<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended June 30, 1995 or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from _________ to __________
Commission file number 0-16617
ALTERA CORPORATION
(Exact name of registrant as specified in its charter)
California 77-0016691
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2610 Orchard Parkway, San Jose, California 95134
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (408) 894-7000
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 12 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 at least the past 90 days.
Yes X No
------- -------
Number of shares of common stock outstanding at June 30, 1995: 43,332,407
<PAGE> 2
ALTERA CORPORATION
FORM 10-Q
FOR THE QUARTER ENDED
JUNE 30, 1995
PART I
FINANCIAL INFORMATION AND
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
<PAGE> 3
ALTERA CORPORATION
CONSOLIDATED BALANCE SHEETS
(In thousands, except share amounts)
(Unaudited)
<TABLE>
<CAPTION>
June 30, Dec. 31,
1995 1994
-------- --------
<S> <C> <C>
ASSETS
------
Current assets:
Cash, cash equivalents $ 53,954 $ 41,639
Short-term investments 269,699 50,955
-------- --------
Total cash, cash equivalents, and 323,653 92,594
short-term investments
Accounts receivable, less allowance
for doubtful accounts of $895 and $727 52,903 31,662
Inventories 38,283 38,477
Deferred income taxes 18,365 12,365
Other current assets 2,554 2,244
-------- --------
Total current assets 435,758 177,342
Property and equipment, net 44,480 18,212
Investments and other assets 23,601 18,328
-------- --------
$503,839 $213,882
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
Current liabilities:
Accounts payable $ 17,538 $ 11,313
Accrued liabilities 51,701 35,919
Accrued compensation 9,247 8,631
-------- --------
Total current liabilities 78,486 55,863
Long Term Debt 230,000 -
--------- --------
Shareholders' equity:
Common stock; no par value: 80,000,000
shares authorized, 43,332,407 and 42,975,628
shares issued and outstanding 75,751 73,146
Retained earnings 119,602 84,873
-------- --------
195,353 158,019
-------- --------
$503,839 $213,882
======== ========
</TABLE>
<PAGE> 4
ALTERA CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
------------------------- -------------------------
June 30, June 30, June 30, June 30,
1995 1994 1995 1994
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Sales $92,165 $47,061 $167,203 $90,571
------- ------- -------- -------
Costs and expenses:
Cost of sales 37,489 18,207 67,540 35,186
Research and development 7,677 5,167 14,263 9,899
Selling, general, and administrative 17,014 11,170 32,396 21,079
------- ------- -------- -------
Total operating expenses 62,180 34,544 114,199 66,164
------- ------- -------- -------
Operating income 29,985 12,517 53,004 24,407
Interest and other income 1,177 645 2,122 910
------- ------- -------- -------
Income before taxes 31,162 13,162 55,126 25,317
Provision for income taxes 11,530 4,870 20,397 9,368
------- ------- -------- -------
Net income $19,632 $ 8,292 $ 34,729 $15,949
======= ======= ======== =======
Net income per share $ 0.43 $ 0.19 $ 0.77 $ 0.37
======= ======= ======== =======
Shares and equivalents used in
calculation of earnings per share 45,524 42,844 45,339 42,818
======= ======= ======== =======
</TABLE>
<PAGE> 5
ALTERA CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
---------------------
June 30, June 30,
1995 1994
--------- --------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 34,729 $15,949
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 5,573 4,254
Changes in assets and liabilities:
Accounts receivable, net (21,241) (4,240)
Inventories 194 (3,819)
Deferred income taxes (6,000) -
Other current and non-current assets (1,385) (107)
Accounts payable 6,225 3,328
Accrued liabilities 15,699 3,476
Accrued compensation 615 (968)
--------- -------
Cash provided by operating activities 34,409 17,873
--------- -------
Cash flows from investing activities:
Purchases of property and equipment (30,780) (3,951)
Net change in short-term investments (218,744) 3,530
--------- -------
Cash used for investing activities (249,524) (421)
--------- -------
Cash flows from financing activities:
Long term debt, net of issuance costs 224,825 -
Net proceeds from issuance of common stock 2,605 2,731
--------- -------
Cash provided by financing activities 227,430 2,731
--------- -------
Net increase in cash and cash equivalents 12,315 20,183
Cash and cash equivalents at beginning of period 41,639 16,832
--------- -------
Cash and cash equivalents at end of period $ 53,954 $37,015
========= =======
Supplemental disclosure of cash flow information:
Cash paid during the period for income taxes $ 27,989 $ 9,005
</TABLE>
<PAGE> 6
ALTERA CORPORATION
NOTES TO FINANCIAL INFORMATION
(Unaudited)
Note 1 - Interim Statements:
In the opinion of the Company, the accompanying unaudited financial data
contain all adjustments, consisting only of normal, recurring adjustments,
necessary to present fairly the financial information included therein. This
financial data should be read in conjunction with the audited financial
statements and notes thereto included in the Company's Annual Report to
Shareholders for the year ended December 31, 1994. Results for the interim
period presented are not necessarily indicative of results for the entire year.
This financial data reflects a 2-for-1 split of the Company's outstanding
Common Stock, paid May 31, 1995 to shareholders of record on May 10, 1995.
Effective on the Record Date, the number of authorized shares of the Company's
Common Stock increased from 40,000,000 to 80,000,000.
Note 2 - Balance Sheet Detail:
<TABLE>
<CAPTION>
(In Thousands)
June 30, Dec. 31,
1995 1995
----------- --------
(Unaudited)
<S> <C> <C>
Inventories:
Purchased parts and raw materials $ 2,310 $ 2,185
Work-in-process 24,566 22,230
Finished goods 11,407 14,062
-------- --------
$ 38,283 $ 38,477
======== ========
Property and equipment:
Land $ 19,925 $ -
Equipment 51,173 43,284
Office furniture and equipment 5,225 4,124
Leasehold improvements 3,337 2,852
-------- --------
79,660 50,260
Less accumulated depreciation and
amortization (35,180) (32,048)
-------- --------
$ 44,480 $ 18,212
======== ========
</TABLE>
<PAGE> 7
Note 3 - Earnings per Share:
Income per share is computed using the weighted average number of common and
dilutive common equivalent shares outstanding during the period. Dilutive
common equivalent shares consist of the assumed net shares issuable upon the
exercise of dilutive stock options using the treasury stock method.
Note 4 - Convertible Note Offering:
In June, the Company issued $230 million of convertible subordinated notes due
in June of 2002 and bearing an interest rate of 5.75%, payable semiannually.
The notes are convertible into shares of the Company's common stock at a price
of $51.17 per share. Discounts, commissions, and expenses, which will be
amortized over the seven year life of the notes, reduced the net proceeds to
$224.4 million. The notes are callable by the Company no sooner than June of
1998. Proceeds from the issue have been invested primarily in taxable
securities issued by agencies of the federal government paying a fixed interest
rate. At present, these investments are held as securities available for sale
and will be carried at their market value in accordance with FAS 115. The
Company intends to use the net proceeds from the sale of the Notes for general
corporate purposes, including to maintain and expand its manufacturing supply
capacity, to develop new products, and potentially to acquire businesses,
products, or technologies that would complement the Company's business.
Note 5 - Subsequent Event:
The Company entered into an agreement with Taiwan Semiconductor Manufacturing
Co., Ltd. (TSMC) in July whereby it has made deposits, in the form of cash and
promissory notes payable to TSMC, for future wafer capacity allocations
extending into 1999. The cash payments amounted to $2.4 million, and the
promissory notes total $14.4 million.
<PAGE> 8
ALTERA CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Results of Operations
Sales. Second quarter 1995 sales of $92.2 million were 96% higher
than the $47.1 million reported for the same period last year, and were up 23%
from first quarter 1995 sales of $75.0 million. Sales were higher than the
second quarter of 1994 primarily as a result of higher sales of the Company's
MAX 7000 and FLEX 8000 product lines, as well as sales of products acquired
from Intel on October 1, 1994, including the Classic and FLEXlogic (now called
FLASHlogic) product lines. As compared to the same period last year, sales in
North America increased 89% and international sales increased 103%. As
compared to prior quarter, sales growth was driven by the MAX 7000, FLEX 8000,
and FLASHlogic families. FLEX 8000 grew the fastest as measured in percentage
terms while MAX 7000 grew the fastest when measured in absolute dollars. By
region, sequential percentage growth in Japan was very high after relatively
modest growth in the first quarter.
Historically, semiconductor prices decline as products mature. New
product introductions from competitors may also increase pricing pressure and
compete for overall unit sales. Historically, the Company has responded to
these pressures with the introduction of new, higher margin products. The
Company introduced the FLEX 8000 line of products in late 1992. In order to
generate customer acceptance of this product family, and to stimulate selling
activity, the Company significantly reduced prices on this product line in
1994. Although the Company has taken actions to reduce the manufacturing cost
of the product family, margins are still lower than Company's margins on
average. In the second quarter of 1995 the Company began shipping a new
product family, the MAX 9000 family. As indicated above, the high rates of
growth the Company is presently experiencing are the result of increased sales
of the Company's MAX 7000 and FLEX 8000 product lines. Future growth rates
will be highly dependent on, among other things, market acceptance of the MAX
9000 family and other newly announced product lines such as the FLEX 10K
family. There can be no assurance that the MAX 9000 family or other new
products will be successful in securing broad market acceptance or achieving
higher margins, or that the average selling price decline on existing products
will not accelerate.
In general, economic conditions in many of the end markets that use
the Company's products have been favorable in recent quarters. The favorable
economic climate has been a positive factor in stimulating demand for the
Company's products. There can be no assurance that general economic
<PAGE> 9
conditions will remain favorable or will not deteriorate. The Company's
business prospects in the next several quarters will depend, in part, on
worldwide economic conditions, and may weaken due to the factors discussed
above. Altera's sales history cannot be used to predict future results.
Gross Margin. Gross margin percentage in the second quarter was
59.3%, down from 60.0% last quarter and also down from 61.3% in the same period
a year ago. As compared to prior quarter, the decrease in gross margin
percentage was caused by increasing costs of silicon wafers. Presently, the
majority of the Company's silicon wafers are purchased from Sharp Corporation
of Japan and are priced in Yen. The increasing value of the Yen versus the
dollar has increased the dollar cost of the purchased wafers resulting in lower
margins. The increased cost of silicon wafers stemming from a strengthening
Yen was also the predominant factor in the declining margin percentage as
compared to the second quarter of 1994. Although selling prices have declined
over the last year, this has largely been offset by lower manufacturing costs
resulting from improved yields and also from improved scale economies on higher
manufacturing volumes.
Although yields improved in the last quarter, as compared to prior
quarter, there can be no assurances that recently achieved yield improvements
will continue or that yields will not deteriorate. The Company continues to
spend significant research and development resources improving production
yields on its products to commercially acceptable levels. The need to improve
product yields also exists with the new products and fabrication processes used
by the Company. The Company recently began contracting with Taiwan
Semiconductor Manufacturing Co., Ltd. (TSMC) of Taiwan and is now commencing
commercial volume production at this vendor. Management is hopeful that TSMC's
aggressive manufacturing processes will enable the Company to lower its costs,
particularly on the FLEX 8000 family. However, there can be no assurances that
these cost reductions will be achieved. Start-up difficulties often occur when
beginning production of products on new processes, and these difficulties could
potentially result in higher costs and reduced product availability.
Management also expects to introduce products in the future using other process
technologies new to the Company and expects that it may encounter similar
difficulties at such times. Production throughput times also vary considerably
among the Company's wafer suppliers. The Company has experienced delays from
time to time in processing some of its products and recently experienced long
lead times from vendors on some of its newer products. Long vendor lead times
impair the Company's ability to respond to rapidly changing market conditions.
Many other uncertainties exist that could adversely impact future margins,
including deterioration of production yields, delays in new product
availability, shortages from suppliers, or lack of market acceptance of new
products.
<PAGE> 10
The Company has at times been unable, and is currently unable, to
fully satisfy customer demand because of insufficient wafer allocation from its
foundries. The Company is currently limiting the amount of orders that it will
accept based on available production capacity. The Company's future growth
will depend in large part on increasing its wafer capacity allocation from
current foundries, adding additional foundries, and improving yields of die per
wafer from its foundries through reductions in the die size of the Company's
products and implementation of advanced process technologies. Wafer capacity
in the semiconductor industry, particularly in the Company's advanced process
geometries, has been and is presently extremely limited. Partly in response to
these limitations, the Company entered into an agreement with TSMC in July of
this year whereby it has made deposits, in the form of cash and promissory
notes payable to TSMC, for future wafer capacity allocations extending into
1999. The cash payments amounted to $2.4 million, and the promissory notes
total $14.4 million. Even so, the amount of wafers secured by the deposits do
not meet the Company's anticipated demand from TSMC over the span of the
agreement. The Company will, from time to time, consider other alternatives
to secure additional wafer capacity including, without limitation, equity
investments in, or loans or other financial commitments to, independent wafer
manufacturers in exchange for production capacity, or the use of contracts
which firmly commit the Company to purchase specified quantities of wafers over
extended periods. Any such transactions could require the Company to seek
equity or debt financing to fund such activities and, in certain circumstances,
to grant product or technology rights in return for production capacity. There
can be no assurance that any such additional financing could be obtained on
terms acceptable to the Company, if at all, or that the grant of any such
product or technology rights would not materially adversely affect the
Company's business. Moreover, there can be no assurance that even if the
Company enters into agreements with its suppliers, that its suppliers will
ultimately deliver according to the provisions of the agreement. There can be
no assurance that the Company will be able to satisfy its future wafer needs
from current or alternative manufacturing sources. Any increase in general
demand for wafers within the industry, or any reduction of existing wafer
supply from any of the Company's foundry sources, could materially adversely
affect the Company's business. Furthermore, there can be no assurance that the
Company will be able to obtain an increased number of functional die per wafer.
Research and Development. Research and development expenditures were
$7.7 million, or $2.5 million higher than the quarter ended a year ago, and up
$1.1 million from the prior quarter. The increase as compared to the previous
year is the result of higher expenditures on prototype and development wafers,
especially for the recently announced MAX 9000 and FLEX 10K families of
products. Additional increases in research and development spending included
process development
<PAGE> 11
costs, the development of new packages, and greater software development
efforts. Management of the Company expects to continue investing significant
research and development efforts into the development of programmable logic
chips, related development software and hardware, and advanced semiconductor
wafer fabrication processes. However, even if the Company accomplishes its
goals for the development of new products and manufacturing processes, there is
no assurance that these products will achieve market acceptance or that the new
manufacturing processes will be successful, or that the suppliers will provide
the Company with the quality or quantity of wafers and materials that the
Company requires. The Company must continue to develop and introduce new
products in a timely manner to counter the industry's historical trend of
prices declining as products mature.
Selling, General, and Administrative. Second quarter selling,
general, and administrative expenses of $17.0 million increased $5.8 million
from a year ago, and $1.6 million from prior quarter. The increase as compared
to prior year was due to increased commission and incentive expenses (on the
increased sales volume), increased advertising and promotional expenditures,
and increased field sales, marketing, and administrative headcounts. Increased
commission and incentive expenses and increased administrative expenses were
the primary reasons for the increase compared to prior quarter. As a
percentage of revenue, second quarter selling, general, and administrative
expenses at 18.5% were down from both of the referenced quarters due to
revenues increasing at a faster rate than expenses.
Selling costs measured in dollar terms have increased compared to both
last year and last quarter, driven by increased advertising and merchandising
expenditures, higher commissions and incentives (on increased sales), and
increased marketing and field sales headcounts. The Company uses three methods
to market its products: direct sales to electronics manufacturers via
independent sales representatives, sales through licensed domestic and foreign
distributors, and direct sales to customers by Altera sales department
personnel. The Company has thirteen U.S. and eight international sales
offices. Approximately 78% percent of the Company's worldwide sales are made
through distributors. As a percent of revenue, selling expenses were lower
than they were in the prior quarter and in the quarter ended one year ago.
Operating Income. Second quarter 1995 operating income ($30.0
million) represented 32.5% of sales, and was higher than both the second
quarter of 1994 and the most recent prior quarter on a percentage of revenue
basis. This improvement is attributed to the growth in revenues, which have
grown faster that operating expenses.
Interest and Other Income. Interest income improved over last quarter
and prior year as a result of increased cash balances.
<PAGE> 12
Income Taxes. The Company's provision for income taxes was 37%,
consistent with the second quarter of 1994 and prior quarter.
Future Results. Future operating results depend on the Company's
ability to develop, manufacture, and sell complicated semiconductor components
and complex software that offer customers greater value than competing vendors.
The Company's efforts in this regard may not be successful. Also, a number of
factors outside of the Company's control, including general economic conditions
and cycles in world markets, exchange rate fluctuations, or a lack of growth in
the Company's end markets could impact future results. The Company is highly
dependent upon subcontractors to manufacture silicon wafers and perform
assembly and testing services. Disruptions or adverse supply conditions
arising from market conditions, political strife, labor disruptions, natural or
man-made disasters, other factors, and even normal process variations could
have a material adverse effect on the Company's future operating results.
Competitive break-throughs, and particularly competitive pricing could also
impact future operating results. Additionally, litigation relating to
competitive patents and intellectual property could have a material adverse
impact on the Company's financial condition or operating results.
The Company owns more than 50 United States patents and has additional
pending United States patent applications on its semiconductor products. The
Company also has technology licensing agreements with AMD, Cypress, Intel, and
Texas Instruments giving the Company royalty-free rights to design,
manufacture, and package products using certain patents they control. Other
companies have filed applications for, or have been issued, other patents and
may develop, or obtain proprietary rights relating to, products or processes
competitive with those of the Company. From time to time the Company may find
it desirable to obtain additional licenses from the holders of patents relating
to products or processes competitive with those of the Company. Although its
patents and patent applications may have value in discouraging competitive
entry into the Company's market segment and the Company believes that its
current licenses will assist it in developing additional products, there can be
no assurance that any additional patents will be granted to the Company, that
the Company's patents will provide meaningful protection from competition, or
that any additional products will be developed based on any of the licenses
that the Company currently holds. The Company believes that its future success
will depend primarily upon the technical competence and creative skills of its
personnel, rather than on its patents, licenses, or other proprietary rights.
<PAGE> 13
The Company, in the normal course of business, from time to time
receives and makes inquiries with respect to possible patent infringements. As
a result of inquiries received from companies, it may be necessary or desirable
for the Company to obtain additional licenses relating to one or more of its
current or future products. There can be no assurance that such additional
licenses could be obtained, and, if obtainable, could be obtained on conditions
that would not have a material adverse effect on the Company's operating
results. If the inquiring companies were to allege infringement of their
patents, as is the case in the Company's current litigation with two of its
competitors, there can be no assurance that any necessary licenses could be
obtained, and, if obtainable, that such licenses would be on terms or
conditions that would not have a material adverse effect on the Company. In
addition, if litigation ensued, there can be no assurance that these companies
would not succeed in obtaining significant monetary damages or an injunction
against the manufacture and sale of one or more of the Company's product
families. It may be necessary or desirable for the Company to incur
significant litigation expenses to enforce its intellectual property rights.
Liquidity and Capital Resources
In June 1995, the Company issued $230 million of convertible
subordinated notes due in June of 2002 and bearing an interest rate of 5.75%,
payable semiannually. The notes are convertible into shares of the Company's
common stock at a price of $51.17 per share. Discounts, commissions, and
expenses, which will be amortized over the seven year life of the notes,
reduced the net proceeds to $224.4 million. The notes are callable by the
Company no sooner than June of 1998. Proceeds from the issue have been
invested primarily in taxable securities issued by agencies of the federal
government paying a fixed interest rate. At present, these investments are
held as securities available for sale and will be carried at their market value
in accordance with FAS 115. The Company intends to use the net proceeds from
the sale of the notes for general corporate purposes, including to maintain and
expand its manufacturing supply capacity, to develop new products, and
potentially to acquire businesses, products, or technologies that would
complement the Company's business. The Company from time to time has
discussions with third parties regarding possible arrangements with respect to
manufacturing supply capacity, such as purchasing options for such capacity or
making investments in new or existing fabrication facilities.
Also in June, the Company concluded a $19.9 million purchase, for
cash, of approximately 25 acres of land near its present headquarters for the
long term development of a multiple building corporate headquarters. The
Company is formulating development plans for the site, but presently
anticipates initially building approximately 350,000 square feet of office and
light manufacturing space on
<PAGE> 14
the new site, with capacity for an additional 150,000 square feet of expansion.
The first phase of construction is expected to be completed in 1997. Although
the Company might consider outside financing for the development and
construction of the site, management believes that the total costs, estimated
to be approximately $50 million (excluding the land), could be provided by
existing cash balances and future cash flows from operations.
Excluding the convertible debt financing and the land purchase, the
Company's cash and investments increased by $10.6 million in the second
quarter. Excluding the land purchase, capital expenditures through the first
six months of 1995 totaled $10.9 million. The Company expects to invest
approximately $12 million of additional capital during the last six months of
1995. The Company believes that its cash, cash equivalents, and short-term
investments, combined with cash generated from ongoing operations, will be
adequate to finance the Company's operations and capital investment needs for
at least the next year.
Impact of Currency and Inflation. The Company purchases the majority
of its materials and services in U.S. Dollars, and most of its foreign sales
are transacted in U.S. dollars. However, Altera does have Yen denominated
purchase contracts with Sharp Corporation of Japan for processed silicon
wafers. Recent results have been adversely impacted by the recent increase in
the Yen, and the concomitant increase in material costs. The Company
historically has engaged in a variety of foreign exchange hedging strategies to
mitigate the exposure from these Yen denominated purchases. This hedging has
included the purchase of forward contracts and the use of offsetting Yen
receipts. Throughout 1994 and the first half of this year, the Company held
no forward Yen contracts. However, in July of this year the Company purchased
Yen forward contracts in an amount approximately equal to its expected Yen
requirements for the balance of the third quarter. In addition, the Company
purchased Yen options that will mitigate against the Company's operating
exposure to significant further increases in the dollar value of the Yen in the
fourth quarter. The cost of these options (less than $200,000) will be
expensed ratably over the life of the options. The Company has not engaged in
any contracts or use of financial instruments that will mitigate the Company's
exposure to increases in the value of the yen beyond December of 1995. Any
continuing or increasing strength in the value of the Yen would continue to
unfavorably impact the Company's material costs. Effects of inflation on
Altera's financial results have not been significant.
<PAGE> 15
ALTERA CORPORATION
FORM 10-Q
FOR THE QUARTER ENDED
JUNE 30, 1995
PART II
OTHER INFORMATION
<PAGE> 16
Item 3. Legal Procedings
In June 1993, Xilinx, Inc. ("Xilinx") brought suit against the Company
seeking monetary damages and injunctive relief based on the Company's alleged
infringement of certain patents held by Xilinx. In June 1993, the Company
brought suit against Xilinx, seeking monetary damages and injunctive relief
based on Xilinx's alleged infringement of certain patents held by the Company.
In April 1995, the Company filed a separate lawsuit against Xilinx in Delaware,
Xilinx's state of incorporation, seeking monetary damages and injunctive relief
based on Xilinx's alleged infringement of one of the Company's patents. In May
1995, Xilinx counterclaimed against the Company in Delaware, asserting defenses
and seeking monetary damages and injunctive relief based on the Company's
alleged infringement of certain patents held by Xilinx. Due to the nature of
the litigation with Xilinx and because the lawsuits are still in the pre-trial
stage, the Company's management cannot estimate the total expense, the possible
loss, or the range of loss that may ultimately be incurred in connection with
the allegations. Management cannot ensure that Xilinx will not succeed in
obtaining significant monetary damages or an injunction against the manufacture
and sale of the Company's MAX 5000, MAX 7000, FLEX 8000, and MAX 9000 families
of products, or succeed in invalidating any of the Company's patents. There
can be no assurance that any of such results will not have a material adverse
effect on the Company's financial condition or results of operations.
In August 1994, Advanced Micro Devices ("AMD") brought suit against
the Company seeking monetary damages and injunctive relief based on the
Company's alleged infringement by the MAX 7000 product family of certain
patents held by AMD. In September 1994, Altera answered the complaint
asserting that it is licensed to use the patents which AMD claims are infringed
and filed a counterclaim against AMD alleging infringement of certain patents
held by the Company. In May 1995, AMD amended its complaint to assert that the
Classic, MAX 5000, FLEX 8000, MAX 9000, FLEX 10K, and FLASHlogic product
families infringe certain AMD patents. The Company also amended its
counterclaim to assert that AMD's products infringe an additional patent owned
by the Company. Due to the nature of the litigation with AMD, and because the
lawsuit is at an early stage, the Company's management cannot estimate the
total expense, the possible loss, if any, or the range of loss that may
ultimately be incurred in connection with the allegations. Management cannot
ensure that AMD will not succeed in obtaining significant monetary damages or
an injunction against the manufacture and sale of the Classic, MAX 5000, MAX
7000, FLEX 8000, MAX 9000, FLEX 10K, and FLASHlogic product families, or
succeed in invalidating any of the Company's patents. There can be no
assurance that any of such results will not have a material adverse effect on
the Company's financial condition or results of operations.
<PAGE> 17
Item 4. Submission of Matters to a Vote of Security Holders
The annual meeting of shareholders of the Company was held on April
26, 1995 at 10:00 a.m., at which time the following matters were acted upon:
<TABLE>
<CAPTION>
Votes
Votes Votes Withheld/ Broker Non-
Matter Acted Upon For Against Abstentions Votes
<S> <C> <C> <C> <C> <C>
1. Rodney Smith 36,860,342 0 772,478 0
Michael A. Ellison 37,520,870 0 111,950 0
Paul Newhagen 37,391,452 0 241,368 0
Robert Reed 37,387,094 0 245,726 0
William Terry 37,528,308 0 104,512 0
2. Approval of amendment to 25,745,216 11,695,314 86,690 105,600
the 1988 Director Stock
Option Plan to increase the
Common Stock available for
issuance by 100,000 shares
3. Approval of amendment to 23,273,316 14,168,124 85,780 105,600
the 1987 Stock Option Plan
to increase the Common
Stock available for issuance
by 1,300,000 shares
4. Approval of amendment to 36,959,324 491,278 76,618 105,600
the 1987 Employee Stock
Purchase Plan to increase
the Common Stock available
for issuance by 200,000
shares
5. Ratification of Price 37,536,914 41,788 54,118 0
Waterhouse LLP as
independent accountants
for the Company for the
year ending December 31,
1995.
</TABLE>
<PAGE> 18
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
<TABLE>
<S> <C>
3.2 Certificate of Amendment of Articles of
Incorporation of the Company filed on May 10, 1995.
4.2 Indenture agreement dated as of June 15, 1995 by and
between registrant and The First National Bank of
Boston, as trustee.
4.3 Form of Convertible Subordinated Note due 2002.
10.39 Wafer Supply Agreement dated June 26, 1995 between
registrant and Taiwan Semiconductor Manufacturing Co.,
Ltd.*
10.40 Option Agreement dated June 26, 1995 between
registrant and Taiwan Semiconductor Manufacturing
Co., Ltd.*
11.1 Computation of earnings per share (see Note 3 to
Financial Information in Part 1 of this Form 10-Q).
27. Financial Data Schedule.
</TABLE>
*Confidential treatment requested.
(b) Reports on Form 8-K
On June 5, 1995, the registrant filed a report on Form 8-K
reporting that the registrant had announced its intention, subject to
market and other conditions, to raise $150 million in a private
placement of convertible subordinated notes to institutional buyers,
and up to $172.5 million if an over-allotment option to be granted to
the initial purchasers were exercised in full.
On June 20, 1995, the registrant filed a report on Form 8-K
reporting that the registrant had announced the purchase of
approximately 25 acres of undeveloped land for approximately
$20,000,000, to be used for development of a new corporate facility.
On June 22, 1995, the registrant filed a report on Form 8-K
reporting that the registrant had announced that it increased the size
of its private placement of 5-3/4% convertible subordinated notes due
2002 from $150 million to $200 million ($230 million including the
full over-allotment option) and that the transaction had closed June
21, 1995.
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ALTERA CORPORATION
/s/Thomas J. Nicoletti
------------------------------------
Thomas J. Nicoletti, Vice President
(duly authorized officer), and Chief
Financial Officer (principal financial officer)
Date: August 14, 1995
<PAGE> 1
EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
OF
RESTATED ARTICLES OF INCORPORATION
OF
ALTERA CORPORATION
RODNEY SMITH and MARTIN R. BAKER hereby certify that:
1. They are the President and Secretary, respectively, of ALTERA
CORPORATION, a California corporation (the "Corporation").
2. Article III of the Corporation's Restated Articles of
Incorporation is amended and restated to read as follows:
"III.
