UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarterly period ended December 28, 1996
Commission file Number 0-17795
CIRRUS LOGIC, INC.
(Exact name of registrant as specified in its charter.)
CALIFORNIA 77-0024818
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3100 West Warren Avenue, Fremont, CA 94538
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(510) 623-8300
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 the past 90 days.
YES [X] NO [ ]
The number of shares of the registrant's common stock, no par value, was
65,649,776 as of December 28, 1996.
<PAGE>
<TABLE>
Part 1. Financial Information
Item 1. Financial Statements
CIRRUS LOGIC, INC.
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
(Unaudited)
<CAPTION>
Quarter Ended Three Quarters Ended
-------------------- --------------------
Dec. 28, Dec. 30, Dec. 28, Dec. 30,
1996 1995 1996 1995
---------- --------- ---------- ---------
<S> <C> <C> <C> <C>
Net sales $253,309 $295,783 $704,237 $913,872
Costs and expenses and gain on sale of assets:
Cost of sales 156,613 197,273 434,890 551,456
Research and development 59,828 60,086 179,537 168,576
Selling, general and administrative 31,517 43,047 92,977 119,476
Gain on sale of assets (12,009) - (18,922) -
Non-recurring costs - 1,195 - 1,195
---------- --------- ---------- ---------
Total costs and expenses and gain on sale of assets 235,949 301,601 688,482 840,703
---------- --------- ---------- ---------
Income (loss) from operations 17,360 (5,818) 15,755 73,169
Interest and other (expense) income, net (2,941) 561 (7,778) 2,994
---------- --------- ---------- ---------
Income (loss) before provision (benefit) for income taxes 14,419 (5,257) 7,977 76,163
Provision (benefit) for income taxes 4,109 (1,656) 2,274 23,990
---------- --------- ---------- ---------
Net income (loss) $10,310 ($3,601) $5,703 $52,173
========== ========= ========== =========
Net income (loss) per common and common equivalent share $0.16 ($0.06) $0.09 $0.75
========== ========= ========== =========
Weighted average common and common
equivalent shares outstanding 66,460 63,273 66,382 69,437
========== ========= ========== =========
<FN>
See Notes to the Unaudited Consolidated Condensed Financial Statements.
</TABLE>
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<TABLE>
CIRRUS LOGIC, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(In thousands)
<CAPTION>
Dec. 28, March 30,
1996 1996
----------- ---------
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 213,767 $155,979
Short-term investments 140,103 19,279
Accounts receivable, net 152,384 133,718
Inventories 128,034 134,502
Deferred tax assets 52,662 52,662
Payments for joint venture equipment to be leased 76,180 94,683
Other current assets 13,421 4,004
----------- ---------
Total current assets 776,551 594,827
Property and equipment, net 152,698 170,248
Manufacturing agreements, net
and investments in joint ventures 154,095 104,463
Deposits and other assets 50,377 48,039
----------- ---------
$1,133,721 $917,577
=========== =========
</TABLE>
<TABLE>
<CAPTION>
LIABILITIES AND SHAREHOLDERS' EQUITY
<S> <C> <C>
Current liabilities:
Short-term borrowing $ - $ 80,000
Accounts payable and accrued liabilities 219,047 242,901
Accrued salaries and benefits 23,879 41,845
Obligations under equipment loans and
capital leases, current portion 28,540 26,575
Income taxes payable 39,997 20,863
----------- ---------
Total current liabilities 311,463 412,184
Obligations under equipment loans and
capital leases, non-current 63,220 71,829
Other long-term 5,078 4,898
Convertible subordinated notes 300,000 -
Commitments and contingencies
Shareholders' equity:
Capital stock 349,165 329,574
Retained earnings 104,795 99,092
----------- ---------
Total shareholders' equity 453,960 428,666
----------- ---------
$1,133,721 $917,577
=========== =========
<FN>
See Notes to the Unaudited Consolidated Condensed Financial Statements.
</TABLE>
<PAGE>
<TABLE>
CIRRUS LOGIC, INC.
