(d).
(e) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITY. At such
time as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, redeemed, repurchased or canceled, such
Global Security shall be returned to or retained and canceled by the Trustee.
At any time prior to such cancellation, if any beneficial interest in a
Global Security is exchanged for Definitive Securities, redeemed, repurchased
or canceled, the
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principal amount of Securities represented by such Global Security shall be
reduced and an endorsement shall be made on such Global Security, by the
Trustee or the Securities Custodian, at the direction of the Trustee, to
reflect such reduction.
(f) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
DEFINITIVE SECURITIES AND GLOBAL SECURITIES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax, assessments, or similar governmental charge
payable in connection therewith (other than any such transfer taxes,
assessments, or similar governmental charge payable upon exchanges or
transfers pursuant to Section 2.2 (fourth paragraph), 2.10, 3.7, 9.5 or 10.1
(final paragraph)).
(iii) The Registrar or co-Registrar shall not be required to
register the transfer or exchange of (a) any Definitive Security selected for
redemption in whole or in part pursuant to Article III, except the unredeemed
portion of any Definitive Security being redeemed in part, (b) any Security
for a period beginning 15 days before the mailing of a notice of a Repurchase
Offer pursuant to Article X hereof or the mailing of a notice of redemption
of Securities pursuant to Article III hereof and ending at the close of
business on the day of such mailing or (c) any Security or portion thereof
surrendered for conversion pursuant to Article XII.
Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture (including to the extent such
requirement is at the discretion of the Company), and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
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SECTION 2.7. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Trustee, to the Trustee to the effect that the Security
has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security (bearing a number not
contemporaneously outstanding) if the Trustee's requirements are met. Such
Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Company and the Trustee, to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Security
is replaced. The Company may charge such Holder for its reasonable,
out-of-pocket expenses in replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion,
but subject to any conversion rights, may, instead of issuing a new Security,
pay such Security, upon satisfaction of the conditions set forth in the
preceding paragraph.
Every new Security issued pursuant to this Section 2.7 in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and such new Security shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
The provisions of this Section 2.7 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 2.8. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee (including any Security represented by a
Global Security) except those canceled by it, those delivered to it for
cancellation or conversion, those paid pursuant to Section 2.7, those
reductions in the interest in a Global Security effected by the Trustee
hereunder and those described in this Section 2.8 as not outstanding. A
Security does not cease to be outstanding because the Company or an Affiliate
of the Company holds the Security, except as provided in Section 2.9.
If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced
Security is held by a protected purchaser. A mutilated Security ceases to be
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outstanding upon surrender of such Security and replacement thereof pursuant
to Section 2.7.
If on a Redemption Date the Paying Agent (other than the Company or
an Affiliate of the Company) holds Cash or U.S. Government Obligations
sufficient to pay all of the principal and interest due on the Securities
payable on that date in accordance with Section 3.6 hereof and payment of the
Securities called for redemption is not otherwise prohibited pursuant to
Article XI hereof or otherwise, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue.
SECTION 2.9. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, amendment, supplement, waiver
or consent, Securities owned by the Company or an Affiliate of the Company
shall be disregarded, except that, for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, amendment,
supplement, waiver or consent, only Securities that a Trust Officer of the
Trustee actually knows are so owned shall be disregarded.
SECTION 2.10. TEMPORARY SECURITIES.
Pending the preparation of Definitive Securities in certificated
form, the Company may execute and the Trustee or an authenticating agent
appointed by the Trustee shall, upon the written request of the Company,
authenticate and make available for delivery, temporary Securities.
Temporary Securities shall be issuable in any authorized denomination, and
substantially in the form of the Definitive Securities in certificated form,
but with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company.
Every such temporary Security shall be executed by the Company and
authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the Definitive Securities in certificated form. Without unreasonable delay
the Company will execute and deliver to the Trustee or such authenticating
agent Definitive Securities in certificated form (other than in the case of
Securities in global form) and thereupon any or all temporary Securities
(other than in the case of Securities in global form) may be surrendered in
exchange therefor, at each office or agency maintained by the Company
pursuant to Section 4.2 and the Trustee or such authenticating agent shall
authenticate and make available for delivery in exchange for such temporary
Securities an equal aggregate principal amount of Definitive Securities in
certificated form. Such exchange shall be made by the Company at its own
expense and without any charge therefor.
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Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits and subject to the same limitations under
this Indenture as Definitive Securities in certificated form authenticated
and delivered hereunder.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent (other than the Company or an Affiliate of the Company), and no one
else, shall cancel and dispose of all Securities surrendered for transfer,
exchange, payment or cancellation in accordance with its customary practices,
unless otherwise requested by the Company; provided, however, that the
Trustee shall not be required to destroy such canceled Securities. Subject
to Section 2.7, the Company may not issue new Securities to replace
Securities that have been paid or delivered to the Trustee for cancellation.
No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section 2.11, except as expressly
permitted in the form of Securities and as permitted by this Indenture.
SECTION 2.12. INTEREST AND DEFAULTED INTEREST.
Interest and any Liquidated Damages on any Security which are
payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one
or more predecessor Securities) is registered at the close of business on the
Record Date immediately preceding such Interest Payment Date.
Any interest or Liquidated Damages on any Security which are
payable, but are not punctually paid or duly provided for, on any Interest
Payment Date plus, to the extent lawful, any interest payable on such
defaulted amounts (collectively, herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered Holder on the relevant Record
Date, and such Defaulted Interest shall be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of Cash equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to
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the Trustee for such deposit prior to the date of the proposed payment, such
Cash when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause (1).
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Security register not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Securities may be listed
or quoted and upon such notice as may be required by such exchange or
automated quotation system, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each
Security delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such predecessor Security.
SECTION 2.13 CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; PROVIDED that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
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ARTICLE III.
REDEMPTION
SECTION 3.1. RIGHT OF REDEMPTION.
Redemption of Securities, as permitted by any provision of this
Indenture, shall be made in accordance with Paragraph 5 of the Securities and
this Article III. The Company will not have the right to redeem any
Securities prior to June 1, 2001. On or after June 1, 2001, the Company will
have the right to redeem all or any part of the Securities at the Redemption
Prices specified in Paragraph 5 of the Securities under the caption
"Redemption", in each case including accrued and unpaid interest and any
Liquidated Damages to, but excluding, the Redemption Date.
SECTION 3.2. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities, it shall notify the
Trustee in writing of the Redemption Date and the principal amount of
Securities to be redeemed and whether it wants the Trustee to give notice of
redemption to the Holders.
If the Company elects to reduce the principal amount of Securities
to be redeemed by crediting against any such redemption Securities it has not
previously delivered to the Trustee for cancellation, it shall so notify the
Trustee of the amount of the reduction and deliver such Securities with such
notice.
The Company shall give each notice to the Trustee provided for in
this Section 3.2 at least 45 days before the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee). Any such notice may be
canceled at any time prior to notice of such redemption being mailed to any
Holder and shall thereupon be void and of no effect.
SECTION 3.3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the outstanding Securities are to be redeemed
on any Redemption Date, the Trustee shall select the Securities or portions
thereof to be redeemed by lot, on a pro rata basis or by such other method as
the Trustee shall determine to be fair and appropriate and in such manner as
complies with any applicable depositary, legal and stock exchange or
automated quotation system requirements.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly
notify the Company in writing of the Securities or portions thereof selected
for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. Securities in
denominations of $1,000 may be redeemed only in whole. The Trustee may
select for redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal of Securities that have denominations larger than
$1,000.
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Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption.
SECTION 3.4. NOTICE OF REDEMPTION.
At least 20 days prior to a Redemption Date, the Company shall send
a notice of redemption to the Trustee and each Holder whose Securities are to
be redeemed. At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. Each notice
for redemption shall identify the Securities or portions thereof to be
redeemed and shall state:
(1) the Redemption Date, and that the Securities called for
redemption may not be converted after the close of business on the
Business Day immediately prior to the Redemption Date (unless the
Company defaults in the payment of the Redemption Price);
(2) the Redemption Price, including the amount of accrued and
unpaid interest and any Liquidated Damages to be paid upon such
redemption;
(3) the name, address and telephone number of the Paying Agent;"
(4) that Securities called for redemption must be surrendered to
the Paying Agent at the address specified in such notice to collect the
Redemption Price;
(5) that, unless (a) the Company defaults in its obligation to
deposit Cash with the Paying agent in accordance with Section 3.6 hereof
or (b) such redemption payment is prohibited pursuant to Article XI
hereof or otherwise, interest and any Liquidated Damages on Securities
called for redemption ceases to accrue on and after the Redemption Date
and the only remaining right of the Holders of such Securities is to
receive payment of the Redemption Price, including accrued and unpaid
interest and any Liquidated Damages to, but excluding, the Redemption
Date, upon surrender to the Paying Agent of the Securities called for
redemption and to be redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount, equal to $1,000 or any integral multiple thereof, of
such Security to be redeemed and that, after the Redemption Date, and
upon surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof will
be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portions thereof) to be
redeemed, as
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well as the aggregate principal amount of such Securities to be redeemed
and the aggregate principal amount of Securities to be outstanding after
such partial redemption;
(8) the CUSIP number of the Securities to be redeemed; and
(9) that the notice is being sent pursuant to this Section 3.4 and
pursuant to the redemption provisions of Paragraph 5 of the Securities.
SECTION 3.5. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.4,
Securities called for redemption shall become due and payable on the
Redemption Date at the Redemption Price, including accrued and unpaid
interest and any Liquidated Damages to, but excluding, the Redemption Date.
Upon surrender to the Trustee or Paying Agent, such Securities called for
redemption shall be paid at the Redemption Price, including accrued and
unpaid interest and any Liquidated Damages to, but excluding, the Redemption
Date; provided that if the Redemption Date is after a Record Date and on or
prior to the corresponding Interest Payment Date, accrued interest and any
Liquidated Damages shall be payable to the Holder of the redeemed Securities
at the close of business on the relevant Record Date; and provided, further,
that if a Redemption Date is not a Business Day, payment shall be made on the
next succeeding Business Day and no interest shall accrue for the period from
such Redemption Date to such succeeding Business Day.
SECTION 3.6. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:30 a.m. New York City time, on the Redemption
Date, the Company shall deposit with the Paying Agent (other than the Company
or an Affiliate of the Company) Cash sufficient to pay all amounts due on all
Securities to be redeemed on such Redemption Date (other than Securities or
portions thereof called for redemption on that date that have been delivered
by the Company to the Trustee for cancellation). The Paying Agent shall
promptly return to the Company any Cash so deposited which is not required
for that purpose upon the written request of the Company.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not prohibited under Article XI or otherwise, interest and any
Liquidated Damages on the Securities to be redeemed will cease to accrue on and
after the applicable Redemption Date, whether or not such Securities are
presented for payment. Notwithstanding anything herein to the contrary, if any
Security surrendered for redemption in the manner provided in the Securities
shall not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest and, if applicable,
Liquidated Damages shall continue
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to accrue and be paid from the Redemption Date until such payment is made on
the unpaid principal, and, to the extent lawful, on any interest not paid on
such unpaid principal, in each case at the rate and in the manner provided in
Section 4.1 hereof and the Security.
SECTION 3.7. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge to the Holder, a new Security or Securities
equal in principal amount to the unredeemed portion of the Security
surrendered.
SECTION 3.8. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
In connection with any redemption of the Securities, the Company may
arrange for the purchase and conversion of any of the Securities by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Trustee in trust for the Holders, on or before the
date fixed for redemption, an amount not less than the applicable Redemption
Price, together with interest accrued and any Liquidated Damages to (but
excluding) that Redemption Date, of such Securities. Notwithstanding anything
to the contrary contained in this Article III, the obligation of the Company to
pay the Redemption Price of such Securities, together with interest accrued and
any Liquidated Damages to (but excluding) the date fixed for redemption, shall
be deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is entered into (a copy of which shall be
filed with the Trustee prior to the date fixed for redemption), any Securities
not duly surrendered for conversion by the Holders thereof, may, at the option
of the Company, be deemed, to the fullest extent permitted by law, acquired by
such purchasers from such Holders and surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date (and the right to convert any such Securities shall be extended
through such time), subject to payment of the above amount as aforesaid. At the
written direction of the Company, the Trustee shall hold and dispose of any such
amount paid to it in the same manner as it would moneys deposited with it by the
Company for the redemption of the Securities. Without the Trustee's prior
written consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect any
of the powers, duties, responsibilities or obligations of the Trustee as set
forth in this Indenture, and the Company agrees to indemnify the Trustee from,
and hold it harmless against, any loss, liability or expense arising out of or
in connection with any such arrangement for the purchase and conversion of any
of the Securities between the Company and such purchasers to which the Trustee
has not consented in writing, including the costs and expenses, including
reasonable legal fees, incurred by the Trustee in the defense of any claim or
liability arising out of or in connection with the exercise or performance of
any of its
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powers, duties, responsibilities or obligations under this Indenture.
ARTICLE IV.
COVENANTS
SECTION 4.1. PAYMENT OF SECURITIES.
The Company shall pay the principal, Redemption Price or Repurchase
Price of and interest and any Liquidated Damages on the Securities on the
dates and in the manner provided in the Securities and, in the case of
Liquidated Damages, in the Registration Rights Agreement. A payment of any
amount due on the Securities shall be considered paid on the date it is due
if the Trustee or Paying Agent (other than the Company or an Affiliate of the
Company) holds for the benefit of the Holders, on or before 10:00 a.m. New
York City time on that date, Cash deposited and designated for and sufficient
to pay the applicable amount.
The Company shall pay interest on overdue principal, Redemption
Price or Repurchase Price and on overdue installments of interest and any
Liquidated Damages at the rate specified in the Securities, compounded
semi-annually, to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration
of transfer or exchange and for conversion and where notices and demands to
or upon the Company in respect of the Securities and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency. The Company hereby initially designates the principal corporate trust
office of the Trustee as such office.
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SECTION 4.3. CORPORATE EXISTENCE.
Subject to Article V, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate or other existence of each of its Significant
Subsidiaries in accordance with the respective organizational documents of
each of them and the rights (charter and statutory) and corporate franchises
of the Company and each of its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve, with respect to itself,
any right or franchise, and with respect to any of its Significant
Subsidiaries, any such existence, right or franchise, if (a) the Company
shall, in good faith, reasonably determine that the preservation thereof is
no longer desirable in the conduct of the business of such entity and (b) the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.4. PAYMENT OF TAXES AND OTHER CLAIMS.
Except with respect to immaterial items, the Company shall, and
shall cause each of its Subsidiaries to, pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon the
Company or any of its Subsidiaries or any of their respective properties and
(ii) all lawful claims, whether for labor, materials, supplies, services or
anything else, which have become due and payable and which by law have or may
become a Lien upon the property and assets of the Company or any of its
Subsidiaries; provided, however, that neither the Company nor any Subsidiary
shall be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity
is being contested in good faith by appropriate proceedings and for which
disputed amounts adequate reserves have been established in accordance with
GAAP.
SECTION 4.5. MAINTENANCE OF PROPERTIES AND INSURANCE.
The Company shall cause all material properties used or useful to
the conduct of its business and the business of each of its Subsidiaries to
be maintained and kept in good condition, repair and working order
(reasonable wear and tear excepted) and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in its reasonable good faith
judgment may be necessary, so that the business carried on in connection
therewith may be properly conducted at all times; provided, however, that
nothing in this Section 4.5 shall prevent the Company or any Subsidiary from
discontinuing any operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is (a) in the
judgment of the Company, desirable in the conduct of the business of such
entity and (b) not disadvantageous in any material respect to the Holders.
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The Company shall provide, or cause to be provided, for itself and
each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith
judgment of the Company is adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries in a prudent manner, with
(except for self-insurance) reputable insurers or with the government of the
United States of America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the reasonable, good faith judgment of the Company and adequate and
appropriate for the conduct of the business of the Company and such
Subsidiaries in a prudent manner for entities similarly situated in the
industry, unless failure to provide such insurance (together with all other
such failures) would not have a material adverse effect on the financial
condition or results of operations of the Company and the Subsidiaries, taken
as a whole.
SECTION 4.6. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee within 90 days after
the end of its fiscal year an Officers' Certificate, one of the signers of
which shall be the principal executive officer, principal financial officer
or principal accounting officer of the Company, complying with Section
314(a)(4) of the TIA and stating that a review of its activities and the
activities of its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, whether or not the signer knows of any failure by
the Company or any Subsidiary of the Company to comply with any conditions or
covenants in this Indenture (determined without regard to any period of grace
or requirement of notice) and, if such signer does know of such a failure to
comply, the certificate shall describe such failure with particularity. The
Officers' Certificate shall also notify the Trustee should the relevant
fiscal year end on any date other than the current fiscal year end date.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly upon becoming aware of any
Default, Event of Default or fact which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, an Officers'
Certificate specifying such Default, Event of Default or fact and what action
the Company is taking or proposes to take with respect thereto. The Trustee
shall not be deemed to have knowledge of any Default, any Event of Default or
any such fact unless one of its Trust Officers receives notice thereof from
the Company or any of the Holders.
SECTION 4.7. REPORTS.