This corporation is authorized to issue one class of shares designated
Common Stock. The total number of shares of Common Stock this corporation
shall have the authority to issue is 80,000,000, without par value. Upon the
amendment of this Article III as set forth herein, each share of this
corporation's Common Stock shall be divided into two shares of this
corporation's Common Stock."
3. The foregoing amendment of the Corporation's Restated Articles
of Incorporation has been duly approved by the Corporation's Board of
Directors.
4. Pursuant to Section 902(c) of the California Corporations
Code, approval of the Corporation's shareholders is not required to effect this
amendment to the Corporation's Restated Articles of Incorporation.
5. Pursuant to Section 110(c) of the California Corporations
Code, the foregoing amendment of the Corporation's Restated Articles of
Incorporation shall become effective at the close of business on May 10, 1995.
<PAGE> 2
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this Certificate of Amendment
of Restated Articles of Incorporation are true and correct of our own
knowledge.
Dated: May 5, 1995 /s/ Rodney Smith
--------------------------------------
RODNEY SMITH, President
/s/ Martin R. Baker
--------------------------------------
MARTIN R. BAKER, Secretary
-2-
<PAGE> 1
EXHIBIT 4.2
================================================================================
ALTERA CORPORATION
AND
THE FIRST NATIONAL BANK OF BOSTON
Trustee
INDENTURE
Dated as of June 15, 1995
5 3/4% Convertible Subordinated Notes Due 2002
================================================================================
<PAGE> 2
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES . . . . . . . . . . . . . . . 8
Section 2.1 Designation, Amount and Issue of Notes . . . . . . . . . . . . . . . . . . 8
Section 2.2 Form of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.3 Date and Denomination of Notes; Payments of Interest . . . . . . . . . . . 9
Section 2.4 Execution of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.5 Exchange and Registration of Transfer of Notes;
Restrictions on Transfer; Depositary . . . . . . . . . . . . . . . . . . . 11
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes . . . . . . . . . . . . . . . . 20
Section 2.7 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.8 Cancellation of Notes Paid, Etc. . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE III
REDEMPTION OF NOTES . . . . . . . . . . . . . . . 22
Section 3.1 Redemption Prices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.2 Notice of Redemption; Selection of Notes . . . . . . . . . . . . . . . . . 22
Section 3.3 Payment of Notes Called for Redemption . . . . . . . . . . . . . . . . . . 24
Section 3.4 Conversion Arrangement on Call for Redemption . . . . . . . . . . . . . . . 25
ARTICLE IV
SUBORDINATION OF NOTES . . . . . . . . . . . . . . 26
Section 4.1 Agreement of Subordination . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.2 Payments to Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.3 Subrogation of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.4 Authorization by Noteholders . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.5 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.6 Trustee's Relation to Senior Indebtedness . . . . . . . . . . . . . . . . . 31
Section 4.7 No Impairment of Subordination . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.8 Certain Conversions Deemed Payment . . . . . . . . . . . . . . . . . . . . 31
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . . 32
Section 5.1 Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . 32
Section 5.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.3 Appointments to Fill Vacancies in Trustee's Office . . . . . . . . . . . . 33
Section 5.4 Provisions as to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.5 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
</TABLE>
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Section 5.6 Rule 144A Information Requirement . . . . . . . . . . . . . . . . . . . . . 34
Section 5.7 Stay, Extension and Usury Laws . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.8 Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.9 Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VI
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY . . . . . . . . . 35
Section 6.1 Noteholders' Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 6.2 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VII
DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . 36
Section 7.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.2 Payments of Notes on Default; Suit Therefor . . . . . . . . . . . . . . . . 39
Section 7.3 Application of Monies Collected by Trustee . . . . . . . . . . . . . . . . 41
Section 7.4 Proceedings by Noteholder . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 7.5 Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.6 Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . 43
Section 7.7 Direction of Proceedings and Waiver of Defaults by Majority of
Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.8 Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 7.9 Undertaking to Pay Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 7.10 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE VIII
CONCERNING THE TRUSTEE . . . . . . . . . . . . . . 45
Section 8.1 Duties and Responsibilities of Trustee. . . . . . . . . . . . . . . . . . . 45
Section 8.2 Reliance on Documents, Opinions, Etc. . . . . . . . . . . . . . . . . . . . 46
Section 8.3 No Responsibility for Recitals, Etc. . . . . . . . . . . . . . . . . . . . 47
Section 8.4 Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes. . . . 48
Section 8.5 Monies to Be Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 8.6 Compensation and Expenses of Trustee. . . . . . . . . . . . . . . . . . . . 48
Section 8.7 Officers' Certificate as Evidence. . . . . . . . . . . . . . . . . . . . . 49
Section 8.8 Conflicting Interests of Trustee. . . . . . . . . . . . . . . . . . . . . . 49
Section 8.9 Eligibility of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.10 Resignation or Removal of Trustee. . . . . . . . . . . . . . . . . . . . . 49
Section 8.11 Acceptance by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . 51
Section 8.12 Succession by Merger, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 8.13 Limitation on Rights of Trustee as Creditor . . . . . . . . . . . . . . . . 52
ARTICLE IX
CONCERNING THE NOTEHOLDERS . . . . . . . . . . . . . 52
Section 9.1 Action by Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 9.2 Proof of Execution by Noteholders. . . . . . . . . . . . . . . . . . . . . 53
Section 9.3 Who Are Deemed Absolute Owners . . . . . . . . . . . . . . . . . . . . . . 53
Section 9.4 Company-Owned Notes Disregarded . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
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Section 9.5 Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . 54
ARTICLE X
NOTEHOLDERS' MEETINGS . . . . . . . . . . . . . . . 54
Section 10.1 Purpose of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 10.2 Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 10.3 Call of Meetings by Company or Noteholders . . . . . . . . . . . . . . . . 55
Section 10.4 Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 10.5 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 10.6 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 10.7 No Delay of Rights by Meeting . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE XI
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . 57
Section 11.1 Supplemental Indentures Without Consent of Noteholders . . . . . . . . . . 57
Section 11.2 Supplemental Indentures with Consent of Noteholders . . . . . . . . . . . . 58
Section 11.3 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 59
Section 11.4 Notation on Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 11.5 Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee . 60
ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE . . . . . . . . 60
Section 12.1 Company May Consolidate, Etc. on Certain Terms . . . . . . . . . . . . . . 60
Section 12.2 Successor Corporation to Be Substituted . . . . . . . . . . . . . . . . . . 61
Section 12.3 Opinion of Counsel to Be Given Trustee . . . . . . . . . . . . . . . . . . 61
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . 62
Section 13.1 Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 13.2 Deposited Monies to Be Held in Trust by Trustee . . . . . . . . . . . . . . 62
Section 13.3 Paying Agent to Repay Monies Held . . . . . . . . . . . . . . . . . . . . . 63
Section 13.4 Return of Unclaimed Monies . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 13.5 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE XIV
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS . . . . . . . . . . . . . . 63
Section 14.1 Indenture and Notes Solely Corporate Obligations . . . . . . . . . . . . . 63
ARTICLE XV
</TABLE>
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CONVERSION OF NOTES . . . . . . . . . . . . . . . 64
Section 15.1 Right to Convert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 15.2 Exercise of Conversion Privilege; Issuance of Common Stock on Conversion;
No Adjustment for Interest or Dividends . . . . . . . . . . . . . . . . . . 64
Section 15.3 Cash Payments in Lieu of Fractional Shares . . . . . . . . . . . . . . . . 66
Section 15.4 Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 15.5 Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . 67
Section 15.6 Effect of Reclassification, Consolidation, Merger or Sale . . . . . . . . . 78
Section 15.7 Taxes on Shares Issued . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 15.8 Reservation of Shares; Shares to Be Fully Paid; Listing of Common Stock . . 79
Section 15.9 Responsibility of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 15.10 Notice to Holders Prior to Certain Actions . . . . . . . . . . . . . . . . 81
ARTICLE XVI
REPURCHASE UPON A DESIGNATED EVENT . . . . . . . . . . . 82
Section 16.1 Repurchase Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 16.2 Notices; Method of Exercising Repurchase Right, Etc. . . . . . . . . . . . 82
Section 16.3 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE XVII
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . 85
Section 17.1 Provisions Binding on Company's Successors . . . . . . . . . . . . . . . . 85
Section 17.2 Official Acts by Successor Corporation . . . . . . . . . . . . . . . . . . 85
Section 17.3 Addresses for Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 17.4 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 17.5 Evidence of Compliance with Conditions Precedent;
Certificates to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 17.6 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 17.7 No Security Interest Created . . . . . . . . . . . . . . . . . . . . . . . 87
Section 17.8 Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 17.9 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 17.10 Table of Contents, Headings, Etc. . . . . . . . . . . . . . . . . . . . . . 87
Section 17.11 Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 17.12 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 89
Exhibit A: Form of Note
</TABLE>
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<PAGE> 6
INDENTURE, dated as of June 15, 1995, between ALTERA CORPORATION, a
California corporation (hereinafter sometimes called the "Company", as more
fully set forth in Section 1.1), and THE FIRST NATIONAL BANK OF BOSTON, a
national banking association (hereinafter sometimes called the "Trustee", as
more fully set forth in Section 1.1).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its 5 3/4% Convertible Subordinated Notes due 2002
(hereinafter sometimes called the "Notes"), in an aggregate principal amount
not to exceed Two Hundred Thirty Million Dollars ($230,000,000) and, to provide
the terms and conditions upon which the Notes are to be authenticated, issued
and delivered, the Company has duly authorized the execution and delivery of
this Indenture; and
WHEREAS, the Notes, the certificate of authentication to be borne by
the Notes, a form of assignment, a form of option to elect repayment upon a
Designated Event, a form of conversion notice and a certificate of transfer to
be borne by the Notes are to be substantially in the forms hereinafter provided
for; and
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee or a
duly authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute these presents
a valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be, authenticated, issued and delivered, and in consideration
of the premises and of the purchase and acceptance of the Notes by the Holders
thereof, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective Holders from time to time of the Notes
(except as otherwise provided below), as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The terms defined in this Section 1.1
(except as herein otherwise expressly provided or
1
<PAGE> 7
unless the context otherwise requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective meanings
specified in this Section 1.1. All other terms used in this Indenture, which
are defined in the Trust Indenture Act or which are by reference therein
defined in the Securities Act (except as herein otherwise expressly provided or
unless the context otherwise requires) shall have the meanings assigned to such
terms in the Trust Indenture Act and in the Securities Act as in force at the
date of the execution of this Indenture. The words "herein," "hereof,"
"hereunder," and words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other Subdivision. The terms defined
in this Article include the plural as well as the singular.
Affiliate: of any Person specified means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
Board of Directors: means the Board of Directors of the Company or a
committee of such Board duly authorized to act for it hereunder.
Board Resolution: means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, or duly authorized committee thereof (to the extent
permitted by applicable law), and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
Business Day: means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which the banking institutions in The City of New
York or the city in which the Corporate Trust Office is located are authorized
or obligated by law or executive order to close or be closed.
Commission: means the Securities and Exchange Commission.
Common Stock: means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. Subject to the
provisions of Section 15.6, however, shares issuable on conversion of Notes
shall include only shares of the class designated as common stock of the
Company at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications
2
<PAGE> 8
thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Company and which are not subject to redemption by the
Company; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.
Company: means Altera Corporation, a California corporation, and,
subject to the provisions of Article XII, shall include its successors and
assigns.
Conversion Price: has the meaning specified in Article XV.
Corporate Trust Office: means the office of the Trustee at which at
any particular time its corporate trust business is principally administered,
which office is, at the date as of which this Indenture is dated, located at
Blue Hills Office Park, 150 Royall Street, Canton, Massachusetts 02021,
Attention: Corporate Trust Division, Mail Stop 45-02-15 (Altera Corporation
5 3/4% Convertible Subordinated Notes due 2002).
Custodian: means The First National Bank of Boston, as custodian with
respect to the Notes in global form, or any successor entity thereto.
default: means any event that is, or after notice or passage of time,
or both, would be, an Event of Default.
Depositary: means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.5(d) as the
Depositary with respect to such Notes, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, "Depositary" means or include such successor.
Designated Event: has the meaning specified in Article XVI.
Exchange Act: means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
Event of Default: has the meaning specified in Article VII.
Indenture: means this instrument as originally executed or, if amended
or supplemented as herein provided, as so amended or supplemented.
Note or Notes: means any Note or Notes, as the case may be,
authenticated and delivered under this Indenture in accordance with its terms.
3
<PAGE> 9
Noteholder; Holders: as applied to any Note, or other similar terms
(but excluding the term "beneficial Holder"), means any Person in whose name at
the time a particular Note is registered on the Note Registrar's books.
Note Register: has the meaning specified in Section 2.5.
Note Registrar: has the meaning specified in Section 2.5.
Officers' Certificate: when used with respect to the Company, means a
certificate signed by (i) the President, the Chief Executive Officer, Executive
or Senior Vice President or any Vice President (whether or not designated by a
number or numbers or word or words added before or after the title "Vice
President") of the Company and (ii) the Treasurer or any Assistant Treasurer,
Secretary or any Assistant Secretary or Controller of the Company, which is
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 17.5 if and to the extent required by the provisions of
such Section.
Opinion of Counsel: means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or other counsel
acceptable to the Trustee, which is delivered to the Trustee. Each such
opinion shall include the statements provided for in Section 17.5 if and to the
extent required by the provisions of such Section.
Outstanding: when used with reference to Notes, shall, subject to the
provisions of Section 9.4, mean, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment,
redemption or repurchase of which monies in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company acts as its own paying
agent);provided that if such Notes are to be redeemed or repurchased,
as the case may be, prior to the maturity thereof, notice of such
redemption or repurchase, as the case may be, shall have been given as
provided in Section 3.2 or Article XVI, respectively, or provision
satisfactory to the Trustee shall have been made for giving such
notice;
(c) Notes in lieu of which, or in substitution for which
(the "Substituted Notes"), other Notes shall have been authenticated
and delivered pursuant to the terms of Section 2.6 unless proof
satisfactory to the Trustee is
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presented that any such Substituted Notes are held by bona fide
Holders in due course; and
(d) Notes converted into Common Stock pursuant to Article
XV and Notes deemed not Outstanding pursuant to Section 3.2.
Person: means a corporation, an association, a partnership, an
individual, a joint venture, a joint stock company, a trust, an unincorporated
organization or a government or an agency or a political subdivision thereof.
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.
Predecessor Note: of any particular Note, means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.6 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note that it replaces.
QIB: means a "qualified institutional buyer" as defined in Rule 144A.
Regulation S: means Regulation S as promulgated under the Securities
Act.
Repurchase Price: has the meaning specified in Section 16.1.
Responsible Officer: when used with respect to the Trustee, means an
officer of the Trustee assigned to the Corporate Trust Office, and any other
officer of the Trustee to whom such matter is referred to because of his
knowledge of, and familiarity with, the particular subject.
Restricted Securities: has the meaning specified in Section 2.5(d).
Rule 144A: means Rule 144A as promulgated under the Securities Act.
Securities Act: means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
Senior Indebtedness: means the principal of, premium, if any,
interest on, and any other payment due pursuant to, any of the following,
whether outstanding on the date of this Indenture or thereafter incurred or
created:
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(a) All indebtedness of the Company for money borrowed
(including, but not limited to, any indebtedness secured by a security
interest, mortgage or other lien on the assets of the Company which is
(i) given to secure all or part of the purchase price of property
subject thereto, whether given to the vendor of such property or to
another, or (ii) existing on property at the time of acquisition
thereof);
(b) All indebtedness of the Company evidenced by notes,
debentures, bonds, or other securities (including, but not limited to,
those which are convertible or exchangeable for securities of the
Company);
(c) All indebtedness of the Company due and owing with
respect to letters of credit (including, but not limited to,
reimbursement obligations with respect thereto);
(d) All lease obligations of the Company which are
capitalized on the books of the Company in accordance with generally
accepted accounting principles and all lease obligations of the
Company under any lease or related document (including a purchase
agreement) which provides that the Company is contractually obligated
to purchase or cause a third party to purchase and thereby guarantee a
minimum residual value of the lease property to the lessor and the
obligations of the Company under such lease or related document to
purchase or to cause a third party to purchase such leased property;
(e) All indebtedness consisting of commitment or standby
fees due and payable to lending institutions with respect to credit
facilities available to the Company;
(f) All indebtedness consisting of obligations of the
Company due and payable under interest rate and currency swaps,
floors, caps, or other similar arrangements intended to hedge or fix
interest rate or foreign currency exposure;
(g) All indebtedness of others of the kinds described in
any of the preceding clauses (a), (b), (c), (e), or (f) and all lease
obligations of the kind described in the preceding clause (d) assumed
by or guaranteed in any manner by the Company or in effect guaranteed
by the Company through an agreement to purchase, contingent or
otherwise; and
(h) All renewals, extensions, refundings, deferrals,
amendments, or modifications of indebtedness of the kinds described in
any of the preceding clauses (a), (b), (c), (e), (f), or (g) and all
renewals or extensions of lease obligations of the kinds described in
either of the preceding clauses (d) or (g);
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unless in the case of any particular indebtedness, lease, renewal, extension,
refunding, amendment, modification, or supplement, the instrument, lease or
other document creating or evidencing the same or the assumption or guarantee
of the same expressly provides that such indebtedness, lease, renewal,
extension, refunding, amendment, modification, or supplement is not superior in
right of payment to, or pari passu with, the Notes. Notwithstanding the
foregoing, Senior Indebtedness shall not include (i) any indebtedness or lease
obligations of any kind of the Company to any subsidiary of the Company, a
majority of the voting stock of which is owned, directly or indirectly, by the
Company, and (ii) indebtedness for trade payables or constituting the deferred
purchase price of assets or services incurred in the ordinary course of
business.
Significant Subsidiary: means, with respect to any Person, a
Subsidiary of such Person that would constitute a "significant subsidiary" as
such term is defined under Rule 1-02 of Regulation S-X of the Commission.
Subsidiary: means a corporation more than fifty percent (50%) of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
Trust Indenture Act: means the Trust Indenture Act of 1939, as
amended, as it was in force at the date of execution of this Indenture, except
as provided in Sections 11.3 and 15.6; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after the date hereof, the term "Trust
Indenture Act" means, to the extent required by such amendment, the Trust
Indenture Act of 1939 as so amended.
Trustee: means The First National Bank of Boston and its successors
and any corporation resulting from or surviving any consolidation or merger to
which it or its successors may be a party and any successor trustee at the time
serving as successor trustee hereunder.
The definitions of certain other terms are as specified in Article XV
and Article XVI.
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ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
Section 2.1 Designation, Amount and Issue of Notes. The Notes
shall be designated as "5 3/4% Convertible Subordinated Notes due 2002". Notes
not to exceed the aggregate principal amount of Two Hundred Million Dollars
($200,000,000) (or Two Hundred Thirty Million Dollars ($230,000,000) if the
overallotment option set forth in Section 3 of the Purchase Agreement, dated
June 16, 1995, by and between the Company and the other parties thereto, as
amended from time to time by the parties thereto, is exercised in full) (except
pursuant to Sections 2.6, 3.3, 15.2 and 16.2) upon the execution of this
Indenture, or from time to time thereafter, may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes upon the written order of the Company,
signed by its (a) President, Executive or Senior Vice President or any Vice
President (whether or not designated by a number or numbers or word or words
added before or after the title "Vice President") and (b) Treasurer or
Assistant Treasurer or its Secretary or any Assistant Secretary, without any
further action by the Company hereunder.
Section 2.2 Form of Notes. The Notes and the Trustee's
certificate of authentication to be borne by such Notes shall be substantially
in the form set forth in Exhibit A, which is incorporated in and made a part of
this Indenture.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed or designated for issuance, or to conform to usage.
Any Note in global form shall represent such of the Outstanding Notes
as shall be specified therein and shall provide that it shall represent the
aggregate amount of Outstanding Notes from time to time endorsed thereon and
that the aggregate amount of Outstanding Notes represented thereby may from
time to time be increased or reduced to reflect transfers or exchanges
permitted hereby. Any endorsement of a Note in global form to reflect the
amount of any increase or decrease in the amount of Outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in such manner and upon instructions given by the
Holder of such Notes in accordance with this Indenture. Payment of principal
of and interest and premium,
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if any (including any redemption price), on any Note in global form shall be
made to the Holder of such Note by wire transfer in immediately available funds
in accordance with the wire transfer instruction supplied by the Holder of such
Note to the Trustee and paying agent (if different from the Trustee).
The terms and provisions contained in the form of Note attached as
Exhibit A hereto 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.
Section 2.3 Date and Denomination of Notes; Payments of Interest.
The Notes shall be issuable in registered form without coupons in denominations
of One Thousand Dollars ($1,000) principal amount and integral multiples
thereof. Every Note shall be dated the date of its authentication, shall bear
interest from the applicable date and accrued interest shall be payable
semiannually on each June 15 and December 15, commencing December 15, 1995, in
each case, as specified on the face of the form of Note attached as Exhibit A
hereto.
The Person in whose name any Note (or its Predecessor Note) is
registered at the close of business on any record date with respect to any
interest payment date (including any Note that is converted after the record
date and on or before the interest payment date) shall be entitled to receive
the interest payable on such interest payment date notwithstanding the
cancellation of such Note upon any transfer, exchange or conversion subsequent
to the record date and 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 registry kept for such purposes; provided that, with respect to
any Holder of Notes with an aggregate principal amount equal to or in excess of
Five Million Dollars ($5,000,000), at the request of such Holder in writing to
the Company, interest on such Holder's Notes shall be paid by wire transfer in
immediately available funds in accordance with the wire transfer instruction
supplied by such Holder to the Trustee and paying agent (if different from
Trustee). The term "record date" with respect to any interest payment date
means the December 1 or June 1 preceding said December 15 or June 15.
Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any said December 15 or June 15 (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Noteholder on
the relevant record date by virtue of his having been such Noteholder; and such
Defaulted
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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 Notes (or their
respective Predecessor Notes) 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 to
be paid on each Note and the date of the payment (which shall be not
less than twenty-five (25) days after the Trustee's receipt of such
notice, unless the Trustee shall consent to an earlier date), and at
the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money, when deposited, to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date for
the payment of such Defaulted Interest which shall be not more than
fifteen (15) days and not less than ten (10) days prior to the date of
the proposed payment and not less than ten (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
Noteholder as of such special record date at his address as it appears
in the Note Register not less than ten (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 so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Notes (or their respective Predecessor Notes) were 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 Notes may be listed or designated for issuance, 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 of payment shall
be deemed practicable by the Trustee.
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Section 2.4 Execution of Notes. The Notes shall be signed in the
name and on behalf of the Company by the facsimile signature of its President,
its Chief Executive Officer or any of its Executive or Senior Vice Presidents,
or any of its Vice Presidents and attested by the facsimile signature of its
Secretary or any of its Assistant Secretaries (which may be printed, engraved
or otherwise reproduced thereon, by facsimile or otherwise). Only such Notes
as shall bear thereon a certificate of authentication substantially in the form
set forth on the form of Note attached as Exhibit A hereto, manually executed
by the Trustee (or an authenticating agent appointed by the Trustee as provided
by Section 17.11), shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee (or such
an authenticating agent) upon any Note executed by the Company shall be
conclusive evidence that the Note so authenticated has been duly authenticated
and delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Note nevertheless may be authenticated and delivered or disposed of as though
the Person who signed such Note had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such Persons
as, at the actual date of the execution of such Note, shall be the proper
officers of the Company, although at the date of the execution of this
Indenture any such Person was not such an officer.
Section 2.5 Exchange and Registration of Transfer of Notes;
Restrictions on Transfer; Depositary.
(a) The Company shall cause to be kept at the Corporate
Trust Office a register (the register maintained in such office and in
any other office or agency of the Company designated pursuant to
Section 5.2 being herein sometimes collectively referred to as the
"Note Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of
Notes and of transfers of Notes. Such register shall be in written
form or in any form capable of being converted into written form
within a reasonable period of time. The Trustee is hereby appointed
"Note Registrar" for the purpose of registering Notes and transfers of
Notes as herein provided. The Company may appoint one or more
co-registrars in accordance with Section 5.2.
Upon surrender for registration of transfer of any Note to the
Note Registrar or any co-registrar, and satisfaction of the
requirements for such transfer set forth in this Section 2.5, the
Company shall execute, and the Trustee shall
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authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denominations and
of a like aggregate principal amount and bearing such restrictive
legends as may be required by this Indenture.
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount upon surrender
of the Notes to be exchanged at any such office or agency. Whenever
any Notes are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Notes which the
Noteholder making the exchange is entitled to receive, bearing
registration numbers not contemporaneously outstanding.
All Notes presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the
Trustee, the Note Registrar or any co-registrar) be duly endorsed, or
be accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company and duly executed by the Noteholder
thereof or his attorney duly authorized in writing.
No service charge shall be charged to the Noteholder for any
exchange or registration of transfer of Notes, but the Company may
require payment of a sum sufficient to cover any tax, assessments or
other governmental charges that may be imposed in connection
therewith.
None of the Company, the Trustee, the Note Registrar or any
co-registrar shall be required to exchange or register a transfer of
(a) any Notes for a period of fifteen (15) days next preceding any
selection of Notes to be redeemed, or (b) any Notes called for
redemption or, if a portion of any Note is selected or called for
redemption, such portion thereof selected or called for redemption, or
(c) any Notes surrendered for conversion or, if a portion of any Note
is surrendered for conversion, such portion thereof surrendered for
conversion, or (d) any Notes surrendered for repurchase pursuant to
Article XVI or, if a portion of any Note is surrendered for repurchase
pursuant to Article XVI, such portion thereof surrendered for
repurchase pursuant to Article XVI.
All Notes issued upon any transfer or exchange of Notes in
accordance with this Indenture shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Notes surrendered upon such registration
of transfer or exchange.
(b) So long as the Notes are eligible for book-entry
settlement with the Depositary, unless otherwise required by
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<PAGE> 18
law, all Notes to be traded on the PORTAL Market or to a Person who is
not a U.S. Person (as defined in Regulation S) who is acquiring the
Note in an offshore transaction (a "Non-U.S. Person") in accordance
with Regulation S shall be represented by a Note in global form
registered in the name of the Depositary or the nominee of the
Depositary. The transfer and exchange of beneficial interests in such
Note in global form which does not involve the issuance of a
definitive Note shall be effected through the Depositary (but not the
Trustee or the Custodian) in accordance with this Indenture (including
the restrictions on transfer set forth herein) and the procedures of
the Depositary therefor.
At any time at the request of the beneficial Holder of an
interest in a Note in global form, such beneficial Holder shall be
entitled to obtain a definitive Note upon written request to the
Trustee and the Custodian in accordance with the standing instructions
and procedures existing between the Depositary and the Custodian for
the issuance thereof. Upon receipt of any such request, the Trustee
or the Custodian, at the Trustee's direction, shall cause, in
accordance with the standing instructions and procedures existing
between the Depositary and the Custodian, the aggregate principal
amount of the Note in global form to be reduced by the principal
amount of the definitive Note issued upon such request to such
beneficial Holder and, following such reduction, the Company shall
execute, and the Trustee shall authenticate and deliver to such
beneficial Holder (or its nominee), a definitive Note or Notes in the
appropriate aggregate principal amount in the name of such beneficial
Holder (or its nominee) and bearing such restrictive legends as may be
required by this Indenture.
Any transfer of a beneficial interest in a Note in global form
which cannot be effected through book-entry settlement must be
effected by the delivery to the transferee (or its nominee) of a
definitive Note or Notes registered in the name of the transferee (or
its nominee) on the books maintained by the Trustee in accordance with
the transfer restrictions set forth herein. With respect to any such
transfer, the Trustee or the Custodian, at the Trustee's direction,
shall cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Custodian, the
aggregate principal amount of the Note in global form to be reduced by
the principal amount of the beneficial interest in the Note in global
form being transferred and, following such reduction, the Company
shall execute, and the Trustee shall authenticate and deliver to the
transferee (or such transferee's nominee, as the case may be), a Note
or Notes in the appropriate aggregate principal amount in the name of
such transferee (or its nominee) and bearing such restrictive legends
as may be required by this Indenture.
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(c) So long as the Notes are eligible for book-entry
settlement, and unless otherwise required by law, upon any transfer of
a definitive Note to a QIB in accordance with Rule 144A or a Non-U.S.