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS (Unaudited)
(In thousands)
<CAPTION>
Three Quarters Ended
---------------------
Dec. 28, Dec. 30,
1996 1995
----------- ---------
<S> <C> <C>
Cash flows from operations:
Net income $5,703 $52,173
Adjustments to reconcile net income to net
cash flows from operations:
Gain on sale of assets (18,922) -
Depreciation and amortization 65,649 43,793
Net change in operating assets and liabilities (38,770) (42,622)
----------- ---------
Net cash flows provided by operations 13,660 53,344
----------- ---------
Cash flows from investing activities:
Proceeds from sale of assets 38,426 -
Purchase of short-term investments (133,256) (260,944)
Proceeds from sale of short-term investments 12,432 299,888
Additions to property and equipment (21,067) (106,215)
Joint venture manufacturing agreements and
investment in joint ventures (54,000) (16,000)
Increase in deposits and other assets (9,138) (20,228)
----------- ---------
Net cash flows used by investing activities (166,603) (103,499)
----------- ---------
Cash flows from financing activities:
Proceeds from issuance of convertible notes 290,640 -
Proceeds from issuance of common stock 16,867 27,883
Borrowings on short-term debt 172,000 41,000
Borrowings on long-term debt 4,342 62,081
Payments on long-term debt and capital lease obligations (21,542) (9,269)
Payments on short-term debt (252,000) (41,000)
Increase in other long-term liabilities 424 -
----------- ---------
Net cash flows provided by financing activities 210,731 80,695
----------- ---------
Increase in cash and cash equivalents 57,788 30,540
Cash and cash equivalents - beginning of period 155,979 66,718
----------- ---------
Cash and cash equivalents - end of period $213,767 $97,258
=========== =========
Supplemental disclosure of cash flow information:
Interest paid $8,925 $2,569
Income taxes (refunded) paid ($19,148) $16,667
Equipment purchased under capitalized leases $10,556 $594
Tax benefit of stock option exercises $2,352 $15,463
<FN>
See Notes to the Unaudited Consolidated Condensed Financial Statements.
</TABLE>
<PAGE>
CIRRUS LOGIC, INC.
NOTES TO THE UNAUDITED CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
1. Basis of Presentation
The consolidated condensed financial statements have been prepared by the
Company pursuant to the rules and regulations of the Securities and Exchange
Commission. Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such rules and
regulations. In the opinion of the Company, the financial statements reflect
all adjustments, consisting only of normal recurring adjustments, necessary for
a fair presentation of the financial position, operating results and cash flows
for those periods presented except for the $2.3 million charge to other
expense during the quarter ended December 28, 1996, related to the agreement
in principle to settle all securities claims against the Company (see Note
8). These consolidated condensed financial statements should be read in
conjunction with the consolidated financial statements, and notes thereto for
the year ended March 30, 1996, included in the Company's 1996 Annual Report
on Form 10-K. The results of operations for the interim periods presented
are not necessarily indicative of the results that may be expected for the
entire year.
2. Inventories
Inventories are comprised of the following:
December 28, March 30,
1996 1996
--------- ---------
(In thousands)
Work-in-process $ 78,545 $ 69,244
Finished goods 49,489 65,258
--------- ---------
Total $ 128,034 $ 134,502
========= =========
3. Gain on Sale of Assets
During August 1996, the Company completed the sale of the PicoPower product
line to National Semiconductor, Inc. The Company received approximately
$17.6 million in cash for the PicoPower product line. In connection with
the transaction, the Company recorded a gain of approximately $6.9 million.
During December 1996, the Company completed the sale to ADC
Telecommunications Inc. of the PCSI product group that produced CDPD
(Cellular Digital Packet Data) base station equipment for wireless service
providers, and developed pACT (personal Air Communications Technology) base
stations for AT&T Wireless Services Inc. The Company received approximately
$20.8 million in cash for the group. In connection with the transaction,
the Company recorded a gain of approximately $12.0 million.
During January 1997, the Company completed the sale of PCSI's Wireless
Semiconductor Products assets to Rockwell International for $18.1 million
in cash. This group provided digital cordless chip solutions for PHS
(Personal Handyphone System) and DECT (Digital European Cordless
Telecommunications) as well two-way messaging chip solutions for pACT
(personal Air Communications Technology).
4. Bank Arrangements
As of December 28, 1996, the Company has a commitment for a bank line of
credit for borrowings up to a maximum of $150 million expiring on
October 31, 1999, at the banks' prime rate plus one-half percent. As of
December 28, 1996, no borrowings were outstanding under the line.