Whether or not the Company is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange
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Act, the Company shall deliver to the Trustee and to each Holder and to
prospective purchasers of Securities identified to the Company by an Initial
Purchaser, within 15 days after it is or would have been required to file
such with the SEC, annual and quarterly consolidated financial statements
substantially equivalent to financial statements that would have been
included in reports filed with the SEC if the Company were subject to the
requirements of Section 13 or 15(d) of the Exchange Act, including, with
respect to annual information only, a report thereon by the Company's
independent certified public accountants as such would be required in such
reports to the SEC and, in each case, together with a management's discussion
and analysis of financial condition and results of operations which would be
so required. In addition, the Company shall file with the Trustee and the
SEC, and transmit to holders of Securities, such information, documents and
other reports and such summaries thereof, as may be required pursuant to the
TIA at the times and in the manner provided pursuant to such Act.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.8. LIMITATION ON STATUS AS INVESTMENT COMPANY.
Neither the Company nor any of its Subsidiaries shall become an
"investment company" (as that term is defined in the Investment Company Act
of 1940 as amended), or otherwise become subject to regulation under the
Investment Company Act.
SECTION 4.9. WAIVER OF 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 or extension law or any usury law or
other law which would prohibit or forgive the Company from paying all or any
portion of the principal Redemption Price or Repurchase Price of, or interest
on, the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
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SECTION 4.10. RULE 144A INFORMATION REQUIREMENT.
If at any time there are Transfer Restricted Securities outstanding
and the Company shall cease to have a class of equity securities registered
under Section 12(g) of the Exchange Act or shall cease to be subject to
Section 15(d) of the Exchange Act, the Company shall furnish to the Holders
or beneficial holders of the Securities or the underlying Common Stock and
prospective purchasers of Securities or the underlying Common Stock
designated by the Holders of Transfer Restricted Securities, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act until such time as the Shelf Registration Statement
has become effective under the Securities Act. The Company shall also
furnish such information during the pendency of any suspension of
effectiveness of the Shelf Registration Statement.
SECTION 4.11. QUALIFICATION OF INDENTURE.
The Company shall qualify this Indenture under the TIA in
accordance with the terms and conditions of the Registration Rights Agreement
and shall pay all costs and expenses (including attorneys' fees and expenses
for the Company and the Trustee) incurred in connection therewith, including,
but not limited to, costs and expenses of qualification of the Indenture and
the Securities and printing this Indenture and the Securities.
SECTION 4.12. REGISTRATION RIGHTS.
The Holders of the Securities are entitled to certain registration
rights with respect to such Securities and Common Stock pursuant to, and
subject to the terms of, the Registration Rights Agreement. The Company
hereby covenants to perform all such obligations under the Registration
Rights Agreement for the benefit of such Holders.
ARTICLE V.
SUCCESSOR CORPORATION
SECTION 5.1. LIMITATION ON MERGER, SALE OR CONSOLIDATION.
(a) The Company shall not, directly or indirectly, consolidate
with or merge with or into another Person or sell, lease, convey or transfer
all or substantially all of its assets (other than to a wholly-owned
Subsidiary or Subsidiaries), whether in a single transaction or a series of
related transactions, to another Person or group of affiliated Persons,
unless (i) either (a) in the case of a merger or consolidation, the Company
is the surviving entity or (b) the resulting, surviving or transferee entity
is a corporation organized under the laws of the United States (including any
state thereof or the District of Columbia), Canada or any other country that
is a member of the European Union; provided that with respect to any
corporation organized under the laws of any European Union country other than
the United Kingdom,
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such corporation must be listed on the New York Stock Exchange or the
American Stock Exchange or quoted on the Nasdaq National Market, and
expressly assumes by supplemental indenture all of the obligations of the
Company in connection with the Securities and the Indenture; and (ii) no
Default or Event of Default shall exist or shall occur immediately after
giving effect to such transaction; and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and, if a supplemental indenture is
required, such supplemental indenture comply with this Indenture and that all
conditions precedent relating to such transaction have been satisfied.
(b) For purposes of clause (a) of this Section 5.1 and Section
12.6, the sale, lease, conveyance, assignment, transfer, or other disposition
of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the
Company instead of such Subsidiaries, would constitute all or substantially
all of the properties and assets of the Company on a consolidated basis,
shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger or any sale, lease, conveyance or
transfer of all or substantially all of the assets of the Company in
accordance with the foregoing, the successor corporation formed by such
consolidation or into which the Company is merged or to which such sale,
lease, conveyance or transfer is made, shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the
Indenture with the same effect as if such successor corporation had been
named therein as the Company, and when a successor corporation duly assumes
all of the obligations of the Company pursuant hereto and pursuant to the
Securities, the predecessor shall be released from such obligations (except
with respect to any obligations that arise from or as a result of such
transaction).
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether
it shall be caused voluntarily or involuntarily or effected, without
limitation, by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(1) failure to pay any installment of interest on, or any
Liquidated Damages with respect to, the
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Securities as and when the same becomes due and payable, whether or not
such payment is prohibited by Article XI, or to perform any conversion
of the Securities required under this Indenture, and the continuance of
such failure for a period of 30 days;
(2) failure to pay all or any part of the principal of, or
premium, if any on the Securities when and as the same become due and
payable at maturity, redemption, by acceleration or otherwise,
including, without limitation, failure to pay all or any part of the
Repurchase Price on the Repurchase Date in accordance with Article X,
whether or not such payment is prohibited by Article XI;
(3) failure by the Company to observe or perform any covenant or
agreement contained in the Securities or this Indenture (other than a
default in the performance of any covenant or agreement which is
specifically dealt with elsewhere in this Section 6.1), and continuance
of such failure for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by Holders of at least 25% in aggregate
principal amount of the then outstanding Securities, a written notice
specifying such failure, requesting it to be remedied and stating that
such notice is a "Notice of Default" hereunder;
(4) failure by the Company or any Significant Subsidiary to pay at
final maturity (either at its stated maturity or upon acceleration
thereof) any Indebtedness of the Company or any Significant Subsidiary
in a principal amount then outstanding in excess of $10,000,000, and
such Indebtedness is not discharged, or such acceleration is not
rescinded or annulled within a period of 30 days after the giving of a
Notice of Default;
(5) a decree, judgment or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of its
Significant Subsidiaries as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Company or any
of its Significant Subsidiaries under any Bankruptcy Law, and such
decree, judgment or order shall have continued undischarged and unstayed
for a period of 60 days; or a decree or order of a court of competent
jurisdiction over the appointment of a receiver, liquidator, trustee or
assignee in bankruptcy or insolvency of the Company, any of its
Significant Subsidiaries, or of the property of any such Person, or for
the winding up or liquidation of the affairs of any such Person, shall
have been entered, and such decree, judgment or order shall have
remained
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in force undischarged and unstayed for a period of 60 days;
(6) the Company or any of its Significant Subsidiaries shall
institute proceedings to be adjudicated a voluntary bankrupt, or shall
consent to the filing of a bankruptcy proceeding against it, or shall
file a petition or answer of consent seeking reorganization under any
Bankruptcy Law, or shall consent to the filing of any such petition, or
shall consent to the appointment of a custodian, receiver, liquidator,
trustee or assignee in bankruptcy or insolvency of it or any of its
assets or property, or shall make a general assignment for the benefit
of creditors; or take any corporate action in furtherance of or to
facilitate, conditionally or otherwise, any of the foregoing; or
(7) final unsatisfied judgments not covered by insurance,
aggregating in excess of $10,000,000 at any one time shall have been
rendered against the Company or any of its Significant Subsidiaries and
not have been stayed, bonded or discharged for a period (during which
execution shall not be effectively stayed) of 60 days (or, in the case
of any such final judgment which provides for payment over time, which
shall so remain unstayed, unbonded or undischarged beyond any applicable
payment date provided therein).
Notwithstanding the 60-day period and notice requirement contained in Section
6.1(3) above, with respect to a default under Article X the 60-day period
referred to in Section 6.1(3) shall be deemed to have begun as of the date
the Change of Control notice is required to be sent in the event that the
Company has not complied with the provisions of Section 10.1 and the Trustee
or Holders of at least 25% in principal amount of the outstanding Securities
thereafter have given the Notice of Default referred to in Section 6.1(3) to
the Company and, if applicable, the Trustee; provided, however, that if the
breach or default is a result of a default in the payment when due of the
Repurchase Price on the Repurchase Date, such Event of Default shall be
deemed, for purposes of this Section 6.1, to arise no later than on the last
Repurchase Date.
If a Default shall occur and be continuing and be known to the
Trustee, the Trustee shall, within 90 days after the occurrence of such Default,
give to the Holders notice of such Default; provided that the Trustee shall be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the best interest of the Holders, except in the
case of a Default in the payment of any amounts due on the Securities
(including, without limitation, principal of, premium, if any, interest on, or
any Liquidated Damages, with respect to, any of the Securities when due, or in
the payment of Redemption Price or the Repurchase Price).
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SECTION 6.2. ACCELERATION OF MATURITY DATE; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 6.1(5) or (6) relating to the Company) occurs and is continuing,
then, in every such case, unless the principal of all of the Securities shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of then outstanding Securities,
by a notice in writing to the Company (and to the Trustee if given by
Holders) (an "Acceleration Notice"), may declare all of the principal of the
Securities (or the Repurchase Price if the Event of Default includes failure
to pay the Repurchase Price, determined as set forth below), including in
each case accrued interest and any Liquidated Damages thereon, to be due and
payable immediately. If an Event of Default specified in Section 6.1(5) or
(6) relating to the Company occurs, all amounts due thereon will be
immediately due and payable on all outstanding Securities without any
declaration or other act on the part of Trustee or the Holders.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article VI, the
Holders of not less than a majority in aggregate principal amount of then
outstanding Securities, by written notice to the Company and the Trustee, may
rescind, on behalf of all Holders, any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee Cash
sufficient to pay
(A) All overdue interest and Liquidated Damages on all
Securities
(B) the principal, Redemption Price or Repurchase Price of any
Securities which would then be due otherwise than by such declaration
of acceleration, and interest thereon at the rate borne by the
Securities
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and overdue Liquidated Damages at the
rate borne by the Securities
(D) all sums paid or advanced by the Trustee hereunder and the
compensation, expenses, disbursements and advances of the Trustee, its
agent and counsel, and
(2) all Events of Default, other than the non-payment of the
principal, Redemption Price or Repurchase Price of, and interest and any
Liquidated
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Damages on, the Securities that have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 6.12, including, if applicable, any Event of Default relating to
the covenants contained in Section 10.1.
Notwithstanding the previous sentence of this Section 6.2, no
waiver shall be effective against any Holder for any Default or Event of
Default with respect to any covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Security
affected thereby, unless all such affected Holders agree, in writing, to
waive such Default or Event of Default. No such waiver shall cure or waive
any subsequent Default or Event of Default or impair any right consequent
thereon.
SECTION 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if an Event of Default in payment of any
amount specified in clause (1) or (2) of Section 6.1 occurs and is
continuing, the Company shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities and, to the extent that payment of such interest
shall be legally enforceable, interest on any such overdue amounts, including
any overdue interest and Liquidated Damages, at the rate borne by the
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the reasonable costs and expenses of collection,
including compensation to, and reasonable expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust in
favor of the Holders, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company or any other
obligor upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of
the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization,
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arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due
and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of any overdue amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise to take any and all actions
under the TIA, including
(1) to file and prove a claim for the whole amount owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agent and
counsel) and of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same in accordance
with Section 6.6;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the
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Securities in respect of which such judgment has been recovered.
SECTION 6.6. PRIORITIES.
Any money collected by the Trustee pursuant to this Article VI
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of the
Securities, upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 7.7;
SECOND: To the holders of Senior Indebtedness of the Company to the
extent provided in Article XI;
THIRD: To the Holders in payment of the amounts then due and unpaid
for principal, Redemption Price or Repurchase Price of, and interest and
any Liquidated Damages on, the Securities in respect or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for any and all of such amounts; and
FOURTH: The remainder, if any, shall be repaid to the Company.
SECTION 6.7. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute or
order or direct the Trustee to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, except for a default
in the payment of principal, Redemption Price or Repurchase Price of, and
interest and any Liquidated Damages on, the Securities and except for a
failure to convert any Security as provided in Article XIII, unless
(A) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(B) the Holders of not less than 25% in principal amount of then
outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(C) such Holder or Holders have furnished to the Trustee (to the
extent not prohibited by the TIA) security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities
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to be incurred or reasonably probable to be incurred in compliance with
such request;
(D) the Trustee for 60 days after its receipt of such notice, request
and furnishing of indemnity has failed to institute any such proceeding;
and
(E) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of then outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders.
SECTION 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PAYMENTS AND TO CONVERT.
Notwithstanding any other provision of this Indenture but subject
to the provisions of Article XI, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the
principal, Redemption Price or Repurchase Price of, and interest and any
Liquidated Damages on, such Security when due and to convert such Security in
accordance with Article XII and to institute suit for the enforcement of any
such payment and right to convert, and such rights shall not be impaired
without the consent of such Holder.
SECTION 6.9. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.10. DELAY OR OMISSION NOT WAIVER.
No delay or omission by the Trustee or by any Holder of any Security
to exercise any right or remedy arising upon any Event of Default shall impair
the exercise of any such right or remedy or constitute a waiver of any such
Event of Default. Every right and remedy given by this Article VI or by law to
the Trustee or to the Holders may be exercised from
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time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
SECTION 6.11. CONTROL BY HOLDERS.
The Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Securities shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred upon the
Trustee, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders not taking part in such direction,
and"
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.12. WAIVER OF PAST DEFAULT.
The Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Securities may, on behalf of all
Holders, prior to the declaration of acceleration of the maturity of the
Securities, waive any past Default hereunder and its consequences, except a
Default
(A) in the payment of the principal, Redemption Price or Repurchase
Price of, or interest or any Liquidated Damages on, any Security not yet
cured,
(B) in respect of the failure by the Company to convert a Security in
accordance with the provisions of Article XII, or
(C) in respect of any covenant or provision hereof which, under
Article IX, cannot be modified or amended without the consent of the Holder
of each outstanding Security affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other Default or impair the exercise of any right arising therefrom.
SECTION 6.13. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action
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taken, suffered or omitted to be taken by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 6.13
shall not apply to any suit instituted by the Company, to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% of aggregate principal amount of then
outstanding Securities, or to any suit instituted by any Holder for
enforcement of the payment of any amount due on any Security on or after the
respective due date of such Security or of the conversion thereof.
SECTION 6.14. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
ARTICLE VII.
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 7.1. DUTIES OF TRUSTEE.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent Person would exercise or use under the circumstances in
the conduct of such Person's own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and the TIA and no others, and no covenants
or obligations shall be implied in or read into this Indenture or the
TIA which are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth
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of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.1.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.11.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or at the request, order or direction of the
Holders or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(e) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
(f) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c), (d) and (e) of this
Section 7.1.
SECTION 7.2. RIGHTS OF TRUSTEE.
Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document believed by it
in good faith to be genuine and to have been signed or presented by the proper
Person. The
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Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel of its own selection and may require an Officers'
Certificate or an Opinion of Counsel, which shall conform to Sections 13.4
and 13.5. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on and in accordance with such certificate
or advice of counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as
it may see fit.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have furnished to the Trustee (to the
extent not prohibited by the TIA) security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Unless otherwise specifically provided for in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer of the Company.
(h) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants in Article IV hereof. In addition,
the Trustee shall not be deemed to have knowledge of any Default or Event of
Default except (i) any Event of Default occurring pursuant to Section 6.1(1)
or 6.1(2), or (ii) any Default or Event of Default of which the Trustee shall
have received written notification or obtained actual knowledge.
(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder.
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SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, any of
its Subsidiaries, or their respective Affiliates with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities and it shall not be accountable for the
Company's use of the proceeds from the Securities, or the use or application of
any funds received by a Paying Agent other than the Trustee, and it shall not be
responsible for any statement in the Securities, other than the Trustee's
certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Securityholder notice of
the uncured Default or Event of Default within 90 days after such Default or
Event of Default occurs. Except in the case of a Default or an Event of Default
in payment of any amount due on a Security, the Trustee may withhold the notice
if and so long as a Trust Officer in good faith determines that withholding the
notice is in the best interest of the Securityholders.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, if required by law, mail to each
Securityholder a brief report dated as of such May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Sections 313(b)
and 313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automated quotation system and
any delisting thereof.
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC, if required by law, and
each stock exchange or automated quotation system, if any, on which the
Securities are listed.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Company agrees to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall not
be limited by
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any provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances reasonably incurred or made
by it in accordance with any of the provisions of this Indenture. Such
expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents, accountants, experts and counsel.
The Company agrees to indemnify the Trustee (in its capacity as
Trustee) and each of its officers, directors, attorneys-in-fact and agents for,
and hold it harmless against, any and all claims (whether asserted by the
Company, any Holder or any other Person), demands, expenses (including, but not
limited to, reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel), loss or liability incurred by it without negligence, bad
faith or willful misconduct on its part, arising out of or in connection with
the acceptance or administration of this trust and its rights or duties
hereunder including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company need not pay for any settlement made without its written
consent (which consent shall not be unreasonably withheld). The Company need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.7, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Securities on all assets held or collected by the Trustee, in its capacity as
Trustee, except assets held in trust to pay any amounts due on particular
Securities pursuant to Article III.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(5) and (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.7 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the discharge
of the Company's obligations pursuant to Article VIII of this Indenture and any
rejection or termination of this Indenture under any Bankruptcy Law.
SECTION 7.8. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing. The
Holder or Holders of a majority in principal amount of then outstanding
Securities may remove the Trustee by so notifying the Company and the Trustee in
writing. The Company may remove the Trustee if:
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(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, custodian or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 7.8.