Person in accordance with Regulation S, unless otherwise requested by
the transferor, and upon receipt of the definitive Note or Notes being
so transferred, together with a certification from the transferor that
the transferee is a QIB or a Non-U.S. Person (or other evidence
satisfactory to the Trustee), (i) the Trustee shall make, or direct
the Custodian to make, an endorsement on the Note in global form to
reflect an increase in the aggregate principal amount of the Notes
represented by the Note in global form by the principal amount of the
Note being transferred to the QIB or the Non-U.S. Person, as
applicable, and (ii) the Trustee shall cancel such definitive Note or
Notes and cause, or direct the Custodian to cause, in accordance with
the standing instructions and procedures existing between the
Depositary and the Custodian, the aggregate principal amount of Notes
represented by the Note in global form to be increased
accordingly;provided that no definitive Note, or portion thereof, in
respect of which the Company or an Affiliate of the Company held any
beneficial interest shall be included in such Note in global form
until such definitive Note is freely tradable in accordance with Rule
144(k);provided further that the Trustee shall issue Notes in
definitive form upon any transfer of a beneficial interest in the Note
in global form to the Company or any Affiliate of the Company.
Any Note in global form 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 Custodian, the Depositary or by the National
Association of Securities Dealers, Inc. in order for the Notes to be
tradeable on the PORTAL Market or as may be required for the Notes to
be tradeable on any other market developed for trading of securities
pursuant to Rule 144A 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 Notes
may be listed or traded or designated for issuance or to conform with
any usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular Notes are subject.
(d) Every Note that bears or is required under this
Section 2.5(d) to bear the legend set forth in this Section 2.5(d)
(together with any Common Stock issued upon conversion of the Notes
and required to bear the legend set forth in Section 2.5(e),
collectively, the "Restricted Securities") shall be subject to the
restrictions on transfer set forth in this Section 2.5(d) (including
the legend set forth below), unless such restrictions on transfer
shall be
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waived by written consent of the Company, and the Holder of each such
Restricted Security, by such Holder's acceptance thereof, agrees to be
bound by all such restrictions on transfer. As used in Sections
2.5(d) and 2.5(e), the term "transfer" encompasses any sale, pledge,
transfer or other disposition whatsoever of any Restricted Security.
Until three (3) years after the original issuance date of any
Note, any certificate evidencing such Note (and all securities issued
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 2.5(e), if applicable) shall bear a legend in
substantially the following form (unless such Note 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 unless otherwise agreed by
the Company in writing, with written notice thereof to the Trustee):
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) 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") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT WITHIN THREE
YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY
RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE
COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE EXCEPT (A)
TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE FIRST NATIONAL BANK OF BOSTON,
AS TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE
NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM SUCH TRUSTEE), (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION
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PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
OR (F) 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); AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
NOTE EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(F) ABOVE) A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE
NOTE EVIDENCED HEREBY WITHIN THREE YEARS AFTER THE ORIGINAL
ISSUANCE OF SUCH NOTE (OTHER THAN A TRANSFER PURSUANT TO
CLAUSE 2(F) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX
SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE FIRST NATIONAL
BANK OF BOSTON, AS TRUSTEE. IF THE PROPOSED TRANSFER IS
PURSUANT TO CLAUSE 2(C), 2(D) OR 2(E) ABOVE, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE FIRST NATIONAL BANK OF
BOSTON, AS TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS NOTE
EVIDENCED HEREBY PURSUANT TO CLAUSE 2(F) ABOVE OR THE
EXPIRATION OF THREE YEARS FROM THE ORIGINAL ISSUANCE OF THE
NOTE EVIDENCED HEREBY. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
Any Note (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have expired
in accordance with their terms may, upon surrender of such Note for
exchange to the Note Registrar in accordance with the provisions of
this Section 2.5, be exchanged for a new Note or Notes, of like tenor
and aggregate principal amount, which shall not bear the restrictive
legend required by this Section 2.5(d).
Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in this Section 2.5(d)), a Note in
global form 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.
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The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust
Company to act as the Depositary. Initially, the global Note shall be
issued to the Depositary, registered in the name of Cede & Co., as the
nominee of the Depositary, and deposited with the Trustee as
Custodian.
If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary, the Company may appoint
a successor Depositary. If a successor Depositary is not appointed by
the Company within ninety (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 Notes,
will authenticate and deliver, Notes in definitive form, in an
aggregate principal amount equal to the principal amount of the Note
in global form, in exchange for such Note in global form and upon
delivery of such Note in global form to the Trustee, such Note in
global form shall be canceled.
Definitive Notes issued in exchange for all or a part of a
Note in global form pursuant to this Section 2.5(d) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. Upon execution
and authentication, the Trustee shall deliver such definitive Notes to
the Persons in whose names such definitive Notes are so registered.
At such time as all interests in a Note in global form have
been redeemed, converted, canceled, repurchased or transferred, such
Note in global form shall be, upon receipt thereof, canceled by the
Trustee in accordance with standing procedures and instructions
existing between the Depositary and the Custodian. At any time prior
to such cancellation, if any interest in a global Note is exchanged
for definitive Notes, redeemed, converted, canceled, repurchased or
transferred to a transferee who receives definitive Notes therefor or
any definitive Note is exchanged or transferred for part of a Note in
global form, the principal amount of such Note in global form 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 Note in global form, by the Trustee or the Custodian, at the
Trustee's direction, to reflect such reduction or increase.
(e) Until three years after the original issuance date of
any Note, any stock certificate representing Common Stock issued upon
conversion of such Note shall bear a legend in substantially the
following form (unless such Common Stock has been sold pursuant to a
registration statement that has been
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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 Notes 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 Trustee and any transfer agent for
the Common Stock):
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 MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT UNTIL THE
EXPIRATION OF THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THE
NOTE UPON THE CONVERSION OF WHICH THE COMMON STOCK EVIDENCED
HEREBY WAS ISSUED (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER
THE COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C) INSIDE
THE UNITED STATES 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
FIRST NATIONAL BANK OF BOSTON, AS TRANSFER AGENT, 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), (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) 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 ANY SUCH TRANSFER
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(F) ABOVE), IT WILL
FURNISH TO THE FIRST NATIONAL BANK OF BOSTON, AS TRANSFER
AGENT, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL DELIVER TO
EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A
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TRANSFER PURSUANT TO CLAUSE 1(F) 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(F) ABOVE OR THE EXPIRATION OF
THREE YEARS FROM THE ORIGINAL ISSUANCE OF THE NOTE UPON THE
CONVERSION OF WHICH THE COMMON STOCK EVIDENCED HEREBY WAS
ISSUED OR UPON THE EARLIER SATISFACTION OF THE FIRST NATIONAL
BANK OF BOSTON, AS TRANSFER AGENT, THAT THE COMMON STOCK HAS
BEEN OR IS BEING OFFERED AND SOLD IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT. AS USED HEREIN, THE TERMS "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
Any such Common Stock as to which such restrictions on
transfer shall have expired in accordance with their terms 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 aggregate number of shares of Common Stock,
which shall not bear the restrictive legend required by this Section
2.5(e).
(f) Any certificate evidencing a Note that has been
transferred to an Affiliate of the Company within three years after
the original issuance date of the Note, as evidenced by a notation on
the Assignment Form for such transfer or in the representation letter
delivered in respect thereof, shall, until three years after the last
date on which the Company or any Affiliate of the Company was an owner
of such Note, bear a legend in substantially the following form,
unless otherwise agreed by the Company (with written notice thereof to
the Trustee):
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE
COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE EXCEPT (A)
TO ALTERA CORPORATION OR ANY SUBSIDIARY THEREOF, (B) IN A
TRANSACTION REGISTERED UNDER THE SECURITIES ACT OR (C)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND (2) THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY
IS TRANS-
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FERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IF THE PROPOSED TRANSFER IS PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE FIRST
NATIONAL BANK OF BOSTON, AS TRUSTEE, SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
Any stock certificate representing Common Stock issued upon conversion
of such Note shall also bear a legend in substantially the form
indicated above, unless otherwise agreed by the Company (with written
notice thereof to the Trustee).
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes. In case
any Note shall become mutilated or be destroyed, lost or stolen, the Company,
in its discretion, may execute, and, upon its request the Trustee or an
authenticating agent appointed by the Trustee, shall authenticate and deliver,
a new Note, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Note, or in lieu of and in substitution for the
Note so destroyed, lost or stolen. In every case the applicant for a
substituted Note shall furnish to the Company, the Trustee and, if applicable,
such authenticating agent such security or indemnity as may be required by them
to save each of them harmless for any loss, liability, cost or expense caused
by or connected with such substitution, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company, the Trustee and, if
applicable, such authenticating agent evidence to their satisfaction of the
destruction, loss or theft of such Note and of the ownership thereof.
The Trustee or such authenticating agent may authenticate any such
substituted Note and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such authenticating
agent may require. Upon the issuance of any substituted Note, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith. If any Note which has matured or is about to mature or has been
called for redemption or submitted for repurchase or is about to be converted
into Common Stock shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Note, pay, or authorize the
payment of, or convert, or authorize the conversion of, the same (without
surrender thereof except in the case of a mutilated Note), as the case may be,
if the
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applicant for such payment or conversion shall furnish to the Company, the
Trustee and, if applicable, such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any
loss, liability, cost or expense caused by or connected with such substitution,
and, in case of destruction, loss or theft, evidence satisfactory to the
Company, the Trustee and, if applicable, any paying agent or conversion agent
of the destruction, loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this
Section 2.6 by virtue of the fact that any Note is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Note shall be found at any time, and shall
be entitled to all the benefits of (but shall be subject to all the limitations
set forth in) this Indenture equally and proportionately with any and all other
Notes duly issued hereunder. To the extent permitted by law, all Notes shall
be held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment or conversion of
mutilated, destroyed, lost or stolen Notes and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment or
conversion of negotiable instruments or other securities without their
surrender.
Section 2.7 Temporary Notes. Pending the preparation of
definitive Notes, the Company may execute, and the Trustee or an authenticating
agent appointed by the Trustee shall, upon the Company's written request,
authenticate and deliver, temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in
the form of the definitive Notes but with such omissions, insertions and
variations as may be appropriate for temporary Notes, all as may be determined
by the Company. Every such temporary Note 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 Notes. Without unreasonable delay, the Company shall execute
and deliver to the Trustee or such authenticating agent definitive Notes (other
than in the case of Notes in global form) and thereupon any or all temporary
Notes (other than any such Note in global form) may be surrendered in exchange
therefor, at each office or agency maintained by the Company pursuant to
Section 5.2 and the Trustee or such authenticating agent shall authenticate and
deliver in exchange for such temporary Notes an equal aggregate principal
amount of definitive Notes. Such exchange shall be made by the Company at its
own expense and without any charge therefor. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits and subject to the
same limitations under this
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Indenture as definitive Notes authenticated and delivered hereunder.
Section 2.8 Cancellation of Notes Paid, Etc. All Notes
surrendered for the purpose of payment, redemption, repurchase, conversion,
exchange or registration of transfer, shall, if surrendered to the Company or
any paying agent or any Note Registrar or any conversion agent, be surrendered
to the Trustee and promptly canceled by it, or, if surrendered to the Trustee,
shall be promptly canceled by it, and no Notes shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. Upon
the Company's written instructions, the Trustee shall destroy canceled Notes
and, after such destruction, shall deliver a certificate of such destruction to
the Company. If the Company shall acquire any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Notes unless and until the same are delivered to the
Trustee for cancellation.
ARTICLE III
REDEMPTION OF NOTES
Section 3.1 Redemption Prices. The Company may, at its option,
redeem all or from time to time any part of the Notes on any date prior to
maturity, upon notice as set forth in Section 3.2, and at the optional
redemption prices set forth in the form of Note attached as Exhibit A hereto,
together with accrued interest, if any, to the date fixed for redemption;
provided, however, that no such redemption shall be effected before June 16,
1998.
Section 3.2 Notice of Redemption; Selection of Notes. If the
Company desires to exercise the right to redeem all or, as the case may be, any
part of the Notes pursuant to Section 3.1, it shall fix a date for redemption
and it or, at its request (which must be received by the Trustee at least ten
(10) Business Days prior to the date the Trustee is requested to give notice as
described below unless a shorter period is agreed to by the Trustee), the
Trustee, in the name of and at the expense of the Company, shall mail or cause
to be mailed a notice of such redemption at least thirty (30) and not more than
sixty (60) days prior to the date fixed for redemption to the Holders so to be
redeemed as a whole or in part at their last addresses as the same appear on
the Note Register (provided that if the Company gives such notice, it shall
also give such notice, and notice of the Notes to be redeemed, to the Trustee).
Such mailing shall be by first class mail. The notice, if mailed in the manner
herein provided, shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice to the Holder of any
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Note designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Note.
Each such notice of redemption shall specify the aggregate principal
amount of Notes to be redeemed, the date fixed for redemption, the redemption
price at which Notes are to be redeemed, the place or places of payment, that
payment will be made upon presentation and surrender of such Notes, that
interest accrued to the date fixed for redemption will be paid as specified in
said notice, and that on and after said date interest thereon or on the portion
thereof to be redeemed will cease to accrue. Such notice shall also state the
current Conversion Price and the date on which the right to convert such Notes
or portions thereof into Common Stock will expire. If fewer than all the Notes
are to be redeemed, the notice of redemption shall identify the Notes to be
redeemed. In case any Note is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion thereof will be issued.
On or prior to the last Business Day prior to the redemption date
specified in the notice of redemption given as provided in this Section 3.2,
the Company shall deposit with the Trustee or with one or more paying agents
(or, if the Company is acting as its own paying agent, set aside, segregate and
hold in trust as provided in Section 5.4) an amount of money sufficient to
redeem on the redemption date all the Notes (or portions thereof) so called for
redemption (other than those theretofore surrendered for conversion into Common
Stock) at the appropriate redemption price, together with accrued interest to
the date fixed for redemption. If any Note called for redemption is converted
pursuant hereto, any money deposited with the Trustee or any paying agent or so
segregated and held in trust for the redemption of such Note shall be paid to
the Company upon its request, or, if then held by the Company, shall be
discharged from such trust. If fewer than all the Notes are to be redeemed,
the Company shall give the Trustee written notice in the form of an Officers'
Certificate not fewer than forty-five (45) days (or such shorter period of time
as may be acceptable to the Trustee) prior to the redemption date as to the
aggregate principal amount of Notes to be redeemed.
If fewer than all the Notes are to be redeemed, the Trustee shall
select the Notes or portions thereof to be redeemed (in principal amounts of
One Thousand Dollars ($1,000) or integral multiples thereof), by lot or, in its
sole discretion, on a pro rata basis. If any Note selected for partial
redemption is converted in part after such selection, the converted portion of
such Note shall be deemed (so far as may be) to be the portion to be selected
for redemption. The Notes (or portions thereof) so
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selected shall be deemed duly selected for redemption for all purposes hereof,
notwithstanding that any such Note is converted as a whole or in part before
the mailing of the notice of redemption.
Upon any redemption of less than all Notes, the Company and the
Trustee may (but need not) treat as Outstanding any Notes surrendered for
conversion during the period of fifteen (15) days next preceding the mailing of
a notice of redemption and may (but need not) treat as not Outstanding any Note
authenticated and delivered during such period in exchange for the unconverted
portion of any Note converted in part during such period.
Section 3.3 Payment of Notes Called for Redemption. If notice of
redemption has been given as above provided, the Notes or portion of Notes with
respect to which such notice has been given shall, unless converted into Common
Stock pursuant to the terms hereof, become due and payable on the date and at
the place or places stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after said date (unless the Company shall default in the payment of such Notes
at the redemption price, together with interest accrued to said date) interest
on the Notes or portion of Notes so called for redemption shall cease to accrue
and such Notes shall cease after the close of business on the Business Day next
preceding the date fixed for redemption to be convertible into Common Stock
and, except as provided in Sections 8.5 and 13.4, to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right
in respect of such Notes except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Notes at a place of payment in said notice specified,
such Notes or the specified portions thereof to be redeemed shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that any
semi-annual payment of interest becoming due on the date fixed for redemption
shall be payable to the Holders of such Notes registered as such on the
relevant record date subject to the terms and provisions of Section 2.3 hereof.
Upon presentation of any Note redeemed in part only, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder thereof,
at the Company's expense, a new Note or Notes, of authorized denominations, in
the principal amount equal to the unredeemed portion of the Notes so presented.
Notwithstanding the foregoing, the Trustee shall not redeem any Notes
or mail any notice of optional redemption during the continuance of a default
in payment of interest or premium on the Notes or of any Event of Default of
which, in the case of any Event of Default, other than under Section 7.1(a),
(b) or 7.1(c), a Responsible Officer has knowledge. If any Note called for
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redemption shall not be so paid upon surrender thereof for redemption, the
principal and premium, if any, shall, until paid or duly provided for, bear
interest from the date fixed for redemption at the rate borne by the Note and
such Note shall remain convertible into Common Stock until the principal and
premium, if any, shall have been paid or duly provided for.
Section 3.4 Conversion Arrangement on Call for Redemption. In
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes by an agreement with one or more
investment bankers or other purchasers to purchase such Notes by paying to the
Trustee in trust for the Noteholders, on or before the date fixed for
redemption, an amount not less than the applicable redemption price, together
with interest accrued to the date fixed for redemption, of such Notes.
Notwithstanding anything to the contrary contained in this Article III, the
Company's obligation to pay the redemption price of such Notes, together with
interest accrued to 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 will be filed
with the Trustee prior to the date fixed for redemption, any Notes not duly
surrendered for conversion by the Holders thereof may, at the Company's option,
be deemed, to the fullest extent permitted by law, acquired by such purchasers
from such Holders and (notwithstanding anything to the contrary contained in
Article XV) surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the date fixed for redemption
(and the right to convert any such Notes shall be deemed to have been extended
through such time), subject to payment of the above amount as aforesaid. At
the Company's direction, the Trustee shall hold and dispose of any such amount
paid to it in the same manner as it would monies deposited with it by the
Company for the redemption of Notes. Without the Trustee's prior written
consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Notes 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
Notes between the Company and such purchasers to which the Trustee has not
consented in writing, including the costs and expenses incurred by the Trustee
in the defense of any claim or liability arising out of or in connection with
the exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
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ARTICLE IV
SUBORDINATION OF NOTES
Section 4.1 Agreement of Subordination. The Company covenants
and agrees, and each Holder of Notes by his acceptance thereof likewise
covenants and agrees, that all Notes shall be issued subject to the provisions
of this Article IV; and each Person holding any Note, whether upon original
issue or upon transfer, assignment or exchange thereof, accepts and agrees to
be bound by such provisions.
The payment of the principal of, premium, if any, and interest on all
Notes (including, but not limited to, the redemption price or Repurchase Price
with respect to the Notes to be redeemed or repurchased, as provided in this
Indenture) hereunder shall, to the extent and in the manner hereinafter set
forth, be subordinated and subject in right of payment to the prior payment in
full of all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article IV shall prevent the occurrence of any
default or Event of Default hereunder.
Section 4.2 Payments to Noteholders. In the event and during the
continuation of any default in the payment of principal, premium, interest or
any other payment due on any Senior Indebtedness (or, in the case of Senior
Indebtedness for which there is a period of grace, in the event of such a
default that continues beyond the period of grace, if any, specified in the
instrument or lease evidencing such Senior Indebtedness), then, unless and
until such default shall have been cured or waived or shall have ceased to
exist, no payment shall be made by the Company with respect to the principal
of, or premium, if any, or interest on the Notes (including, but not limited
to, the redemption price or Repurchase Price with respect to the Notes to be
redeemed or repurchased, as provided in this Indenture) except payments made
pursuant to Article XIII from monies deposited with the Trustee pursuant
thereto prior to the happening of such default.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or total or partial liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or
to become due upon all Senior Indebtedness shall first be paid in full, or
payment thereof provided for in money in accordance with its terms, before any
payment is made on account of the principal (and premium, if any) or interest
on the Notes (except payments made pursuant to Article XIII from monies
deposited with the Trustee
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pursuant thereto prior to the happening of such dissolution, winding-up,
liquidation or reorganization or bankruptcy, insolvency, receivership or other
such proceedings); and upon any such dissolution or winding-up or liquidation
or reorganization or bankruptcy, insolvency, receivership or other such
proceedings, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee under this Indenture would be entitled, except
for the provision of this Article IV, shall (except as aforesaid) be paid by
the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders or
by the Trustee under this Indenture if received by them or it, directly to the
holders of Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, or as otherwise
required by law or a court order) or their respective representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay all
Senior Indebtedness in full after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any payment
or distribution is made to the Holders or to the Trustee under this Indenture.
If, notwithstanding the foregoing, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities (including, without limitation, by way of set-off or otherwise),
prohibited by the foregoing, shall be received by the Trustee under this
Indenture or by any Holders before all Senior Indebtedness is paid in full, or
provision is made for such payment in accordance with its terms, such payment
or distribution shall be held by the recipient or recipients in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary to
pay all Senior Indebtedness in full in accordance with its terms, after giving
effect to any concurrent payment or distribution (or provision therefor) to or
for the holders of such Senior Indebtedness.
For purposes of this Article IV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated (at least to the extent provided in this
Article IV with respect to the Notes) to the payment of all Senior Indebtedness
which may at the time be
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outstanding; provided that (i) the Senior Indebtedness is assumed by the new
corporation, if any, resulting from such reorganization or adjustment, and (ii)
the rights of the holders of Senior Indebtedness (other than leases which are
not assumed by the Company or by the new corporation, as the case may be) are
not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article XII shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 4.2
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article XII.
Nothing in this Section 4.2 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 8.6. This Section 4.2 shall be subject to
the further provisions of Section 4.5.
Section 4.3 Subrogation of Notes. Subject to the payment in full
of all Senior Indebtedness, the rights of the Holders shall be subrogated to
the extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article IV (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated to other indebtedness of the Company to substantially the same
extent as the Notes are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal of (and premium, if
any) and interest on the Notes shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders or the
Trustee would be entitled except for the provisions of this Article IV, and no
payment over pursuant to the provisions of this Article IV, to or for the
benefit of the holders of Senior Indebtedness by Holders or the Trustee, shall,
as between the Company, its creditors other than holders of Senior Indebtedness
and the Holders, be deemed to be a payment by the Company to or on account of
the Senior Indebtedness; and no payments or distributions of cash, property or
securities to or for the benefit of the Holders pursuant to the subrogation
provisions of this Article IV, which would otherwise have been paid to the
holders of Senior Indebtedness shall be deemed to be a payment by the Company
to or for the account of the Notes. It is understood that the provisions of
this Article IV are and are intended solely for the purposes of defining the
relative rights of the Holders, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
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Nothing contained in this Article IV or elsewhere in this Indenture or
in the Notes is intended to or shall impair, as among the Company and its
creditors, other than the holders of Senior Indebtedness and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders the principal of (and premium, if any) and interest on the Notes 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 Noteholder from
exercising all remedies otherwise permitted by applicable law upon an Event of
Default, subject to the rights, if any, under this Article IV of the holders of
Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article IV, the Trustee, subject to the provisions of Section 8.1, and
the Holders shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such bankruptcy, dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, delivered 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 IV.
Section 4.4 Authorization by Noteholders. Each Holder of a Note
by his acceptance thereof authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article IV and appoints the Trustee his
attorney-in-fact for any and all such purposes.
Section 4.5 Notice to Trustee. The Company shall give prompt
written notice in the form of an Officers' Certificate to a Responsible Officer
and to any paying agent of any fact known to the Company which would prohibit
the making of any payment of monies to or by the Trustee or any paying agent in
respect of the Notes pursuant to the provisions of this Article IV.
Notwithstanding the provisions of this Article IV or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the
existence of any Senior Indebtedness or of any default or event of default with
respect to any Senior Indebtedness or of any other facts which would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Notes pursuant to the provisions of this Article IV, unless and until a
Responsible Officer shall have received written notice thereof at
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the Corporate Trust Office from the Company (in the form of an Officers'
Certificate) or a holder or holders of Senior Indebtedness or from any trustee
thereof who shall have been certified by the Company or otherwise established
to the reasonable satisfaction of the Trustee to be such holder or trustee; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 8.1, shall be entitled in all respects to assume that no
such facts exist; provided that if on a date at least two (2) Business Days
prior to the date upon which by the terms hereof any such monies may become
payable for any purpose (including, without limitation, the payment of the
principal of, or premium, if any, or interest on any Note), the Trustee shall
not have received with respect to such monies the notice provided for in this
Section 4.5, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such monies 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 prior date.
Notwithstanding anything to the contrary hereinbefore set forth,
nothing shall prevent (a) any payment by the Company or the Trustee to the
Noteholders of amounts in connection with a redemption of Notes if (i) notice
of such redemption has been given pursuant to Article III prior to the
Trustee's receipt of written notice as aforesaid, and (ii) such notice of
redemption is given not earlier than sixty (60) days before the redemption
date, (b) any payment by the Company or the Trustee to the Noteholders of
amounts in connection with a repurchase of Notes if (i) notice of such
repurchase has been given pursuant to Article XVI prior to the Trustee's
receipt of written notice as aforesaid, and (ii) such notice of repurchase is
given not earlier than thirty (30) days before the repurchase date, or (c) any
payment by the Trustee to the Noteholders of monies deposited with it pursuant
to Section 13.1.
The Trustee, subject to the provisions of Section 8.1, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders.
If the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article IV, the
Trustee may request such Person to furnish evidence to the Trustee's reasonable
satisfaction as to the amount of Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article IV, and if such evidence is not furnished the Trustee may defer
any payment to such Person pending judicial
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determination as to the right of such Person to receive such payment.
Section 4.6 Trustee's Relation to Senior Indebtedness. The
Trustee and any agent of the Company or the Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article IV 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 Section 8.13 or elsewhere in this
Indenture shall deprive the Trustee or any such agent of any of its rights as
such holder. Nothing in this Article IV shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 8.6.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article IV, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and, subject to
the provisions of Section 4.2 and Section 8.1, the Trustee shall not be liable
to any holder of Senior Indebtedness if it shall pay over or deliver to
Noteholders, the Company or any other Person money or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article IV or
otherwise.
Section 4.7 No Impairment of Subordination. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided 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, provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Section 4.8 Certain Conversions Deemed Payment. For the purposes
of this Article IV only, (1) the issuance and delivery of junior securities
upon conversion of Notes in accordance with Article XV shall not be deemed to
constitute a payment or distribution on account of the principal of (or
premium, if any) or interest on Notes or on account of the purchase or other
acquisition of Notes, and (2) the payment, issuance or delivery of cash,
property or securities (other than junior securities) upon conversion of a Note
shall be deemed to constitute payment on account of the principal of such Note.
For the purposes of this Section 4.8, the term "junior securities" means (a)
shares of any stock of any class of the Company and (b) securities of the
Company which are subordinated in right of payment to all Senior Indebtedness
which may be outstanding at the time of issuance or delivery of such
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securities to substantially the same extent as, or to a greater extent than,
the Notes are so subordinated as provided in this Article IV. Nothing
contained in this Article IV or elsewhere in this Indenture or in the Notes is
intended to, or shall, impair, as among the Company and its creditors, other
than holders of Senior Indebtedness and the Holders, the right, which is
absolute and unconditional, of the Holder of any Note to convert such Note in
accordance with Article XV.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.1 Payment of Principal, Premium and Interest. The
Company covenants and agrees that it will duly and punctually pay, or cause to
be paid, the principal of and premium, if any, and interest on each of the
Notes at the places, at the respective times and in the manner provided herein
and in the Notes. Each installment of interest on the Notes due on any
semi-annual interest payment date may be paid by mailing checks for the
interest payable to or upon the written order of the Holders entitled thereto
as they shall appear on the registry books of the Company, provided that, (i)
with respect to any Holder of Notes with an aggregate principal amount equal to
or in excess of Five Million Dollars ($5,000,000), at the request of such
Holder in writing to the Company, interest on such Holder's Notes 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 Trustee), and (ii) with respect to any Note in global form,
interest on such Note shall be made to the Holder of such Note by wire transfer
in immediately available funds in accordance with the wire transfer instruction
supplied by the Holder of such Note to the Trustee and paying agent (if
different from the Trustee).
Section 5.2 Maintenance of Office or Agency. The Company shall
maintain in the Borough of Manhattan, The City of New York, an office or agency
where the Notes may be surrendered for registration of transfer or exchange or
for presentation for payment or for conversion or redemption and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency not
designated or appointed by the Trustee. If at any time the Company fails to
maintain any such required office or agency or fails to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office or the office of the
Trustee in the Borough of Manhattan, The City of New York.
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The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided
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 Trustee as paying agent,
Note Registrar, custodian and conversion agent and each of the Corporate Trust
Office and the office of BancBoston Trust Company of New York, an Affiliate of
the Trustee, located at 55 Broadway, Third Floor, New York, New York 10006, as
one such office or agency of the Company for each of the aforesaid purposes.
So long as the Trustee is the Note Registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 8.10(a) and the
third paragraph of Section 8.11.
Section 5.3 Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, shall appoint, in the manner provided in Section 8.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
Section 5.4 Provisions as to Paying Agent.