Borrowings are secured by cash, accounts receivable, inventory,
intellectual property, and stock in the Company's subsidiaries. Use of
the line is limited to the borrowing base as defined by accounts
receivable. Terms of the agreement include satisfaction of certain
financial ratios, minimum tangible net worth, cash flow, and leverage
requirements as well as a prohibition against the payment of a cash
dividend without prior bank approval.
5. Income Taxes
The Company provides for income taxes during interim reporting periods based
upon an estimate of the annual effective tax rate. Such estimate reflects an
effective tax rate lower than the federal statutory rate primarily because of
foreign operating results which are taxed at rates other than the U.S.
statutory rate, federal and state research tax credits, and state investment
tax credits.
6. Net Income (Loss) Per Common and Common Equivalent Share
Net income (loss) per common and common equivalent share is based on the
weighted average common shares outstanding and dilutive common equivalent
shares (using the treasury stock or modified treasury stock method, whichever
applies). Common equivalent shares include stock options and warrants when
appropriate. During December 1996, the Company issued convertible subordinated
notes. These securities are included in fully diluted earnings per share
computations for the period outstanding under the "if converted" method.
Dual presentation of primary and fully diluted earnings per share is not
shown on the face of the income statement because the differences are
insignificant.
7. Convertible Subordinated Notes
During December 1996, the Company completed an offering of $300 million
of convertible subordinated notes. The notes bear interest at six
percent, mature in December 2003, and are convertible into shares of the
Company's common stock at $24.219 per share. Expenses associated with the
offering of approximately $9.3 million are deferred and included in deposits
and other assets. Such expenses are being amortized to interest expense over
the term of the notes.
8. Commitments and Contingencies
As of December 28, 1996, the Company is contingently liable for MiCRUS and
Cirent equipment leases which have remaining payments of approximately
$625 million, payable through fiscal 2002.
During December 1996, the Company and certain of its current and former
directors and officers, reached an agreement in principle which, if approved,
would settle all pending securities claims against the Company for an
aggregate sum of $31.3 million, exclusive of interest, $2.3 million of which
will be paid by the Company with the remainder being paid by the Company's
insurers. The Company recorded the $2.3 million as "other expense" in the
quarter ended December 28, 1996.
The proposed settlement would include the amendment of the federal class
action filed in 1995 to include claims pending in the State court with the
intent that the settlement would have the effect of extinguishing the State
court claims. The proposed settlement is subject to a number of
contingencies, including the agreement to and execution of a definitive
agreement and court approval.
<PAGE>
Item 2.
Management's Discussion and Analysis of
Financial Condition and Results of Operations
This information should be read along with the unaudited consolidated
condensed financial statements and the notes thereto included in Item 1 of
this Quarterly Report and the audited consolidated financial statements
and notes thereto and Management's Discussion and Analysis of Financial
Condition and Results of Operations for the fiscal year ended March 30,
1996, contained in the Annual Report to Shareholders on Form 10-K.
This Discussion and Analysis contains forward-looking statements. Such
statements are subject to certain risks and uncertainties, including those
discussed below or in the Company's Form 10-K for the fiscal year ended
March 30, 1996, that could cause actual results to differ materially from
the Company's expectations. The Form 10-K referred to in this paragraph
is expressly incorporated herein by reference. Readers are cautioned not
to place undue reliance on any forward-looking statements, as they reflect
management's analysis only as of the date hereof. The Company undertakes
no obligation to publicly release the results of any revision to these
forward-looking statements which may be made to reflect events or
circumstances after the date hereof or to reflect the occurrence of
unanticipated events.
During fiscal 1997, the Company is implementing a strategy of focusing on
the markets for multimedia (graphics, video and audio), mass storage and
communications. As part of this strategy, the Company has been divesting
non-core business units and eliminating projects that do not fit within
its core markets. At the same time, the Company has been implementing a
program to manage costs and streamline operations. Nevertheless, there is
no assurance that the Company will regain the levels of profitably that it
has achieved in the past or that losses will not occur in the future.
Results of Operations
The following table discloses the percentages that income statement items
are to net sales and the percentage change in the dollar amounts for the
same items compared to the similar period in the prior fiscal year.