If the instrument of acceptance by a successor Trustee required by
this Section 7.8 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation or removal, the resigning or
removed Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. At any time within one year after a successor Trustee appointed by the
Company takes office, the Holder or Holders of a majority in principal amount of
then outstanding Securities may, with the Company's consent, appoint a successor
Trustee to replace such successor Trustee as so appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all sums owing to the retiring Trustee provided for in Section
7.7 have been paid, the retiring Trustee shall transfer all property held by it
as trustee to the successor Trustee, subject to the lien provided in Section
7.7, the resignation or removal of the retiring Trustee shall become effective,
and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the Company or any Holder or Holders of
at least 10% in principal amount of then outstanding Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder or
Holders of at least 10% in principal amount of then outstanding Securities may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
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Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee, provided such
corporation shall be otherwise eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee has itself authenticated such Securities.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA
Section 310(a)(1), (2) and (5). The Trustee shall have a combined capital
and surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA Section
310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE
SECTION 8.1. SATISFACTION AND DISCHARGE OF INDENTURE.
The Company may terminate its obligations under this Indenture
(subject to the provisions of this Article VIII) when it shall have delivered to
the Trustee for cancellation all Securities theretofore authenticated (other
than any Securities which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Article II hereof) and the
following conditions shall be satisfied:
(1) The Company has paid all sums payable under the Indenture; and
(2) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of
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Counsel in the United States, each stating that all conditions precedent
have been complied with as contemplated by this Section 8.1.
SECTION 8.2. REPAYMENT TO THE COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, for the payment of any amount due on any Security and remaining
unclaimed for two years after such amount has become due and payable shall be
paid to the Company on its written request; and the Holder of such Security
shall thereafter look only to the Company for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money shall
thereupon cease.
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holder, the Company, when authorized by
Board Resolutions, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect or inconsistency, or to make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this
Indenture, provided, that such action pursuant to this clause (1) does not
adversely affect the rights of any Holder;
(2) to create additional covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon the
Company or to make any other change that does not adversely affect the
rights of any Holder;
(3) to provide for collateral for or guarantors of the Securities;
(4) to evidence the succession of another Person to the Company and
the assumption by any such successor of the obligations of the Company
herein and in the Securities in accordance with Article V; or
(5) to comply with the TIA.
SECTION 9.2. AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS WITH CONSENT OF
HOLDERS.
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Subject to the last sentence of this paragraph, with the consent of
the Holders of not less than a majority in aggregate principal amount of then
outstanding Securities, by written act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by Board Resolutions, and the
Trustee may amend or supplement this Indenture or the Securities or enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or the Securities or of modifying in any manner the rights of the
Holders under this Indenture or the Securities. Subject to the last sentence of
this paragraph, the Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Securities may, in writing, waive
compliance by the Company with any provisions of this Indenture or the
Securities. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall, without the consent of the Holder of
each outstanding Security affected thereby:
(1) change the Stated Maturity of, or any installment of interest on,
or the amount of any Liquidated Damages due with respect to, any Security
or reduce the principal amount, Redemption Price or Repurchase Price
thereof or the rate (or extend the time for payment) of interest or the
calculation of Liquidated Damages thereon, or change the place of payment
where, or the coin or currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the due date thereof or the
conversion of any Security, or alter the terms of this Indenture regarding
a Repurchase Offer (other than as set forth herein) or redemption
provisions in a manner adverse to the Holders, or modify the subordination
provisions in a manner adverse to the Holders;
(2) reduce the percentage in principal amount of the outstanding
Securities, the consent of whose Holders is required for any such
amendment, supplemental indenture or waiver provided for in this
Indenture;
(3) adversely affect the right of such Holder to convert Securities;
or
(4) provide that other provisions of the Indenture cannot be modified
or waived without consent of the Holder of each outstanding Security
affected thereby.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
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After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
After an amendment, supplement or waiver under this Section 9.2 or
Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or (at the option of the
Company) to all Holders, consideration for consent to such amendment, supplement
or waiver.
SECTION 9.3. COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of his Security by written notice to the
Company or the Person designated by the Company as the Person to whom consents
should be sent if such revocation is received by the Company or such Person
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company. If a record date is fixed, then notwithstanding the last sentence of
the immediately preceding paragraph, those Persons who were Holders at such
record date, and only those Persons (or their duly designated proxies), shall be
entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes
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a change described in any clauses (1) through (4) of Section 9.2, in which
case, the amendment, supplement or waiver shall bind only each Holder of a
Security who has consented to it and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security; provided, that any such waiver shall not impair or affect the right
of any Holder to receive payment of any amount due on a Security, on or after
the respective dates set for such amounts to become due and payable as then
expressed in such Security, or to bring suit for the enforcement of any such
payment or for conversion on or after such respective dates.
SECTION 9.5. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver such Security to
the Trustee or require the Holder to put an appropriate notation on the
Security. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms. Any failure to make the appropriate notation or to issue a new Security
shall not affect the validity of such amendment, supplement or waiver.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; provided, that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article IX is authorized or permitted by this Indenture and
that all conditions precedent have been satisfied.
ARTICLE X.
RIGHT TO REQUIRE REPURCHASE UPON A CHANGE OF CONTROL
SECTION 10.1. REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON A CHANGE OF
CONTROL.
(a) In the event that a Change of Control occurs, each Holder shall
have the right, at such Holder's option, subject to the terms and conditions of
this Indenture, to require the Company to offer to repurchase all or any part of
such Holder's Securities (provided, that the principal amount of such Securities
must be $1,000 or an integral multiple thereof) on a date to be established by
the Company (the "Repurchase Date") that is no later than 40 Business Days (as
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such date may be extended pursuant to clause (2) of subsection (b) of this
Section 10.1) after the occurrence of such Change of Control, at a price (the
"Repurchase Price") equal to 100% of the principal amount thereof, together with
accrued and unpaid interest and any Liquidated Damages on the Securities to, but
excluding, the Repurchase Date. The Repurchase Price shall be paid in Cash;
however, subject to the provisions of Section 10.2, the Repurchase Price
(excluding accrued and unpaid interest and any Liquidated Damages) may be paid
in shares of Common Stock.
(b) In the event that, pursuant to this Section 10.1, the Company
shall be required to commence an offer to purchase Securities (a "Repurchase
Offer"), the Company shall follow the procedures set forth in this Section 10.1
as follows:
(1) the Repurchase Offer shall commence within 20 Business Days
following a Change of Control;
(2) the Repurchase Offer shall remain open for 20 Business Days
following its commencement, except to the extent that a longer period is
required by applicable law, but in any case the Repurchase Offer must be
completed and the Repurchase Date must occur not more than 70 Business Days
following the Change of Control (the "Repurchase Offer Period");
(3) upon the expiration of a Repurchase Offer Period, the Company
shall purchase all Securities properly tendered in response to the
Repurchase Offer;
(4) if the Repurchase Date is after a Record Date and on or before
the related Interest Payment Date, any accrued interest and any Liquidated
Damages will be paid to the Person in whose name a Security is registered
at the close of business on such Record Date, and no additional interest or
Liquidated Damages will be payable to Securityholders who tender Securities
pursuant to the Repurchase Offer;
(5) the Company shall provide the Trustee with notice of the
Repurchase Offer at least 5 Business Days before the commencement of any
Repurchase Offer; and
(6) on or before the commencement of any Repurchase Offer, the
Company or the Trustee (upon the request and at the expense of the Company)
shall send, by first-class mail, a notice to each of the Securityholders,
which (to the extent consistent with this Indenture) shall govern the terms
of the Repurchase Offer and shall state:
(i) that the Repurchase Offer is being made pursuant to such
notice and
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this Section 10.1 and that all Securities, or portions thereof,
properly tendered will be accepted for purchase;
(ii) the Repurchase Price (including the amount of accrued and
unpaid interest and any Liquidated Damages), the Repurchase Date, the
Repurchase Put Date, and whether the Company will elect to pay the
Repurchase Price in Cash or shares of Common Stock (provided that
accrued and unpaid interest and any Liquidated Damages must be paid in
Cash);
(iii) that any Security, or portion thereof, not tendered or
accepted for payment will continue to accrue interest and, if
applicable, Liquidated Damages;
(iv) that, unless the Company defaults in depositing Cash and/or
Common Stock with the Paying Agent in accordance with the last
paragraph of this clause (b) or such payment is prevented pursuant to
Article XI, any Security, or portion thereof, accepted for payment
pursuant to the Repurchase Offer shall cease to accrue interest and
Liquidated Damages after the Repurchase Date;
(v) that Holders electing to have a Security, or a portion
thereof, purchased pursuant to a Repurchase Offer will be required to
surrender the Security, with the form entitled "Option of Holder To
Elect Purchase" on the reverse of the Security completed, to the
Paying Agent (which may not for purposes of this Section 10.1,
notwithstanding anything in this Indenture to the contrary, be the
Company or any Affiliate of the Company) at the address specified in
the notice prior to the close of business on the earlier of (a) the
third Business Day prior to the Repurchase Date and (b) the third
Business Day following the expiration of the Repurchase Offer (such
earlier date being the "Repurchase Put Date");
(vi) that Holders will be entitled to withdraw their election, in
whole or in part, if the Paying Agent (which may not for purposes of
this Section 10.1, notwithstanding anything in this Indenture to the
contrary, be the Company or any Affiliate of the Company) receives, up
to the close of business on the Repurchase
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Put Date, a facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Securities the Holder is
withdrawing and a statement that such Holder is withdrawing his
election to have such principal amount of Securities purchased; and
(vii) a brief description of the events resulting in such Change
of Control.
Any such Repurchase Offer shall comply with all applicable provisions
of Federal and state laws, including those regulating tender offers, if
applicable, and any provisions of this Indenture which conflict with such laws
shall be deemed to be superseded by the provisions of such laws. Without
limiting the generality of the foregoing, the Company shall comply with the
provisions of Rule 13e-4 and Rule 14e-1 under the Exchange Act, will file a
Schedule 13E-4 or any successor or similar schedule required thereunder, in each
case to the extent applicable to any Repurchase Offer.
On or before the Repurchase Date, the Company shall (i) accept for
purchase Securities or portions thereof properly tendered pursuant to the
Repurchase Offer on or before the Repurchase Put Date, (ii) deposit with the
Paying Agent Cash and/or (subject to the provisions of Section 10.2) Common
Stock sufficient to pay the Repurchase Price (together with Cash sufficient to
pay all accrued and unpaid interest and any Liquidated Damages) of all
Securities or portions thereof so tendered and (iii) deliver to the Trustee the
Securities so accepted together with an Officers' Certificate listing the
Securities or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to Holders of Securities so accepted payment in Cash or
Common Stock, in either case in an amount equal to the Repurchase Price
(together with Cash equal to all accrued and unpaid interest and any Liquidated
Damages, if payable to such Holders in accordance with the terms of this
Indenture), and the Trustee shall promptly authenticate and mail or deliver to
such Holders a new Security or Securities equal in principal amount to any
unpurchased portion of the Securities surrendered. Any Securities not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company will publicly announce the results of the Repurchase Offer
on or as soon as practicable after the Repurchase Date.
SECTION 10.2. ELECTION TO PAY REPURCHASE PRICE IN COMMON STOCK.
The Company may elect to pay the Repurchase Price (but not accrued
interest or any Liquidated Damages) by delivery of shares of Common Stock if,
and only if, the following conditions shall have been satisfied:
(1) The shares of Common Stock deliverable in payment of the
Repurchase Price shall have a fair
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market value as of the Repurchase Date of not less than the Repurchase
Price. For purposes of Section 10.1 and this Section, the fair market
value of shares of Common Stock shall be determined by the Company and
shall be equal to 95% of the average of the closing prices per share
for the five consecutive Trading Days immediately preceding the second
Trading Day prior to the Repurchase Date;
(2) The Repurchase Price shall be paid only in Cash in the event any
shares of Common Stock to be issued upon repurchase of the Securities
hereunder (i) require registration under the Securities Act before such
shares may be freely transferable without being subject to any transfer
restrictions under the Securities Act and if such registration is not
completed or does not become effective prior to the Repurchase Date and/or
(ii) require registration with or approval of any governmental authority
under any state law or any other federal law before such shares may be
validly issued or delivered upon repurchase and if such registration is not
completed or does not become effective or such approval is not obtained
prior to the Repurchase Date;
(3) Payment of the Repurchase Price may not be made in Common Stock
unless such Common Stock is, or shall have been, approved for listing on
the New York Stock Exchange or for quotation on the NASDAQ National Market,
in either case, prior to the Repurchase Date; and
(4) All shares of Common Stock which may be issued upon repurchase of
the Securities will be issued out of the Company's authorized but unissued
Common Stock and, upon issue, will be duly authorized and validly issued,
fully paid and non-assessable and will not be issued in violation of any
preemptive or similar rights.
If all of the conditions set forth in this Section 10.2 are not
satisfied in accordance with the terms hereof, the Repurchase Price shall be
paid by the Company only in Cash.
No fractions of shares or scrip representing fractions of shares
shall be issued in connection with any such repurchase. The Company shall
pay Cash in lieu thereof.
ARTICLE XI.
SUBORDINATION
SECTION 11.1. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company and each Holder, by its acceptance of Securities, agree
that (a) the payment of the principal of, premium, if any, interest on, or any
Liquidated Damages, with
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respect to, the Securities and (b) any other payment in respect of the
Securities, including on account of the acquisition or redemption of the
Securities by the Company (including, without limitation, pursuant to Article
X) are subordinated, to the extent and in the manner provided in this Article
XI, to the prior payment in full of all Senior Indebtedness of the Company,
whether outstanding at the date of this Indenture or thereafter created,
incurred, assumed or guaranteed, and that these subordination provisions are
for the benefit of the holders of Senior Indebtedness.
This Article XI shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and any one
or more of them may enforce such provisions.
SECTION 11.2. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) No payment may be made by the Company on account of the principal
of, premium, if any, interest on, or any Liquidated Damages, with respect to,
the Securities, or to acquire any of the Securities (including repurchases of
Securities at the option of the Holder pursuant to a Repurchase Offer) for cash
or property (other than pursuant to the conversion of Securities), or on account
of the redemption provisions of the Securities, (i) upon the maturity of any
Senior Indebtedness of the Company by lapse of time, acceleration (unless
waived) or otherwise, unless and until all principal of, premium, if any, and
interest on such Senior Indebtedness are first paid in full (or such payment is
duly provided for), or (ii) in the event of default in the payment of any
principal of, premium, if any, or interest on any Senior Indebtedness of the
Company when it becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration or otherwise (a "Payment Default"), unless and
until such Payment Default has been cured or waived or otherwise has ceased to
exist.
(b) Upon (i) the happening of a default or event of default (other
than a Payment Default) that permits, or would permit, with (w) the passage of
time, (x) the giving of notice, (y) the making of any payment in respect of the
Securities then required to be made, or (z) any combination thereof
(collectively, a "Non-Payment Default"), the holders of Designated Senior
Indebtedness or their representative immediately to accelerate the maturity of
any Designated Senior Indebtedness and (ii) written notice of such Non-Payment
Default given to the Company and the Trustee by the holders of Designated Senior
Indebtedness or their representative (a "Payment Blockage Notice"), then, unless
and until such Non-Payment Default has been cured or waived or otherwise has
ceased to exist, no payment (by setoff or otherwise) may be made by or on behalf
of the Company on account of the principal of, premium, if any, interest on, or
any Liquidated Damages, with respect to, the Securities, or to
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acquire or repurchase any of the Securities for cash or property, or on
account of the redemption provisions of the Securities, in any such case
other than payments made upon conversion of the Securities and other than
payments made with Junior Securities.
Notwithstanding the foregoing, unless (i) the Designated Senior
Indebtedness in respect of which such Non-Payment Default exists has been
declared due and payable in its entirety within 179 days after the Payment
Blockage Notice is delivered as set forth above (the "Payment Blockage Period"),
and (ii) such declaration has not been rescinded or waived, at the end of the
Payment Blockage Period, the Company shall be required to pay all sums not paid
to the Holders of the Securities during the Payment Blockage Period due to the
foregoing prohibitions and to resume all other payments as and when due on the
Securities. Not more than one Payment Blockage Notice may be given in any
365-day period, irrespective of the number of defaults with respect to
Designated Senior Indebtedness during such period. In no event, may the total
number of days during which any Payment Blockage Period or Payment Blockage
Periods are in effect exceed 179 days in the aggregate during any consecutive
365-day period.
(c) In furtherance of the provisions of Section 11.1, in the event
that, notwithstanding the foregoing provisions of this Section 11.2, any payment
or distribution of assets of the Company (other than pursuant to the conversion
of the Securities) shall be received by the Trustee or the Holders at a time
when such payment or distribution is prohibited by the provisions of this
Section 11.2, then such payment or distribution (subject to the provisions of
Section 11.7) shall be received and held in trust by the Trustee or such Holder
for the benefit of the holders of Senior Indebtedness of the Company, and shall
be paid or delivered by the Trustee or such Holders, as the case may be, to the
holders of Senior Indebtedness of the Company remaining unpaid or unprovided for
or their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness of the Company may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness of the
Company held or represented by each, for application to the payment of all
Senior Indebtedness of the Company remaining unpaid, to the extent necessary to
pay or provide for the payment of all such Senior Indebtedness in full after
giving effect to any concurrent payment or distribution of, or provision
therefor, to the holders of such Senior Indebtedness.
SECTION 11.3. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION.