(a) If the Company appoints a paying agent other than the
Trustee, or if the Trustee appoints such a paying agent, it will cause
such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the
provisions of this Section 5.4:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of and premium, if any,
or interest on the Notes (whether such sums have been paid to
it by the Company or by any other obligor on the Notes) in
trust for the benefit of the Holders of the Notes;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the Notes)
to make any payment of the principal of and premium, if any,
or interest on the Notes when the same shall be due and
payable; and
(3) that at any time during the continuance of an
Event of Default, upon the Trustee's request, it will
forthwith pay to the Trustee all sums so held in trust.
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The Company shall, on or before each due date of the principal
of, premium, if any, or interest on the Notes, deposit with the paying
agent a sum sufficient to pay such principal, premium, if any, or
interest, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of any failure to take such action.
(b) If the Company acts as its own paying agent, it
shall, on or before each due date of the principal of, premium, if
any, or interest on the Notes, set aside, segregate and hold in trust
for the benefit of the Holders of the Notes a sum sufficient to pay
such principal, premium, if any, or interest so becoming due and shall
notify the Trustee of any failure to take such action and of any
failure by the Company (or any other obligor under the Notes) to make
any payment of the principal of, premium, if any, or interest on the
Notes when the same shall become due and payable.
(c) Anything in this Section 5.4 to the contrary
notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge of this Indenture, or for any
other reason, pay, or cause to be paid, to the Trustee all sums held
in trust by the Company or any paying agent hereunder as required by
this Section 5.4, such sums to be held by the Trustee upon the trusts
herein contained and upon such payment by the Company or any paying
agent to the Trustee, the Company or such paying agent shall be
released from all further liability with respect to such sums.
(d) Anything in this Section 5.4 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in
this Section 5.4 is subject to Sections 13.3 and 13.4.
Section 5.5 Existence. Subject to Article XII, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if it determines that the preservation thereof is no longer
desirable in the conduct of the Company's business and that the loss thereof
would not be disadvantageous in any material respect to the Holders.
Section 5.6 Rule 144A Information Requirement. During the period
beginning on the latest date of the original issuance of any of the Notes and
ending on the date that is three years from such date, the Company covenants
and agrees that it shall, during any period in which it is not subject to
Section 13 or 15(d) under the Exchange Act, make available to any Holder or
beneficial Holder of Notes which continue to be Restricted Securities or any
Common Stock issued upon conversion thereof in connection with any sale
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thereof and any prospective purchaser of Notes or such Common Stock from such
Holder or beneficial Holder, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any Holder or
beneficial Holder of the Notes or such Common Stock and that it shall take such
further action as any holder or beneficial holder of such Notes or such Common
Stock may reasonably request, all to the extent required from time to time to
enable such holder or beneficial holder to sell its Notes or Common Stock
without registration under the Securities Act within the limitation of the
exemption provided by Rule 144A, as such rule may be amended from time to time.
Upon the request of any holder or any beneficial holder of the Notes or such
Common Stock, the Company shall deliver to such holder a written statement as
to whether it has complied with such requirements.
Section 5.7 Stay, Extension and Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law or other law which would
prohibit or forgive the Company from paying all or any portion of the principal
of and premium, if any, or interest on the Notes 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 the Company (to the
extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
Section 5.8 Compliance Certificate. The Company shall deliver to
the Trustee within one hundred twenty (120) days after the end of each fiscal
year of the Company (beginning with the fiscal year ending on December 31,
1995) an Officers' Certificate stating whether or not the signers know of any
Event of Default that occurred during such period. If they do, such Officers'
Certificate shall describe the Event of Default and its status.
Section 5.9 Further Instruments and Acts. Upon the Trustee's
request, the Company shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
ARTICLE VI
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY
Section 6.1 Noteholders' Lists. The Company covenants and agrees
to furnish, or cause to be furnished, to the Trustee, semi-
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annually, not more than fifteen (15) days after each December 15 and June 15 in
each year beginning with December 15, 1995, and at such other times as the
Trustee may request in writing, within thirty (30) days after the Company's
receipt of any such request (or such lesser time as the Trustee may reasonably
request in order to enable it to timely provide any notice to be provided by it
hereunder), a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of Notes as of a date not more than fifteen
(15) days (or such other date as the Trustee may reasonably request in order to
so provide any such notices) prior to the time such information is furnished,
except that no such list need be furnished so long as the Trustee is acting as
Note Registrar or co-registrar.
Section 6.2 Reports by Company. The Company shall file with the
Trustee (and the Commission if at any time this Indenture becomes qualified
under the Trust Indenture Act), and transmit to Holders of Notes, such
information, documents and other reports and such summaries thereof as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or
15(d) of the Exchange Act shall be filed with the Trustee within fifteen (15)
days after the same is so required to be filed with the Commission.
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.1 Events of Default. In case one or more of the
following events of default ("Events of Default")(whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body) shall have occurred and be continuing, whether or not
payment is prohibited by the provisions of Article IV:
(a) default in the payment of any installment of interest
upon any of the Notes as and when the same shall become due and
payable, and continuance of such default for a period of thirty (30)
days; or
(b) default in the payment of the principal of and
premium, if any, on any of the Notes as and when the same shall become
due and payable either at maturity or in connection with any
redemption, by declaration or otherwise; or
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(c) default in the payment of the Repurchase Price in
respect of any Note on the repurchase date therefor in accordance with
the provisions of Article XVI; or
(d) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Notes or in this Indenture (other than a covenant or
agreement a default in whose performance or whose breach is elsewhere
in this Section 7.1 specifically dealt with) continued for a period of
sixty (60) days after the date on which written notice of such
failure, requiring the Company to remedy the same, shall have been
given to the Company by the Trustee, or to the Company and a
Responsible Officer by the Holders of at least twenty-five percent
(25%) in aggregate principal amount of the Outstanding Notes at the
time Outstanding determined in accordance with Section 9.4; or
(e) failure by the Company or any Significant Subsidiary
to make any payment at maturity, including any applicable grace
period, in respect of indebtedness, which term as used herein means
obligations (other than the Notes or non-recourse obligations) of, or
guaranteed or assumed by, the Company or any Significant Subsidiary,
for borrowed money or evidenced by bonds, debentures, notes or other
similar instruments ("Indebtedness") in an amount in excess of
Twenty-Five Million Dollars ($25,000,000) or the equivalent thereof in
any other currency or composite currency and such failure shall have
continued for thirty (30) days after written notice thereof shall have
been given to the Company by the Trustee or to the Company and a
Responsible Officer by the Holders of at least twenty-five percent
(25%) in aggregate principal amount of the Outstanding Notes at the
time Outstanding determined in accordance with Section 9.4; or
(f) default by the Company or any Significant Subsidiary
with respect to any Indebtedness, which default results in the
acceleration of Indebtedness in an amount in excess of Twenty-Five
Million Dollars ($25,000,000) or the equivalent thereof in any other
currency or composite currency without such Indebtedness having been
discharged or such acceleration having been cured, waived, rescinded
or annulled for a period of thirty (30) days after written notice
thereof shall have been given to the Company by the Trustee or to the
Company and a Responsible Officer by the Holders of at least
twenty-five percent (25%) in aggregate principal amount of the
Outstanding Notes at the time Outstanding determined in accordance
with Section 9.4; or
(g) the Company or any Significant Subsidiary shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar
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law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors,
or shall fail generally to pay its debts as they become due; or
(h) an involuntary case or other proceeding shall be
commenced against the Company or any Significant Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of
ninety (90) consecutive days; or
(i) failure by the Company or the Trustee, at the
Company's request, to give notice of a Designated Event to all Holders
in accordance with Section 16.2;
then, and in each and every such case (other than an Event of Default specified
in Section 7.1(g) or (h)), unless the principal of all of the Notes shall have
already become due and payable, either the Trustee or the Holders of not less
than twenty-five percent (25%) in aggregate principal amount of the Notes then
Outstanding hereunder determined in accordance with Section 9.4, by notice in
writing to the Company (and to the Trustee if given by Noteholders), may
declare the principal of and premium, if any, on all the Notes and the interest
accrued thereon to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Notes contained to the contrary
notwithstanding. If an Event of Default specified in Section 7.1(g) or (h)
occurs and is continuing, the principal of all the Notes and premium, if any,
and the interest accrued thereon shall be immediately due and payable. This
provision, however, is subject to the conditions that if, at any time after the
principal of the Notes shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due has been obtained or
entered as hereinafter provided, the Company pays, or deposits with the Trustee
a sum sufficient to pay, all matured installments of interest upon all Notes
and the principal of and premium, if any, on any and all Notes which have
become due otherwise than by acceleration (with interest on overdue
installments of interest (to the extent that payment of such interest is
enforceable under applicable law) and on such principal and premium, if any, at
the rate borne by the Notes, to the date of such payment or deposit) and
amounts due to the Trustee pursuant to
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Section 8.6, and if all defaults under this Indenture, other than the
nonpayment of principal of and premium, if any, and accrued interest on Notes
which become due by acceleration, shall have been cured or waived pursuant to
Section 7.7, then and in every such case the Holders of a majority in aggregate
principal amount of the Notes then Outstanding, by written notice to the
Company and the Trustee, may waive all defaults or Events of Default and
rescind and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or Event of Default, or shall impair any right consequent thereon. The Company
shall notify a Responsible Officer, promptly upon becoming aware thereof, of
any Event of Default.
If the Trustee has proceeded to enforce any right under this Indenture
and such proceedings are discontinued or abandoned because of such waiver or
rescission and annulment or for any other reason or are determined adversely to
the Trustee, then, and in every such case, the Company, the Holders, and the
Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company, the Holders, and
the Trustee shall continue as though no such proceeding had been instituted.
Section 7.2 Payments of Notes on Default; Suit Therefor. The
Company covenants that (a) in case default shall be made in the payment by the
Company of any installment of interest upon any of the Notes as and when the
same shall become due and payable, and such default shall have continued for a
period of thirty (30) days, or (b) in case default shall be made in the payment
of the principal of or premium, if any, on any of the Notes as and when the
same shall have become due and payable, whether at maturity of the Notes or in
connection with any redemption or repurchase, by declaration under this
Indenture or otherwise, then, upon the Trustee's demand, the Company shall pay
to the Trustee, for the Holders' benefit, the whole amount that then shall have
become due and payable on all such Notes for principal and premium, if any, or
interest, or both, as the case may be, with interest upon the overdue principal
and premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest at
the rate borne by the Notes; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any expenses or liabilities incurred by the Trustee hereunder other than
through its negligence or bad faith. Until such demand by the Trustee, the
Company may pay the principal of and premium, if any, and interest on the Notes
to the registered Holders, whether or not the Notes are overdue.
If the Company fails forthwith to pay such amounts upon such demand,
the Trustee, in its own name and as trustee of an express
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trust, shall be entitled and empowered to institute any actions or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor on the Notes and collect in the manner provided by law out of the
property of the Company or any other obligor on the Notes wherever situated the
monies adjudged or decreed to be payable.
If there are pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Notes under Title 11
of the United States Code, or any other applicable law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator
or similar official has been appointed for or taken possession of the Company
or such other obligor, the property of the Company or such other obligor, or in
the case of any other judicial proceedings relative to the Company or such
other obligor upon the Notes, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the principal of the
Notes is then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee has made any demand pursuant
to the provisions of this Section 7.2, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal, premium, if any, and interest owing
and unpaid in respect of the Notes, and, in case of any judicial proceedings,
to file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and of the Noteholders
allowed in such judicial proceedings relative to the Company or any other
obligor on the Notes, its or their creditors, or its or their property, and to
collect and receive any monies or other property payable or deliverable on any
such claims, and to distribute the same after the deduction of any amounts due
the Trustee under Section 8.6; and any receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, custodian or similar official is
hereby authorized by each of the Noteholders to make such payments to the
Trustee, and, if the Trustee consents to the making of such payments directly
to the Noteholders, to pay to the Trustee any amount due it for reasonable
compensation, expenses, advances and disbursements, including counsel fees
incurred by it up to the date of such distribution. To the extent that such
payment of reasonable compensation, expenses, advances and disbursements out of
the estate in any such proceedings is denied for any reason, payment of the
same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, monies, securities and other property which the
Holders may be entitled to receive in such proceedings, whether in liquidation
or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or adopt on behalf of any
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Noteholder any plan of reorganization or arrangement affecting the Notes or the
rights of any Noteholder, or to authorize the Trustee to vote in respect of the
claim of any Noteholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Trustee without the possession
of any of the Notes, or the production thereof on any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders.
In any proceedings brought by the Trustee (and in any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
Holders, and it shall not be necessary to make any Holders parties to any such
proceedings.
Section 7.3 Application of Monies Collected by Trustee. Any
monies collected by the Trustee pursuant to this Article VII shall be applied
in the order following, at the date or dates fixed by the Trustee for the
distribution of such monies, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
First: To the payment of all amounts due the Trustee under
Section 8.6;
Second: Subject to the provisions of Article IV, in case the
principal of the Outstanding Notes has not become due and be unpaid,
to the payment of interest on the Notes in default in the order of the
maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the rate borne by the Notes, such
payments to be made ratably to the Persons entitled thereto;
Third: Subject to the provisions of Article IV, in case the
principal of the Outstanding Notes has become due, by declaration or
otherwise, and is unpaid, to the payment of the whole amount then
owing and unpaid upon the Notes for principal and premium, if any, and
interest, with interest on the overdue principal and premium, if any,
and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate borne by
the Notes; and in case such monies shall be insufficient to pay in
full the whole amounts so due and unpaid upon the Notes, then to the
payment of such principal and premium, if any, and
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interest without preference or priority of principal and premium, if
any, over interest, or of interest over principal and premium, if any,
or of any installment of interest over any other installment of
interest, or of any Note over any other Note, ratably to the aggregate
of such principal and premium, if any, and accrued and unpaid
interest; and
Fourth: Subject to the provisions of Article IV, to the
payment of the remainder, if any, to the Company or any other Person
lawfully entitled thereto.
Section 7.4 Proceedings by Noteholder. No Holder shall have any
right by virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than twenty-five
percent (25%) in aggregate principal amount of the Notes then Outstanding shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for sixty
(60) days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 7.7; it being understood and
intended, and being expressly covenanted by the taker and Holder of every Note
with every other taker and Holder and the Trustee, 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 Holder, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders (except as otherwise provided herein). For the protection and
enforcement of this Section 7.4, each and every Noteholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any
provision of any Note, the right of any Holder to receive payment of the
principal of and premium, if any, and interest on such Holder's Note, on or
after the respective due dates expressed in such Note, or to institute suit for
the enforcement of any such payment on or after such respective dates against
the Company shall not be impaired or affected without such Holder's consent.
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Anything in this Indenture or the Notes to the contrary
notwithstanding, the Holder of any Note, without the consent of either the
Trustee or the Holder of any other Note, in his own behalf and for his own
benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, his rights of conversion as provided herein.
Section 7.5 Proceedings by Trustee. In case of an Event of
Default, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 7.6 Remedies Cumulative and Continuing. Except as
provided in Section 2.6, all powers and remedies given by this Article VII to
the Trustee or to the Noteholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Noteholders, by judicial proceedings
or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Noteholder to exercise any right or power accruing upon any default
or Event of Default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default or any
acquiescence therein; and, subject to the provisions of Section 7.4, every
power and remedy given by this Article VII or by law to the Trustee or the
Noteholders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or the Noteholders.
Section 7.7 Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders. The Holders of a majority in aggregate principal
amount of the Notes at the time Outstanding determined in accordance with
Section 9.4 shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee; provided, however, that (a) such
direction shall not be in conflict with any rule of law or with this Indenture,
and (b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction. The Holders of a majority in
aggregate principal amount of the Notes at the time Outstanding determined in
accordance with Section 9.4 may on behalf of all the Noteholders waive any past
default or Event of Default hereunder and its consequences except (i) a default
in the payment of interest or premium, if any, on, or the principal of,
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the Notes, (ii) a failure by the Company to convert any Notes into Common
Stock, or (iii) a default in respect of a covenant or provision hereof which
under Article XI cannot be modified or amended without the consent of all the
Holders of Notes then Outstanding. Upon any such waiver the Company, the
Trustee and the Holders shall be restored to their former positions and rights
hereunder; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any
default or Event of Default hereunder has been waived as permitted by this
Section 7.7, such default or Event of Default shall for all purposes of the
Notes and this Indenture be deemed to have been cured and to be not continuing;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
Section 7.8 Notice of Defaults. The Trustee shall, within ninety
(90) days after the occurrence of a default or an Event of Default, mail to all
Noteholders, as the names and addresses of such Holders appear upon the Note
Register, notice of all defaults and Events of Default known to a Responsible
Officer, unless such defaults and Events of Default have been cured or waived
before the giving of such notice; and provided that, except in the case of
default in the payment of the principal of, or premium, if any, or interest on
any of the Notes, the Trustee shall be protected in withholding such notice if
and so long as a trust committee of directors of the Trustee and/or Responsible
Officers in good faith determine that the withholding of such notice is in the
Noteholders' interests.
Section 7.9 Undertaking to Pay Costs. All parties to this
Indenture agree, and each Holder of any Note 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 taken or omitted 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, 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; provided that the provisions of this Section 7.9 shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than ten
percent (10%) in principal amount of the Notes at the time Outstanding
determined in accordance with Section 9.4, or to any suit instituted by any
Noteholder for the enforcement of the payment of the principal of or premium,
if any, or interest on any Note on or after the due date expressed in such Note
or to any suit for the enforcement of the right to convert any Note in
accordance with the provisions of Article XV.
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Section 7.10 Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or any acquiescence therein. Every right
and remedy given by this Article VII or by law to the Trustee or the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or the Holders, as the case may be.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1 Duties and Responsibilities of Trustee. The Trustee,
prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. If an
Event of Default has occurred (which has not been cured or waived) 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 man
would exercise or use under the circumstances in the conduct of his own
affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have
occurred:
(1) the Trustee's duties and obligations shall be
determined solely by the express provisions of this Indenture
and the Trust Indenture Act, and the Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into
this Indenture and the Trust Indenture Act against the
Trustee; and
(2) in the absence of bad faith and willful
misconduct on the Trustee's part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a
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duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(c) the Trustee shall not be liable to any Noteholder
with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less than
a majority in principal amount of the Notes at the time Outstanding
determined as provided in Section 9.4 relating to 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,
under this Indenture; and
(d) whether or not therein provided, every provision of
this Indenture relating to the conduct or affecting the liability of,
or affording protection to, the Trustee shall be subject to the
provisions of this Section 8.1.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing
that the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
Section 8.2 Reliance on Documents, Opinions, Etc. Except as
otherwise provided in Section 8.1:
(a) the Trustee may rely and shall be protected in acting
upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, note, coupon or other
paper or document believed by it in good faith to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof certified
by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice
or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it
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hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(d) 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 Noteholders pursuant to the
provisions of this Indenture, unless such Noteholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby;
(e) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee determines to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; provided, however, that if
the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the Trustee's opinion, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity from the
Noteholders against such expenses or liability as a condition to so
proceeding; the reasonable expenses of every such examination shall be
paid by the Company or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Company upon demand; and
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder.
Section 8.3 No Responsibility for Recitals, Etc. The recitals
contained herein and in the Notes (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee shall not be accountable for the use or application
by the Company of any Notes or the proceeds of any Notes authenticated and
delivered by the Trustee in conformity with the provisions of this Indenture.
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Section 8.4 Trustee, Paying Agents, Conversion Agents or
Registrar May Own Notes. The Trustee, any paying agent, any conversion agent
or any Note Registrar, in its individual or any other capacity, may become the
owner or pledgee of Notes with the same rights it would have if it were not
Trustee, paying agent, conversion agent or Note Registrar.
Section 8.5 Monies to Be Held in Trust. Subject to the
provisions of Section 13.4, all monies received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as may be agreed from time to time in writing by the Company and the
Trustee.
Section 8.6 Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust), and the
Company shall pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee in any capacity under this
Indenture and its agents and any authenticating agent for, and to hold them
harmless against, any loss, liability or expense incurred without negligence,
willful misconduct, recklessness or bad faith on the part of the Trustee or
such agent or authenticating agent, as the case may be, and arising out of or
in connection with the acceptance or administration of this trust or in any
other capacity hereunder, including the costs and expenses of defending
themselves against any claim of liability in the premises. The Company's
obligations under this Section 8.6 to compensate or indemnify the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall
be secured by a lien prior to that of the Notes upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Notes. The Company's obligation under
this Section 8.6 shall survive the satisfaction and discharge of this
Indenture.
When the Trustee and its agents and any authenticating agent incur
expenses or render services after an Event of Default specified in Section
7.1(g) or (h) occurs, the expenses and the
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compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency or similar laws.
Section 8.7 Officers' Certificate as Evidence. Except as
otherwise provided in Section 8.1, whenever in the administration of the
provisions of this Indenture the Trustee deems it necessary or desirable that a
matter be proved or established prior to taking or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence, willful misconduct,
recklessness and bad faith on the Trustee's part, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee,
and such Officers' Certificate, in the absence of negligence, willful
misconduct, recklessness and bad faith on the Trustee's part, shall be full
warrant to the Trustee for any action taken or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section 8.8 Conflicting Interests of Trustee. If the Trustee has
or acquires a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
Section 8.9 Eligibility of Trustee. There shall at all times be
a Trustee hereunder which shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and surplus of at
least Fifty Million Dollars ($50,000,000). If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of any
supervising or examining authority, then for the purposes of this Section 8.9,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee ceases to be eligible in
accordance with the provisions of this Section 8.9, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article VIII.
Section 8.10 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written
notice of such resignation to the Company and the Company shall mail,
or cause to be mailed, notice thereof to the Holders at their
addresses as they shall appear on the Note Register. Upon receiving
such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee has been so appointed and has
accepted appointment sixty (60) days after the mailing of such notice
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of resignation to the Noteholders, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
trustee, or any Noteholder who has been a bona fide Holder of a Note
or Notes for at least six (6) months may, subject to the provisions of
Section 7.9, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) If at any time any of the following occur:
(1) the Trustee fails to comply with Section 8.8
after written request therefor by the Company or any
Noteholder who has been a bona fide Holder of a Note or Notes
for at least six (6) months, or
(2) the Trustee ceases to be eligible in
accordance with the provisions of Section 8.9 and fails to
resign after written request therefor by the Company or any
such Noteholder, or
(3) the Trustee becomes incapable of acting, or
is adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property is appointed, or any public officer
takes charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the Trustee and appoint
a successor trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 7.9, any Noteholder
who has been a bona fide Holder of a Note or Notes for at least six
(6) months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal
amount of the Notes at the time Outstanding may at any time remove the
Trustee and nominate a successor trustee which shall be deemed
appointed as successor trustee unless within ten (10) days after
notice to the Company of such nomination the Company objects thereto,
in which case the Trustee so removed or any Noteholder, upon the terms
and conditions and otherwise as in Section 8.10(a) provided, may
petition any
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court of competent jurisdiction for an appointment of a successor
trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the provisions
of this Section 8.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 8.11.
Section 8.11 Acceptance by Successor Trustee. Any successor
trustee appointed as provided in Section 8.10 shall execute, acknowledge and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect
as if originally named as Trustee herein; but, nevertheless, on the written
request of the Company or the successor trustee, the trustee ceasing to act
shall, upon payment of any amounts then due it pursuant to the provisions of
Section 8.6, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the trustee so ceasing to act. Upon
request of any such successor trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property and funds held or
collected by such trustee as such, except for funds held in trust for the
benefit of Holders of particular Notes, to secure any amounts then due it
pursuant to Section 8.6.
No successor trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor trustee is
qualified under Section 8.8 and is eligible under Section 8.9.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.11, each of the Company and the former trustee shall mail, or
cause to be mailed, notice of the succession of such trustee hereunder to the
Holders at their addresses as they appear on the Note Register. If the Company
fails to mail such notice within ten (10) days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to be
mailed at the Company's expense.
Section 8.12 Succession by Merger, Etc. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee is a party, or any corporation succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor to the
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Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that in the case of any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee such corporation shall be qualified under Section 8.8
and eligible under Section 8.9.
If at the time such successor to the Trustee succeeds to the trusts
created by this Indenture, any of the Notes have been authenticated but not
delivered, such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee or authenticating agent appointed by
such predecessor trustee, and deliver such Notes so authenticated; and if at
that time any of the Notes have not been authenticated, any successor to the
Trustee or an authenticating agent appointed by such successor trustee may
authenticate such Notes either in the name of any predecessor trustee hereunder
or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
Section 8.13 Limitation on Rights of Trustee as Creditor. If and
when the Trustee is or becomes a creditor of the Company (or any other obligor
upon the Notes), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company (or
any such other obligor).
ARTICLE IX
CONCERNING THE NOTEHOLDERS
Section 9.1 Action by Noteholders. Whenever in this Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the Holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by
Noteholders in person or by agent or proxy appointed in writing, or (b) by the
record of the Holders voting in favor thereof at any meeting of Noteholders
duly called and held in accordance with the provisions of Article X, or (c) by
a combination of such instrument or instruments and any such record of such a
meeting of Noteholders. Whenever the Company or the Trustee solicits the
taking of any action by the Holders, the Company or the Trustee may fix in
advance of such solicitation a
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date as the record date for determining Holders entitled to take such action.
The record date shall be not more than fifteen (15) days prior to the date of
commencement of solicitation of such action.
Section 9.2 Proof of Execution by Noteholders. Subject to the
provisions of Sections 8.1, 8.2 and 10.5, proof of the execution of any
instrument by a Noteholder or his agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the Note Register or by a certificate of
the Note Registrar.
The record of any Noteholders' meeting shall be proved in the manner
provided in Section 10.6.
Section 9.3 Who Are Deemed Absolute Owners. The Company, the
Trustee, any paying agent, any conversion agent and any Note Registrar may deem
the Person in whose name such Note shall be registered upon the Note Register
to be, and may treat him as, the absolute owner of such Note (whether or not
such Note is overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of, or on account of, the
principal of, premium, if any, and interest on such Note, for conversion of
such Note and for all other purposes; and neither the Company nor the Trustee
nor any paying agent nor any conversion agent nor any Note Registrar shall be
affected by any notice to the contrary. All such payments so made to any
Holder for the time being, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Note.
Section 9.4 Company-Owned Notes Disregarded. In determining
whether the Holders of the requisite aggregate principal amount of Notes have
concurred in any direction, consent, waiver or other action under this
Indenture, Notes which are owned by the Company or any other obligor on the
Notes or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any such other
obligor on the Notes shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action only Notes which a Responsible
Officer knows are so owned shall be so disregarded. Notes so owned which have
been pledged in good faith may be regarded as Outstanding for the purposes of
this Section 9.4 if the pledgee establishs to the Trustee's satisfaction the
pledgee's right to vote such Notes and that the pledgee is not the Company, any
other obligor on the Notes or a Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
any
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such other obligor. In the case of a dispute as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full protection to the
Trustee. Upon the Trustee's request, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Notes, if any,
known by the Company to be owned or held by or for the account of any of the
above described Persons; and, subject to Section 8.1, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Notes not listed therein are
Outstanding for the purpose of any such determination.
Section 9.5 Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 9.1, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any Holder of a Note which is shown by the
evidence to be included in the Notes the Holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 9.2, revoke such
action so far as it concerns such Note. Except as aforesaid, any such action
taken by the Holder of any Note shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Note and of any Notes
issued in exchange or substitution therefor, irrespective of whether any
notation in regard thereto is made upon such Note or any Note issued in
exchange or substitution therefor.
ARTICLE X
NOTEHOLDERS' MEETINGS
Section 10.1 Purpose of Meetings. A meeting of Noteholders may be
called at any time and from time to time pursuant to the provisions of this
Article X for any of the following purposes:
(1) to give any notice to the Company or the Trustee or
to give any directions to the Trustee permitted under this Indenture,
or to consent to the waiving of any default or Event of Default
hereunder and its consequences, or to take any other action authorized
to be taken by Noteholders pursuant to any of the provisions of
Article VII;
(2) to remove the Trustee and nominate a successor
trustee pursuant to the provisions of Article VIII;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
11.2;
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(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal amount
of the Notes under any other provision of this Indenture or under
applicable law; or
(5) to take any other action authorized by this Indenture
or under applicable law.
Section 10.2 Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Noteholders to take any action specified in Section
10.1, to be held at such time and at such place in Boston, Massachusetts or the
Borough of Manhattan, The City of New York, as the Trustee determines. Notice
of every meeting of the Noteholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting and the establishment of any record date pursuant to Section 9.1, shall
be mailed to Holders at their addresses as they appear on the Note Register.