<TABLE>
<CAPTION>
Percentage of Net Sales Percentage of Net Sales
Quarter Ended Three Quarters Ended
------------------- -------------------
Dec. 28, Dec. 30, Percent Dec. 28, Dec. 30, Percent
1996 1995 change 1996 1995 change
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Net sales 100% 100% -14% 100% 100% -23%
Gross margin 38% 33% -2% 38% 40% -26%
Research and development 24% 20% 0% 25% 18% 7%
Selling, general and administrative 12% 15% -27% 13% 13% -22%
Gain on sale of assets -5% - N/A -3% - N/A
Non-recurring costs - 0% -100% - 0% -100%
Income (loss) from operations 7% -2% N/A 2% 8% -78%
Income (loss) before income taxes 6% -2% N/A 1% 8% -90%
Provision (benefit)for income taxes 2% -1% N/A 0% 3% -91%
Net income (loss) 4% -1% N/A 1% 6% -89%
</TABLE>
Net Sales
Net sales for the third quarter of fiscal 1997 were $253.3 million, a
decrease of 14% from the $295.8 million reported for the third quarter of
fiscal 1996. Net sales for the first three quarters of fiscal 1997 were
$704.2 million, a decrease of 23% from the $913.9 million reported for the
comparable period of fiscal 1996. Sales of graphics, audio, mass storage
and fax/modem products decreased in the third quarter and the first three
quarters of fiscal 1997 over the comparable periods in fiscal 1996.
For the third and first three quarters of fiscal 1997, export sales
(including sales to U.S.-based customers with manufacturing plants
overseas) were 59% and 62% of total sales compared to 55% and 58%,
respectively, for the corresponding periods in fiscal 1996.
The Company's sales are currently denominated primarily in U.S. dollars.
The Company may enter into foreign currency forward exchange and option
contracts to hedge certain of its foreign currency exposures.
Sales to one customer were approximately 10% of net sales during the first
three quarters of fiscal 1997. No other customers accounted for 10% or
more of sales during the first three quarters of fiscal 1997 or fiscal
1996.
Gross Margin
The gross margin was 38% in the third quarter of fiscal 1997, compared to
33% for the third quarter of fiscal 1996. The gross margin was 38% in the
first three quarters of fiscal 1997, compared to 40% for the first three
quarters of fiscal 1996. The gross margin increase in the third quarter
of fiscal 1997 compared to the third quarter of fiscal 1996 was the result
in part of sales of higher margin products introduced earlier in fiscal
1997. The gross margin percentage in fiscal 1996 was reduced by charges
of approximately $33 million for inventory written down for lower-than-
anticipated shipments and demand for graphics, core logic and other
products and a $5 million charge for under use of capacity at its MiCRUS
joint venture. The gross margin decline for the first three quarters in
fiscal 1997 was the result, in part, of sales of older products with
prices lower relative to prices for those same parts in the first three
quarters of fiscal 1996. The gross margin was also reduced by under-
loading charges in the second quarter of fiscal 1997 from the MiCRUS
facility.
Research and Development
Research and development expenditures decreased $0.3 million over the
third quarter of fiscal 1996 to $59.8 million in the third quarter of
fiscal 1997. The expenditures in the third quarter and the first three
quarters of fiscal 1997 were approximately 24% and 25%, respectively, of
net sales compared to 20% and 18% in the comparable periods of fiscal
1996. During the third quarter of fiscal 1997, as a result of the Company
concentrating new product development on projects in its core
markets, expenses primarily related to reduced headcount decreased in an
absolute amount compared to the comparable period of fiscal 1996.
Selling, General and Administrative Expenses
Selling, general and administrative expenses represented approximately 12%
and 13% of net sales in the third quarter and the first three quarters of
fiscal 1997, respectively, compared to 15% and 13%, respectively, in the
corresponding periods in fiscal 1996. The dollar amount of such expenses
decreased as a result of reductions in compensation expenses, marketing
expenses for promotions and advertising, and administrative expenses.
Gain on Sale of Assets
During August 1996, the Company completed the sale of the PicoPower
product line to National Semiconductor, Inc. The Company received
approximately $17.6 million in cash for the PicoPower product line. In
connection with the transaction, the Company recorded a gain of
approximately $6.9 million.
During December 1996, the Company completed the sale to ADC
Telecommunications Inc. of the PCSI product group that produced CDPD
(Cellular Digital Packet Data) base station equipment for wireless service
providers, and developed pACT (personal Air Communications Technology)
base stations for AT&T Wireless Services Inc. The Company received
approximately $20.8 million in cash for the group. In connection with the
transaction, the Company recorded a gain of approximately $12.0 million.