Upon any distribution of assets of the Company upon any dissolution,
winding up, total or partial liquidation or reorganization of the Company,
whether voluntary or
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involuntary, in bankruptcy, insolvency, receivership or a similar proceeding
or upon assignment for the benefit of creditors or any marshalling of assets
or liabilities:
(a) the holders of all Senior Indebtedness of the Company shall first
be entitled to receive payments in full (or have such payment duly provided
for) before the Holders are entitled to receive any payment on account of
the principal of, premium, if any, interest on, and any Liquidated Damages,
with respect to, the Securities (other than Junior Securities);
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than Junior
Securities) to which the Holders or the Trustee on behalf of the Holders
would be entitled (by setoff or otherwise), except for the provisions of
this Article XI, shall be paid by the liquidating trustee or agent or other
Person making such a payment or distribution directly to the holders of
Senior Indebtedness of the Company or their representative to the extent
necessary to make payment in full of all such Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution, or
provision therefor, to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities (other than Junior Securities), shall be
received by the Trustee or the Holders or any Paying Agent (or, if the
Company or an Affiliate of the Company is acting as its own Paying Agent,
money for any such payment or distribution shall be segregated or held in
trust) on account of the Securities before all Senior Indebtedness of the
Company is paid in full, such payment or distribution (subject to the
provisions of Section 11.7) shall be received and held in trust by the
Trustee or such Holder or Paying Agent for the benefit of the holders of
such Senior Indebtedness, or their respective representative, ratably
according to the respective amounts of such Senior Indebtedness held or
represented by each, to the extent necessary to make payments as provided
herein of all such Senior Indebtedness remaining unpaid after giving effect
to all concurrent payments and distributions and all provisions therefor to
or for the holders of such Senior Indebtedness, but only to the extent that
as to any holder of such Senior Indebtedness, as promptly as practical
following notice from the Trustee to the holders of such Senior
Indebtedness that such prohibited payment has been received by the Trustee,
Holder(s) or Paying Agent (or has been segregated as
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provided above), such holder (or a representative therefor) notifies the
Trustee of the amounts then due and owing on such Senior Indebtedness, if
any, held by such holder and only the amounts specified in such notices to
the Trustee shall be paid to the holders of such Senior Indebtedness.
SECTION 11.4. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness of the
Company as provided herein, the Holders of Securities shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full, and for the
purpose of such subrogation no such payments or distributions to the holders of
such Senior Indebtedness by the Company, or by or on behalf of the Holders by
virtue of this Article XI, which otherwise would have been made to the Holders
shall, as between the Company and the Holders, be deemed to be payment by the
Company or on account of such Senior Indebtedness, it being understood that the
provisions of this Article XI are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
such Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article XI shall have been
applied, pursuant to the provisions of this Article XI, to the payment of
amounts payable under Senior Indebtedness of the Company, then the Holders shall
be entitled to receive from the holders of such Senior Indebtedness any payments
or distributions received by such holders of Senior Indebtedness in excess of
the amount sufficient to pay all amounts payable under or in respect of such
Senior Indebtedness in full.
SECTION 11.5. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article XI or elsewhere in this Indenture or
in the Securities is intended to or shall impair as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal, Redemption Price and Repurchase Price of, and
interest and any Liquidated Damages on, the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders and creditors of the Company
other than the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article XI, of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
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Notwithstanding anything to the contrary in this Article XI or
elsewhere in this Indenture or in the Securities, upon any distribution of
assets of the Company referred to in this Article XI, the Trustee, subject to
the provisions of Sections 7.1 and 7.2, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
Person making any distribution to the Trustee or to the Holders for the purpose
of ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other Indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XI so long as
such court has been apprised of the provisions of, or the order, decree or
certificate makes reference to, the provisions of this Article XI. Nothing in
this Article XI shall apply to the claims of, or payments to, the Trustee under
or pursuant to Sections 6.6 and 7.7.
SECTION 11.6. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN ABSENCE OF
NOTICE.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until a Trust Officer of the Trustee or any Paying Agent
shall have received, no later than one Business Day prior to such payment,
written notice thereof from the Company or from one or more holders of Senior
Indebtedness or from any representative therefor and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Sections 7.1
and 7.2, shall be entitled in all respects conclusively to assume that no such
fact exists.
SECTION 11.7. APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with this Indenture shall be for the sole benefit of Securityholders
and, to the extent allocated for the payment of Securities, shall not be subject
to the subordination provisions of this Article XI. Otherwise, any deposit of
assets with the Trustee or the Agent (whether or not in trust) for the payment
of any Securities shall be subject to the provisions of Sections 11.1, 11.2,
11.3 and 11.4; provided that, if prior to one Business Day preceding the date on
which by the terms of this Indenture any such assets may become distributable
for any purpose (including, without limitation, the payment of any amount due on
any Security) the Trustee or such Paying Agent shall not have received with
respect to such assets the written notice provided for in Section 11.6, then the
Trustee or such Paying Agent shall have full power and authority to receive such
assets and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such date.
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SECTION 11.8. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination provisions contained in this Article XI shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or be
otherwise charged with. The holders of Senior Indebtedness may extend, renew,
modify or amend the terms of the Senior Indebtedness or any security therefor
and release, sell or exchange such security and otherwise deal freely with the
Company, all without affecting the liabilities and obligations of the parties to
this Indenture or the Holders.
SECTION 11.9. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF
SECURITIES.
Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained in
this Article XI and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors of the Company),
the immediate filing of a claim for the unpaid balance of his Securities in the
form required in said proceedings and cause said claim to be approved. If the
Trustee does not file a proper claim or proof of debt in the form required in
such proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holders of the Senior Indebtedness or their
representative are or is hereby authorized to have the right to file and are or
is hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 11.10. RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all of the rights set forth in this
Article XI in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness, and nothing in this
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Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
SECTION 11.11. ARTICLE XI NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make any payment due on the Securities by reason of
any provision of this Article XI shall not be construed as preventing the
occurrence of a Default or an Event of Default under Section 6.1 or in any
way prevent the Holders from exercising any right hereunder other than the
right to receive payment on the Securities.
SECTION 11.12. NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Securities or the Company or
any other Person, cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article XI or otherwise. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or observe only such of its covenants or obligations as are specifically set
forth in this Article and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the
Trustee. Nothing in this Section 11.12 shall affect the obligation of any other
such Person to hold such payment for the benefit of, and to pay such payment
over to, the holders of Senior Indebtedness or their representative.
ARTICLE XII.
CONVERSION OF SECURITIES
SECTION 12.1. CONVERSION PRIVILEGE.
Subject to and upon compliance with the provisions of this Article
XII, at the option of the Holder thereof, any Security may at any time following
the latest date of initial issuance of the Securities and prior to the close of
business on the Stated Maturity of the Securities, be converted, in whole, or in
part in multiples of $1,000 principal amount, into fully paid and non-assessable
shares of Common Stock issuable upon conversion of the Securities, at the
Conversion Price in effect at the Date of Conversion, unless such Security or
some portion thereof shall have been called for redemption or delivered for
repurchase and not withdrawn prior to such date in which case, with respect to
such Security or portion thereof as has been so called for redemption or
delivered for repurchase and not withdrawn, such Security or portion thereof may
be so converted until and including, but not after, the close of business on the
Business Day immediately prior to the Redemption Date or Repurchase Date, as
applicable, for such Security, unless the Company subsequently fails to pay the
applicable Redemption Price or
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Repurchase Price, as the case may be. A Holder of Securities is not entitled
to any rights of a Holder of Common Stock until such Holder has converted
such Holder's Securities into Common Stock, and then only to the extent such
Securities are deemed to have been converted into Common Stock under this
Article XII.
SECTION 12.2. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege with respect to any
Security in certificated form, the Holder of any Security to be converted shall
surrender such Security to the Company at any time during usual business hours
at its office or agency maintained for the purpose as provided in this
Indenture, accompanied by a fully executed written notice, in substantially the
form set forth on the reverse of the Security, that the Holder elects to convert
such Security or a stated portion thereof constituting a multiple of $1,000
principal amount, and, if such Security is surrendered for conversion during the
period between the close of business on any Record Date and the opening of
business on the next following Interest Payment Date and has not been called for
redemption on a Redemption Date which occurs within such period, accompanied
also by payment of an amount equal to the interest and any Liquidated Damages
payable on such Interest Payment Date on the principal amount of the Securities
being surrendered for conversion, notwithstanding such conversion.
Such notice of conversion shall also state the name or names (with
address) in which the certificate or certificates for shares of Common Stock
shall be issued. Securities surrendered for conversion shall (if reasonably
required by the Company or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company duly executed by, the Holder or his attorney duly authorized in writing.
In order to exercise the conversion privilege with respect to any
interest in a Security in global form, the beneficial Holder must complete the
appropriate instruction form for conversion pursuant to the Depositary's
book-entry conversion program, deliver by book-entry delivery an interest in
such Security in global form, furnish appropriate endorsements and transfer
documents if required by the Company or the Trustee, and pay the funds, if any,
required by this Section 12.2.
As promptly as practicable after the receipt of such notice and the
surrender of such Security as aforesaid, the Company shall, subject to the
provisions of Section 12.8 hereof, issue and deliver at such office or agency to
such Holder, or on his written order, a certificate or certificates for the
number of full shares of Common Stock issuable on such conversion of Securities
in accordance with the provisions of this Article XII and Cash, as provided in
Section 12.3 hereof, in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion. Such conversion shall be deemed to
have been effected immediately prior to the
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close of business on the date (herein called the "Date of Conversion") on
which such Security shall have been surrendered as aforesaid, and the Person
or persons in whose name or names any certificate or certificates for shares
of Common Stock shall be issuable upon such conversion shall be deemed to
have become on the Date of Conversion the holder or holders of record of the
shares represented thereby; provided, however, that any such surrender on any
date when the stock transfer books of the Company shall be closed shall cause
the Person or Persons in whose name or names the certificate or certificates
for such shares are to be issued to be deemed to have become the record
holder or holders thereof for all purposes at the opening of business on the
next succeeding day on which such stock transfer books are open but such
conversion shall nevertheless be at the Conversion Price in effect at the
close of business on the date when such Security shall have been so
surrendered with the conversion notice.
In the case of conversion of a portion, but less than all, of a
Security, the Company shall as promptly as practicable execute, and the Trustee
shall authenticate and deliver to the Holder thereof, at the expense of the
Company, a Security or Securities in the aggregate principal amount of the
unconverted portion of the Security surrendered. Upon the conversion of an
interest in a Security in global form, the Trustee shall make a notation of such
Security in global form as to the reduction in the principal amount represented
thereby as a result of such conversion. Except as otherwise expressly provided
in this Indenture, no payment or adjustment shall be made for interest accrued
on any Security (or portion thereof) converted or for dividends or distributions
on any Common Stock issued upon conversion of any Security.
SECTION 12.3. FRACTIONAL INTERESTS.
No fractions of shares or scrip representing fractions of shares shall
be issued upon conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities so surrendered. If
any fraction of a share of Common Stock would, except for the foregoing
provisions of this Section 12.3, be issuable on the conversion of any Security
or Securities, the Company shall make payment in lieu thereof in an amount of
Cash equal to the value of such fraction computed on the basis of the last sale
price of the Common Stock as reported on the Nasdaq National Market (or if not
quoted thereon, then on the principal national securities exchange or on the
principal automated quotation system on which the Common Stock is listed or
admitted to trading) at the close of business on the Date of Conversion, or if
no such sale takes place on such day, the last sale price for such day shall be
the average of the closing bid and asked prices (regular way) on the Nasdaq
National Market (or if not quoted thereon, on the principal national securities
exchange or on the principal automated quotation system on which the Common
Stock is listed or admitted to trading) for
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such day (any such last sale price being hereinafter referred to as the "Last
Sale Price").
If on such Trading Day the Common Stock is not quoted by any such
organization, the fair value of such Common Stock on such day, as reasonably
determined in good faith by the Board of Directors of the Company, shall be
used.
SECTION 12.4. CONVERSION PRICE.
The conversion price per share of Common Stock issuable upon conversion of the
Securities (herein called the "Conversion Price") shall initially be $28.5075
(or $28.5075 in principal amount of Securities for each such share of Common
Stock).
SECTION 12.5. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price shall be subject to adjustment from time to time
as follows:
(a) In each case the Company shall make or pay a dividend or make a
distribution in shares of Common Stock on any class of Capital Stock of the
Company, the Conversion Price in effect immediately following the record
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding at the close of business on such date
and the denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution. An
adjustment made pursuant to this subsection (a) shall become effective
immediately, except as provided in subsections (i) and (j) below, after
such record date."
(b) In the case the Company shall (1) subdivide its outstanding
shares of Common Stock into a greater number of shares or (2) combine or
reclassify its outstanding shares of Common Stock into a smaller number of
shares, the Conversion Price in effect immediately following the
effectiveness of such action shall be adjusted by multiplying such
Conversion Price by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding immediately prior to such subdivision
or combination and the denominator shall be the number of shares
outstanding immediately after giving effect to such subdivision or
combination. An adjustment made pursuant to this subsection (b) shall
become effective immediately, except as provided in subsections (i) and (j)
below, after the effective date of a subdivision or combination.
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(c) In case the Company shall issue rights, options or warrants to
all holders of Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the then current
market price per share of the Common Stock (as determined pursuant to
subsection (g) below) on the record date fixed for determination of the
stockholders entitled to receive such rights, options or warrants, the
Conversion Price in effect immediately following such record date shall be
adjusted to a price, computed to the nearest cent, so that the same shall
equal the price determined by multiplying:
(i) such Conversion Price by a fraction, of which
(ii) the numerator shall be (A) the number of shares of Common
Stock outstanding on such record date plus (B) the number of shares
which the aggregate offering price of the total number of shares so
offered for subscription or purchase would purchase at such current
market price (determined by multiplying such total number of shares by
the exercise price of such rights, options or warrants and dividing
the product so obtained by such current market price), and of which
(iii) the denominator shall be (A) the number of shares of Common
Stock outstanding on such record date plus (B) the number of
additional shares of Common Stock which are so offered for
subscription or purchase.
Such adjustment shall become effective immediately, except as provided
in subsections (i) and (j) below, after the record date for the
determination of holders entitled to receive such rights, options or
warrants; provided, however, that if any such rights, options or warrants
issued by the Company as described in this subsection (c) are only
exercisable upon the occurrence of certain triggering events, then the
Conversion Price will not be adjusted as provided in this subsection (c)
until such triggering events occur.
(d) In case the Company shall distribute to all holders of Common
Stock, any of its assets, evidences of indebtedness, cash or securities
(other than (x) dividends or distributions exclusively in cash, or (y) any
dividend or distribution for which an adjustment is required to be made in
accordance with subsection (a) or (c) above or (z) any distribution of
rights or warrants subject to
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subsection (l) below) then in each such case the Conversion Price in effect
immediately following the record date fixed for the determination of the
stockholders entitled to such distribution) shall be adjusted so that the
same shall equal the price determined by multiplying such Conversion Price
by a fraction of which the numerator shall be the then current market price
per share of the Common Stock (determined as provided in subsection
(g) below) on such record date less the then fair market value (as
reasonably determined in good faith by the Board of Directors of the
Company) of the portion of the assets so distributed applicable to one
share of Common Stock, and of which the denominator shall be such current
market price per share of the Common Stock. Such adjustment shall become
effective immediately, except as provided in subsections (i) and (j) below,
after the record date for the determination of stockholders entitled to
receive such distribution.
(e) In case the Company shall make any distribution consisting
exclusively of cash (excluding any cash portion of distributions for which
an adjustment is required to be made in accordance with subsection (d)
above, or cash distributed upon a merger or consolidation to which Section
12.6 applies) to all holders of Common Stock in an aggregate amount that,
combined together with (i) all other such all-cash distributions made
within the then preceding 12 months in respect of which no adjustment
pursuant to this subsection (e) has been made and (ii) any cash and the
fair market value of other consideration paid or payable in respect of any
tender or exchange offer by the Company or any of its Subsidiaries for
Common Stock concluded within the preceding 12 months in respect of which
no adjustment has been made, exceeds 10% of the Company's market
capitalization (defined as being the product of the then current market
price per share of the Common Stock (determined as provided in subsection
(g) below) times the number of shares of Common Stock then outstanding) on
the record date fixed for the determination of the stockholders entitled to
such distribution, in each such case the Conversion Price immediately
following such record date shall be adjusted so that the same shall equal
the price determined by multiplying such Conversion Price by a fraction of
which the numerator shall be the then current market price per share of the
Common Stock on such record date less the amount of the cash and/or fair
market value (as reasonably determined in good faith by the Board of
Directors of the Company) of other consideration so distributed applicable
to one share of Common Stock, and of which the denominator shall be such
current market price per share of the Common Stock. Such adjustment shall
become effective immediately,
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except as provided in subsections (i) and (j) below, after the record date
for the determination of stockholders entitled to receive such
distribution.