Such notice shall also be mailed to the Company. Such notices shall be mailed
not less than twenty (20) nor more than ninety (90) days prior to the date
fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the
Holders of all Notes then Outstanding are present in person or by proxy or if
notice is waived before or after the meeting by the Holders of all Notes
Outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
Section 10.3 Call of Meetings by Company or Noteholders. If at
any time the Company, pursuant to a resolution of its Board of Directors, or
the Holders of at least ten percent (10%) in aggregate principal amount of the
Notes then Outstanding, have requested the Trustee to call a meeting of
Noteholders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee has not mailed the notice
of such meeting within twenty (20) days after receipt of such request, then the
Company or such Noteholders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section
10.1, by mailing notice thereof as provided in Section 10.2.
Section 10.4 Qualifications for Voting. To be entitled to vote at
any meeting of Noteholders a Person shall (a) be a Holder of one or more Notes
on the record date pertaining to such meeting or (b) be a Person appointed by
an instrument in writing as proxy by a Holder of one or more Notes. The only
Persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
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Section 10.5 Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it thinks fit.
The Trustee shall, by an instrument, appoint a temporary chairman of
the meeting, unless the meeting has been called by the Company or Noteholders
as provided in Section 10.3, in which case the Company or the Noteholders
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Holders of a majority in principal
amount of the Notes represented at the meeting and entitled to vote at the
meeting.
Subject to Section 9.4, at any meeting each Noteholder or proxyholder
shall be entitled to one vote for each One Thousand Dollars ($1,000) principal
amount of Notes held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Note challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Notes held by him or instruments in writing as aforesaid duly designating him
as the proxy to vote on behalf of other Noteholders. Any meeting of
NoteHolders duly called pursuant to the provisions of Section 10.2 or Section
10.3 may be adjourned from time to time by the Holders of a majority of the
aggregate principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 10.6 Voting. The vote upon any resolution submitted to
any meeting of Noteholders shall be by written ballot on which shall be
subscribed the signatures of the Holders or their representatives by proxy and
the principal amount of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Noteholders shall be prepared by the secretary
of the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more Persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was mailed as provided
in Section 10.2. The record
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shall show the principal amount of the Notes voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
Section 10.7 No Delay of Rights by Meeting. Nothing in this
Article X shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Noteholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any
right or rights conferred upon or reserved to the Trustee or the Noteholders
under any of the provisions of this Indenture or of the Notes.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.1 Supplemental Indentures Without Consent of
Noteholders. The Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to make provision with respect to the conversion
rights of the Holders pursuant to the requirements of Section 15.6;
(b) subject to Article IV, to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Notes, any
property or assets;
(c) to evidence the succession of another corporation to
the Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company pursuant to Article XII;
(d) to add to the covenants of the Company such further
covenants, restrictions or conditions as the Board of Directors and
the Trustee consider to be for the Holders' benefit, and to make the
occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions or conditions a default or an
Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set
forth;provided, however, that in respect of any such additional
covenant, restriction or condition, such supplemental indenture may
provide for a particular period of grace after
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default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default;
(e) to provide for the issuance under this Indenture of
Notes in coupon form (including Notes registrable as to principal
only) and to provide for exchangeability of such Notes with the Notes
issued hereunder in fully registered form and to make all appropriate
changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture which
shall not materially adversely affect the interests of the Holders;
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Notes; or
(h) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualifications of this Indenture under the Trust Indenture Act, or
under any similar federal statute hereafter enacted.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to, but may in its discretion, enter into any
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 11.1 may be executed by the Company and the Trustee without the consent
of any of the Holders at the time Outstanding, notwithstanding any of the
provisions of Section 11.2.
Section 11.2 Supplemental Indentures with Consent of Noteholders.
With the consent (evidenced as provided in Article IX) of the Holders of not
less than sixty-six and two-thirds percent (66 2/3%) in aggregate principal
amount of the Notes at the time Outstanding (determined in accordance with
Section 9.4), the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may from time to time and at any time 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
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or any supplemental indenture or of modifying in any manner the rights of the
Holders; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Note, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof or premium,
if any, thereon, or reduce any amount payable on redemption or repurchase
thereof, change the obligation of the Company to repurchase any Note at the
option of the Holder thereof upon the happening of a Designated Event, or
impair or affect the right of any Noteholder to institute suit for the payment
thereof, or make the principal thereof or interest or premium, if any, thereon
payable in any coin or currency other than that provided in the Notes, or
impair the right to convert the Notes into Common Stock subject to the terms
set forth herein, including Section 15.6, or modify the provisions of this
Indenture with respect to the subordination of the Notes in a manner adverse to
the Noteholders, without the consent of the Holder of each Note so affected, or
(ii) reduce the aforesaid percentage of Notes, the Holders of which are
required to consent to any such supplemental indenture, without the consent of
the Holders of all Notes then Outstanding.
Upon the Company's request, accompanied by a copy of the resolutions
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Noteholders as aforesaid,
the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may, in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Noteholders under
this Section 11.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 11.3 Effect of Supplemental Indentures. Any supplemental
indenture executed pursuant to this Article XI shall comply with the Trust
Indenture Act, as then in effect. Upon the execution of any supplemental
indenture pursuant to this Article XI, this Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Holders shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
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Section 11.4 Notation on Notes. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article XI
may bear a notation in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company or the Trustee so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may, at the Company's expense, be prepared and
executed by the Company, authenticated by the Trustee (or an authenticating
agent duly appointed by the Trustee pursuant to Section 17.11), and delivered
in exchange for the Notes then Outstanding, upon surrender of such Notes then
Outstanding.
Section 11.5 Evidence of Compliance of Supplemental Indenture to
Be Furnished Trustee. The Trustee, subject to Sections 8.1 and 8.2, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article XI.
ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.1 Company May Consolidate, Etc. on Certain Terms.
Subject to the provisions of Section 12.2, nothing contained in this Indenture
or in any of the Notes shall prevent, without the Noteholders' consent, any
consolidation or merger of the Company with or into any other corporation or
corporations (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
are a party or parties, or shall prevent any sale, conveyance or lease (or
successive sales, conveyances or leases) of all or substantially all of the
property of the Company, to any other corporation (whether or not affiliated
with the Company), authorized to acquire and operate the same and which is
organized under the laws of the United States of America, any state thereof or
the District of Columbia; provided, however, and the Company hereby covenants
and agrees, that upon any such consolidation, merger, sale, conveyance or
lease, the due and punctual payment of the principal of and premium, if any,
and interest on all of the Notes, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Company, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the corporation (if other than the Company) formed
by such consolidation, or into which the Company shall have been merged, or by
the corporation which shall have acquired or leased such property, and such
supplemental indenture shall provide for the applicable conversion rights set
forth in Section 15.6.
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Section 12.2 Successor Corporation to Be Substituted. In case of
any such consolidation, merger, sale, conveyance or lease and upon the
assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the
due and punctual payment of the principal of and premium, if any, and interest
on all of the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Company, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the party of the first part.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of Altera Corporation any or all of the
Notes issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver, or cause to be authenticated and delivered, any Notes which
previously have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Notes which such successor corporation
thereafter causes to be signed and delivered to the Trustee for that purpose.
All the Notes so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Notes theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Notes had
been issued at the date of the execution hereof. In the event of any such
consolidation, merger, sale, conveyance or lease, the Person named as the
"Company" in the first paragraph of this Indenture or any successor which shall
thereafter have become such in the manner prescribed in this Article XII may be
dissolved, wound up and liquidated at any time thereafter and such Person shall
be released from its liabilities as obligor and maker of the Notes and from its
obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate.
Section 12.3 Opinion of Counsel to Be Given Trustee. The Trustee,
subject to Sections 8.1 and 8.2, shall receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance or lease and any such assumption complies with this Article
XII.
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ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.1 Discharge of Indenture. When (a) the Company
delivers to the Trustee for cancellation all Notes theretofore authenticated
(other than any Notes which have been destroyed, lost or stolen and in lieu of
or in substitution for which other Notes have been authenticated and delivered)
and not theretofore canceled, or (b) all the Notes not theretofore canceled or
delivered to the Trustee for cancellation have become due and payable, or are
by their terms to become due and payable within one (1) year or are to be
called for redemption within one (1) year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company deposits
with the Trustee, in trust, funds sufficient to pay at maturity or upon
redemption of all of the Notes (other than any Notes which have been mutilated,
destroyed, lost or stolen and in lieu of or in substitution for which other
Notes have been authenticated and delivered) not theretofore canceled or
delivered to the Trustee for cancellation, including principal and premium, if
any, and interest due or to become due to such date of maturity or redemption
date, as the case may be, and if in either case the Company also pays, or
causes to be paid, all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except as to (i) remaining
rights of registration of transfer, substitution and exchange and conversion of
Notes, (ii) rights hereunder of Noteholders to receive payments of principal of
and premium, if any, and interest on, the Notes and the other rights, duties
and obligations of Noteholders, as beneficiaries hereof with respect to the
amounts, if any, so deposited with the Trustee and (iii) the rights,
obligations and immunities of the Trustee hereunder), and the Trustee, on
demand of the Company accompanied by an Officers' Certificate and an Opinion of
Counsel as required by Section 17.5 and at the Company's cost and expense,
shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture; the Company, however, hereby agreeing to reimburse the Trustee
for any costs or expenses thereafter reasonably and properly incurred by the
Trustee and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture or the
Notes.
Section 13.2 Deposited Monies to Be Held in Trust by Trustee.
Subject to Section 13.4, all monies deposited with the Trustee pursuant to
Section 13.1 shall be held in trust and applied by it to the payment,
notwithstanding Article IV, either directly or through any paying agent
(including the Company, if acting as its own paying agent), to the Holders of
the particular Notes for the payment or redemption of which such monies have
been deposited with the Trustee, of all sums due and to become due thereon for
principal and interest and premium, if any.
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Section 13.3 Paying Agent to Repay Monies Held. Upon the
satisfaction and discharge of this Indenture, all monies then held by any
paying agent (other than the Trustee) shall, upon the Company's demand, be
repaid to it or paid to the Trustee, and thereupon such paying agent shall be
released from all further liability with respect to such monies.
Section 13.4 Return of Unclaimed Monies. Subject to the
requirements of applicable law, any monies deposited with or paid to the
Trustee for payment of the principal of, premium, if any, or interest on Notes
and not applied but remaining unclaimed by the Holders for two (2) years after
the date upon which the principal of, premium, if any, or interest on such
Notes, as the case may be, have become due and payable, shall be repaid to the
Company by the Trustee on demand and all liability of the Trustee shall
thereupon cease with respect to such monies; and the Holder of any of the Notes
shall thereafter look only to the Company for any payment which such Holder may
be entitled to collect unless an applicable abandoned property law designates
another Person.
Section 13.5 Reinstatement. If (i) the Trustee or the paying
agent is unable to apply any money in accordance with Section 13.2 by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application and (ii) the Holders of
at least fifty-one percent (51%) in principal amount of the then Outstanding
Notes so request by written notice to the Trustee, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 13.1 until such time as the Trustee or
the paying agent is permitted to apply all such money in accordance with
Section 13.2; provided, however, that if the Company makes any payment of
interest on or principal of any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders to
receive such payment from the money held by the Trustee or paying agent.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
Section 14.1 Indenture and Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or interest on
any Note, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in this Indenture or in any supplemental indenture or in any Note, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, shareholder, employee, agent, officer or director or
subsidiary, as such, past, present or
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future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.
ARTICLE XV
CONVERSION OF NOTES
Section 15.1 Right to Convert. Subject to and upon compliance
with the provisions of this Indenture, each Holder shall have the right, at his
option, at any time after sixty (60) days following the latest date of original
issuance of the Notes and prior to the close of business on June 15, 2002
(except that, with respect to any Note or portion of a Note which is called for
redemption, such right shall terminate, except as provided in the fourth
paragraph of Section 15.2, at the close of business on the last Trading Day
prior to the date fixed for redemption of such Note or portion of a Note unless
the Company defaults in the payment due upon redemption thereof and such right
shall terminate with respect to any Note or portion thereof subject to a duly
completed election for repurchase unless the Company defaults in the payment
due upon repurchase) to convert the principal amount of any Note held by such
Holder, or any portion of such principal amount which is One Thousand Dollars
($1,000) or an integral multiple thereof, into that number of fully paid and
non-assessable shares of Common Stock (as such shares shall then be
constituted) obtained by dividing the principal amount of the Note or portion
thereof surrendered for conversion by the Conversion Price in effect at such
time, by surrender of the Note so to be converted in whole or in part in the
manner provided in Section 15.2. A Holder is not entitled to any rights of a
holder of Common Stock until such Holder has converted his Notes to Common
Stock, and only to the extent such Notes are deemed to have been converted to
Common Stock under this Article XV.
Section 15.2 Exercise of Conversion Privilege; Issuance of Common
Stock on Conversion; No Adjustment for Interest or Dividends. To exercise, in
whole or in part, the conversion privilege with respect to any Note in
definitive form, the Holder of such Note shall surrender such Note, duly
endorsed, at an office or agency maintained by the Company pursuant to Section
5.2, accompanied by the funds, if any, required by the penultimate paragraph of
this Section 15.2, and shall give written notice of conversion in the form
provided on the Notes (or such other notice which is acceptable to the Company)
to the office or agency that the Holder elects to convert such Note or such
portion thereof
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specified in said notice. Such notice shall also state the name or names (with
address or addresses) in which the certificate or certificates for shares of
Common Stock which are issuable on such conversion shall be issued, and shall
be accompanied by transfer taxes, if required pursuant to Section 15.7. Each
such Note surrendered for conversion shall, unless the shares issuable on
conversion are to be issued in the same name as the registration of such Note,
be duly endorsed by, or be accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or his duly authorized
attorney.
To exercise the conversion privilege with respect to any interest in a
Note 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 Note in
global form, furnish appropriate endorsements and transfer documents if
required by the Company or the Trustee or conversion agent, and pay the funds,
if any, required by the penultimate paragraph of this Section 15.2 and any
transfer taxes, if required pursuant to Section 15.7.
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, and subject to compliance with any restrictions on
transfer if shares issuable on conversion are to be issued in a name other than
that of the Noteholder (as if such transfer were a transfer of the Note or
Notes (or portion thereof) so converted), the Company shall issue and shall
deliver to such Holder at the office or agency maintained by the Company for
such purpose pursuant to Section 5.2, a certificate or certificates for the
number of full shares of Common Stock issuable upon the conversion of such Note
or portion thereof in accordance with the provisions of this Article XV and a
check or cash in respect of any fractional interest in respect of a share of
Common Stock arising upon such conversion, as provided in Section 15.3 (which
payment, if any, shall be paid no later than five (5) Business Days after
satisfaction of the requirements for conversion set forth above). In case any
Note of a denomination greater than One Thousand Dollars ($1,000) is
surrendered for partial conversion, and subject to Section 2.3, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
the Note so surrendered, without charge to him, a new Note or Notes in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected as to any such
Note (or portion thereof) on the date on which the requirements set forth above
in this Section 15.2 have been satisfied as to such Note (or portion thereof),
and the Person in whose name any certificate or certificates for shares of
Common Stock are issuable upon such conversion shall be deemed to have become
on said date the holder of record of the shares represented thereby; provided,
however, that any such surrender on any date
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when the Company's stock transfer books are closed shall constitute the Person
in whose name the certificates are to be issued as the record holder thereof
for all purposes on the next succeeding day on which such stock transfer books
are open, but such conversion shall be at the Conversion Price in effect on the
date upon which such Note is surrendered.
Any Note or portion thereof surrendered for conversion during the
period from the close of business on the record date for any interest payment
through the close of business on the Trading Day next preceding such interest
payment date shall (unless such Note or portion thereof being converted has
been called for redemption on a date in such period) be accompanied by payment,
in funds acceptable to the Company, of an amount equal to the interest
otherwise payable on such interest payment date on the principal amount being
converted; provided, however, that no such payment need be made if there exists
at the time of conversion a default in the payment of interest on the Notes.
An amount equal to such payment shall be paid by the Company on such interest
payment date to the Holder of such Note at the close of business on such record
date; provided, however, that if the Company defaults in the payment of
interest on such interest payment date, such amount shall be paid to the Person
who made such required payment. Except as provided above in this Section 15.2,
no adjustment shall be made for interest accrued on any Note converted or for
dividends on any shares issued upon the conversion of such Note as provided in
this Article XV.
Upon the conversion of an interest in a Note in global form, the
Trustee, or the Custodian, at the Trustee's direction, shall make a notation on
such Note in global form as to the reduction in the principal amount
represented thereby.
Section 15.3 Cash Payments in Lieu of Fractional Shares. No
fractional shares of Common Stock or scrip representing fractional shares shall
be issued upon conversion of Notes. If more than one Note shall be surrendered
for conversion at one time by the same Holder, the number of full shares which
shall be issuable upon conversion shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof to the
extent permitted hereby) so surrendered for conversion. If any fractional
share of stock otherwise would be issuable upon the conversion of any Note or
Notes, the Company shall make an adjustment therefor in cash at the current
market value thereof to the Holder of the Notes. The current market value of a
share of Common Stock shall be the Closing Price on the first Trading Day
immediately preceding the day on which the Notes (or specified portions
thereof) are deemed to have been converted and such Closing Price shall be
determined as provided in Section 15.5(g).
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Section 15.4 Conversion Price. The conversion price shall be as
specified in the form of Note (herein called the "Conversion Price") attached
as Exhibit A hereto, subject to adjustment as provided in this Article XV.
Section 15.5 Adjustment of Conversion Price. The Conversion Price
shall be adjusted from time to time by the Company as follows:
(a) If the Company shall hereafter pay a dividend or make
a distribution to all holders of the outstanding Common Stock in
shares of Common Stock, the Conversion Price in effect at the opening
of business on the date following the date fixed for the determination
of shareholders 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 the Record Date
(as defined in Section 15.5(g)) fixed for such determination and the
denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of
business on the day following the Record Date. If any dividend or
distribution of the type described in this Section 15.5(a) is declared
but not so paid or made, the Conversion Price shall again be adjusted
to the Conversion Price which would then be in effect if such dividend
or distribution had not been declared.
(b) If the Company shall issue rights or warrants to all
holders of its outstanding shares of Common Stock entitling them (for
a period expiring within forty-five (45) days after the date fixed for
the determination of shareholders entitled to receive such rights or
warrants) to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price (as defined in
Section 15.5(g)) on the Record Date fixed for the determination of
shareholders entitled to receive such rights or warrants, the
Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect at the
opening of business on the date after such Record Date by a fraction
of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the Record Date plus the
number of shares which the aggregate offering price of the total
number of shares so offered would purchase at such Current Market
Price, and of which the denominator shall be the number of shares of
Common Stock outstanding on the close of business on the Record Date
plus the total number of additional shares of Common Stock so offered
for subscription or purchase. Such adjustment shall become effective
immediately after the opening of business on the day following the
Record Date fixed for determination of
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shareholders entitled to receive such rights or warrants. To the
extent that shares of Common Stock are not delivered pursuant to such
rights or warrants, upon the expiration or termination of such rights
or warrants the Conversion Price shall be readjusted to the Conversion
Price which would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made on the basis of delivery
of only the number of shares of Common Stock actually delivered. If
such rights or warrants are not so issued, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in
effect if such date fixed for the determination of shareholders
entitled to receive such rights or warrants had not been fixed. In
determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such
Current Market Price, and in determining the aggregate offering price
of such shares of Common Stock, there shall be taken into account any
consideration received for such rights or warrants, with the value of
such consideration, if other than cash, to be determined by the Board
of Directors.
(c) If the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately reduced, and, conversely, if the outstanding shares
of Common Stock shall be combined into a smaller number of shares of
Common Stock, the Conversion Price in effect at the opening of
business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction
or increase, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(d) If the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock shares of any class of
capital stock of the Company (other than any dividends or
distributions to which Section 15.5(a) applies) or evidences of its
indebtedness, cash or other assets (including securities, but
excluding any rights or warrants referred to in Section 15.5(b) and
dividends and distributions paid exclusively in cash and excluding any
capital stock, evidences of indebtedness, cash or assets distributed
upon a merger or consolidation to which Section 15.6 applies) (the
foregoing hereinafter in this Section 15.5(d) called the
"Securities")), then, in each such case, the Conversion Price shall be
reduced so that the same shall be equal to the price determined by
multiplying the Conversion Price in effect immediately prior to the
close of business on the Record Date (as defined in Section 15.5(g))
with respect to such
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distribution by a fraction of which the numerator shall be the Current
Market Price (determined as provided in Section 15.5(g)) on such date
less the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board
Resolution) on such date of the portion of the Securities so
distributed applicable to one share of Common Stock and the
denominator shall be such Current Market Price, such reduction to
become effective immediately prior to the opening of business on the
day following the Record Date;provided, however, that in the event the
then fair market value (as so determined) of the portion of the
Securities so distributed applicable to one share of Common Stock is
equal to or greater than the Current Market Price on the Record Date,
in lieu of the foregoing adjustment, adequate provision shall be made
so that each Noteholder shall have the right to receive upon
conversion of a Note (or any portion thereof) the amount of Securities
such Holder would have received had such Holder converted such Note
(or portion thereof) immediately prior to such Record Date. If such
dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be
in effect if such dividend or distribution had not been declared. If
the Board of Directors determines the fair market value of any
distribution for purposes of this Section 15.5(d) by reference to the
actual or when issued trading market for any securities comprising all
or part of such distribution, it must in doing so consider the prices
in such market over the same period used in computing the Current
Market Price pursuant to Section 15.5(g) to the extent possible.
Rights or warrants distributed by the Company to all holders
of Common Stock entitling the holders thereof to subscribe for or
purchase shares of the Company's capital stock (either initially or
under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events ("Trigger Event"): (i) are
deemed to be transferred with such shares of Common Stock; (ii) are
not exercisable; and (iii) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been
distributed for purposes of this Section 15.5(d) (and no adjustment to
the Conversion Price under this Section 15.5(d) shall be required)
until the occurrence of the earliest Trigger Event. If such right or
warrant is subject to subsequent events, upon the occurrence of which
such right or warrant shall become exercisable to purchase different
securities, evidences of indebtedness or other assets or entitle the
holder to purchase a different number or amount of the foregoing or to
purchase any of the foregoing at a different purchase price, then the
occurrence of each such event shall be deemed to be the date of
issuance and record date with respect to a new right or warrant (and a
termination or expiration of the existing right
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or warrant without exercise by the holder thereof). In addition, in
the event of any distribution (or deemed distribution) of rights or
warrants, or any Trigger Event or other event (of the type described
in the preceding sentence) with respect thereto, that resulted in an
adjustment to the Conversion Price under this Section 15.5(d), (1) in
the case of any such rights or warrants which are all redeemed or
repurchased without exercise by any holders thereof, the Conversion
Price shall be readjusted upon such final redemption or repurchase to
give effect to such distribution or Trigger Event, as the case may be,
as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder of Common Stock
with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all holders of Common Stock
as of the date of such redemption or repurchase, and (2) in the case
of such rights or warrants all of which have expired or been
terminated without exercise, the Conversion Price shall be readjusted
as if such rights and warrants had never been issued.
Notwithstanding any other provision of this Section 15.5(d) to
the contrary, rights, warrants, evidences of indebtedness, other
securities, cash or other assets shall be deemed not to have been
distributed for purposes of this Section 15.5(d) if the Company makes
proper provision so that each Holder who converts a Note (or any
portion thereof) after the date fixed for determination of
shareholders entitled to receive such distribution shall be entitled
to receive upon such conversion, in addition to the shares of Common
Stock issuable upon such conversion, the amount and kind of such
distributions that such Holder would have been entitled to receive if
such Holder had, immediately prior to such determination date,
converted such Note into Common Stock; provided that, with respect to
any rights, warrants or other securities ("Securities") that are
convertible, exchangeable or exercisable, the foregoing provision
shall only apply to the extent (and so long as) the Securities
receivable upon conversion of such Note would be convertible,
exchangeable or exercisable, as applicable, without any loss of rights
or privileges, for a period of at least sixty (60) days following
conversion of such Note.
For purposes of this Section 15.5(d) and Sections 15.5(a) and
(b), any dividend or distribution to which this Section 15.5(d) is
applicable that also includes shares of Common Stock, or rights or
warrants to subscribe for or purchase shares of Common Stock to which
Section 15.5(b) applies (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets,
shares of capital stock, rights or warrants other than such shares of
Common Stock or rights or warrants to which
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Section 15.5(b) applies (and any Conversion Price reduction required
by this Section 15.5(d) with respect to such dividend or distribution
shall then be made) immediately followed by (2) a dividend or
distribution of such shares of Common Stock or such rights or warrants
(and any further Conversion Price reduction required by Sections
15.5(a) and (b) with respect to such dividend or distribution shall
then be made, except that (A) the Record Date of such dividend or
distribution shall be substituted as "the date fixed for the
determination of shareholders entitled to receive such dividend or
other distribution", "Record Date fixed for such determination" and
"Record Date" within the meaning of Section 15.5(a) and as "the date
fixed for the determination of shareholders entitled to receive such
rights or warrants", "the Record Date fixed for the determination of
the shareholders entitled to receive such rights or warrants" and
"such Record Date" within the meaning of Section 15.5(b) and (B) any
shares of Common Stock included in such dividend or distribution shall
not be deemed "outstanding at the close of business on the date fixed
for such determination" within the meaning of Section 15.5(a).
(e) If the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed upon a merger or consolidation to which Section
15.6 applies or as part of a distribution referred to in Section
15.5(d)) in an aggregate amount that, combined together with (1) the
aggregate amount of any other such distributions to all holders of its
Common Stock made exclusively in cash within the twelve (12) months
preceding the date of payment of such distribution, and in respect of
which no adjustment pursuant to this Section 15.5(e) has been made,
and (2) the aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of consideration
payable in respect of any tender offer by the Company or any of its
subsidiaries for all or any portion of the Common Stock concluded
within the twelve (12) months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to
Section 15.5(f) has been made, exceeds ten percent (10%) of the
product of the Current Market Price (determined as provided in Section
15.5(g)) on the Record Date with respect to such distribution times
the number of shares of Common Stock outstanding on such date, then,
and in each such case, immediately after the close of business on such
date, the Conversion Price shall be reduced so that the same shall
equal the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on such Record Date
by a fraction (i) the numerator of which shall be equal to the Current
Market Price on the Record Date less an amount equal to the quotient
of (x) the excess of such combined amount over such ten percent (10%)
and (y) the number
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of shares of Common Stock outstanding on the Record Date and (ii) the
denominator of which shall be equal to the Current Market Price on
such Record Date;provided, however, that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or
greater than the Current Market Price of the Common Stock on the
Record Date, in lieu of the foregoing adjustment, adequate provision
shall be made so that each Noteholder shall have the right to receive
upon conversion of a Note (or any portion thereof) the amount of cash
such Holder would have received had such Holder converted such Note
(or portion thereof) immediately prior to such Record Date. If such
dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be
in effect if such dividend or distribution had not been declared. Any
cash distribution to all holders of Common Stock as to which the
Company makes the election permitted by Section 15.5(m) and as to
which the Company has complied with the requirements of such Section
shall be treated as not having been made for all purposes of this
Section 15.5(e).
(f) If a tender offer made by the Company or any of its
subsidiaries for all or any portion of the Common Stock expires and
such tender offer (as amended upon the expiration thereof) requires
the payment to shareholders (based on the acceptance (up to any
maximum specified in the terms of the tender offer) of Purchased
Shares (as defined below)) of an aggregate consideration having a fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution)
that, combined together with (1) the aggregate of the cash plus the
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender offer, of
consideration payable in respect of any other tender offers, by the
Company or any of its subsidiaries for all or any portion of the
Common Stock expiring within the twelve (12) months preceding the
expiration of such tender offer and in respect of which no adjustment
pursuant to this Section 15.5(f) has been made and (2) the aggregate
amount of any distributions to all holders of the Common Stock made
exclusively in cash within twelve (12) months preceding the expiration
of such tender offer and in respect of which no adjustment pursuant to
Section 15.5(e) has been made, exceeds ten percent (10%) of the
product of the Current Market Price (determined as provided in Section
15.5(g)) as of the last time (the "Expiration Time") tenders could
have been made pursuant to such tender offer (as it may be amended)
times the number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time, then, and in each such case,
immediately prior to the opening of business on the day after the date
of the Expiration Time, the Conversion
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Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately
prior to close of business on the date of the Expiration Time by a
fraction of which the numerator shall be the number of shares of
Common Stock outstanding (including any tendered shares) on the
Expiration Time multiplied by the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined
as aforesaid) of the aggregate consideration payable to shareholders
based on the acceptance (up to any maximum specified in the terms of
the tender offer) of all shares validly tendered and not withdrawn as
of the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y) the
product of the number of shares of Common Stock outstanding (less any
Purchased Shares) on the Expiration Time and the Current Market Price
of the Common Stock on the Trading Day next succeeding the Expiration
Time, such reduction (if any) to become effective immediately prior to
the opening of business on the day following the Expiration Time. If
the Company is obligated to purchase shares pursuant to any such
tender offer, but the Company is permanently prevented by applicable
law from effecting any such purchases or all such purchases are
rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such tender offer
had not been made. If the application of this Section 15.5(f) to any
tender offer would result in an increase in the Conversion Price, no
adjustment shall be made for such tender offer under this Section
15.5(f).