During January 1997, the Company completed the sale of PCSI's Wireless
Semiconductor Products group's assets to Rockwell International for $18.1
million cash. This group provided digital cordless chip solutions for PHS
(Personal Handyphone System) and DECT (Digital European Cordless
Telecommunications) as well two-way messaging chip solutions for pACT
(personal Air Communications Technology).
Income Taxes
The Company's effective tax rate was 28.5% for the third and the first
three quarters of fiscal 1997, as against 31.5% for the comparable periods
of fiscal 1996. The 28.5% estimated annual effective tax rate is less
than the U.S. federal statutory rate of 35%, and less than the effective
tax rate of 31.5% for the third quarter of fiscal 1996, primarily because
of foreign operating results which are taxed at rates other than the U.S.
statutory rate, federal and state research tax credits, and state
investment tax credits.
Liquidity and Capital Resources
During December 1996, the Company completed an offering of $300 million of
convertible subordinated notes. The notes bear interest at six percent,
mature in December 2003, and are convertible into shares of the Company's
common stock at $24.2188 per share. In addition during the third quarter
of fiscal 1997, a $250 million lease package was completed, with Cirrus
Logic as guarantor, to finance the advanced fab equipment for the Cirent
Semiconductor manufacturing joint venture.
The Company generated approximately $13.7 million of cash and cash
equivalents in its operating activities during the first three quarters of
fiscal 1997 as compared to generating approximately $53.3 million during
the first three quarters of fiscal 1996. The decrease in cash generated
from operations was primarily caused by the reduction in net income and
the non-cash effect of the gain on sale of assets offset somewhat by an
increase in the non-cash effect of depreciation and amortization and the
net change in operating assets and liabilities.
The Company used $166.6 million in cash in investing activities during the
first three quarters of fiscal 1997, and $103.5 million during the
comparable period of fiscal 1996. The Company reduced short-term
investment activities and additions to property and equipment and
increased investing in joint venture manufacturing agreements and joint
ventures in fiscal 1997 over fiscal 1996. The cash used in fiscal 1997
was reduced somewhat by the proceeds from sale of assets.
Financing activities provided $210.7 million in cash during the first
three quarters of fiscal 1997 and $80.7 million during the comparable
period of fiscal 1996. The increase was primarily the result of the
proceeds from the convertible subordinated notes issued in December 1996,
offset by the repayment of short-term debt.
As of December 28, 1996, the Company has a commitment for a bank line of
credit for borrowings up to a maximum of $150 million expiring on
October 31, 1999, at the banks' prime rate plus one-half percent. As of
December 28, 1996, no borrowings were outstanding under the line.
Borrowings are secured by cash, accounts receivable, inventory,
intellectual property, and stock in the Company's subsidiaries. Use of
the line is limited to the borrowing base as defined by accounts
receivable. Terms of the agreement include satisfaction of certain
financial ratios, minimum tangible net worth, cash flow, and leverage
requirements as well as a prohibition against the payment of a cash
dividend without prior bank approval.
The semiconductor industry is extremely capital intensive. To remain
competitive, the Company believes it must continue to invest in advanced
wafer manufacturing and in test equipment. Investments will be made in
the various external manufacturing arrangements and its own facilities.
The Company intends to obtain most of the necessary capital through direct
or guaranteed equipment lease financing and the balance through debt
and/or equity financing, and cash generated from operations.
There can be no assurance that financing will be available or, if
available, will be on satisfactory terms. Failure to obtain adequate
financing would restrict the Company's ability to expand its manufacturing
infrastructure, to make other investments in capital equipment, and to
pursue other initiatives.
Future Operating Results
Quarterly Fluctuations
The Company's quarterly revenues and operating results have varied
significantly in the past and are likely to vary substantially from
quarter to quarter in the future. The Company's operating results are
affected by a wide variety of factors, many of which are outside of the
Company's control, including but not limited to, economic conditions and
overall market demand in the United States and worldwide, the Company's
ability to introduce new products and technologies on a timely basis,
changes in product mix, fluctuations in manufacturing costs which affect
the Company's gross margins, declines in market demand for the Company's
and its customers' products, sales timing, the level of orders which are
received and can be shipped in a quarter, the cyclical nature of both the
semiconductor industry and the markets addressed by the Company's
products, product obsolescence, price erosion, and competitive factors.