(f) In case the Company or any Subsidiary of the Company shall
complete a tender or exchange offer for all or any portion of the Common
Stock (any such tender or exchange offer being referred to as an "Offer")
that involves an aggregate consideration having a fair market value as of
the expiration of such Offer (the "Expiration Date") that, together with
(i) any cash and the fair market value of any other consideration payable
in respect of any other tender or exchange offer, as of the expiration of
such other tender or exchange offer, expiring within the 12 months
preceding the expiration of such Offer and in respect of which no
Conversion Price adjustment pursuant to this subsection (f) has been made
and (ii) the aggregate amount of any all-cash distributions referred to in
subsection (e) of this Section 12.5 to all holders of Common Stock within
the 12 months preceding the expiration of such Offer for which no
Conversion Price adjustment pursuant to such subsection (e) has been made,
exceeds 10% of the Company's market capitalization (defined as the product
of the then current market price per share of the Common Stock on the
Expiration Date (determined as provided in subsection (g) below) times the
number of shares of Common Stock outstanding (including any tendered
shares) on the Expiration Date), the Conversion Price in effect immediately
following such Expiration Date shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be (i) the
product of the then current market price per share (determined as provided
in subsection (g) below) of the Common Stock on the Expiration Date times
the number of shares of Common Stock outstanding (including any tendered
shares) on the Expiration Date minus (ii) the fair market value of the
aggregate consideration payable to stockholders based on the acceptance (up
to any maximum specified in the terms of the Offer) of all shares validly
tendered and not withdrawn as of the Expiration Date (the shares deemed so
accepted being referred to as the "Purchased Shares") and the denominator
shall be the product of (i) such current market price per share on the
Expiration Date times (ii) such number of outstanding shares on the
Expiration Date less the number of Purchased Shares, such reduction to
become effective immediately prior to the opening of business on the day
following the Expiration Date.
For purposes of this subsection (f), the fair market value of any
consideration with respect to an Offer shall be reasonably determined in
good faith
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by the Board of Directors of the Company and described in a Board
Resolution.
(g) For the purposes of any computation under subsections (c), (d),
(e) and (f) above, the current market price per share of Common Stock on
any date shall be deemed to be the average of the Last Sale Prices of a
share of Common Stock for the five consecutive Trading Days selected by the
Company commencing not more than 20 Trading Days before, and ending not
later than, the earlier of the date in question and the day before the
"'ex' date," with respect to the issuance, distribution or Offer requiring
such computation. If on any such Trading Day the Common Stock is not
quoted by any organization referred to in the definition of Last Sale Price
in Section 12.3, the fair value of the Common Stock on such day, as
reasonably determined in good faith by the Board of Directors of the
Company, shall be used. For purposes of this paragraph, the term "'ex'
date," when used with respect to any issuance, distribution or payments
with respect to an Offer, means the first date on which the Common Stock
trades regular way on the Nasdaq National Market (or if not quoted thereon,
then on the principal national securities exchange or automated quotation
system if the Common Stock is listed or admitted to trading thereon)
without the right to receive such issuance, distribution or Offer.
(h) In addition to the foregoing adjustments in subsections (a), (b),
(c), (d), (e) and (f) above, the Company from time to time and to the
extent permitted by applicable law, shall be permitted to reduce the
Conversion Price by any amount for any period of at least 20 Business Days,
in which case the Company shall give at least 15 days' notice of such
reduction, if the Board of Directors has made a determination that such
reduction would be in the best interests of the Company, which
determination shall be conclusive. The Company, at its option, shall be
permitted to make such other reductions in the Conversion Price, in
addition to those set forth above in subsections (a), (b), (c), (d), (e),
(f) and the first sentence of this subsection (h), as the Board of
Directors deems advisable to avoid or diminish any income tax to holders of
Common Stock resulting from any dividend or distribution of stock (or
rights to acquire stock) or from any event treated as such a dividend or
distribution for United States federal income tax purposes.
(i) In any case in which this Section 12.5 shall require that an
adjustment be made immediately following a record date, the Company may
elect to defer the effectiveness of such adjustment (but in
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no event until a date later than the effective time of the event giving
rise to such adjustment), in which case the Company shall, with respect
to any Security converted after such record date and on and before such
adjustment shall have become effective (i) defer paying any Cash payment
pursuant to Section 12.3 hereof or issuing to the Holder of such Security
the number of shares of Common Stock and other capital stock of the Company
(or other assets or securities) issuable upon such conversion in excess of
the number of shares of Common Stock and other Capital Stock of the Company
issuable thereupon only on the basis of the Conversion Price prior to
adjustment, and (ii) not later than five Business Days after such
adjustment shall have become effective, pay to such Holder the appropriate
Cash payment pursuant to Section 12.3 hereof and issue to such Holder the
additional shares of Common Stock and other Capital Stock of the Company
issuable on such conversion.
(j) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1.0% of
the Conversion Price; provided, that any adjustments which by reason of
this subsection (j) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations
under this Article XII shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
(k) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each conversion agent
an Officers' Certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment, and (ii) mail or cause to be mailed a
notice of such adjustment to each holder of Securities at his address as
the same appears on the registry books of the Company.
(l) In the event that the Company distributes rights or warrants
(other than those referred to in subsection (c) above) pro rata to holders
of Common Stock, so long as any such rights or warrants have not expired or
been redeemed by the Company, the Company shall make proper provision so
that the Holder of any Note surrendered for conversion will 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
or warrants to be determined as follows: (i) if such conversion occurs on
or prior to the date for the distribution to the holders of rights
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or warrants of separate certificates evidencing such rights or warrants
(the "Distribution Date"), the same number of rights or warrants 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 or warrants,
and (ii) if such conversion occurs after such Distribution Date, the same
number of rights or warrants to which a holder of the number of shares of
Common Stock into which the principal amount of such Note so converted was
convertible immediately prior to such Distribution Date would have been
entitled on such Distribution Date in accordance with the terms and
provisions of and applicable to the rights or warrants.
SECTION 12.6. CONTINUATION OF CONVERSION PRIVILEGE IN CASE OF
RECLASSIFICATION, MERGER, CONSOLIDATION OR SALE OF ASSETS.
If any of the following shall occur, namely:
(a) any reclassification of outstanding shares of Common Stock
issuable upon conversion of the Securities (other than a change in par
value, or from par value to no par value, or from no par value, to par
value, or as a result of a subdivision or combination),
(b) any consolidation or merger of the Company with or into any other
Person, or the merger of any other Person with or into the Company (other
than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock) or
(c) any sale, transfer or conveyance of all or substantially all of
the assets of the Company,
then the Company, or such successor or purchasing entity, as the case may be,
shall, without the consent of any Holder of Securities but subject to such
Holder's rights pursuant to Section 5.1 or Article X hereof, as a condition
precedent to such reclassification, consolidation, merger, sale or conveyance,
execute and deliver to the Trustee a supplemental indenture providing that the
Holder of each Security then outstanding shall have the right to convert such
Security only into the kind and amount of shares of stock and other securities
and property (including cash) receivable upon such reclassification,
consolidation, merger, sale, transfer or conveyance by a holder of the number of
shares of Common Stock issuable upon conversion of such Security immediately
prior to such reclassification, consolidation, merger, sale, transfer or
conveyance assuming such holder of Common Stock of the Company failed to
exercise his rights of an election, if any, as to the kind or amount of
securities, cash and other property receivable upon such reclassification,
consolidation,
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merger, sale, transfer or conveyance (provided that if the kind or amount of
securities, cash, and other property receivable upon such reclassification,
consolidation, merger, sale, transfer or conveyance is not the same for each
share of Common Stock of the Company held immediately prior to such
reclassification, consolidation, merger, sale, transfer or conveyance in
respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section 12.6 the kind
and amount of securities, cash and other property receivable upon such
reclassification, consolidation, merger, sale, transfer or conveyance by
each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article XII. If, in the case of any such consolidation, merger, sale or
conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of shares of Common Stock includes shares of
stock or other securities and property (including cash) of a corporation
other than the successor or purchasing corporation, as the case may be, in
such consolidation, merger, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holders of the
Securities as the Board of Directors of the Company shall reasonably consider
necessary by reason of the foregoing. The provisions of this Section 12.6
shall similarly apply to successive consolidations, mergers, sales or
conveyances.
Notice of the execution of each such supplemental indenture shall be
mailed to each Holder of Securities at his address as the same appears on the
registry books of the Company.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities after any such
reclassification, consolidation, merger, sale or conveyance or to any
adjustment to be made with respect thereto, but, subject to the provisions of
Article VIII hereof, may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, the Officers'
Certificate (which the Company shall be obligated to file with the Trustee prior
to the execution of any such supplemental indenture) with respect thereto.
SECTION 12.7. NOTICE OF CERTAIN EVENTS.
In case:
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(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Common Stock (other than cash dividends);
(b) the Company shall authorize the granting to the holders of Common
Stock of rights, warrants or options to subscribe for or purchase any
shares of stock of any class or of any other rights;
(c) the Company shall authorize any reclassification or change of the
Common Stock (including a subdivision or combination of its outstanding
shares of Common Stock), or any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the
Company is required, or the sale or conveyance of all or substantially all
the property or business of the Company;
(d) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company shall be proposed; or
(e) the Company or any of its Subsidiaries shall complete an Offer;
then, the Company shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Securities as provided in Section 12.2 hereof,
and shall cause to be mailed to each Holder of Securities, at his address as it
shall appear on the registry books of the Company, at least 20 days before the
date hereinafter specified (or the earlier of the dates hereinafter specified,
in the event that more than one date is specified), a notice stating the date on
which (1) a record is expected to be taken for the purpose of such dividend,
distribution, rights, warrants or options or Offer, or if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, rights, warrants or options or to participate in
such Offer are to be determined, or (2) such reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding-up is expected to
become effective and the date, if any is to be fixed, as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up.
SECTION 12.8. TAXES ON CONVERSION.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Common Stock on conversion of Securities therefor; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in
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the issue or delivery of shares of Common Stock in a name other than that of
the Holder of the Securities to be converted and no such issue or delivery
shall be made unless and until the Person requesting such issue or delivery
has paid to the Company the amount of any such tax or has established, to the
satisfaction of the Company, that such tax has been paid. The Company extends
no protection with respect to any other taxes imposed in connection with
conversion of Securities.
SECTION 12.9. COMPANY TO PROVIDE STOCK.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares of Common Stock, sufficient shares of Common
Stock to provide for the conversion of the Securities from time to time as such
Securities are presented for conversion, provided, that nothing contained herein
shall be construed to preclude the Company from satisfying its obligations in
respect of the conversion of Securities by delivery of repurchased shares of
Common Stock which are held in the treasury of the Company.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Company will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
SECTION 12.10. DISCLAIMER OF RESPONSIBILITY FOR CERTAIN MATTERS.
Neither the Trustee nor any agent of the Trustee shall at any time be
under any duty or responsibility to any Holder of Securities to determine
whether any facts exist which may require any adjustment of the Conversion
Price, or with respect to the Officers' Certificate referred to in Section 12.5,
or with respect to the nature or extent of any such adjustment when made, or
with respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any agent
of the Trustee shall be accountable with respect to the validity or value (or
the kind or amount) of any shares of Common Stock, or of any securities or
property (including Cash), which may at any time be issued or delivered upon the
conversion of any Security; and neither the Trustee nor any conversion agent
makes any representation with respect thereto. Neither the Trustee nor any
agent of the Trustee shall be responsible for any failure of the Company to
issue, register the transfer of or deliver any shares of Common Stock or stock
certificates or other securities or property (including Cash) upon the surrender
of any Security for the
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purpose of conversion or, subject to Article VIII hereof, to comply with any
of the covenants of the Company contained in this Article XII.
SECTION 12.11. RETURN OF FUNDS DEPOSITED FOR REDEMPTION OF CONVERTED
SECURITIES.
Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any other Paying Agent for the purpose of
paying the principal, Redemption Price or Repurchase Price of and interest on
any of the Securities and which shall not be required for such purposes because
of the conversion of such Securities, as provided in this Article XII, shall
after such conversion be repaid to the Company by the Trustee or such other
Paying Agent.
ARTICLE XIII.
MISCELLANEOUS
SECTION 13.1. TIA.
This Indenture is hereby made subject to, and shall be governed, by,
the provisions of the TIA required to be part of and to govern indentures
qualified under the TIA. If any provision of this Indenture limits, qualifies,
or conflicts with the duties imposed by operation of the TIA, the imposed
duties, whether or not this Indenture has been qualified under the TIA, shall
control.
SECTION 13.2. NOTICES.
Any notices or other communications to the Company or the Trustee
required or permitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery, by telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
if to the Company:
Getty Images, Inc.
2013 Fourth Avenue
Fourth Floor
Seattle, Washington 98121
Attention: Heather B. Redman, General Counsel
Telecopy: (206) 695-3401
if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration,
Telecopy: (212) 815-5915
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Any party by notice to each other party may designate additional or different
addresses as shall be furnished in writing by such party. Any notice or
communication to any party shall be deemed to have been given or made as of the
date so delivered, if personally delivered; when receipt is acknowledged, if
telecopied; and five Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA Section 312(c).
SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) An Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 13.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
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(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 13.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 13.7. PAYMENT DATES.
If a payment date is not a Business Day at the place for payment,
payment may be made at such place on the next succeeding Business Day, and no
interest shall accrue for the intervening period.
SECTION 13.8. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
SECTION 13.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.10. NO RECOURSE AGAINST OTHERS.
No direct or indirect partner, employee, stockholder, director or
officer, as such, past, present or future of the Company or any successor
corporation, shall have any personal liability in respect of the obligations of
the Company under the Securities or this Indenture by reason of
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his, her or its status as such partner, stockholder, employee, director or
officer. Each Securityholder by accepting a Security waives and releases all
such liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
SECTION 13.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 13.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
SECTION 13.13. SEVERABILITY.
In case any one or more of the provisions in this Indenture or in the
Securities shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 13.14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
GETTY IMAGES, INC. a Delaware corporation
By:
--------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
--------------------------
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF SECURITY]
GETTY IMAGES, INC.
4.75% CONVERTIBLE SUBORDINATED NOTE DUE 2003
No._______ CUSIP No.
$____________
Getty Images, Inc., a Delaware corporation (hereinafter called the
"Company," which term includes any successors under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ________ or
registered assigns, the principal sum of ________ Million Dollars, on June 1,
2003.
Interest Payment Dates: June 1 and December 1; commencing December 1,
1998.
Record Dates: May 15 and November 15.
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
A-1
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
GETTY IMAGES, INC. a Delaware
corporation
By: Jonathan D. Klein
-----------------------------
Name: JONATHAN D. KLEIN
Title: Chief Executive Officer
THE BANK OF NEW YORK, as Trustee
By:
----------------------------
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
GETTY IMAGES, INC. a Delaware
corporation
By: /s/ Jonathan D. Klein
-----------------------------
Name: Jonathan D. Klein
Title: Chief Executive Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Walter N. Gitlin
----------------------------
Name: WALTER N. GITLIN
Title: Vice President
<PAGE>
[FORM OF REVERSE SIDE OF NOTE]
GETTY IMAGES, INC.
4.75% CONVERTIBLE SUBORDINATED NOTE DUE 2003
[For Global Securities Only:]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY," WHICH TERM INCLUDES ANY
SUCCESSOR DEPOSITARY FOR THE CERTIFICATES) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY, AND ANY PAYMENT HEREIN IS MADE TO
CEDE & CO. (OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(1)
[For all Securities:]
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD, EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER: (1) REPRESENTS THAT (A) IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN COMPLIANCE WITH RULE 144A OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER
THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT
IT WILL NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (THE "RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE
(OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND
- -----------------
1. This paragraph should be added only if the Security is issued in global
form.
A-3
<PAGE>
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY
EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
SUCH TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE), (D) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION PROVIDED UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY
BEFORE THE RESTRICTION TERMINATION DATE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE BANK OF NEW YORK, AS TRUSTEE
(OR A SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS
PURSUANT TO CLAUSE (C) OR (D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(E) ABOVE OR UPON THE
RESTRICTION TERMINATION DATE.
__________________________________
1. Interest.
The Company promises to pay interest on the principal amount of this
Security at the rate of 4.75% per annum. To the extent it is lawful, the
Company promises to pay interest on any interest payment due but unpaid on such
principal amount at a rate of 4.75% per annum compounded semi-annually.
The Company will pay interest semi-annually on June 1 and December 1
of each year (each, an "Interest Payment Date"), commencing December 1, 1998.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Securities, from
May 27, 1998. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
In certain cases, the Company will pay Liquidated Damages in
accordance with the provisions of the Registration
A-4
<PAGE>
Rights Agreement described in the Indenture referred to below. If payable,
Liquidated Damages will be due on the same dates on which stated interest is
due, and if not timely paid, will accrue interest thereon at the same rate as
overdue stated interest.
2. Method of Payment.
The Company shall pay interest and any Liquidated Damages on the
Securities (except defaulted amounts) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. Any such amount not so punctually paid, and
defaulted interest relating thereto, may be paid to the Persons who are
registered Holders at the close of business on a Special Record Date for the
payment of such defaulted amounts, as more fully provided in the Indenture
referred to below. Except as provided below, the Company shall pay all amounts
due on the Securities in such coin or currency of the United States of America
as at the time of payment shall be legal tender for payment of public and
private debts ("U.S. Legal Tender"). The Securities will be payable at the
office or agency of the Company maintained for such purpose within the Borough
of Manhattan, State of New York, or at the option of the Company, payment of
interest and any Liquidated Damages may be made by check mailed to the Holders
at their addresses set forth in the registry of Holders, and provided that
payment by wire transfer of immediately available funds will be required with
respect to (i) all amounts due on Global Securities and (ii) all interest and
any Liquidated Damages due on all other Securities of an aggregate principal
amount equal to at least $5,000,000, the Holders of which shall have provided
wire transfer instructions to the Company or the Paying Agent not less than
fifteen (15) days prior to the relevant payment date.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as Paying
Agent, Registrar and conversion agent. The Company may change any Paying Agent,
Registrar or co-Registrar or conversion agent without notice to the Holders.