(g) For purposes of this Section 15.5, the following
terms shall have the meaning indicated:
(1) "Closing Price" with respect to any
securities on any day means the closing sale price regular way
on such day or, if no such sale takes place on such day, the
average of the reported closing bid and asked prices, regular
way, in each case on The Nasdaq Stock Market or New York Stock
Exchange, as applicable, or, if such security is not listed or
admitted to trading on such national market or exchange, on
the principal national security exchange or quotation system
on which such security is quoted or listed or admitted to
trading, or, if not quoted or listed or admitted to trading on
any national securities exchange or quotation system, the
average of the closing bid and asked prices of such security
on the over-the- counter market on the day in question as
reported by the National Quotation Bureau Incorporated, or a
similar generally accepted reporting service, or, if not so
available, in such manner as furnished by any New York Stock
Exchange member firm
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selected from time to time by the Board of Directors for that
purpose, or a price determined in good faith by the Board of
Directors, whose determination shall be conclusive and
described in a Board Resolution.
(2) "Current Market Price" means the average of
the daily Closing Prices per share of Common Stock for the ten
(10) consecutive Trading Days immediately prior to the date in
question; provided, however, that (1) if the "ex" date (as
hereinafter defined) for any event (other than the issuance or
distribution requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Section
15.5(a), (b), (c), (d), (e) or (f) occurs during such ten (10)
consecutive Trading Days, the Closing Price for each Trading
Day prior to the "ex" date for such other event shall be
adjusted by multiplying such Closing Price by the same
fraction by which the Conversion Price is so required to be
adjusted as a result of such other event, (2) if the "ex" date
for any event (other than the issuance or distribution
requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 15.5(a), (b), (c), (d),
(e) or (f) occurs on or after the "ex" date for the issuance
or distribution requiring such computation and prior to the
day in question, the Closing Price for each Trading Day on and
after the "ex" date for such other event shall be adjusted by
multiplying such Closing Price by the reciprocal of the
fraction by which the Conversion Price is so required to be
adjusted as a result of such other event, and (3) if the "ex"
date for the issuance or distribution requiring such
computation is prior to the day in question, after taking into
account any adjustment required pursuant to clause (1) or (2)
of this proviso, the Closing Price for each Trading Day on or
after such "ex" date shall be adjusted by adding thereto the
amount of any cash and the fair market value (as determined by
the Board of Directors in a manner consistent with any
determination of such value for purposes of Section 15.5(d) or
(f), whose determination shall be conclusive and described in
a Board Resolution) of the evidences of indebtedness, shares
of capital stock or assets being distributed applicable to one
share of Common Stock as of the close of business on the day
before such "ex" date. For purposes of any computation under
Section 15.5(f), the Current Market Price on any date shall be
deemed to be the average of the daily Closing Prices per share
of Common Stock for such day and the next two (2) succeeding
Trading Days; provided, however, that if the "ex" date for any
event (other than the tender offer requiring such computation)
that requires an adjustment to the Conversion Price pursuant
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to Section 15.5(a), (b), (c), (d), (e) or (f) occurs on or
after the Expiration Time for the tender or exchange offer
requiring such computation and prior to the day in question,
the Closing Price for each Trading Day on and after the "ex"
date for such other event shall be adjusted by multiplying
such Closing Price by the reciprocal of the fraction by which
the Conversion Price is so required to be adjusted as a result
of such other event. For purposes of this paragraph, the term
"ex" date, (1) when used with respect to any issuance or
distribution, means the first date on which the Common Stock
trades regular way on the relevant exchange or in the relevant
market from which the Closing Price was obtained without the
right to receive such issuance or distribution, (2) when used
with respect to any subdivision or combination of shares of
Common Stock, means the first date on which the Common Stock
trades regular way on such exchange or in such market after
the time at which such subdivision or combination becomes
effective, and (3) when used with respect to any tender or
exchange offer means the first date on which the Common Stock
trades regular way on such exchange or in such market after
the Expiration Time of such offer. Notwithstanding the
foregoing, whenever successive adjustments to the Conversion
Price are called for pursuant to this Section 15.5, such
adjustments shall be made to the Current Market Price as may
be necessary or appropriate to effectuate the intent of this
Section 15.5 and to avoid unjust or inequitable results as
determined in good faith by the Board of Directors.
(3) "fair market value" shall mean the amount
which a willing buyer would pay a willing seller in an arm's
length transaction.
(4) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which
the holders of Common Stock have the right to receive any
cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other
property, the date fixed for determination of shareholders
entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(5) "Trading Day" shall mean (x) if the
applicable security is listed or admitted for trading on the
New York Stock Exchange or another national security exchange,
a day on which the New York Stock Exchange or another national
security exchange is open for business
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or (y) if the applicable security is quoted on The Nasdaq
Stock Market, a day on which trades may be made thereon or (z)
if the applicable security is not so listed, admitted for
trading or quoted, any day other than a Saturday or Sunday or
a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to
close.
(h) The Company may make such reductions in the
Conversion Price, in addition to those required by Sections 15.5(a),
(b), (c), (d), (e) and (f), as the Board of Directors considers to be
advisable to avoid or diminish any income tax to holders of Common
Stock or rights to purchase Common Stock resulting from any dividend
or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from
time to time may reduce the Conversion Price by any amount for any
period of time if the period is at least twenty (20) days, the
reduction is irrevocable during the period and the Board of Directors
has made a determination that such reduction would be in the Company's
best interests, which determination shall be conclusive and described
in a Board Resolution. Whenever the Conversion Price is reduced
pursuant to the preceding sentence, the Company shall mail to the
Holder of each Note at his last address appearing on the Note Register
a notice of the reduction at least fifteen (15) days prior to the date
the reduced Conversion Price takes effect, and such notice shall state
the reduced Conversion Price and the period during which it will be in
effect.
(i) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease
of at least one percent (1%) in such price; provided, however, that
any adjustments which by reason of this Section 15.5(i) are not
required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article XV
shall be made by the Company and shall be made to the nearest cent or
to the nearest one hundredth of a share, as the case may be.
No adjustment need be made for a change in the par value or no
par value of the Common Stock.
(j) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly file with the Trustee and any
conversion agent other than the Trustee an Officers' Certificate
setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.
Promptly after delivery of such certificate, the Company shall prepare
a notice of such
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adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the date on which each adjustment becomes
effective and shall mail such notice of such adjustment of the
Conversion Price to each Holder at his last address appearing on the
Note Register within twenty (20) days of the effective date of such
adjustment. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.
(k) In any case in which this Section 15.5 provides that
an adjustment shall become effective immediately after a Record Date
for an event, the Company may defer until the occurrence of such event
(i) issuing to the Holder of any Note converted after such Record Date
and before the occurrence of such event the additional shares of
Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon
such conversion before giving effect to such adjustment and (ii)
paying to such Holder any amount in cash in lieu of any fraction
pursuant to Section 15.3.
(l) For purposes of this Section 15.5, the number of
shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions
of shares of Common Stock. The Company shall not pay any dividend or
make any distribution on shares of Common Stock held in the treasury
of the Company.
(m) In lieu of making any adjustment to the Conversion
Price pursuant to Section 15.5(e), the Company may elect to reserve an
amount of cash for distribution to the Holders upon the conversion of
the Notes so that any such Holder converting Notes will receive upon
such conversion, in addition to the shares of Common Stock and other
items to which such Holder is entitled, the full amount of cash which
such Holder would have received if such Holder had, immediately prior
to the Record Date for such distribution of cash, converted its Notes
into Common Stock, together with any interest accrued with respect to
such amount, in accordance with this Section 15.5(m). The Company may
make such election by providing an Officers' Certificate to the
Trustee to such effect on or prior to the payment date for any such
distribution and depositing with the Trustee on or prior to such date
an amount of cash equal to the aggregate amount that the Holders would
have received if such Holders had, immediately prior to the Record
Date for such distribution, converted all of the Notes into Common
Stock. Any such funds so deposited by the Company with the Trustee
shall be invested by the Trustee in marketable obligations issued or
fully guaranteed by the United States government with a maturity not
more than three (3) months from the date of issuance. Upon conversion
of Notes by a Holder, such Holder shall be entitled to receive, in
addition to the
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Common Stock issuable upon conversion, an amount of cash equal to the
amount such Holder would have received if such Holder had, immediately
prior to the Record Date for such distribution, converted its Note
into Common Stock, along with such Holder's pro-rata share of any
accrued interest earned as a consequence of the investment of such
funds. Promptly after making an election pursuant to this Section
15.5(m), the Company shall give or shall cause to be given notice to
all Noteholders of such election, which notice shall state the amount
of cash per One Thousand Dollars ($1,000) principal amount of Notes
such Holders shall be entitled to receive (excluding interest) upon
conversion of the Notes as a consequence of the Company having made
such election.
Section 15.6 Effect of Reclassification, Consolidation, Merger or
Sale. If any of the following events occur: (i) any reclassification or change
of the outstanding shares of Common Stock (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), (ii) any consolidation, merger or
combination of the Company with another corporation as a result of which
holders of Common Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for such
Common Stock, or (iii) any sale or conveyance of the properties and assets of
the Company as, or substantially as, an entirety to any other corporation as a
result of which holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Common Stock, then the Company or the successor or purchasing
corporation, as the case may be, shall execute with the Trustee a supplemental
indenture (which shall comply with the Trust Indenture Act as in force at the
date of execution of such supplemental indenture if such supplemental indenture
is then required to so comply) providing that the Notes shall be convertible
into the kind and amount of shares of stock and other securities or property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance by a holder of a number
of shares of Common Stock issuable upon conversion of the Notes (assuming, for
such purposes, a sufficient number of authorized shares of Common Stock
available to convert all such Notes) immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance assuming such holder of Common Stock did not exercise his rights of
election, if any, as to the kind or amount of securities, cash or other
property receivable upon such consolidation, merger, statutory exchange, sale
or conveyance (provided that, if the kind or amount of securities, cash or
other property receivable upon such consolidation, merger, statutory exchange,
sale or conveyance is not the same for each share of Common Stock in respect of
which such rights of election have not been exercised ("non-electing share"),
then, for the purposes of this Section 15.6, the kind and amount of securities,
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cash or other property receivable upon such consolidation, merger, statutory
exchange, sale or conveyance for 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 XV. If, in the case of any such reclassification, change,
consolidation, merger, combination, sale or conveyance, the stock or other
securities and assets receivable thereupon by a holder of shares of Common
Stock includes shares of stock or other securities and assets of a corporation
other than the successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Notes as the Board of Directors shall
reasonably consider necessary by reason of the foregoing.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder at his address appearing on the Note
Register within twenty (20) days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of such supplemental
indenture.
The above provisions of this Section 15.6 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 15.6 applies to any event or occurrence, Section 15.5
shall not apply.
Section 15.7 Taxes on Shares Issued. The issue of stock
certificates on conversions of Notes shall be made without charge to the
converting Noteholder for any tax in respect of the issue thereof. The Company
shall not, however, be required to pay any tax which may be payable in respect
of any transfer involved in the issue and delivery of stock in any name other
than that of the Holder of any Note converted, and the Company shall not be
required to issue or deliver any such stock certificate unless and until the
Person or Persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
Section 15.8 Reservation of Shares; Shares to Be Fully Paid;
Listing of Common Stock. The Company shall provide, free from preemptive
rights, out of its authorized but unissued shares or shares held in treasury,
sufficient shares to provide for the conversion of the Notes from time to time
as such Notes are presented for conversion.
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Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the shares of Common
Stock issuable upon conversion of the Notes, the Company shall take all
corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue shares of such Common
Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock issued upon
conversion of Notes will be fully paid and non-assessable by the Company and
free from all taxes, liens and charges with respect to the issue thereof.
The Company further covenants that if at any time the Common Stock is
listed on the New York Stock Exchange or any other national securities exchange
the Company shall, if permitted by the rules of such exchange, list and keep
listed, so long as the Common Stock shall be so listed on such exchange, all
Common Stock issuable upon conversion of the Notes.
Section 15.9 Responsibility of Trustee. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any Holder to determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the nature or extent or
calculation 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. The Trustee and any other conversion agent shall not 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, which may at any
time be issued or delivered upon the conversion of any Note; and the Trustee
and any other conversion agent make no representations with respect thereto.
Subject to the provisions of Section 8.1, neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any note for the purpose
of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article XV. Without limiting the
generality of the foregoing, neither the Trustee nor any conversion agent shall
have any responsibility to determine the correctness of any provisions
contained in any supplemental indenture entered into pursuant to Section 15.6
relating either to the kind or amount of shares of stock or securities or
property (including cash) receivable by Noteholders upon the conversion of
their Notes after any event referred to in such Section 15.6 or to any
adjustment to be made with respect thereto, but, subject to the provisions of
Section 8.1, 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
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with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
Section 15.10 Notice to Holders Prior to Certain Actions. If:
(a) the Company declares a dividend (or any other
distribution) on its Common Stock (other than in cash out of retained
earnings or other than a dividend that results in an adjustment in the
Conversion Price pursuant to Section 15.5 as to which the Company has
made an election in accordance with Section 15.5(m)); or
(b) the Company authorizes the granting to the holders of
its Common Stock of rights or warrants to subscribe for or purchase
any share of any class or any other rights or warrants; or
(c) there is any reclassification of the Common Stock
(other than a subdivision or combination of outstanding Common Stock,
or a change in par value, or from par value to no par value, or from
no par value to par value), or of any consolidation or merger to which
the Company is a party and for which approval of any shareholders of
the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company; or
(d) there is any voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
then the Company shall cause to be filed with the Trustee and to be mailed to
each Holder at his address appearing on the Note Register as promptly as
possible but in any event at least fifteen (15) days prior to the applicable
date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of such dividend, distribution or rights or
warrants, 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 or
rights are to be determined, or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up
is expected to become effective or occur, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up.
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ARTICLE XVI
REPURCHASE UPON A DESIGNATED EVENT
Section 16.1 Repurchase Right.
(a) If, at any time prior to June 15, 2002, a Designated
Event occurs, then each Holder shall have the right, at such Holder's
option, to require the Company to repurchase all of such Holder's
Notes, or any portion thereof (in principal amounts of One Thousand
Dollars ($1,000) or integral multiples thereof), on the repurchase
date that is thirty (30) days after the date of the Company Notice (as
defined in Section 16.2) of such Designated Event (or, if such 30th
day is not a Business Day, the next succeeding Business Day). Such
repayment shall be made in cash at a price equal to one hundred
percent (100%) of the principal amount of Notes such Holder elects to
have the Company repurchase (the "Repurchase Price");provided that if
such repurchase date is a June 15 or a December 15, then the interest
payable on such date shall be paid to the Holder of record of the Note
on the next preceding June 1 or December 1, respectively. In each
case, the Company shall also pay to such Holders accrued interest to
the repurchase date on the redeemed Notes. No Notes may be redeemed
at the option of Holders upon a Designated Event if an Event of
Default has occurred and is continuing, other than a default in the
giving of the Company Notice or a default in the payment of the
Repurchase Price with respect to such Notes on the repurchase date.
Section 16.2 Notices; Method of Exercising Repurchase Right, Etc.
(a) Unless the Company has theretofore called for
redemption all of the Outstanding Notes, on or before the fifteenth
(15th) calendar day after the occurrence of a Designated Event, the
Company or, at the Company's request, the Trustee, shall mail to all
Holders a notice (the "Company Notice") of the occurrence of the
Designated Event and of the repurchase right set forth herein arising
as a result thereof. The Company shall also deliver a copy of such
notice of a repurchase right to the Trustee and cause a copy of such
notice of a repurchase right, or a summary of the information
contained therein, to be published in a newspaper of general
circulation in The City of New York. The Company Notice shall contain
the following information:
(1) the repurchase date,
(2) the date by which the repurchase right must
be exercised,
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(3) the Repurchase Price,
(4) a description of the procedure which a Holder
must follow to exercise the repurchase right, and
(5) the Conversion Price then in effect, the date
on which the right to convert the principal amount of the
Notes to be repurchased will terminate and the place or places
where Notes may be surrendered for conversion.
No failure of the Company to give the foregoing notices or any
defect therein shall limit any Holder's right to exercise a repurchase
right or affect the validity of the proceedings for the repurchase of
Notes.
If any of the foregoing provisions are inconsistent with
applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall
deliver to the Trustee on or before the thirtieth (30th) day after the
Company Notice (i) irrevocable written notice to the Company (or an
agent designated by the Company for such purpose) of the Holder's
exercise of such right, which notice shall set forth the name of the
Holder, the principal amount of the Notes to be repurchased, and a
statement that an election to exercise the repurchase right is being
made thereby, and (ii) the Notes with respect to which the repurchase
right is being exercised, duly endorsed for transfer to the Company.
Such written notice shall be irrevocable, and, subject to Section
16.2(c), upon the exercise of the repurchase right in accordance with
this Section 16.2(b), the Holder's right to convert the Notes (or
portion thereof) as to which the repurchase right has been exercised
shall terminate.
(c) If the Company fails to repurchase on the repurchase
date any Notes (or portions thereof) as to which the repurchase right
has been properly exercised, then the principal of such Notes shall,
until paid, bear interest to the extent permitted by applicable law
from the repurchase date at the rate borne by the Notes and each such
Note shall be convertible into Common Stock in accordance with this
Indenture (without giving effect to Section 16.2(b)) until the
principal of such Note has been paid or duly provided for.
(d) Any Note which is to be repurchased only in part
shall be surrendered to the Trustee (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the
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Holder of such Note without service charge, a new Note or Notes,
containing identical terms and conditions, of any authorized
denomination as requested by such Holder in an aggregate principal
amount equal to and in exchange for the unrepurchased portion of the
principal of the Note so surrendered.
(e) On or prior to the repurchase date, the Company shall
deposit with the Trustee or with a paying agent (or, if the Company is
acting as its own paying agent, segregate and hold in trust as
provided in Section 5.4) an amount of money sufficient to pay the
Repurchase Price of the Notes that are to be repurchased on the
repurchase date.
Section 16.3 Certain Definitions. For purposes of this Article
XVI:
(a) the term "beneficial owner" shall be determined in
accordance with Rule 13d-3 and 13d-5, as in effect on the date of the
original execution of this Indenture, promulgated by the Commission
pursuant to the Exchange Act;
(b) the term "person" or "group" shall include any
syndicate or group which would be deemed to be a "person" under
Section 13(d)(3) and 14(d) of the Exchange Act, as in effect on the
date of the original execution of this Indenture; and
(c) the term "Continuing Director" means at any date a
member of the Company's Board of Directors (i) who was a member of
such board on June 16, 1995, or (ii) who was nominated or elected by
at least a majority of the directors who were Continuing Directors at
the time of such nomination or election or whose election to the
Company's Board of Directors was recommended or endorsed by at least a
majority of the directors who were Continuing Directors at the time of
such nomination or election. (Under this definition, if the Company's
current Board of Directors were to approve a new director or directors
and then resign, no Change in Control would occur even though the
current Board of Directors would thereafter cease to be in office).
(d) the term "Designated Event" means a Change in Control
or a Termination of Trading:
(e) the term "Change in Control" means an event or series
of events as a result of which (i) any person or group is or becomes
the beneficial owner of shares representing more than fifty percent
(50%) of the combined voting power of the then outstanding securities
entitled to vote generally in elections of directors of the Company
(the "Voting Stock"), (ii) the Company consolidates with or merges
into any other
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corporation, or conveys, transfers or leases all or substantially all
of its assets to any person, or any other corporation merges into the
Company, and, in the case of any such transaction, the outstanding
common stock of the Company is changed or exchanged as a result,
unless the shareholders of the Company immediately before such
transaction own, directly or indirectly, immediately following such
transaction, at least fifty-one percent (51%) of the combined voting
power of the outstanding voting securities of the corporation
resulting from such transaction in substantially the same proportion
as their ownership of the Voting Stock immediately before such
transaction, or (iii) Continuing Directors do not constitute a
majority of the Board of Directors of the Company (or, if applicable,
a successor corporation to the Company); provided that a Change in
Control shall not be deemed to have occurred if either (x) the Closing
Price of the Common Stock for any five (5) Trading Days during the ten
(10) Trading Days immediately preceding the Change in Control is at
least equal to one hundred five percent (105%) of the Conversion Price
in effect on the date on which the Change of Control occurs or (y) at
least ninety percent (90%) of the consideration (excluding cash
payments for fractional shares) in the transaction or transactions
constituting the Change in Control consists of common stock that is,
or upon issuance will be, traded on a United States national
securities exchange or approved for trading on an established
automated over-the-counter trading market in the United States; and
(f) "Termination of Trading" shall have occurred if the
Common Stock (or other common stock into which the Notes are then
convertible) is neither listed for trading on a United States national
securities exchange nor approved for trading on an established
automated over-the-counter trading market in the United States.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
Section 17.1 Provisions Binding on Company's Successors. All the
Company's covenants, stipulations, promises and agreements contained herein
shall bind its successors and assigns whether so expressed or not.
Section 17.2 Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corpo-
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ration that at the time is the lawful sole successor of the Company.
Section 17.3 Addresses for Notices, Etc. Any notice or demand
which by any provision of this Indenture is required or permitted to be given
or served by the Trustee or the Holders on the Company shall be deemed to have
been sufficiently given or made for all purposes if given or served by being
deposited, postage prepaid, by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee) to Altera Corporation, 2610 Orchard Parkway, San Jose, California,
95134-2020, Attention: Chief Financial Officer. Any notice, direction, request
or demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being
deposited, postage prepaid, by registered or certified mail in a post office
letter box addressed to the Corporate Trust Office, which office is, at the
date as of which this Indenture is dated, located at Blue Hills Office Park,
150 Royall Street, Canton, Massachusetts 02021, Attention: Corporate Trust
Division (Altera Corporation 5.75% Convertible Subordinated Notes due 2002).
The Trustee, by written notice to the Company, and the Company, by
written notice to the Trustee, may designate additional or different addresses
for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first class mail, postage prepaid, at his address as it appears on the
Note Register and shall be sufficiently given to him if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 17.4 Governing Law. This Indenture and each Note shall be
deemed to be a contract made under the laws of New York, and for all purposes
shall be construed in accordance with the laws of New York.
Section 17.5 Evidence of Compliance with Conditions Precedent;
Certificates to Trustee. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with.
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Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (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 statement or opinion contained in such certificate
or opinion is 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
such Person, such condition or covenant has been complied with.
Section 17.6 Legal Holidays. If the date of maturity of interest
on or principal of the Notes or the date fixed for redemption of any Note will
not be a Business Day, then payment of such interest on or principal of the
Notes need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no interest shall accrue for the period
from and after such date.
Section 17.7 No Security Interest Created. Nothing in this
Indenture or in the Notes, expressed or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 17.8 Trust Indenture Act. This Indenture is hereby made
subject to, and shall be governed by, the provisions of the Trust Indenture Act
required to be part of and to govern indentures qualified under the Trust
Indenture Act, provided that this Section 17.8 shall not require that this
Indenture or the Trustee be qualified under the Trust Indenture Act, nor shall
it constitute any admission or acknowledgment by any party hereto that any such
qualification is required.
Section 17.9 Benefits of Indenture. Nothing in this Indenture or
in the Notes, expressed or implied, shall give to any Person, other than the
parties hereto, any paying agent, any authenticating agent, any Note Registrar
and their successors hereunder, the Holders and the holders of Senior
Indebtedness, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 17.10 Table of Contents, Headings, Etc. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
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Section 17.11 Authenticating Agent. The Trustee may appoint an
authenticating agent which shall be authorized to act on its behalf and subject
to its direction in the authentication and delivery of Notes in connection with
the original issuance thereof and transfers and exchanges of Notes hereunder,
including under Sections 2.4, 2.5, 2.6, 2.7 and 3.3, as fully to all intents
and purposes as though the authenticating agent had been expressly authorized
by this Indenture and those Sections to authenticate and deliver Notes. For
all purposes of this Indenture, the authentication and delivery of Notes by the
authenticating agent shall be deemed to be authentication and delivery of such
Notes "by the Trustee" and a certificate of authentication executed on behalf
of the Trustee by an authenticating agent shall be deemed to satisfy any
requirement hereunder or in the Notes for the Trustee's certificate of
authentication. Such authenticating agent shall at all times be a Person
eligible to serve as trustee hereunder pursuant to Section 8.9.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 17.11, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and the Company. The Trustee may at any
time terminate the agency of any authenticating agent by giving written notice
of termination to such authenticating agent and the Company. Upon receiving
such a notice of resignation or upon such a termination, or if at any time any
authenticating agent ceases to be eligible under this Section 17.11, the
Trustee shall promptly appoint a successor authenticating agent (which may be
the Trustee), shall give written notice of such appointment to the Company and
shall mail notice of such appointment to all Holders as the names and addresses
of such Holders appear on the Note Register.
The Trustee agrees to pay to the authenticating agent from time to
time reasonable compensation for its services (to the extent pre-approved by
the Company in writing), and the Trustee shall be entitled to be reimbursed for
such pre-approved payments, subject to Section 8.6.
The provisions of Sections 8.2, 8.3, 8.4, 9.3 and this Section 17.11
shall be applicable to any authenticating agent.
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Section 17.12 Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
The First National Bank of Boston hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
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<PAGE> 95
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly signed, and their respective corporate seals to be hereunto affixed and
attested, all as of the date first written above.
ALTERA CORPORATION
By: /s/ Paul Newhagen
----------------------------------
Title: Vice President
-------------------------------
Attest:
/s/ Martin R. Baker
----------------------------------
THE FIRST NATIONAL BANK OF
BOSTON, as Trustee
By: /s/ Traci Martin
----------------------------------
Title: Senior Account Administrator
-------------------------------
Attest:
/s/ Kecia R. Banks
----------------------------------
90
<PAGE> 1
EXHIBIT 4.3
ALTERA CORPORATION
5-3/4% CONVERTIBLE SUBORDINATED NOTE DUE 2002
THE NOTE 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 MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) 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") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE NOTE
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT WITHIN
THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY RESELL OR
OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO
THE FIRST NATIONAL BANK OF BOSTON, AS TRUSTEE, A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
SUCH TRUSTEE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) 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); AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(F) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THE NOTE EVIDENCED HEREBY WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THE
NOTE (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(F) ABOVE), THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE FIRST NATIONAL BANK
OF BOSTON, AS TRUSTEE. IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C),
2(D) OR 2(E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
FIRST NATIONAL BANK OF BOSTON, AS TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE NOTE EVIDENCED HEREBY
PURSUANT TO CLAUSE 2(F) ABOVE OR THE EXPIRATION OF THREE YEARS FROM THE
ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
CUSIP 021441 AA 8
ALTERA CORPORATION, a corporation duly organized and validly existing under the
laws of the State of California (herein called the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to
, or registered assigns,
the principal sum of Dollars
<PAGE> 2
on June 15, 2002, and to pay interest on said principal sum semi-annually on
June 15 and December 15 of each year, commencing December 15, 1995, at the rate
per annum specified in the title of this Note, accrued from the June 1 or
December 1 as the case may be, next preceding the date of this Note to which
interest has been paid or duly provided for, unless the date of this Note is a
date to which interest has been paid or duly provided for, in which case
interest shall accrue from the date of this Note, or unless no interest has
been paid or duly provided for on this Note, in which case interest shall
accrue from June 21, 1995, until payment of said principal sum has been made or
duly provided for. Notwithstanding the foregoing, if the date hereof is after
any June 1 or December 1, as the case may be, and before the following June 15
or December 15, this Note shall bear interest from such June 15 or December 15,
respectively; provided, however, that if the Company shall default in the
payment of interest due on such June 15 or December 15, then this Note shall
bear interest from the next preceding June 15 or December 15 to which interest
has been paid or duly provided for or, if no interest has been paid or duly
provided for on this Note, from June 21, 1995. The interest so payable on any
June 15 or December 15 will be paid to the person in whose name this Note (or
one or more Predecessor Notes) is registered at the close of business on the
record date, which shall be the June 1 or December 1 (whether or not a Business
Day) next preceding such June 15 or December 15, respectively; provided that
any such interest not punctually paid or duly provided for shall be payable as
provided in the indenture. Payment of the principal of and interest accrued on
this Note shall be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, or, at the
option of the Holder of this Note, at the Corporate Trust Office, in 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, provided however,
that at the Company's option, payment of interest may be made by check mailed
to the registered address of the person entitled thereto.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, including, without limitation, provisions subordinating the
payment of principal of and premium, if any, and interest on this Note to the
prior payment in full of all Senior Indebtedness, as defined in the Indenture,
and provisions giving the Holder of this Note the right to convert this Note
into Common Stock on the terms and subject to the limitations referred to on
the reverse hereof and as more fully specified in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set
forth at this place.