The Company's operating results in the rest of fiscal 1997 and 1998 are
likely to be affected by these factors as well as others.
The Company must order wafers and build inventory well in advance of
product shipments. Because the Company's markets are volatile and subject
to rapid technology and price changes, there is a risk that the Company
will forecast incorrectly and produce excess or insufficient inventories
of particular products. This inventory risk is heightened because many of
the Company's customers place orders with short lead times. Such
inventory imbalances have occurred in the past and in fact contributed
significantly to the Company's operating losses in fiscal 1996. These
factors increase not only the inventory risk but also the difficulty of
forecasting quarterly operating results. Moreover, as is common in the
semiconductor industry, the Company frequently ships more product in the
third month of each quarter than in either of the first two months of the
quarter, and shipments in the third month are higher at the end of that
month. The concentration of sales in the last month of the quarter
contributes to difficulty in predicting the Company's quarterly revenues
and results of operations.
The Company's success is highly dependent upon its ability to develop
complex new products, to introduce them to the marketplace ahead of the
competition, and to have them selected for design into products of leading
system manufacturers. Both revenues and margins may be affected quickly
if new product introductions are delayed or if the Company's products are
not designed into successive generations of products of the Company's
customers. These factors have become increasingly important to the
Company's results of operations because the rate of change in the markets
served by the Company continues to accelerate.
Issues Relating to Manufacturing and Manufacturing Investment
In the first three quarters of fiscal 1997, manufacturing supply exceeded
demand for certain of the Company's products. One consequence was the
Company incurred charges at its MiCRUS facility for failing to purchase
sufficient wafers, negatively impacting gross margins.
Although the Company believes that its efforts to increase its source of
wafer supply through joint ventures (MiCRUS with IBM and Cirent
Semiconductor with Lucent Technologies) and other arrangements have
significant potential benefits to the Company, there are also risks, some
of which materialized in the third and fourth quarter of fiscal 1996 and
the second quarter of fiscal 1997. These arrangements reduce the
Company's flexibility to reduce the amount of wafers it is committed to
purchase and increase the Company's fixed manufacturing costs as a
percentage of overall costs of sales. As a result, the operating results
of the Company are becoming more sensitive to fluctuations in revenues.
In the case of the Company's joint ventures, overcapacity results in
underabsorbed fixed cost, which adversely affects gross margins and
earnings. In the case of the Company's "take or pay" contracts with
foundries, the Company must pay contractual penalties if it fails to
purchase its minimum commitments.
Moreover, the Company will benefit from the MiCRUS and Cirent
Semiconductor joint ventures only if they are able to produce wafers at or
below prices generally prevalent in the market. If, however, either of
these ventures is not able to produce wafers at competitive prices, the
Company's results of operations will be materially adversely affected.
The process of beginning production and increasing volume with the joint
ventures inevitably involves risks, and there can be no assurance that the
manufacturing costs of such ventures will be competitive.
Certain provisions of the MiCRUS and Cirent Semiconductor agreements may
cause the termination of the joint venture in the event of a change in
control of the Company. Such provisions could have the effect of
delaying, deferring or preventing a change of control of the Company.
In connection with the financing of its operations, the Company has
borrowed money and entered into substantial equipment lease obligations
and is likely to expand such commitments in the future. Such indebtedness
could cause the Company's principal and interest obligations to increase
substantially. The degree to which the Company is leveraged could
adversely affect the Company's ability to obtain additional financing for
working capital, acquisitions or other purposes and could make it more
vulnerable to industry downturns and competitive pressures. The Company's
ability to meet its debt service and other obligations will be dependent
upon the Company's future performance, which will be subject to financial,
business and other factors affecting the operations of the Company, many
of which are beyond its control. An inability to obtain financing to meet
these obligations could cause the Company to default on such obligations.
Although the Company has increased its future wafer supplies from the
MiCRUS and Cirent Semiconductor joint ventures, the Company expects to
continue to purchase portions of its wafers from, and to be reliant upon,
outside merchant wafer suppliers for at least the next two years. The
Company also uses other outside vendors to package the wafer die into
integrated circuits.