The Company or any of its Subsidiaries may, subject to certain exceptions act as
Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
May 27, 1998 (the "Indenture"), between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act, as in effect on the date of the Indenture. The
Securities are subject to all such terms, and Holders of Securities are
referred to the Indenture and said Act for a statement of them. The
Securities are
A-5
<PAGE>
general unsecured, subordinated obligations of the Company limited in
aggregate principal amount of $75,000,000 ($86,250,000 if the over-allotment
is exercised in full).
5. Redemption.
The Securities may be redeemed in whole or from time to time in part
at any time on and after June 1, 2001, at the option of the Company, at the
Redemption Price (expressed as a percentage of principal amount) set forth below
with respect to the indicated Redemption Date, in each case, plus any accrued
but unpaid interest and any Liquidated Damages to, but excluding, the Redemption
Date.
If redeemed during the 12-month period beginning June 1,
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- -----------
<S> <C>
2001 . . . . . . . . . 101.90%
2002 . . . . . . . . . 100.95%
</TABLE>
Any such redemption will comply with Article III of the Indenture.
6. Notice of Redemption.
Notice of redemption will be sent by first class mail, postage
prepaid, at least 20 days prior to the Redemption Date to the Holder of each
Security to be redeemed at such Holder's last address as then shown upon the
registry books of the Registrar. Securities may be redeemed in part in
multiples of $1,000 only.
Except as set forth in the Indenture, from and after any Redemption
Date, if moneys for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent on such Redemption Date and payment of
the Securities called for redemption is not prohibited under Article XI of the
Indenture, the Securities called for redemption will cease to bear interest or
Liquidated Damages and the only right of the Holders of such Securities will be
to receive payment of the Redemption Price, plus any accrued and unpaid interest
and Liquidated Damages to the Redemption Date.
7. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange, Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption.
A-6
<PAGE>
8. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
9. Unclaimed Money.
If money for the payment of any amounts due on a Security remains
unclaimed for two years, the Trustee and the Paying Agent(s) will pay the money
back to the Company at its written request. After that, all liability of the
Trustee and such Paying Agent(s) with respect to such money shall cease.
10. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented, and any existing Default or Event of Default or
compliance with any provision may be waived, with the written consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Securities to, among other things,
cure any ambiguity, defect or inconsistency, or make any other change that does
not adversely affect the rights of any Holder of a Security.
11. Conversion Rights.
Subject to the provisions of the Indenture, the Holders have the right
to convert the principal amount of the Securities into fully paid and
nonassessable shares of Common Stock of the Company at the initial conversion
price per share of Common Stock of $28.5075 (or $28.5075 in principal amount of
Securities for each such share of Common Stock), or at the adjusted conversion
price then in effect, if adjustment has been made as provided in the Indenture,
upon surrender of the Security to the Company, together with a fully executed
notice in substantially the form attached hereto and, if required by the
Indenture, an amount equal to accrued interest and Liquidated Damages payable on
such Security.
12. Ranking.
Payment of principal, premium, if any, interest on, and any Liquidated
Damages, with respect to, the Securities is subordinated, in the manner and to
the extent set forth in the Indenture, to the prior payment in full of all
Senior Indebtedness.
13. Repurchase at Option of Holder Upon a Change of Control.
If there is a Change of Control, the Company shall be required to
offer to purchase on the Repurchase Date all outstanding Securities at a
Repurchase Price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest and any Liquidated Damages to, but excluding, the Repurchase
Date. Holders of Securities will receive a Repurchase Offer
A-7
<PAGE>
from the Company prior to any related Repurchase Date and may elect to have
such Securities purchased by completing the form entitled "Option of Holder
to Elect Purchase" appearing below. Subject to certain conditions set forth
in the Indenture, the Company may elect to pay such Repurchase Price (but not
accrued interest or Liquidated Damages) in shares of Common Stock.
14. Successors.
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
15. Defaults and Remedies.
If an Event of Default occurs and is continuing (other than an Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
Holders of 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Securities notice of any continuing Default or Event of
Default (except a Default in payment of principal or interest), if it determines
that withholding notice is in their interest.
16. Trustee Dealings with the Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No stockholder, director, officer or employee, as such, past, present
or future, of the Company or any successor corporation shall have any personal
liability in respect of the obligations of the Company under the Securities or
the Indenture by reason of his, her or its status as such stockholder, director,
officer or employee. Each Holder of a Security by accepting a Security waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
A-8
<PAGE>
18. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
21. Governing Law.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
A-9
<PAGE>
[FORM OF ASSIGNMENT]
I or we assign this Security to:,
__________________________________________________________
__________________________________________________________
__________________________________________________________
(Print or type name, address and zip code of assignee)
___________________________________________________________________
Please insert Social Security or other identifying number of assignee
and irrevocably appoint _______________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Dated:_________________ Signed:
___________________________________________
(Sign exactly as name appears on the other
side of this Security),
_______________________
Signature Guarantee
Signature guarantee should be made by a guarantor institution participating in
the Securities Transfer Agents Medallion Program or in such other guarantee
program acceptable to the Trustee.
A-10
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Article X of the Indenture, check the box:[__]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Article X of the Indenture, state the amount you want to
be purchased: $__________*.
Dated:______________ Signature(s):
__________________________________
(Sign exactly as name appears on
the other side of this Security)
*$1,000 or any integral multiple thereof
A-11
<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES
The following exchanges of a part of this Global Security have been made:
<TABLE>
<CAPTION>
Amount of Amount of
Decrease in Increase in Principal Amount of Signature of
Principal Principal this Global Security authorized
Date of Amount of this Amount of this following such Signatory of Trustee or
Exchange Global Security Global Security decrease (or increase) Securities Custodian
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
- --------------------
2 This Schedule should only be added if the Security is issued in global
form.
A-12
<PAGE>
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 4.75% CONVERTIBLE SUBORDINATED NOTES DUE 2003 OF GETTY IMAGES, INC.
This Certificate relates to $___________ principal amount of
Securities held *____________ in book-entry or *______________ definitive
form by ___________________ (the "Transferor").
1. The Transferor:*
[__] (a) has requested the Trustee by written order to deliver in exchange
for its beneficial interest in the Global Security held by the
Depositary a Security or Securities in definitive, registered form of
authorized denominations and an aggregate principal amount equal to
its beneficial interest in such Global Security (or the portion
thereof indicated above); or
[__] (b) has requested the Trustee by written order to exchange or
register the transfer of a Security or Securities.
2. In connection with any such request and in respect of each such
Security, the Transferor does hereby certify that Transferor is familiar with
the Indenture relating to the above-captioned Securities and as provided in
Section 2.6 of such Indenture, the transfer of this Security does not require
registration under the Securities Act because:
[__] (a) Such Security is being acquired for the Transferor's own account,
without transfer.
[__] (b) Such Security is being transferred to a person who the Transferor
reasonably believes is a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) purchasing for its own account
or for the account of a qualified institutional buyer over which it
exercises sole investment discretion that is aware that the transfer
is being made in reliance on Rule 144A.
[__] (c) Such Security is being transferred to an institutional investor
that is an "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act which delivers a certificate
in the form of Exhibit B to the Indenture to the Trustee. An Opinion
of Counsel, if so requested by the Company or the
- ----------------------
* Check applicable box.
A-13
<PAGE>
Trustee, to the effect that such transfer is in compliance with the
Securities Act accompanies this Certificate.
[__] (d) Such Security is being transferred in reliance on and in
compliance with another exemption from the registration requirements
of the Securities Act. An Opinion of Counsel, if so requested by the
Company or the Trustee, to the effect that such transfer is in
compliance with the Securities Act accompanies this Certificate.
________________________________
[INSERT NAME OF TRANSFEROR]
By: ___________________________
Date: _________________________
3. Affiliation with the Company [check if applicable]
[__] (a) The undersigned represents and warrants that it is, or at some
time during which it held this Security was, an Affiliate of the
Company.
(b) If 3(a) above is checked and if the undersigned was not an
Affiliate of the Company at all times during which it held this
Security, indicate the periods during which the undersigned was an
Affiliate of the Company.
________________________________
(c) If 3(a) above is checked and if the Transferee will not pay the
full purchase price for the transfer of this Security on or prior to
the date of transfer, indicate when such purchase price will be paid:
________________________________
TO BE COMPLETED BY TRANSFEREE IF 2(b) ABOVE IS CHECKED AND THE TRANSFEROR IS NOT
A QUALIFIED INSTITUTIONAL BUYER:
The undersigned represents and warrants that it is a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act of 1933,
as amended, and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information.
________________________________
[INSERT NAME OF TRANSFEROR]
By: ___________________________
Date: _________________________
A-14
<PAGE>
If none of the boxes under Section 2 of this certificate is checked or
if any of the above representations required to be made by the Transferee is not
made, the Registrar shall not be obligated to register this Security in the name
of any person other than the Holder hereof."
THE UNDERSIGNED HEREBY AGREES THAT, UNLESS THE BOX ABOVE UNDER ITEM
3(a) IS CHECKED, THE UNDERSIGNED SHALL BE DEEMED TO HAVE REPRESENTED THAT IT IS
NOT NOR HAS IT BEEN AT ANY TIME DURING WHICH IT HELD THIS SECURITY AN AFFILIATE,
AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT OF 1993, AS AMENDED, OF THE
COMPANY.
________________________________
[INSERT NAME OF TRANSFEROR]
By: ___________________________
Date: _________________________
NOTICE: The signature of the Holder to this assignment must correspond with
the name as written upon the face of this Security particular, without
alteration or any change whatsoever.
A-15
<PAGE>
EXHIBIT B
FORM OF ACCREDITED INVESTOR LETTER
Getty Images, Inc.
2013 Fourth Avenue
Fourth Floor
Seattle, Washington 98121
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
BT Alex. Brown Incorporated
BancAmerica Robertson Stephens
Donaldson, Lufkin & Jenrette Securities Corporation
Hambrecht & Quist LLC
Initial Purchasers in connection
with the Offering Memorandum
referred to below*
c/o BT Alex. Brown Incorporated
One South Street
Baltimore, Maryland 21202
Getty Images, Inc. c/o the Trustee
Ladies and Gentlemen:
In connection with our proposed purchase of $__________ of the 4.75%
Convertible Subordinated Notes due 2003 (the "Notes") of Getty Images, Inc.
(the "Company"), we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated May 20, 1998, relating to the Notes and such other
information as we deem necessary in order to make our investment decision. We
acknowledge that we have read and agreed to the matters stated in the section
entitled "Transfer Restrictions" of such Offering Memorandum.
2. We understand that any subsequent transfer of the Notes and the common
stock of the Company, par value $0.01 per share (the "Common Stock and, together
with the Notes, the "Securities"), is subject to certain restrictions and
conditions set forth in the indenture relating to the Notes (the "Indenture") as
described in the Offering Memorandum and the undersigned agrees to be bound by,
and not to resell, pledge or otherwise transfer the Securities except in
compliance with, such restrictions and conditions and the
- -------------------------
* The Initial Purchasers are to be addressees only of the
purchasers acquiring directly from the Initial Purchasers.
B-1
<PAGE>
Securities Act of 1933, as amended (the "Securities Act"), and all applicable
state securities laws.
3. We understand that the offer and sale of the Notes and the Common
Stock issuable in connection therewith have not been registered under the
Securities Act, and that the Notes and the Common Stock issuable in connection
therewith may not be offered or sold to, or for the account or benefit of, U.S.
persons except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell or otherwise transfer any Notes, or the Common
Stock issuable in connection therewith, we will do so only (i) to the Company or
any subsidiary thereof, (ii) to a "qualified institution buyer" (as defined in
Rule 144A under the Securities Act) in compliance with Rule 144A, (iii) to an
institutional "accredited investor" (as defined in Rule 501(a) (1), (2), (3) or
(7) under the Securities Act) that, prior to such transfer, furnishes to the
Trustee (as defined in the Indenture), in the case of the Notes, or the Transfer
Agent with respect to the Common Stock (the "Transfer Agent"), in the case of
the Common Stock issuable in connection therewith, a signed letter containing
certain representations and agreements relating to the restrictions on transfer
of the Notes or the Common Stock issuable in connection therewith, as the case
may be (the form of which letter can be obtained from the Trustee or the
Transfer Agent, as applicable), (iv) pursuant to the exemption from registration
provided by Rule 144 under the Securities (if available) or (v) pursuant to an
effective registration statement under the Securities Act (and which continues
to be effective at the time of such transfer), and we further agree to provide
to any person purchasing any of the Notes or Common Stock from us a notice
advising such purchaser that resales of the Notes and the Common Stock are
restricted as stated herein.
4. We understand that, on any proposed resale of any Notes or the Common
Stock, we will be required to furnish to the Trustee or the Transfer Agent, as
the case may be, and the Company, such certifications, legal opinions and other
information as the Trustee or the Transfer Agent, as the case may be, and the
Company, may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions.
We further understand that the Notes purchased by us and the Common Stock
issuable in connection therewith will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" and have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or their
investment, as the case may be.
6. We are acquiring the Notes purchased by us for our account or for one
or more accounts (each of which is an
B-2
<PAGE>
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You, the Company, the Trustee, the Transfer Agent and others are entitled
to rely upon this letter and are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
By:______________________
Name:
Title:
B-3
<PAGE>
EXHIBIT C
FORM OF CONVERSION NOTICE
To: Getty Images, Inc.
The undersigned registered owner of this Security hereby: (i)
irrevocably exercises the option to convert this Security, or the portion hereof
below designated, for shares of Common Stock of the Company in accordance with
the terms of the Indenture referred to in this Security and (ii) directs that
such shares deliverable upon the conversion, together with any check in payment
for fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below.
If shares are to be delivered registered in the name of a person other
than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereof. Any amount required to be paid by the undersigned on account
of interest and any Liquidated Damages accompanies this Security.
Dated:
------------------------
----------------------------
Signature(s)
Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks,
stock brokers, savings and loan
associations and credit unions) with
membership in an approved signature
guarantee medallion program pursuant to
Securities and Exchange Commission Rule
17AD-15 if shares of Common Stock are to
- ------------------------------ be issued, or Notes to be delivered,
Signature Guarantee other than to and in the name of the
registered holder.
<PAGE>
Fill in for registration of shares of Common Stock if to be issued,
and of Securities if to be delivered otherwise than to and in the name of the
registered holder.
__________________________________
Social Security or other Taxpayer
Identifying Number
(Name)___________________________________________________
(Street Address)_________________________________________
(City, State and Zip Code)_______________________________
Principal amount to be converted:
(if less than all)
$________________________________________
(Must be an integral multiple of $1,000)
<PAGE>
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of May 27, 1998
relating to
Up to $86,250,000 Aggregate Principal Amount
of 4.75% Convertible Subordinated
Notes due 2003
among
Getty Images, Inc.
and
BT Alex. Brown Incorporated,
BancAmerica Robertson Stephens,
Donaldson Lufkin & Jenrette Securities Corporation and
Hambrecht & Quist LLC
This Registration Rights Agreement (the "Agreement") is made and
entered into as of May 27, 1998 among Getty Images Inc., a Delaware corporation
(the "Company"), BT Alex. Brown Incorporated BancAmerica Robertson Stephens,
Donaldson, Lufkin & Jenrette Securities Corporation and Hambrecht & Quist LLC
(the "Initial Purchasers"), who have purchased $75,000,000 aggregate principal
amount ($86,250,000 aggregate principal amount if the over-allotment option is
exercised in full) of 4.75% Convertible Subordinated Notes due 2003 (the
"Notes") of the Company pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to a Purchase Agreement, dated May
20, 1998 (the "Purchase Agreement"), among the Company and the Initial
Purchasers. In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution and delivery of this Agreement is
a condition to closing under the Purchase Agreement. All defined terms used
but not defined herein shall have the meanings ascribed to them in the
Indenture (as defined herein).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
<PAGE>
CLOSING DATE: The last date of original issuance of the Notes.
COMMISSION: The Securities and Exchange Commission.
COMMON STOCK: The voting Common Stock, par value $0.01 per share, of
the Company.
DAMAGES PAYMENT DATE: With respect to the Notes or the Common
Stock, as applicable, each Interest Payment Date as defined in the Indenture.
EFFECTIVENESS TARGET DATE: As defined in Section 4 hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Notes inside the United States to (i) certain "qualified
institutional buyers" (as such term is defined in Rule 144A under the Act) and
(ii) certain institutional "accredited investors," as defined in Rule 501 of
Regulation D under the Act.
HOLDERS: As defined in Section 2(b) hereof.
INDENTURE: The Indenture, dated as of May 27, 1998, between the
Company and The Bank of New York, as trustee (the "Trustee"), pursuant to
which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
INTEREST PAYMENT DATE: As defined in the Indenture.
LIQUIDATED DAMAGES: As defined in Section 4 hereof.
NASD: National Association of Securities Dealers, Inc.
OFFERING MEMORANDUM: The Offering Memorandum, dated May 20, 1998,
and all amendments and supplements thereto, relating to the Notes and
prepared by the Company pursuant to the Purchase Agreement.
PERSON: An individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
PRELIMINARY PROSPECTUS: As defined in Section 3(f) hereof.
PROSPECTUS: The prospectus included in the Shelf Registration
Statement (as defined herein), as amended or supplemented by any Prospectus
Supplement with respect to the terms of the offering of any portion of the
Transfer Restricted Securities (as defined herein) covered by the Shelf
Registration Statement and by all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material which may be
incorporated by reference into such Prospectus.
PROSPECTUS SUPPLEMENT: As defined in Section 5(b) hereof.