This Note shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in accordance with
and governed by the laws of said State.
This note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee or a duly authorized authenticating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
Dated:
ALTERA CORPORATION
<TABLE>
<S> <C> <C>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named indenture. Attest: By:
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
</TABLE>
By:
AUTHORIZED SIGNATORY ASSISTANT SECRETARY PRESIDENT
-2-
<PAGE> 3
ALTERA CORPORATION
5-3/4% CONVERTIBLE SUBORDINATED NOTE DUE 2002
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 5-3/4% Convertible Subordinated Notes due 2002 (herein called
the "Notes"), limited to the aggregate principal amount of $230,000,000, all
issued or to be issued under and pursuant to an indenture, dated as of June 15,
1995 (herein called the "Indenture"), between the Company and The First
National Bank of Boston (herein called the "Trustee"), to which the Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the Notes.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of and accrued interest on all Notes
may be declared, and upon said declaration shall become, due and payable, in
the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than sixty-six and
two-thirds percent (66-2/3%) of the aggregate principal amount of the Notes at
the time outstanding, evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or modifying in any manner the rights of the Holders of the Notes;
provided, however, that no such supplemental indenture shall (1) extend the
fixed maturity of any Note, or reduce the rate or extend the time of payment of
interest thereon, or reduce the principal amount thereof or premium, if any
thereon, or reduce any amount payable on redemption or repurchase thereof,
change or impair the obligation of the Company to repurchase any Note at the
option of the Holder upon the happening of a Designated Event, or impair or
affect the right of any Noteholder to institute suit for the payment thereof,
or make the principal thereof of interest or premium, if any, thereon payable
in any coin or currency other than that provided in the Notes, or modify the
provisions of the Indenture with respect to the subordination of the Notes in
manner adverse to the Noteholders, or impair the right to convert the Notes
into Common Stock subject to the terms set forth in the Indenture, including
Section 15.6 thereof, without the consent of the Holder of each Note so
affected, or (ii) reduce the aforesaid percentage of Notes, the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holders of all Notes then outstanding. It is also provided in
the Indenture that, prior to any declaration accelerating the maturity of the
Notes, the Holders of a majority in aggregate principal amount of the Notes at
the time outstanding may on behalf of the Holders of all of the Notes waive any
past default or Event of Default under the Indenture and its consequences
expect a default in the payment of interest or any premium on or the principal
of or any redemption price or Repurchase Price of any of the Notes or the
company's failure to convert any Notes into Common Stock. Any such consent or
waiver by the Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of this Note and any Notes which may be issued in exchange or
substitution hereof, irrespective of whether or not any notion thereof is made
upon this Note or such other Notes.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, expressly subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness, as defined in
the Indenture, whether outstanding at the date of the Indenture or thereafter
incurred, and this Note is issued subject to the provisions of the Indenture
with respect to such subordination. Each Holder of this Note, by accepting the
same, agrees to and shall be bound by such provisions and authorizes the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and appoints the Trustee his attorney
in fact for such purpose.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the Company's obligation, which is
absolute and unconditional, to pay the principal of and any premium and
interest on this Note at the place, at the respective times, at the rate and in
the coin or currency herein prescribed.
Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
The Notes are issuable in registered form without coupons in
denominations of One Thousand Dollars ($1,000) principal amount and integral
multiples thereof. At the office or agency of the Company, and in the manner
and subject to the limitations provided in the Indenture, without payment of
any service charge but with payment
-3-
<PAGE> 4
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or exchange of Notes, Notes may be
exchanged for a like aggregate principal amount of Notes of other authorized
denominations.
The Notes will not be redeemable at the Company's option prior to June
16, 1998. On or after such date and prior to maturity the Notes may be
redeemed at the Company's option as a whole, or from time to time in part, upon
mailing a notice of such redemption not less than thirty (30) nor more than
sixty (60) days before the date fixed for redemption to the Holders of Notes at
their last registered addresses, all as provided in the Indenture, at the
following redemption prices (expressed as percentages of the principal amount),
together in each case with accrued interest to, but excluding, the date fixed
for redemption.
If redeemed during the 12-month period beginning June 15 (or June 16,
in the case of 1998):
<TABLE>
<CAPTION>
Year Percentage Year Percentage
---- ---------- ---- ----------
<S> <C> <C> <C>
1998 103.29% 2000 101.64%
1999 102.46 2001 100.82
</TABLE>
and one hundred percent (100%) at June 15, 2002; provided that if the date
fixed for redemption is a June 15 or December 15, then the interest payable on
such date shall be paid to the Holder of record on the next preceding June 1 or
December 1, respectively.
The Notes are not subject to redemption through the operation of any
sinking fund.
Upon the occurrence of a "Designated Event" prior to June 15, 2002,
the Noteholder has the right, at such Holder's option, to require the Company
to repurchase all or any portion of such Holders' Notes on the thirtieth (30th)
day after notice of such Designated Event at a price equal to one hundred
percent (100%) of the principal amount of the Notes, together in each case with
accrued interest to the date fixed for redemption; provided that if such
repurchase date is June 15 or December 15, then the interest payable on such
date shall be paid to the Holder of record of the Note on the next preceding
June 1 or December 1, respectively. The Company shall mail to all Holders of
record of the Notes a notice of the occurrence of a Designated Event and of the
repurchase right arising as a result thereof on or before fifteen (15) calendar
days after the occurrence of such Designated Event.
Subject to the provisions of the Indenture, the Holder hereof has the
right, at its option, at any time after sixty (60) days following the latest
date of original issuance of the Notes and prior to the close of business on
June 15, 2002, or, as to all or any portion hereof called for redemption, prior
to the close of business on the Trading Day next preceding the date fixed for
redemption (unless the Company shall default in payment due upon redemption),
to convert the principal hereof or any portion of such principal which is One
Thousand Dollars ($1,000) or an integral multiple thereof, into that number of
fully paid and non-assessable shares of Company's Common Stock, as said shares
shall be constituted at the date of conversion, obtained by dividing the
principal amount of this Note or portion thereof to be converted by the
Conversion Price of $51.17 or such Conversion Price as adjusted from time to
time as provided in the Indenture, upon surrender of this Note, together with a
conversion notice as provided in the Indenture and this Note, to the Company at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, or at the option of such Holder, the
Corporate Trust Office, and, unless the shares issuable on conversion are to be
issued in the same name as this Note, duly endorsed by, or accompanied by
instruments of transfer in form satisfactory to the company duly executed by,
the Holder or by his duly authorized attorney. No adjustment in respect of
interest or dividends will be made upon any conversion; provided, however, that
if this Note shall be surrendered for conversion during the period from the
close of business on any record date for the payment of interest through the
close of business on the Trading Day next preceding the following interest
payment date, this Note (unless it or the portion being converted shall have
been called for redemption on a date in such period) must be accompanied by an
amount, in funds acceptable to the Company, equal to the interest otherwise
payable on such interest payment date on the principal amount being converted.
No fractional shares of Common Stock will be issued upon conversion, but an
adjustment in cash will be paid to the Holder, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Note or Notes for conversion.
-4-
<PAGE> 5
Any Notes called for redemption, unless surrendered for conversion on
or before the close of business on the date fixed for redemption, may be deemed
to be purchased from the Holder of such Notes at an amount equal to the
applicable redemption price, together with accrued interest to the date fixed
for redemption, by one or more investment bankers or other purchasers who may
agree with the Company to purchase such Notes from the Holders thereof and
convert them into Common Stock and to make payment for such Notes as aforesaid
to the Trustee in trust for such Holders.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, or at the option of the Holder of this Note, at the Corporate Trust
Office, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange thereof, subject
to the limitations provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any paying agent,
any conversion agent and any Note Register may deem and treat the registered
Holder hereof as the absolute owner of this Note (whether or not this Note
shall be overdue and notwithstanding any notation of ownership or other writing
hereon made by anyone other than the Company or any Note Registrar), for the
purpose of receiving payment hereof, or on account hereof, for the conversion
hereof and for all purposes, and neither the Company nor the Trustee nor any
other authenticating agent nor any paying agent nor any other conversion agent
nor any Note Registrar shall be affected by any notice to the contrary. All
payments made to or upon the order of such registered Holder shall, to the
extent of the sum paid, satisfy and discharge liability for monies payable on
this Note.
No recourse for the payment of the principal of or any premium or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, employee, agent, officer,
director or subsidiary, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
Terms used in this Note and defined in the Indenture are used herein
as therein defined.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT--
TEN ENT - as tenants by entireties _____________________ Custodian
JT TEN - as tenants with right of (Cust)
survivorship and not as _____________________ under
tenants in common (Minor)
Uniform Gifts to
Minors Act ____________________
(State)
Additional abbreviations may also be used though not in the above list.
-5-
<PAGE> 6
CONVERSION NOTICE
To: Altera Corporation:
The undersigned registered owner of this Note hereby irrevocably
exercises the option to convert this Note, or the portion hereof (which is One
Thousand Dollars ($1,000) principal amount or an integral multiple thereof)
below designated, into shares of Common Stock in accordance with the terms of
the indenture referred to in this Note, and directs that the shares issuable
and deliverable upon such conversion, together with any check in payment for
fractional shares and any Notes 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 or any portion of this Note
not converted are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid to the undersigned on account of
interest accompanies this Note.
Dated: ________________________________ ____________________________________
Fill in for registration of shares to
be issued, and Notes if to be delivered, ____________________________________
other than to and in the name of the (Signatures)
registered Holder:
Signature(s) must be guaranteed by
_______________________________________ an eligible Guarantor Institution
(Name) (banks, stock, brokers, savings and
loan associations and credit
_______________________________________ unions) with membership in an
(Street Address) approved signature guarantee
medallion program pursuant to
_______________________________________ Securities and Exchange Commission
(City, State and Zip Code) Rule 17Ad-15 if shares of Common
Please print name and address Stock are to be issued, or Notes to
be delivered, other than to and in
the name of the registered Holder.
____________________________________
Signature Guaranteed
Principal amount to be converted
(if less than all):
$_________________,000
____________________________________
Social Security or Other Taxpayer
Identification Number
-6-
<PAGE> 7
OPTION TO ELECT REPURCHASE UPON A DESIGNATED EVENT
To: Altera Corporation
The undersigned registered new owner of this Note hereby irrevocably
acknowledges receipt of a notice from Altera Corporation (the "Company") as to
the occurrence of a Designated Event with respect to the Company and requests
and instructs the Company to repay the entire principal amount of this Note, or
the portion thereof (which is One Thousand Dollars ($1,000) principal amount or
an integral multiple thereof) below designated, in accordance with the terms of
the indenture referred to in this Note, together with accrued interest to such
date, to the registered Holder hereof.
Dated: ________________________________ ____________________________________
____________________________________
(Signatures)
NOTICE: The above signatures of the
Holder(s) hereof must correspond
with the name as written upon the
face of the Note in every particular
without alteration or enlargement or
any change whatever.
Principal amount to be repaid
(if less than all):
$_________________,000
____________________________________
Social Security or Other Taxpayer
Identification Number
-7-
<PAGE> 8
ASSIGNMENT
For value received _____________________________________________________________
hereby sell(s), assign(s) and transfer(s) unto
________________________________________________________________________________
(Please insert social security or other identifying number of assignee)
the within Note, and hereby irrevocably constitutes and appoints
________________________________________________________________________________
attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.
In connection with any transfer of the within Note occurring within
three years of the original issuance of such Note, the undersigned confirms
that such Note is being transferred:
[ ] To Altera Corporation or a subsidiary thereof; or
[ ] Pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
[ ] To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Regulation S under the
Securities Act of 1933, as amended; and unless the box below is checked, the
undersigned confirms that such Note is not being transferred to an "affiliate"
of the Company as defined in Rule 144 under the Securities Act of 1933, as
amended (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
Dated: ________________________________ ____________________________________
____________________________________
(Signatures)
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, other than to and
in the name of the registered
Holder.
____________________________________
Signature Guaranteed
NOTICE: The signature on the conversion notice, the option to elect
repurchase upon a Designated Event or the assignment must correspond with the
name as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
-8-
<PAGE> 1
EXHIBIT 10.39
WAFER SUPPLY AGREEMENT
BETWEEN
ALTERA CORPORATION
AND
TAIWAN SEMICONDUCTOR MANUFACTURING CO., LTD.
JUNE 26, 1995
<PAGE> 2
WAFER SUPPLY AGREEMENT
PREAMBLE
This agreement ("Agreement") is entered into effective June 26, 1995
(the "Effective Date") by and between the following parties (the "Parties"):
TAIWAN SEMICONDUCTOR MANUFACTURING CO. LTD, a corporation organized
under the laws of Taiwan, with its principal place of business located at the
following address:
No. 121, Park Avenue 3
Science Based Industrial Park
Hsin-Chu, Taiwan, R.O.C.
(hereinafter referred to as "TSMC"); and
ALTERA CORPORATION, a corporation organized under the laws of the
State of California U.S.A., with its principal place of business located at the
following address:
2610 Orchard Parkway
San Jose, California 95134-2020
(hereinafter referred to as "Altera").
RECITALS
A. Altera designs and markets integrated circuit products, and
desires to obtain an additional manufacturing source for certain of its
products.
B. TSMC manufactures integrated circuits designed and marketed by
other parties and possesses wafer fabrication facilities suitable for
manufacturing the Altera products. TSMC desires to manufacture and supply
these products to Altera.
AGREEMENT
Now, therefore, the Parties agree as follows:
1.0 Definitions
1.1 "Device" shall mean good die of Altera integrated
circuits meeting the parametric and electrical specifications set forth in
Exhibit 1.1. Good die are those which meet agreed to specifications.
<PAGE> 3
1.2 "Packaged Devices" shall mean Devices packaged and
tested in accordance with Altera specifications.
1.3 "TSMC Processes" shall mean TSMC's 0.6um SPDM, 0.6um
SPTM and 0.5um SPTM processes, and/or such other processes or successor
processes as may be mutually acceptable.
1.4 "Device Family" shall mean any group of products
using the same base layers.
1.5 "Wafers" shall mean 6-inch, 8-inch, and other sized
silicon wafers manufactured by TSMC using any of the TSMC Processes and an
Altera design and mask set (or database tape) for integrated circuits.
1.6 "Proprietary Information" shall mean (i) this
Agreement, including all exhibits; and any technical specifications, prices,
schedules, specifications and the like negotiated in implementation of this
Agreement, and (ii) any information including but not limited to technical
information, database tapes, specifications, test tapes, masks and supporting
documentation provided either orally, in writing or in machine readable format
and masks or reticles generated by or for TSMC using Altera's database tapes,
provided that all such information is marked "Confidential" or similarly, or,
if oral, identified as proprietary at the time of disclosure. Notwithstanding
the foregoing, Proprietary Information does not include information generally
available to the public, information independently developed or known by the
receiving Party without reference to information disclosed hereunder, provided
that the receiving Party can demonstrate such independent development or
knowledge by substantial documentation, information rightfully received from a
third party without confidentiality obligations, information authorized in
writing for release by the disclosing Party hereunder, or information required
to be disclosed pursuant to law or governmental regulation provided that the
disclosing Party is given reasonable notice prior to any such disclosure.
1.7 "Code Layer" shall mean mask layers which make a
device unique to a custom requirement and different from others of the same
device family.
1.8 "Altera Products" shall mean the products listed in
Exhibit 1.1 as modified from time to time by agreement between Altera and TSMC.
2.0 Process Technology
2.1 TSMC will transfer to Altera the process design rules
and related information, as more fully described in Exhibit 2.1.1., to enable
Altera to design products to be manufactured by TSMC. Altera will transfer to
TSMC product design files and related information, as more fully described in
Exhibit 2.1.2. It is understood that the information of each disclosing Party
is the Proprietary Information of the disclosing Party and will remain the
property of the disclosing Party.
-2-
<PAGE> 4
2.2 TSMC will run the TSMC Processes pursuant to this
Agreement for the purpose of manufacturing Wafers exclusively for Altera in
accordance with the qualification plan described in Exhibit 2.2.1.
All Wafers shall meet the reliability and quality specifications
described in Exhibit 2.2.2.
2.3 TSMC will provide Altera with a list of TSMC's
acceptable mask vendors. Altera will provide one of these mask vendors, as
mutually agreed, with device database tapes. TSMC will provide the mask vendor
with mask alignment and test structure database, and oversee merging of device
and mask alignment databases by the mask vendor. Altera will bear the cost of
original mask sets, subject to its advance approval of the cost.
2.4 After TSMC has provided Altera with sufficient Wafers
for qualification, but prior to completion of full qualification, Altera may
request that TSMC provide a mutually agreed quantity of additional Wafers or
"risk starts." TSMC will provide these additional Wafers to Altera at the
prices determined pursuant to Article 8.0.
2.5 During qualification, Altera may stop production of
Wafers for any or all Altera integrated circuits by giving notice to TSMC.
TSMC will stop production following completion of the process steps at which
Wafers reside at the time of notification. Altera will pay TSMC for all Wafers
started prior to TSMC receiving such notice. Prices for such Wafers will be
equitably prorated based on the stage of production of the Wafers.
2.6 Wafers delivered for qualification must meet all
agreed Altera standards, specifications and requirements. If TSMC successfully
completes qualification, then upon written notice from Altera of successful
completion, TSMC will proceed to manufacture and deliver Wafers in accordance
with Article 3.0, at a rate which is agreed upon by TSMC and Altera.
2.7 During qualification, TSMC and Altera will agree upon
parametric and process flow specifications, which will be finalized before TSMC
begins production. TSMC will not modify agreed upon specifications in any way
without the prior written consent of Altera.
3.0 Production
3.1 Product Identification. TSMC will manufacture the
Altera Products with the TSMC Processes. Any Altera Products requiring a
unique parametric specification shall be listed separately.
3.2 Capacity Guaranty. Subject to Altera's qualification
of TSMC Processes, TSMC will produce wafers to fill Altera's orders for Wafers
and Devices up to a maximum per-month production capacity, as determined
pursuant to the procedure set forth below in this Article 3.0.
3.3 Production Purchase Orders. Orders shall be provided
to TSMC by Altera as follows:
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3.3.1 As soon as practicable following the
Effective Date and updated each six months thereafter, Altera and TSMC
shall agree on a business commitment under which TSMC will attempt in
good faith to reserve a maximum capacity for the next 12 months and
Altera will forecast minimum monthly loadings which Altera will
attempt in good faith to use.
3.3.2 It is agreed and understood that the purchase
of Wafers and/or Devices pursuant to this Agreement shall be
accomplished by means of Altera individual purchase orders and/or
other release documents hereinafter collectively referred to as
"purchase orders." The purchase orders placed by Altera will be open
purchase orders for a fixed quantity of wafers based upon the Altera
forecast.
3.3.3 To determine release schedules, Altera will
provide TSMC, on a monthly basis, with a rolling six-month forecast of
Altera requirements for Wafers. The first two months of this forecast
shall be firm, and covered by released purchase orders, unless this
procedure is modified as mutually agreed by the Parties.
3.4 Partial Shipments. Altera will accept deliveries
made in timely installments from TSMC. Such partial shipments will be billed
as made; and payments therefor are subject to the terms of payment noted below.
3.5 Quantity Variance. If the monthly quantity shipped
by TSMC of each product ordered by Altera is within =/- 5 percent of the
quantity ordered, such quantity shall constitute compliance with Altera's
order. Larger overshipments or undershipments may be accepted at Altera's
discretion, in which case the respective quantity of such overshipment or
undershipment may be subtracted or added to the following months' quantity at
Altera's discretion even if this results in quantities below or above
respective minimum or maximum quantities. Billing for partial orders shipped
as described in this Section 3.5 will be at the established purchase price per
wafer times the total quantity of wafers delivered.
3.6 Modifications. If Altera determines that
modifications to the specifications are required, including modifications to
mask tooling, process or testing, TSMC agrees to make such modifications within
a reasonable period of time after notification in writing by Altera. The
Parties will negotiate adjustment to price and delivery schedule as well as
charges for retooling costs if warranted by such modifications.
3.7 Substitutions. Altera may add or substitute product
types using the process flow approved by Altera and TSMC for existing
production at any time, provided that the agreed upon quantities of Wafer
shipments required by Altera will not be in excess; of those determined
pursuant to Section 3.2 except with the consent of TSMC. Such product types
are ones which can be manufactured using the same process and in accordance
with the same qualification plan as Altera Wafers currently manufactured by
TSMC under this Agreement. TSMC will provide Devices and Wafers of such
similar product types under the same terms as specified herein.
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<PAGE> 6
3.8 Parametric Failure. If Wafers or Devices fail to
meet the agreed upon parametric specifications, and in Altera's reasonable
opinion such failure appears material, Altera may request TSMC to stop
production. If TSMC is unable to correct such failures within a reasonable
time, Altera may cancel such particular orders. Altera will notify TSMC in
writing of its intention to suspend or cancel such orders and will include any
substantiating data.
3.9 Reports. TSMC shall provide Altera with a report of
wafer fabrication work in process for each product weekly unless otherwise
mutually agreed, the details to be as agreed upon by the Parties. To enable
Altera to track process control, TSMC shall periodically provide, at least
quarterly, data summarizing the history of the DC parametric measurements for
TSMC's manufacturing process. Altera shall be provided continuous modem access
to the computer database maintained by TSMC for purposes of these reports.
3.10 Requalifications. With respect to any material
change which TSMC makes in its manufacturing process which affects the
performance, yield, and/or physical structure of the devices within the wafers,
TSMC shall notify Altera in writing of each such change at least ninety (90)
days in advance of the implementation of such change in the production of the
wafers to allow Altera to impose reasonable requirements for requalifying the
wafers for acceptance hereunder.
3.11 Order Cancellation.
3.11.1 If Altera fails to make any material payment
hereunder when due or fails to accept any material value of product
properly furnished hereunder, and such default is not cured within
thirty (30) days after TSMC gives Altera written notice thereof, TSMC
may decline to make further shipments and/or may terminate Altera's
order without affecting any other rights or remedies available to
TSMC. If TSMC continues to make shipments after such default, TSMC's
actions shall not constitute a waiver nor affect TSMC's remedies for
such default.
3.11.2 If Altera cancels an order that is firm
pursuant to Section 3.3, Altera shall pay in full and complete
satisfaction of any claim arising therefrom, a cancellation charge per
wafer equal to:
(number of mask steps completed)
------------------------------------ x (wafer price),
(total number of mask steps)
unless the parties mutually agree to a rescheduling of the order, in
which case no claim shall arise unless the order as rescheduled is
cancelled. Claims for the cancelling of rescheduled orders shall also
be governed as set forth above on the new date of cancellation.
3.11.3 Altera may cancel any purchase order in
whole or in part if TSMC fails to deliver products as covered by such
purchase order placed hereunder by Altera, which failure is not
corrected within sixty (60) days after written notice thereof. If
such failure is not corrected within the above sixty-day period and is
not excused pursuant to Article 10.0,
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Altera shall have the rights of cover as provided by the California
Uniform Commercial Code with respect to the reprocurement of all
products that Altera would have been entitled to buy from TSMC
pursuant to this Agreement. The foregoing shall not affect any other
rights or remedies available to Altera. If Altera continues to
maintain or place orders after such default, Altera's actions shall
not constitute a waiver nor affect Altera's remedies for such default.
4.0 On-Site Inspection and Vendor Information
4.1 Altera representatives shall be allowed to visit
TSMC's wafer fabrication and test facilities during normal working hours upon
reasonable notice to TSMC.
4.2 Upon Altera's request, TSMC will allow Altera to
perform an audit of TSMC's manufacturing facility, and TSMC will provide Altera
with process control information, including but not limited to: process and
electrical test yield results, current process specifications and conformance
to specifications; calibration schedules and logs for equipment; environmental
monitor information for air, gases and DI water; documentation of operator
qualification and training; documentation of traceability through TSMC's
operation, TSMC process verification information, and TSMC's trouble reports.
The foregoing shall be in accordance with the format of Exhibit 4.2.
5.0 Term and Termination
5.1 The term of this Agreement shall continue in effect
through December 31, 1999, subject to automatic extension under Section 5.3,
unless sooner terminated pursuant to Section 5.2.
5.2 This Agreement may be terminated immediately by
either Party if the other Party (i) breaches any material provision of this
Agreement and does not remedy such breach within sixty (60) days of notice of
breach; or (ii) becomes the subject of a voluntary or involuntary petition in
bankruptcy or any proceeding relating to insolvency, receivership, liquidation,
or composition for the benefit of creditors, if that petition or proceeding is
not dismissed within sixty (60) days after filing.
5.3 Automatic Extension
5.3.1 On January 1, 1998, and on each anniversary
thereof, this Agreement shall be automatically extended for an
additional one year (thereby constituting an annually rolling three
year agreement), unless either Party gives the other Party prior
written notice (i.e., on or before such date or anniversary thereof)
that such Party is terminating the Agreement effective at the end of
two years following such date or anniversary thereof. If such prior
notice is given, the Agreement shall so terminate at the end of such
two year period.
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5.3.2 The following examples illustrate the
operation of Section 5.3.1. If a Party desires to terminate the
Agreement on December 31, 1999, such Party must give notice thereof
prior to January 1, 1998; otherwise the Agreement will automatically
extend to December 31, 2000. Then if a Party desires to terminate the
Agreement on December 31, 2000, such Party must give notice thereof
prior to January 1, 1999; otherwise the Agreement will automatically
extend to December 31, 2001. The Agreement will continue, in this
manner, to extend in one year increments until two years prior notice
is given by either Party.
5.3.3 In the event of termination as provided in
this Section 5.3, Altera will have the right for "last time buy," time
and volume to be mutually agreed to up to a maximum of twice the
previous six (6) months' order quantity.
6.0 Proprietary Information
6.1 Both TSMC and Altera agree that Proprietary
Information of the other will be used by them solely for the purpose of
manufacturing Wafers hereunder and will not be disclosed to any third party
without the prior written permission of the disclosing Party.
6.2 Upon termination or expiration of this Agreement for
whatever reason, the receiving Party must (i) return to the other Party the
original and all copies of any Proprietary Information of the disclosing Party
and (ii) at the disclosing Party's request, have one of its officers certify in
writing that it will not make any further disclosure or use of such Proprietary
Information and specifically will not manufacture or have manufactured for it
any product incorporating such Proprietary Information.
6.3 These confidentiality provisions as to any item of
Proprietary Information shall survive the termination of this Agreement for a
period of five (5) years from the date of disclosure of such item of
Proprietary Information.
6.4 TSMC retains the right to incorporate into its
generic manufacturing process any and all process developments made by TSMC in
the course of its performance under this Agreement, provided that no Altera
Proprietary Information is thereby used or disclosed. Altera retains the right
to incorporate into its generic device design methodology any and all device
design methodology developments made by Altera in the course of its performance
under this Agreement, provided no TSMC Proprietary Information is thereby used
or disclosed.
7.0 Warranty/Acceptance Testing.
7.1 TSMC warrants that Wafers and/or Devices delivered
hereunder will meet the mutually agreed specifications and shall be free from
defects in material and workmanship under normal use and service for a period
of one (1) year from the date of receipt from TSMC's facility. If, during such
one year period (i) TSMC is notified with reasonable promptness in writing upon
discovery of any defect in the Wafers and/or Devices, including a reasonably
detailed description of such defect; (ii) such Wafers and/or Devices are
returned to TSMC's facility, transportation prepaid;
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<PAGE> 9
and (iii) TSMC's reasonable examination of such Wafers and/or Devices discloses
that such Wafers and/or Devices are defective and such defects are not caused
by accident, abuse, misuse, neglect, improper installation, repair or
alteration not authorized by TSMC, improper testing or use contrary to any
reasonable instructions issued by TSMC, then within a reasonable time TSMC
shall, as mutually agreed, either repair, replace, or credit Altera for such
Wafers and/or Devices. TSMC shall return any Wafers and/or Devices repaired or
replaced under this warranty to Altera transportation prepaid, and reimburse
Altera for the transportation charges paid by Altera for such Wafers and/or
Devices. The performance of this warranty does not extend the warranty period
for any Wafers and/or Devices beyond that period applicable to the Wafers
and/or Devices originally delivered.