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RECORD HOLDER: (i) With respect to any Damages Payment Date relating
to the Notes each Person who is registered on the books of the Registrar as the
holder of Notes at the close of business on the record date with respect to the
Interest Payment Date on which such Damages Payment Date shall occur and (ii)
with respect to any Damages Payment Date relating to the Common Stock, each
Person who is a holder of record of such Common Stock at the close of business
fifteen (15) days prior to the Damages Payment Date.
SHELF REGISTRATION STATEMENT: As defined in Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Note and share of Common
Stock of the Company issuable upon conversion of a Note, until each such Note
or share (i) has been effectively registered under the Act and disposed of in
accordance with the Shelf Registration Statement covering it, (ii) is
distributed to the public pursuant to Rule 144 under the Act, (iii) may be
sold or transferred pursuant to Rule 144(k) (or any similar provisions then
in force) under the Act or otherwise or (iv) has otherwise been transferred
and a new Note or share of Common Stock not subject to transfer restrictions
under the Act has been delivered by or on behalf of the Company in accordance
with Section 2 of the Indenture.
UNDERWRITER: Any Underwriter, placement agent, selling broker,
dealer manager, qualified independent Underwriter or similar securities
industry professional.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: An offering in
which securities of the Company are sold to an Underwriter or with the
assistance of such Underwriter for reoffering to the public on a firm commitment
or best efforts basis.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a "Holder")
whenever such Person is the registered owner of Transfer Restricted
Securities.
SECTION 3. SHELF REGISTRATION
(a) The Company shall cause to be filed with the Commission, on or
prior to 90 days after the Closing Date a shelf registration statement
pursuant to Rule 415 under the Act (as amended or supplemented, and including
the prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein, the "Shelf Registration Statement") on Form
S-1 or Form S-3 if the use of such form is then available, to cover resales of
Transfer Restricted Securities by the Holders thereof who satisfy certain
conditions relating to the provision of information in connection with the
Shelf Registration Statement. The Holders of such Transfer Restricted
Securities shall have provided the representations required pursuant to
Section 3(f) hereof. The Company shall use its reasonable best efforts to
cause such Shelf Registration Statement to be declared effective by the
Commission on or prior to 180 days after the Closing Date. The
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<PAGE>
Company shall use its reasonable best efforts to keep such Shelf Registration
Statement continuously effective for a period ending two years following the
Closing Date or such shorter period that will terminate when each of the
Transfer Restricted Securities covered by the Shelf Registration Statement
shall cease to be a Transfer Restricted Security. The Company further agrees
to use its reasonable best efforts to prevent the happening of any event
that would cause the Shelf Registration Statement to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
to be not effective and usable for resale of the Transfer Restricted
Securities during the period that such Shelf Registration Statement is
required to be effective and usable.
Upon the occurrence of any event that would cause the Shelf
Registration Statement (i) to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) to be not effective and usable for
resale of Transfer Restricted Securities during the period that such Shelf
Registration Statement is required to be effective and usable, the Company shall
as promptly as reasonably practicable file an amendment to the Shelf
Registration Statement, in the case of clause (i), correcting any such
misstatement or omission and in the case of either clause (i) or (ii), use its
reasonable best efforts to cause such amendment to be declared effective and
such Shelf Registration Statement to become usable as soon as reasonably
practicable thereafter.
(b) None of the Company nor any of its security holders (other
than the Holders of Transfer Restricted Securities in such capacity) shall
have the right to include any of the Company's securities in the Shelf
Registration Statement.
(c) If (i) only Notes are to be registered in the Shelf
Registration Statement and the Holders of a majority in aggregate principal
amount of the Notes to be registered in the Shelf Registration Statement so
elect, or (ii) any shares of Common Stock issued upon conversion of Notes are
to be included in the Shelf Registration Statement and the Holders of a
majority of the shares of Common Stock to be registered in the Shelf
Registration Statement so elect, an offering of Transfer Restricted Securities
pursuant to the Shelf Registration Statement may by effected in the form of
an Underwritten Offering. In such event, and if the Underwriter advises the
Company and the Holders of such Transfer Restricted Securities in writing
that in their opinion the amount of Transfer Restricted Securities proposed
to be sold in such offering exceeds the amount of Transfer Restricted
Securities which can be sold in such offering, there shall be included in such
Underwritten Offering the amount of such Transfer Restricted Securities which
in the opinion of such Underwriters can be sold, and such amount or number of
shares shall be allocated pro rata among the Holders of such Transfer
Restricted Securities on the basis of the principal amount or number of
shares of Transfer Restricted Securities requested to be included by such
Holders. The Holders of the Transfer Restricted Securities to be registered
shall pay all underwriting discounts and commissions of such Underwriters.
The Company shall not be obligated to effect such Underwritten Offering
unless at least 40% of the outstanding Transfer Restricted Securities are
included in such Underwritten Offering. The Company shall not be obligated
to effect more than one such Underwritten Offering.
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<PAGE>
(d) If any of the Transfer Restricted Securities covered by the Shelf
Registration Statement are to be sold in an Underwritten Offering, the
Underwriter(s) that will administer the offering will be selected by the Holders
of a majority of the aggregate principal amount of Notes included in the Shelf
Registration Statement and/or the Holders of a majority of shares of Common
Stock included in the Shelf Registration Statement and issued upon conversion of
the Notes; PROVIDED, HOWEVER, that such Underwriter(s) shall be reasonably
satisfactory to the Company.
(e) Each Holder whose Transfer Restricted Securities are covered
by a Shelf Registration Statement filed pursuant to this Section 3 agrees,
upon the request of the Underwriter(s) in any Underwritten Offering, not to
effect any public sale or distribution of securities of the Company of the
same class as the securities included in such Shelf Registration Statement,
including a sale pursuant to Rule 144 under the Act (except as part of such
registration), during the 10-day period prior to, and during the 90-day period
beginning on, the closing date of any such Underwritten Offering made pursuant
to such Shelf Registration Statement, to the extent timely notified in writing
by such Underwriter(s).
The foregoing provisions of this Section 3(e) shall not apply to
any Holder of Transfer Restricted Securities if such Holder is prevented by
applicable statute or regulation from entering into any such agreement;
PROVIDED, HOWEVER, that any such Holder shall undertake, in its request to
participate in any such Underwritten Offering, not to effect any public sale
or distribution of any of its Transfer Restricted Securities commencing on
the date of sale of such Transfer Restricted Securities unless it has
provided 90 days' prior written notice of such sale or distribution to the
Underwriter(s).
(f) No Holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless such Holder furnishes to the Company in
writing, within 10 business days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection with
any Shelf Registration Statement or Prospectus or preliminary Prospectus (a
"Preliminary Prospectus") included therein.
SECTION 4. LIQUIDATED DAMAGES
If (i) the Shelf Registration Statement is not filed with the
Commission on or prior to 90 days after the Closing Date, (ii) the Shelf
Registration Statement has not been declared effective by the Commissioner
within 180 days after the Closing Date (the "Effectiveness Target Date"), or
(iii) the Shelf Registration Statement is filed and declared effective but shall
thereafter cease to be effective or useable for resale without being succeeded
immediately by any additional Shelf Registration Statement filed and declared
effective (each such event referred to in clauses (i) through (iii), a
"Registration Default"), the Company will pay liquidated damages ("Liquidated
Damages") to each Holder of Transfer Restricted Securities who has complied with
such Holder's obligations under this Agreement, during the first 90-day period
immediately following the occurrence of such Registration Default in an amount
equal to one-quarter of one percent (25 basis points) per annum per $1000
principal amount of Notes or $2.50 per annum per 35.078 shares of Common Stock
(subject to adjustment in the event of stock splits, stock recombinations, stock
dividends and the like) constituting Transfer Restricted Securities held by such
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<PAGE>
Holder and 50 basis points per annum per $1,000 principal amount of Notes or
$5.00 per annum per 35.078 shares of Common Stock (subject to adjustment as
set forth above) constituting Transfer Restricted Securities for any
additional days during which a Registration Default has occurred and is
continuing. All accrued Liquidated Damages shall be paid to Record Holders
by the Company on each Damages Payment Date in the same manner as the Company
makes interest payments on the Notes in accordance with Section 2.1 of the
Indenture. Following the cure of all Registration Defaults, Liquidated
Damages will cease to accrue with respect to such Registration Default. No
Liquidated Damages shall be payable with respect to any week commencing two
years or more after the Closing Date. In addition, no Liquidated Damages will
be payable with respect to a Registration Default of the type referred to in
clause (iii) above if such Registration Default results from the Company
exercising its rights in compliance with Section 5(k) of this Agreement, but
only during the time periods specified in the second proviso of such Section
5(k). The Liquidated Damages set forth in this Section 4 shall be the
exclusive remedy for money damages available to the Holders of Transfer
Restricted Securities for any Registration Default.
All of the Company's obligations set forth in the preceding paragraph
which are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such security shall have
been satisfied in full.
SECTION 5. REGISTRATION PROCEDURES
In connection with the Shelf Registration Statement, the Company will
use its reasonable best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution or disposition thereof and pursuant thereto
the Company will:
(a) prepare and file with the Commission a Shelf Registration
Statement relating to the registration on Form S-1, or Form S-3 if the use of
such form is then available, for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of distribution
thereof and shall include all financial statements required to be included or
incorporated by reference therein; cooperate and assist in any filings
required to be made with the NASD and use its reasonable best efforts to
cause such Shelf Registration Statement to be declared effective by the
Commission and approved by such governmental agencies or authorities as may
be necessary to enable the selling Holders to consummate the disposition of
such Transfer Restricted Securities on or prior to 180 days after the Closing
Date; PROVIDED, HOWEVER, that before filing a Shelf Registration Statement or
any Prospectus, or any amendments or supplements thereto, the Company will
furnish to the selling Holders and the Underwriter(s), if any, copies of all
such documents proposed to be filed (except that the Company shall not be
required to furnish to a Holder any exhibits to such documents, including
those incorporated by reference, unless so requested by a Holder in writing),
and the Company will not file any Shelf Registration Statement or amendment
thereto or any Prospectus or any supplement thereto to which (i) the
Underwriter(s), if any, shall reasonably object or (ii) if there are no
Underwriters and if (A) only Notes are to be registered in the Shelf
Registration Statement and the Holders of a majority in aggregate principal
amount of the Notes registered in the Shelf Registration Statement shall
reasonably object, or (B) any shares of Common Stock
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<PAGE>
issued upon conversion of the Notes are included in the Shelf Registration
Statement and the Holders of a majority of the shares of Common Stock so
registered in the Shelf Registration Statement shall reasonably object, in
each such case within five business days after the receipt thereof. A Holder
or Underwriter, if any, shall be deemed to have reasonably objected to such
filing if the Shelf Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
which misstatement or omission is specifically identified to the Company in
writing within such five business days;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective for the
applicable period set forth in Section 3(a) hereof, or such shorter period as
will terminate when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required supplement thereto (a "Prospectus Supplement"),
and as so supplemented to be filed pursuant to Rule 424 under the Act and to
comply fully with the applicable provisions of Rules 424 and 430A under the
Act in a timely manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such Shelf
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth
in such Shelf Registration Statement, Prospectus or Prospectus Supplement;
(c) if requested by the Holders of Transfer Restricted Securities,
or if the Transfer Restricted Securities are being sold in an Underwritten
Offering, the Underwriter(s) of such Underwritten Offering, promptly
incorporate in the Prospectus, any Prospectus Supplement or post-effective
amendment to the Shelf Registration Statement such information as the
Underwriters and/or the Holders of Transfer Restricted Securities being sold
reasonably agree should be included therein relating to the plan of
distribution of the Transfer Restricted Securities, including, without
limitation, information with respect to the principal amount of Transfer
Restricted Securities being sold to such Underwriter(s), the purchase price
being paid therefor and any other terms with respect to the offering of the
Transfer Restricted Securities to be sold in such offering; and make all
required filings of such Prospectus Prospectus Supplement or post-effective
amendment as soon as practicable after the Company is notified of the matters
to be incorporated in such Prospectus, Prospectus Supplement or post-effective
amendment;
(d) advise the Underwriter(s), if any, and selling Holders promptly
and, if requested by such Persons, to confirm such advice in writing, (i)
when the Prospectus or any Prospectus Supplement or post-effective amendment
to the Shelf Registration Statement has been filed, and with respect to the
Shelf Registration Statement or any post-effective amendment thereto, when
the same has become effective, (ii) of any request by the Commission for
amendments to the Shelf Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (iii) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Shelf Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, and
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<PAGE>
(iv) of the existence of any fact and the happening of any event that makes
any statement of a material fact made in the Shelf Registration Statement or
the Prospectus untrue, or that requires the making of any additions to or
changes in the Shelf Registration Statement or the Prospectus in order to
make the statements therein not misleading (which advice shall be accompanied
by an instruction to suspend the use of the Prospectus until the requisite
changes have been made). If at any time the Commission shall issue any stop
order suspending the effectiveness of the Shelf Registration Statement, or any
state securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company shall use their reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(e) promptly following the filing of any document that is to be
incorporated by reference into the Shelf Registration Statement or the
Prospectus subsequent to the initial filing of the Shelf Registration
Statement, provide copies of such document (excluding exhibits, unless
requested by a Holder in writing) to the Holders;
(f) furnish, upon request, to each selling Holder and each of the
Underwriter(s), if any, without charge, at least one copy of the Shelf
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein
and all exhibits (excluding exhibits to documents incorporated by reference
therein unless requested by such Holder);
(g) deliver to each selling Holder and each of the Underwriter(s),
if any, without charge, as many copies of any Preliminary Prospectus and the
Prospectus and any amendments or supplements thereto as such Persons may
reasonably request; the Company consents (except during the continuance of
any event described in Section 5(d)(iv) above) to the use of any Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto by
each of the selling Holders and each of the Underwriter(s), if any, in
connection with the public offering and the sale of the Transfer Restricted
Securities covered by any Preliminary Prospectus and the Prospectus or any
amendments or supplements thereto;
(h) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the Underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or Underwriter(s) may reasonably
request and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdiction of the Transfer Restricted
Securities covered by the Shelf Registration Statement; PROVIDED, HOWEVER, that
the Company shall not be required (i) to register or qualify as a foreign
corporation where it is not now so qualified, (ii) to take any action that
would subject it to the service of process in suits, other than as to matters
and transactions relating to the Shelf Registration Statement, in any
jurisdiction where it is not now so subject, or (iii) to take any action that
would subject it to taxation in any jurisdiction in an amount greater than it
would be so subject without having taken such action;
(i) cooperate with the selling Holders and the Underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer
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<PAGE>
Restricted Securities to be sold and not bearing any restrictive legends; and
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the Underwriter(s), if any, may
request at least two business days prior to any sale of Transfer Restricted
Securities;
(j) use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the Underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (h) above;
(k) if any fact or event contemplated by clause (d)(v) above shall
exist or have occurred, prepare a post- effective amendment or supplement to
the Shelf Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of Transfer Restricted Securities,
the Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that if the Company determines based upon the
advice of counsel that it is advisable to disclose in the Shelf Registration
Statement a financing, acquisition or other corporate transaction or other
material event affecting the Company or its securities, and the Board of
Directors of the Company (or an executive officer of the Company duly
authorized for such purpose) shall have determined in good faith that such
disclosure would not be in the best interests of the Company and its
stockholders, the Company shall not be required to prepare and file such
amendment, supplement or document for such period as the Board of Directors of
the Company shall have determined in good faith is in the best interests of
the Company and its stockholder; PROVIDED THAT, the Company will be obligated
to pay Liquidated Damages in accordance with the provisions of Section 4 of
this Agreement if such period exceeds (i) 90 days in any given two-year
period or (ii) 45 consecutive days.
(l) provide a CUSIP number for all Transfer Restricted Securities
that are Notes not later than the effective date of the Shelf Registration
Statement and provide the Trustee under the Indenture and/or the transfer
agent for the Common Stock with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(m) in connection with an Underwritten Offering, enter into such
customary agreements (including an underwriting agreement) and take all such
other actions in connection therewith as may reasonably be required in order
to expedite or facilitate the disposition of the Transfer Restricted
Securities pursuant to the Shelf Registration Agreement, in connection with an
Underwritten Registration, and (i) make such representations and warranties to
the selling Holders and the Underwriter(s), in form, substance and scope as
they may reasonably request and as are customarily made by issuers to
Underwriters in primary underwritten offerings and covering matters including,
but not limited to, those set forth in the Purchase Agreement; (ii) obtain
opinions of counsel to the Company and updates thereof in customary form and
covering matters reasonably requested by the Underwriter(s) of the type
customarily covered in legal opinions to Underwriters in connection with
primary underwritten offerings addressed to each selling Holder and the
Underwriter requesting the same and covering the matters as may be
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<PAGE>
reasonably requested by such Holders and Underwriters; (iii) obtain, to the
extent permitted by Statement on Auditing Standards No. 72 or any successor
Statement thereto, "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the selling
Holders of Transfer Restricted Securities and the Underwriters requesting the
same, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to Underwriters in connection
with primary underwritten offerings; (iv) set forth in full or incorporate by
reference in the underwriting agreement the indemnification provisions and
procedures of Section 7 hereof with respect to all parties to be indemnified
pursuant to said Section; and (v) deliver such documents and certificates as
may be reasonably requested by the Holders of the Transfer Restricted
Securities being sold or the Underwriter(s) of such Underwritten Offering to
evidence compliance with clause (i) above and with any customary conditions
contained in the underwriting agreement entered into by the Company pursuant
to this clause (m). The above shall be done at or prior to each closing
under such underwriting agreement, as and to the extent required thereunder;
(n) make available at reasonable times and in a reasonable manner
for inspection by one representative of the selling Holders of the Transfer
Restricted Securities, any Underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any attorney or accountant
retained by such representative or any of the Underwriters, all financial and
other records, pertinent corporate documents and properties of the Company
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such Holder, Underwriter, attorney or
accountant in connection with such Shelf Registration Statement prior to its
effectiveness, PROVIDED, HOWEVER, that such representatives, attorneys or
accountants shall agree to keep confidential (which agreement shall be
confirmed in writing in advance to the Company if the Company shall so
request) all information, records or documents made available to such persons
which are not otherwise available to the general public unless disclosure of
such records, information or documents is required by court or administrative
order (of which the Company shall have been given prior notice and an
opportunity to defend) after the exhaustion of all appeals therefrom, and to
use such information obtained pursuant to this provision only in connection
with the transaction for which such information was obtained, and not for any
other purpose;
(o) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a consolidated
earnings statement, which consolidated earnings statement shall satisfy the
provisions of Section 11(a) of the Act, for the twelve-month period (i)
commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to Underwriters in a firm commitment or best efforts
Underwritten Offering or (ii) if not sold to Underwriters in such an offering,
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Shelf Registration Statement;
(p) cause the Indenture to be qualified under the TIA, and, in
connection therewith, cooperate with the Trustee and the Holders to effect
such changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its
reasonable best efforts to cause the Trustee to
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execute, all documents as may be required to effect such changes and all
other forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner;
(q) cause all Transfer Restricted Securities covered by the Shelf
Registration Statement to be quoted on the Nasdaq National Market or listed
on such other securities exchange or quotation system on which the Common
Stock primarily trades if requested by the Holders of a majority in aggregate
principal amount and/or number of shares of such Transfer Restricted
Securities or the Underwriters, if any; cause the Notes covered by the Shelf
Registration Statement to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of such
Notes or the Underwriters; and
(r) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
Underwriter (including any "qualified independent Underwriter" that is
required to be retained in accordance with the rules and regulations of the
NASD).
Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading or necessary to cause such
Shelf Registration Statement not to omit a material fact with respect to such
Holder necessary in order to make the statements therein not misleading.
Each Holder agrees by acquisition of such Transfer Restricted
Securities that upon receipt of any notice from the Company of the existence
of any fact of the kind described in Section 5(d)(iv) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed and
has received copies of any additional or supplemental filings with respect to
the Prospectus. If so directed by the Company, each Holder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession of the Prospectus covering such
Transfer Restricted Securities current at the time of receipt of such notice.
In the event Company shall give any such notice, the time period regarding
the effectiveness of Shelf Registration Statement set forth in Section 3(a)
hereof shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 5(d)(iv)
hereof to and including the date when each selling Holder covered by such
Shelf Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or
shall have received the Advice.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement (the "Registration Expenses") will be borne by
the Company, regardless whether a Shelf Registration Statement becomes
effective, including without limitation:
-11-
<PAGE>
(i) all registration and filing fees and expenses (including
filings made with the NASD);
(ii) expenses of compliance with federal securities or state blue
sky laws;
(iii) expenses of printing (including, without limitation, expenses
of printing or engraving certificates for the Transfer Restricted Securities
in a form eligible for deposit with Depository Trust Company and of printing
the Prospectus and any Preliminary Prospectus), messenger and delivery
services and telephone;
(iv) reasonable fees and disbursements of counsel for the Company
and for the Holders of the Transfer Restricted Securities (subject to the
provisions of Section 6(b) hereof);
(v) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any special audit and
"cold comfort" letters required by or incidental to the preparation and
filing of a Shelf Registration Statement and Prospectus and the disposition
of Transfer Restricted Securities);
(vi) fees and expenses associated with any NASD filing required
to be made in connection with the Shelf Registration Statement, including, if
applicable, the fees and expenses of any "qualified independent Underwriter"
(and its counsel) that is required to be retained in accordance with the
rules and regulations of the NASD; and
(vii) fees and expenses of listing the Transfer Restricted
Securities on any securities exchange or quotation system in accordance with
Section 5(q) hereof.
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, rating agency fees and the fees and expenses of any Person, including
special experts, retained by the Company. The Holders of Transfer Restricted
Securities shall bear the expense of any broker's commission or Underwriters'
discount or commission.
(b) In connection with the Shelf Registration Statement, the
Company will reimburse the Holders of Transfer Restricted Securities being
registered pursuant to such Shelf Registration Statement for the fees and
disbursements of not more than one counsel chosen by the Holders of a
majority of the principal amount of the Transfer Restricted Securities to be
included in the Shelf Registration Statement, PROVIDED, HOWEVER, that in the
case of an Underwritten Offering, such counsel shall be chosen by the Company
and reasonably acceptable to the Holders of a majority of the Transfer
Restricted Securities to be included in such Underwritten Offering.
-12-
<PAGE>
Notwithstanding the provisions of this Section 6(b), each Holder of
Transfer Restricted Securities shall pay all Registration Expenses to the
extent required by applicable law.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each selling
Holder and each person that controls such selling Holder within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act (each such person
an "Indemnified Holder"), from and against any and all losses, claims,
damages, judgments, liabilities and expenses (including the reasonable fees
and expenses of counsel and other expenses in connection with investigating,
defending or settling any such action or claim) as they are incurred which
arise out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in the Shelf Registration Statement or the
Prospectus or any amendment or supplement thereto or any Preliminary
Prospectus or arising out of or based upon any omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except (i) the Company shall
not be liable to any Indemnified Holder in any such case insofar as such
losses, claims, damages, judgments, liabilities or expenses arise out of, or
are based upon any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to such Indemnified
Holder furnished in writing by such Indemnified Holder to the Company
expressly for use therein and (ii) the Company shall not be liable to any
Indemnified Holder under the indemnity agreement in this Section 7(a) with
respect to any Preliminary Prospectus to the extent that any such loss,
claim, damage, judgment, liability or expense results solely from the fact
that any Indemnified Holder sold Transfer Restricted Securities to a person
to whom there was not sent or given, at or prior to the written confirmation
of such sale, a copy of the Prospectus as then amended or supplemented, if
the Company has previously furnished sufficient copies thereof to the
Indemnified Holder.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against
any Indemnified Holder with respect to which indemnity may be sought against
the Company pursuant to this Section 7, such Indemnified Holder shall
promptly notify the Company in writing, and the Company shall have the right
to assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and payment of all fees and expenses;
PROVIDED, HOWEVER, that the omission so to notify the Company shall not
relieve the Company from any liability that they may have to any Indemnified
Holder (except to the extent that the Company is materially prejudiced or
otherwise forfeits substantive rights or defenses by reason of such failure).
An Indemnified Holder shall have the right to employ separate counsel in any
such action or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Holder unless (i) the Company agrees in writing to pay such fees and
expenses, (ii) the Company has failed promptly to assume the defense and
employ counsel satisfactory to the Indemnified Holder or (iii) the named
parties to any such action or proceeding (including any unpleaded parties)
include both the Indemnified Holder and the Company and such Indemnified
Holder shall have been advised in writing by its counsel that representation
of them and the Company by the same counsel would be
-13-
<PAGE>
inappropriate under applicable standards of professional conduct (whether or
not such representation has been proposed) due to actual or potential
differing interests between them (in which case the Company shall not have
the right to assume the defense of such action on behalf of such Indemnified
Holder). It is understood that the Company shall not, in connection with any
one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) at any time for such
Indemnified Holders, which firm shall be designated in writing by the Holders
of the majority of the aggregate principal amount of Notes and/or the number
of shares of Common Stock on behalf of such Indemnified Holders, and that all
such fees and expenses shall be reimbursed as they are incurred. The Company
shall not be liable for any settlement of any such action effected without
the written consent of the Company, but if settled with the written consent
of the Company, or if there is a final judgment with respect thereto, the
Company agrees to indemnify and hold harmless each Indemnified Holder from
and against any loss or liability by reason of such settlement or judgment.
The Company shall not, without the prior written consent of each Indemnified
Holder affected thereby, effect any settlement of any pending or threatened
proceeding in which such Indemnified Holder has sought indemnity hereunder,
unless such settlement includes an unconditional release of such Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.
(c) Each Indemnified Holder agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Shelf Registration
Statement and any person controlling the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (collectively, the
"Company Indemnified Parties") to the same extent as the foregoing indemnity
from the Company to any Indemnified Holder, but only with respect to
information relating to such Indemnified Holder furnished to the Company in
writing by such Indemnified Holder, expressly for use in the Shelf
Registration Statement, Prospectus (or any amendment or supplement thereto),
or any Preliminary Prospectus. In case any action shall be brought against
any Company Indemnified Party based on the Shelf Registration Statement,
Prospectus (or any amendment or supplement thereto), or any Preliminary
Prospectus and in respect of which indemnification may be sought against each
Indemnified Holder pursuant to this Section 7(c), each Indemnified Holder
shall have the rights and duties given to the Company by Section 7(a) (except
that if the Company shall have assumed the defense thereof, each Indemnified
Holder may, but shall not be required to, employ separate counsel therein and
participate in the defense thereof and the fees and expenses of such counsel
shall be at the expense of the Indemnified Holder) and the Company
Indemnified Parties shall have the rights and duties given to the Indemnified
Holders by Section 7(b).
(d) If the indemnification provided for in this Section 7 is
unavailable to any party entitled to indemnification pursuant to Section 7(a)
or 7(c), then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, judgments,
liabilities and expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
judgments, liabilities or expenses, as well as any
-14-
<PAGE>
other relevant equitable considerations. The relative fault of such
indemnifying party or parties on the one hand and such indemnified party or
parties on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or parties on the one hand or such
indemnified party or parties on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Indemnified Holders' respective obligations to
contribute pursuant to this Section 7(e) are several in proportion to the
respective number of Transfer Restricted Securities they have sold pursuant
to a Registration Statement, and not joint.
(e) The Company and each Indemnified Holder agree that it would
not be just and equitable if contribution pursuant to Section 7(d) were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in Section
7(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or expenses referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the contribution provisions of Section
7(d), an Indemnified Holder shall not be required to contribute any amount in
excess of the amount by which the total price at which the Transfer
Restricted Securities sold by such Indemnified Holder and distributed to the
public were offered to the public exceeds the amount of any damages which
such Indemnified Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not found guilty of such fraudulent misrepresentation.
(f) The Company shall also indemnify each Underwriter
participating in the distribution (as described in such Shelf Registration
Statement), their officers and directors and each person who controls such
persons (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders.
(g) The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability that any indemnifying party may
otherwise have to any indemnified party.
-15-
<PAGE>
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long as any of
the Notes or shares of Common Stock that are Transfer Restricted Securities
remain outstanding or, if earlier, two years from the Closing Date, and
during any such period in which the Company is not subject to Section 13 or
15(d) of the Exchange Act, to make available to the Initial Purchasers or any
beneficial owner of the Notes or shares of such Common Stock in connection
with any sale thereof and any prospective purchaser of such Notes or Common
Stock from such Initial Purchaser or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Offering hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements, (b) completes
and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements and (c) furnishes the Company in writing
information in accordance with Section 3(f) and agrees to indemnify and hold
harmless the Company, its directors, its officers who sign the Shelf
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act to the
extent contemplated by Section 7(c).
SECTION 10. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering in accordance with Section 3(d). In
any such Underwritten Offering, the Underwriter(s) that will administer the
offering will be selected by the Holders of the Transfer Restricted
Securities included in such offering in the manner specified in Section 3(d);
PROVIDED, HOWEVER, that such Underwriter(s) shall be reasonably satisfactory
to the Company.
SECTION 11. MISCELLANEOUS
(a) REMEDIES. Each Holder of Transfer Restricted Securities, in
addition to being entitled to exercise all rights provided herein, and as
provided in the Purchase Agreement and granted by law, including recovery of
damages, will be entitled to specific performance of such Holder's rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders of
Transfer Restricted Securities in this Agreement or otherwise conflicts with
the provisions hereof. The rights granted to the
-16-
<PAGE>
Holders of Transfer Restricted Securities hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of the Company's securities under any other agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof except by a written instrument executed by the Company and the Holders
of a majority in aggregate principal amount of the Notes constituting
Transfer Restricted Securities affected by such amendment, modification,
supplement, waiver or departure (provided that, if any such Transfer
Restricted Securities are shares of Common Stock issued upon conversion of
Notes, consents by Holders of such shares shall be calculated as if such
conversions had not taken place). Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to
the rights of Holders of Transfer Restricted Securities whose securities are
being sold pursuant to such Shelf Registration Statement and that does not
directly or indirectly affect the rights of other Holders of Transfer
Restricted Securities shall be valid only with the written consent of Holders
of at least 66-2/3% of the Transfer Restricted Securities being sold, in each
case calculated in accordance with the provisions of Section 3(c).
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier,
or air courier guaranteeing overnight delivery:
(i) if to a Holder of Transfer Restricted Securities, at the
address set forth on the records of the Registrar under the Indenture,
with a copy to the Registrar; and
(ii) if to the Company or an Initial Purchaser, initially at its
address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the
provisions of this Section.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and
on the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the Person giving the same to the Trustee under
the Indenture at the address specified in the Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; PROVIDED,
HOWEVER, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder of Transfer Restricted Securities
unless and to the extent such successor or assign acquired Transfer
Restricted Securities
-17-
<PAGE>
from such Holder; and provided further that nothing herein shall be deemed to
permit any assignment, transfer or any disposition of Transfer Restricted
Securities in violation of the terms of the Purchase Agreement. If any
transferee of any Holder shall acquire Transfer Restricted Securities, in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement and by
taking and holding such Transfer Restricted Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
(i) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(j) ENTIRE AGREEMENT. This Agreement together with the Purchase
Agreement, the Indenture and the Notes, is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings other than those set forth or referred to herein
or therein with respect to the registration rights granted by the Company
with respect to the securities sold pursuant to the Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
-18-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GETTY IMAGES, INC.
By: [ILLEGIBLE]
---------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted
as of the date first above written.
BT ALEX. BROWN INCORPORATED,
as Initial Purchaser
By:
-----------------------------
Name:
Title:
BANCAMERICA ROBERTSON STEPHENS,
as Initial Purchaser
By:
-----------------------------
Name:
Title:
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION,
as Initial Purchaser
By:
-----------------------------
Name:
Title:
HAMBRECHT & QUIST LLC,
as Initial Purchaser
By:
----------------------------
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
GETTY IMAGES, INC.
By:
------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted
as of the date first above written.
BT ALEX. BROWN INCORPORATED,
as Initial Purchaser
By:
----------------------------
Name:
Title:
BANCAMERICA ROBERTSON STEPHENS,
as Initial Purchaser
By:
----------------------------
Name:
Title:
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION,
as Initial Purchaser
By:
----------------------------
Name:
Title:
HAMBRECHT & QUIST LLC,
as Initial Purchaser
By:
----------------------------
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GETTY IMAGES, INC.
By:
--------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted
as of the date first above written.
BT ALEX. BROWN INCORPORATED,
as Initial Purchaser
By:
-----------------------------
Name:
Title:
BANCAMERICA ROBERTSON STEPHENS,
as Initial Purchaser
By:
------------------------------
Name:
Title:
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION,
as Initial Purchaser
By:
------------------------------
Name:
Title:
HAMBRECHT & QUIST LLC,
as Initial Purchaser
By:
------------------------------
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GETTY IMAGES, INC.
By:
--------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted
as of the date first above written.
BT ALEX. BROWN INCORPORATED,
as Initial Purchaser
By:
-----------------------------
Name:
Title:
BANCAMERICA ROBERTSON STEPHENS,
as Initial Purchaser
By:
-----------------------------
Name:
Title:
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION,
as Initial Purchaser
By:
-----------------------------
Name:
Title:
HAMBRECHT & QUIST LLC,
as Initial Purchaser
By:
----------------------------
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GETTY IMAGES, INC.
By:
---------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted
as of the date first above written.
BT ALEX. BROWN INCORPORATED,
as Initial Purchaser
By:
-------------------------------
Name:
Title:
BANCAMERICA ROBERTSON STEPHENS,
as Initial Purchaser
By:
-------------------------------
Name:
Title:
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION,
as Initial Purchaser
By:
-----------------------------------
Name:
Title:
HAMBRECHT & QUIST LLC,
as Initial Purchaser
By:
-----------------------------------
Name:
Title:
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS FOR THE THREE MONTHS ENDED JUNE 30,
1998 AND THE SIX MONTHS ENDED JUNE 30, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> APR-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 36,163
<SECURITIES> 0
<RECEIVABLES> 37,234
<ALLOWANCES> (3,125)
<INVENTORY> 3,070
<CURRENT-ASSETS> 87,964
<PP&E> 75,874
<DEPRECIATION> (22,955)
<TOTAL-ASSETS> 491,646
<CURRENT-LIABILITIES> 56,396
<BONDS> 72,014
0
0
<COMMON> 299
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 491,646
<SALES> 48,126
<TOTAL-REVENUES> 48,126
<CGS> 13,909
<TOTAL-COSTS> 13,909
<OTHER-EXPENSES> 48,528
<LOSS-PROVISION> 412
<INTEREST-EXPENSE> (768)
<INCOME-PRETAX> (14,783)
<INCOME-TAX> 712
<INCOME-CONTINUING> (14,071)
<DISCONTINUED> 0
<EXTRAORDINARY> (830)
<CHANGES> 0
<NET-INCOME> (14,901)
<EPS-PRIMARY> (0.49)
<EPS-DILUTED> 0
</TABLE>