7.1.1 The foregoing warranty constitutes TSMC's
exclusive liability, and the exclusive remedy of Altera, for any
breach of any warranty or other nonconformity of the Wafers and/or
Devices. This warranty is exclusive and in lieu of all other
warranties, express, implied or statutory, including but not limited
to the warranties for merchantability and fitness for a particular
purpose, which are hereby expressly disclaimed.
7.1.2 Prior to any return of Wafers and/or Devices
by Altera pursuant to this paragraph, Altera shall afford TSMC the
opportunity to inspect such Wafers and/or Devices at Altera's
location. Upon verification of defects by TSMC, any such Wafers
and/or Devices so inspected shall be returned to TSMC. TSMC shall
make any such inspection with reasonable promptness.
7.2 TSMC shall immediately advise Altera whenever TSMC
has reason to believe that wafers and/or Devices may not conform to the
applicable specifications.
7.3 Altera may carry out acceptance testing of Wafers
and/or Devices at Altera's facilities. Acceptance tests shall be performed
under conditions as described in Exhibit 7.3 attached hereto. If any Wafers
and/or Devices are not either accepted or rejected by Altera within forty-five
(45) days of receipt of such Wafers and/or Devices, then such shipments of the
Wafers and/or Devices shall be deemed accepted. Neither acceptance nor such
deemed acceptance shall constitute a waiver of the requirements of Section 7.1.
8.0 Prices/Payment
8.1 Prices in U.S. dollars will be negotiated annually in
coordination with the business commitment referred to in Section 3.3.1, and
taking into consideration any material fluctuations in the currency exchange
rate that may have occurred. It is the expectation of both Parties that prices
for Wafers and Devices using a given Process will decrease from year to year.
8.2 Prices do not include customs, duties or sales, use,
excise or other similar taxes. Altera shall pay, in addition to these prices,
the amount of any present or future customs duties or sale, use, excise, or
other similar tax applicable to the sale of goods or performance of services
covered by this Agreement, or in lieu thereof Altera shall supply TSMC with an
appropriate tax exemption certificate.
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8.3 Payment terms shall be net due 30 days after receipt
of a valid invoice by Altera.
8.4 If following the effective date of any price
determination pursuant to Section 8.1 (but prior to the next determination),
the number N(2) of Taiwan dollars per U.S. dollar, as quoted in the Wall Street
Journal, at the end of any month has changed from the corresponding Number N(1)
on the effective date by five percent (5%) or more, the U.S. dollar price P(2)
for payment of invoices rendered in the following months shall be adjusted with
respect to the existing price P(1), according to the following formula (under
which each Party bears one-half of the currency fluctuation):
[ (N(1) - N(2)) ]
P(2) + P(1) [ 1 + ------------- ]
[ 2N(1) ]
(For example, if N(1) = 26.0 Taiwan dollars per U.S. dollar, and it decreased
5% to N(2) = 24.7, P(2) would be 1.025 P(1). If it increased 5% to N(2) =
27.3, P(2) would be .975 P(1).) If at the end of any subsequent month
following such price adjustment (but prior to the next price determination
under Section 8.1), the number of Taiwan dollars N(3) has changed from N(2) by
5% or more, the price P(3) for payment of invoices rendered in the following
months shall be adjusted again in accordance with the preceding formula (with
all subscripts being increased by one), and so forth for any additional 5% or
more change.
9.0 Delivery
9.1 Unless otherwise provided herein, title to the Wafers
and/or Devices and liability for loss or damage thereto shall pass to Altera
upon TSMC's tender of delivery of such Wafers and/or Devices to a carrier for
shipment to Altera pursuant to Altera's instructions, and any loss or damage
thereafter shall not relieve Altera from any obligation hereunder. Delivery
may be made in installments in accordance with Section 3.4. The date of the
bill of lading or any receipt issued by the carrier, or the date of the
Delivery Order shall be presumptive proof of the date of such shipment or
delivery to Altera.
9.2 Subject to Section 3.11.3 and Article 10.0, default
or delay by TSMC in shipping or delivering the whole or any part or installment
of the Wafers and/or Devices under the purchase orders shall not affect any
other portion thereof nor shall it affect any other purchase order between
Altera and TSMC. Any delivery or shipment of the whole or any part of
installment made within seven (7) calendar days before or after the date(s)
specified therefor shall constitute timely delivery or shipment.
10.0 Contingencies
Neither Party shall be in breach hereunder for any failure to perform
due to unforeseen circumstances or to causes beyond its reasonable control,
including but not limited to acts of God,
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war, riot, embargoes, labor stoppages, acts of civil and military authorities,
fire, floods, earthquakes or accidents. However, Altera shall have the right
to cancel any order as to which delivery is delayed by such causes for a period
of more than 60 days.
11.0 Title to Proprietary Information
All Proprietary Information and any copies thereof are and will remain
the property of the disclosing Party. Any masks generated from Altera database
tapes by TSMC, or the third party vendors under Section 2.3, shall be the
property of Altera, will be returned to Altera on Altera's request, and will be
used only to produce Wafers and/or Devices for Altera. All rights to
improvements or modifications made by TSMC to the test tape are hereby assigned
to Altera.
12.0 Intellectual Property Indemnity
12.1 Altera will, at its sole cost and expense, indemnify,
defend, and hold TSMC harmless from and against any cost, loss, expense, or
liability arising from any actual or alleged infringement of any patent, mask
work right, copyright, trademark, or other intellectual property right to the
extent such actual or alleged infringement arises from TSMC's compliance with
any of Altera's designs, specifications, instructions, or other contribution of
Altera to the design or TSMC's manufacture or sale of product for Altera.
12.2 TSMC will, at its sole cost and expense, indemnify,
defend, and hold Altera harmless from and against any cost, loss, expense, or
liability arising from any actual or alleged infringement of any patent, mask
work right, copyright, trademark, or other intellectual property right to the
extent such actual or alleged infringement arises from TSMC processes.
12.3 The indemnifying Party will defend, at its sole costs
and expense, including attorneys' fees, any action brought against the
indemnified Party alleging any such infringement, and the indemnified Party
agrees (i) to give prompt notice of any such action to the indemnifying Party,
(ii) to allow the indemnifying Party, through competent counsel of its choice,
to defend such action, and (iii) to provide the indemnifying Party all
reasonable information, assistance, and authority requested by the indemnifying
Party, at the indemnifying Party's expense, for the indemnifying Party to
defend such action.
12.4 In the event that an injunction is issued in support
of the infringement claim or the indemnified Party otherwise reasonably
believes that the infringement claim is likely to be upheld, the indemnifying
Party shall, at its expense, exercise commercially reasonable efforts to avoid
the infringement claim, either by modifying its technology and/or design or by
obtaining a license or nonassertion covenant from the claimant. If Altera is
the indemnified Party, it shall have the right to return any allegedly
infringing products to TSMC and receive a full refund therefor. If TSMC is the
indemnified Party, it shall have the right to stop production for any allegedly
infringing products by giving written notice to Altera and Altera shall pay
TSMC for all Wafers started prior to such notice at the established purchase
price.
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12.5 The foregoing states the entire obligation and the
exclusive remedy of each Party with respect to any alleged infringement of
intellectual property rights by any product furnished hereunder.
13.0 Limitation of Liability
In no event shall either Party be liable for any indirect, special,
incidental or consequential damages resulting from such Party's performance or
failure to perform under this Agreement, or the furnishing, performance, or use
of any goods or services sold pursuant hereto, whether due to a breach of
contract, breach of warranty, negligence, or otherwise. ALL IMPLIED
WARRANTIES, WHETHER OF MERCHANTABILITY, FITNESS, OR OTHERWISE ARE EXPRESSLY
DISCLAIMED.
14.0 Export Controls
TSMC will not transmit, directly or indirectly, any "technical
information" acquired hereunder, or any direct product of such information to
Afghanistan, the Peoples Republic of China, or any "Q, S, W, Y, or Z" country,
as such terms are defined in the Export Administration Regulations of the U.S.
Department of Commerce. This Agreement is subject to compliance with all
applicable export and import laws and regulations and the Parties agree to
cooperate in complying therewith.
15.0 Shipment
TSMC will deliver Wafers to Altera F.O.B. TSMC Taiwan as requested by
Altera. TSMC will package all such Wafers for secure shipment according to
good manufacturing practices in consideration of the method of shipment chosen.
16.0 Publicity
Both Parties agree that the details of this Agreement will not be
published or disclosed without the other Party's written permission. The
foregoing shall not prohibit a Party from making any disclosure required by law
or governmental regulation provided that the other Party is given reasonable
notice prior to any such disclosure.
17.0 Assignment
Neither Party shall delegate any obligations under this Agreement or
assign this Agreement or any interest or rights hereunder without the prior
written consent of the other Party, except incident to the sale or transfer of
all or substantially all of such Party's business.
18.0 Controlling Law
This Agreement will be governed by the laws of the State of
California, U.S.A., as applied to agreements wholly negotiated and performed in
the State by its residences, and litigation concerning
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this Agreement shall be brought exclusively in courts located in Santa Clara
County, California, U.S.A. The Parties expressly reject any application of the
United Nations Convention on Contracts for the International Sale of Goods.
19.0 Notices
All notices required to be sent by either Party under this
Agreement will be effective when received by the notified Party if delivered to
the addresses set forth in the Preamble, attention General Counsel if to Altera
and attention Legal Counsel if to TSMC, or to such other address and/or
attention as may subsequently be designated in writing by notice complying with
and specifically referring to this Article 19.0.
20.0 Dispute Resolution Process
Should any dispute not be resolved within thirty (30) days to the
satisfaction of both Parties, both Parties agree to elevate the issue to a
senior executive officer of the respective Parties prior to initiating any
litigation with respect to such issue.
21.0 Entire Agreement
This document, including the exhibits, is the entire understanding
between Altera and TSMC with respect to the subject matter hereof and merges
all prior agreements, dealings, and negotiations. The terms of this Agreement
shall govern the contract between the Parties for the sale and purchase of
wafers (the "Sales Contract"). Any terms or conditions printed on the face or
reverse side of any purchase order form and/or any acknowledgment or acceptance
form shall not be part of this Agreement nor shall constitute the terms and
conditions of the Sales Contract, even in case such form as provided by one
Party is signed and returned by the other Party, unless both Parties hereto
expressly agree in writing to include. any terms or conditions in this
Agreement or the Sales Contract. No modification, alteration, or amendment
shall be effective unless in writing and signed by a duly authorized
representative of each Party. No waiver of any breach shall be held to be a
waiver of any other or subsequent breach.
22.0 Exhibits
The following exhibits attached hereto are incorporated herein by
reference:
<TABLE>
<S> <C>
Exhibit 1.l Altera parametric Test Specifications and Procedures
Exhibit 2.1.1 TSMC Process Design Information
Exhibit 2.1.2 Altera Product Design Information
Exhibit 2.2.1 Process/Product Qualification Plan
Exhibit 2.2.2 Reliability and Quality Specifications
Exhibit 4.2 Audit Procedures
Exhibit 7.3 Device Acceptance Testing Criteria
</TABLE>
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Authorized Signatures
For the purpose of binding the Parties to the terms and conditions of
this Agreement as of the Effective Date, the duly authorized representatives of
the Parties have signed their names on the indicated dates.
TAIWAN SEMICONDUCTOR ALTERA CORPORATION
MANUFACTURING CO., LTD.
By: /S/DONALD BROOKS By: /S/RODNEY SMITH
---------------------------------- ----------------------------------
Donald Brooks Rodney Smith
President President
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EXHIBIT 1.1
*** CONFIDENTIAL TREATMENT REQUESTED ***
<PAGE> 16
EXHIBITS [TO BE PREPARED]
<TABLE>
<S> <C>
2.1 DESIGN RULE AND PARAMETRIC
2.2.1 PROCESS AND PRODUCT QUALIFICATION PLAN
2.2.2 RELIABILITY AND QUALITY SPECIFICATIONS
</TABLE>
<PAGE> 17
EXHIBIT 4.2
*** CONFIDENTIAL TREATEMENT REQUESTED ***
<PAGE> 18
EXHIBIT 7.3
*** CONFIDENTIAL TREATMENT REQUESTED ***
<PAGE> 1
EXHIBIT 10.40
OPTION AGREEMENT
BETWEEN
ALTERA CORPORATION
AND
TAIWAN SEMICONDUCTOR MANUFACTURING CO., LTD.
JUNE 26, 1995
<PAGE> 2
OPTION AGREEMENT
THIS AGREEMENT is made and becomes effective as of June 26, 3995 (the
"Effective Date") by Taiwan Semiconductor Manufacturing Co., Ltd. ("TSMC"), a
company organized under the laws of the Republic of China, with its registered
address at No. 121, Park Ave. 3, Science Based Industrial Park, Hsinchu,
Taiwan, and Altera Corporation, a company organized under the laws of
California, with its registered address at 2610 Orchard Parkway, San Jose,
California 95134-2020 ("Customer").
RECITALS
WHEREAS, TSMC will supply Customer with wafers pursuant to the Wafer
Supply Agreement between TSMC and Customer dated June 26, 1995, (the "Supply
Agreement"), and Customer wishes to increase the volume of wafers to be
purchased from TSMC;
WHEREAS, in order to increase its output, TSMC must accelerate its
ramp up in Fab 3 and advance the start of Fab 4;
WHEREAS, as a condition to TSMC's acceleration of these facilities,
TSMC has asked that Customer make a capacity commitment and advance payment for
the right to buy additional capacity, and Customer is willing to do so:
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties agree as follows:
1. DEFINITIONS
(a) "Base Capacity" used in this Agreement shall mean the
annualized run rate that TSMC has previously committed to Customer, as set
forth in Exhibit B.
(b) "Customer Committed Capacity" used in this Agreement
shall mean the total capacity that Customer agrees to purchase from TSMC
pursuant to this Agreement, as set forth in Exhibit B, subject to the
applicable provisions of this Agreement and the Supply Agreement.
(c) "Option Capacity" used in this Agreement shall mean
the firm capacity commitment made by Customer pursuant to this Agreement, for
which capacity Customer agrees to pay the Option Fee as defined in Section 1(d)
below.
(d) "Option Fee" used in this Agreement shall mean the
deposit that Customer agrees to place with TSMC as the advance payment for the
Option Capacity.
<PAGE> 3
(e) "TSMC committed capacity" used in this Agreement
shall mean the total capacity that TSMC agrees to provide to Customer pursuant
to this Agreement, and as set forth in Exhibit B.
(f) "Wafer Equivalent" used in this Agreement shall mean
the number of six-inch wafers based on the equivalency factor for TSMC's 0.5
micron, single poly, triple level metal process. For details of the
equivalency factor, please refer to Exhibit A. Any and all capacity
commitments referred to in this Agreement shall be measured in Wafer
Equivalent. For an example of the application of the equivalency factor refer
to Exhibit A-1.
2. VOLUME COMMITMENT
(a) Subject to the applicable provisions of this
Agreement and the Supply Agreement, Customer agrees to purchase from TSMC, and
TSMC agrees to supply, the Customer Committed Capacity, and subject to the
payment of the Option Fee by Customer under Section 5 below, TSMC agrees to
provide to Customer the TSMC Committed Capacity, as set forth in Exhibit B. In
any calendar year, the orders placed by Customer shall first apply to fulfill
the Base Capacity portion of the Customer Committed Capacity, and then the
Option Capacity.
(b) Each month, Customer agrees to provide to TSMC a
six-month rolling forecast of the number of wafers that Customer expects to
purchase, with the volume for the first twelve weeks being frozen (i.e.,
Customer must purchase all of the quantity forecast for delivery in the first
twelve weeks of the forecast). The forecast must be based on wafers out or
deliveries expected to be made by TSMC.
(c) TSMC will use its reasonable effort to cause its fabs
to be capable of producing wafers of more advanced specifications, as set forth
in the TSMC Technology Road Map attached as Exhibit C.
3. WAFER PRICE
(a) The wafer price for the Customer Committed Capacity
shall not be more than TSMC's average wafer prices to optionees (i.e.,
customers that are parties to option agreements similar to this Agreement) for
the same or comparable technology, same wafer fab and the same period of time.
Customer shall have the right at any time, but no more frequently than once per
year, on at least thirty days prior written notice, to have an independent
party acceptable to TSMC (such acceptance not to be unreasonably delayed or
withheld) examine TSMC's records relating to the above pricing. Any price
change will apply to unfilled or future orders only.
(b) The parties shall negotiate in good faith each year
the wafer prices for the Customer Committed Capacity of the following year in
coordination with the annual negotiation under the Supply Agreement. In the
course of such negotiations, TSMC shall make available relevant information in
its possession regarding wafer market prices and TSMC's average wafer prices
for the same or comparable technology in the same fab. If no agreement on
these prices is reached by the
-2-
<PAGE> 4
parties within three months following written notice of request for negotiation
by either party (the "Negotiation Request"), the parties agree to submit the
dispute to the binding arbitration pursuant to Section 13 below, and under such
circumstances, neither party shall have the right to terminate this Agreement
under Section 7 below.
4. OTHER PURCHASE TERMS AND CONDITIONS
The Supply Agreement will apply to all purchases of wafers by Customer
from TSMC, except that the provisions of this Agreement will supersede the
Supply Agreement with respect to the subject matter hereof.
5. OBLIGATION TO PAY OPTION FEE FOR OPTION CAPACITY
(a) Customer agrees to pay to TSMC the Option Fee in the
amount of *** *** for the right to purchase the
Option Capacity pursuant to this Agreement, which TSMC hereby agrees to supply.
The Option Fee is set forth in Exhibit D, and shall be paid in cash by no later
than every June 30 during the term of this Agreement for the Option Capacity of
the following year. Except that TSMC exercises its first right of refusal or
Customer assigns its purchase rights and obligations, pursuant to Section 6
below, the Option Fee, once paid, shall be non-refundable except as provided in
Section 7(d), but will be credited against payments due for wafers purchased by
Customer from the Option Capacity provided by TSMC under this Agreement.
(b) Customer further agrees to deliver to TSMC, within
seven (7) days following the Effective Date, four (4) promissory notes each in
an amount of the Option Fee due every year, and payable to TSMC or order on
each June 30, which promissory notes are in the form of Exhibit E. The
promissory notes shall be returned by TSMC to Customer within seven (7) days
upon receipt of the corresponding Option Fee by TSMC.
(c) Neither the payment of the Option Fee nor the
delivery of the promissory notes shall prejudice Customer's right to any
damages or other remedy to which Customer may be entitled by law.
6. FAILURE TO PURCHASE THE OPTION CAPACITY; FIRST RIGHT OF
REFUSAL.
(a) If in any calendar year, for any reason, Customer is
not able to use or purchase all or a portion of the Customer Committed Capacity
of that year, or any other year(s) during the term of this Agreement, Customer
shall promptly notify TSMC of such in writing and first offer TSMC such
Capacity or portion thereof for sales to any third parties. TSMC may, at its
option, accept such offer, in whole or in part, within thirty (30) days
following Customer's notification, and if TSMC so accepts, or if TSMC, in fact,
sells such Capacity or portion thereof to-third parties, the corresponding
Option Fee, if paid, will be returned without interest (notwithstanding Section
6(b)).
***CONFIDENTIAL TREATMENT REQUESTED
-3-
<PAGE> 5
In the event that TSMC decides not to accept such offer, Customer may assign
its right to purchase the Option Capacity or portion thereof for all or part of
the remaining term of this Agreement to any third parties acceptable to TSMC
(such acceptance not to be unreasonably delayed or withheld), within two months
upon TSMC's written notice that it will not accept such offer, and if Customer
fails to do so, Customer shall remain liable for the Option Fee for the
remaining term of this Agreement under Section 5 above, and so long as Customer
continues to pay the Option Fee it shall (regardless of any prior notification)
retain the right to purchase the Option Capacity pursuant to this Agreement.
(b) Any of Customer's rights or obligations set forth in
Section 6(a) shall not affect its obligation to pay the Option Fee pursuant to
Section 5 above, except that if the right to purchase all or part of the Option
Capacity is assigned to any third parties acceptable to TSMC pursuant to
Section 6(a) above, such third parties shall then have the exclusive obligation
to pay the corresponding Option Fee and abide by the applicable terms and
conditions of this Agreement.
7. TERM AND TERMINATION
(a) The term of this Agreement shall commence from the
Effective Date, and continue until December 31, 1999.
(b) Termination by TSMC for Customer's Failure to Pay the
Option Fee. TSMC may terminate this Agreement if Customer fails to pay the
Option Fee pursuant to Section 5 above, and does not cure or remedy such breach
within thirty (30) days of receiving written notice of such breach.
(c) Termination for Other Breach or for Bankruptcy.
Either party may terminate this Agreement if, (i) the other party breaches any
material provisions of this Agreement (other than the breach of Section 5
above), and does not cure or remedy such breach within sixty (60) days of
receiving written notice of such breach, or (ii) becomes the subject of a
voluntary or involuntary petition in bankruptcy or any proceeding relating to
insolvency, receivership or liquidation, if such petition or proceeding is not
dismissed with prejudice within sixty (60) days after filing.
(d) Effect of Termination. Both parties shall remain
liable to the other party for any outstanding and matured rights and
obligations at the time of termination, including all outstanding payments of
the Option Fee applicable to the used Option Capacity and for the wafers
already ordered and/or shipped to customer. In the event Altera terminates
this Agreement pursuant to Section 7(c) or Section 16, any advance payment of
the Option Fee applicable to the unused and/or unprovided Option Capacity shall
be refunded and any promissory notes therefor shall be returned.
8. LIMITATION OF LIABILITY
In no event shall either party be liable for any indirect, special,
incidental or consequential damages (including loss of profits and loss of use)
resulting from, arising out of or in connection with its performance or failure
to perform under this Agreement, or resulting from, arising out of or in
-4-
<PAGE> 6
connection with the production, supply, and/or purchase and sale of the wafers,
whether due to a breach of contract, breach of warranty, tort, or negligence,
or otherwise.
9. BOARD APPROVAL
Customer shall obtain the approval of its Board of Directors of this
Agreement, and submit to TSMC, at the time of executing this Agreement, an
authentic copy of its Board resolution authorizing the representative
designated below to execute this Agreement.
10. NOTICE
All notices required or permitted to be sent by either party to the
other party under this Agreement shall be sent by registered mail postage
prepaid, or by personal delivery, or by fax. Any notice given by fax shall be
followed by a confirmation copy within ten (10) days. Unless changed by
written notice given by either party to the other, the addresses and fax
numbers of the respective parties shall be as follows:
To TSMC:
TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, LTD.
No. 121, Park Avenue 3
Science-Based Industrial Park
Hsinchu, Taiwan
Republic of China FAX: 886-35-781545
To Customer:
ALTERA CORPORATION
2610 Orchard Parkway
San Jose, California 95134-2020
USA FAX: 408-894-8000
11. ENTIRE AGREEMENT
This Agreement, including Exhibits A-E, constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes and replaces all prior or contemporaneous understandings,
agreements, dealings and negotiations, oral or written, regarding the subject
matter hereof. No modification, alteration or amendment of this Agreement
shall be effective unless in writing and signed by both parties. No waiver of
any breach or failure by either party to enforce any provision of this
Agreement shall be deemed a waiver of any other or subsequent breach, or a
waiver of future enforcement of that or any other provision.
-5-
<PAGE> 7
12. GOVERNING LAW
This Agreement will be governed and interpreted as set forth in
Section 18.0 of the Supply Agreement.
13. ARBITRATION
If the parties fail to agree on wafer prices within three months of
any Negotiation Request given pursuant to Section 3, each party shall submit a
written proposal to the other within 15 days following said three month period
setting forth proposed prices and reasons in support thereof. If upon a review
of these proposals, the parties are unable to reach agreement on the prices
within 30 days following said three month period, the matter will be submitted
to arbitration under the rules of the American Arbitration Association, but
subject to the following special provisions. The arbitration shall be
conducted by a panel of three arbitrators, one appointed by each party, and the
third selected by the two appointed arbitrators. The arbitrators shall decide
which proposal is the most reasonable and the selected proposal shall thereupon
become binding on both parties. The arbitrators shall not select any other
prices nor decide any other issue, unless otherwise agreed in writing by both
parties. All other disputes shall be resolved in accordance with Section 20.0
of the Supply Agreement.
14. ASSIGNMENT
This Agreement shall be binding on and inure to the benefit of each
party and its successors, and except that Customer may assign its purchase
rights and obligations under this Agreement pursuant to Section 6 above,
neither party shall assign any of its rights hereunder, nor delegate its
obligations hereunder, to any third party, without the prior written consent of
the other.
15. CONFIDENTIALITY
Neither party shall disclose the existence or contents of this
Agreement except as required by Customer's assignment of rights and obligations
under this Agreement to any third parties pursuant to Section 6 above, in
confidence to its advisers, as required by applicable law, or otherwise with
the prior written consent of the other party.
16. FORCE MAJEURE
Neither party shall be responsible for delays or failure in
performance resulting from acts beyond the reasonable control of such party.
Such acts shall include but not be limited to acts of God, war, riot, labor
stoppages, governmental actions, fires, floods, and earthquakes. If such
delays or failures on the part of either party continue for a period of more
than one hundred twenty (120) days, the other party may terminate this
Agreement upon written notice, subject to Section 7(d).
-6-
<PAGE> 8
IN WITNESS WHEREOF, the parties, have executed this Agreement as of
the date first stated above.
TAIWAN SEMICONDUCTOR ALTERA CORPORATION
MANUFACTURING CO., LTD.
By: /S/DONALD BROOKS By: /S/RODNEY SMITH
---------------------------------- ----------------------------------
Donald Brooks Rodney Smith
President President
-7-
<PAGE> 9
EXHIBIT A
***CONFIDENTIAL TREATMENT REQUESTED***
<PAGE> 10
EXHIBIT A-1
*** CONFIDENTIAL TREATMENT REQUESTED ***
<PAGE> 11
EXHIBIT B
CUSTOMER/TSMC COMMITTED CAPACITY
Unit: Wafer Equivalent
<TABLE>
<CAPTION>
1996 1997 1998 1999
---- ---- ---- ----
<S> <C> <C> <C> <C>
Base Capacity *** *** *** ***
X% of Base Capacity *** *** *** ***
X =
Option Capacity *** *** *** ***
TSMC Committed Capacity *** *** *** ***
(Base Capacity + Option Capacity)
Customer Committed Capacity *** *** *** ***
(X% Base Capacity + Option Capacity)
</TABLE>
* ***
*** CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 12
EXHIBIT C
*** CONFIDENTIAL TREATEMENT REQUESTED ***
<PAGE> 13
EXHIBIT D
OPTION FEE
<TABLE>
<CAPTION>
OPTION CAPACITY OPTION FEE
YEAR (UNIT: WAFER EQUIVALENT) (UNIT: US$) DUE DATE
--------------------------------------------------------------------------------
<S> <C> <C> <C>
1996 *** *** June 30, 1995
1997 *** *** June 30, 1996
1998 *** *** June 30, 1997
1999 *** *** June 30, 1998
</TABLE>
*** CONFIDENTIAL TREATMENT REQUESTED ***
<PAGE> 14
EXHIBIT E
STANDARD FORM OF PROMISSORY NOTE
Amount US$ __________________ Due Date __________________
The undersigned ________________________ (the "Maker"), unconditionally
(except as otherwise provided in the Option Agreement between TSMC and Maker
dated __________________) promises to pay to Taiwan Semiconductor Manufacturing
Co., Ltd. or its order the sum of U.S. Dollars ________________________
($_________________), plus interest calculated from the due date stated herein
to the date of full payment at the rate of 10% per annum on any unpaid portion
of the principal amount stated herein, and said payment will be made at
______________________ (Place of Payment).
This Note shall be governed in all respects by the laws of the State of
California, U.S.A.
The Maker of this Note agrees to waive protests and notice of whatever
kind.
Issuer Date __________________
Issuer Date __________________
Maker's Signature: ____________________________
Maker's Address: ______________________________
_______________________________________________
_______________________________________________
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> APR-01-1995
<PERIOD-END> JUN-30-1995
<CASH> 53,954
<SECURITIES> 269,699
<RECEIVABLES> 52,903
<ALLOWANCES> 895
<INVENTORY> 38,283
<CURRENT-ASSETS> 435,758
<PP&E> 79,660
<DEPRECIATION> 35,180
<TOTAL-ASSETS> 503,839
<CURRENT-LIABILITIES> 78,486
<BONDS> 230,000
<COMMON> 75,751
0
0
<OTHER-SE> 119,602
<TOTAL-LIABILITY-AND-EQUITY> 503,839
<SALES> 92,165
<TOTAL-REVENUES> 92,165
<CGS> 37,489
<TOTAL-COSTS> 37,489
<OTHER-EXPENSES> 24,691
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (1,177)
<INCOME-PRETAX> 31,162
<INCOME-TAX> 11,530
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 19,632
<EPS-PRIMARY> .43
<EPS-DILUTED> 0
</TABLE>