The Company's results of operations could be adversely affected in the
future, and has been in the past, if particular suppliers are unable to
provide a sufficient and timely supply of product, whether because of raw
material shortages, capacity constraints, unexpected disruptions at the
plants, delays in qualifying new suppliers or other reasons, or if the
Company is forced to purchase wafers or packaging from higher cost
suppliers or to pay expediting charges to obtain additional supply, or if
the Company's test facilities are disrupted for an extended period of
time. Because of the concentration of sales at the end of each quarter, a
disruption in the Company's production or shipping near the end of a
quarter could materially reduce the Company's revenues for that quarter.
Production may be constrained even though capacity is available at one or
more wafer manufacturing facilities because of the difficulty of moving
production from one facility to another. Any supply shortage could
adversely affect sales and operating profits.
The greater integration of functions and complexity of operations of the
Company's products also increase the risk that latent defects or subtle
faults could be discovered by customers or end users after volumes of
product have been shipped. If such defects were significant, the Company
could incur material recall and replacement costs for product warranty.
Dependence on PC Market
Sales of most of the Company's products depend largely on sales of
personal computers (PCs). Reduced growth in the PC market could affect
the financial health of the Company as well as its customers. Moreover,
as a component supplier to PC OEMs and to peripheral device manufacturers,
the Company is likely to experience a greater magnitude of fluctuations in
demand than the Company's customers themselves experience. In addition,
many of the Company's products are used in PCs for the consumer market,
and the consumer PC market is more volatile than other segments of the PC
market.
Other IC makers, including Intel Corporation, have expressed their
interest in integrating through hardware functions, adding through special
software functions, or kitting components to provide some multimedia or
communications features into or with their microprocessor products.
Successful integration of these functions could substantially reduce the
Company's opportunities for IC sales in these areas.
A number of PC OEMs buy products directly from the Company and also buy
motherboards, add-in boards or modules from suppliers who in turn buy
products from the Company. Accordingly, a significant portion of the
Company's sales may depend directly or indirectly on the sales to a
particular PC OEM. Since the Company cannot track sales by motherboard,
add-in board or module manufacturers, the Company may not be fully
informed as to the extent or even the fact of its indirect dependence on
any particular PC OEM, and, therefore, may be unable to assess the risk of
such indirect dependence.
The PC market is intensely price competitive. The PC manufacturers in
turn put pressure on the price of all PC components, and this pricing
pressure is expected to continue.
Issues Relating to Graphics Products
The Company continues to experience intense competition in the sale of
graphics products. Several competitors introduced products and adopted
pricing strategies that have increased competition in the desktop graphics
market, and new competitors continue to enter the market. These
competitive factors affected the Company's market share, gross margins,
and earnings in the third quarter of fiscal 1997 and are likely to affect
revenues and gross margins for graphics accelerator products in the
future.
The PC graphics market today consists primarily of two-dimensional ("2D")
graphics accelerators, and 2D graphics accelerators with video features.
Market demand for three-dimensional ("3D") graphics acceleration began to
grow in the third quarter of fiscal 1997 and is expected to grow stronger
in the fourth quarter of fiscal 1997 and fiscal 1998, primarily in PC
products for the consumer marketplace. Several competitors are already in
production of 3D accelerators.
During the second quarter of fiscal 1997, the Company introduced and began
shipping its first RAMBUS DRAM ("RDRAM")-based 3D accelerator for the
mainstream PC market. The Company is striving to bring additional
products with 3D acceleration to market, but there is no assurance that it
will succeed in doing so in a timely manner. If these additional
products, which are not expected to be available for sampling until the
fourth quarter of fiscal 1997, are not brought to market in a timely
manner or do not address the market needs or cost or performance
requirements, then the Company's graphics market share and sales will be
adversely affected. Revenues from the sale of graphics products in the
fourth quarter of fiscal 1997 and in fiscal 1998 are also likely to be
significantly dependent on the success of the Company's current DRAM-based
2D graphics/video accelerators and the Company's newly introduced SGRAM-
based 2D graphics/video accelerators.
Issues Relating to Audio Products
Most of the Company's revenues in the multimedia audio market derive from
the sales of 16-bit audio Codecs and integrated 16-bit Codec plus
controller solutions for the consumer PC market. Pricing pressures have
forced a transition from multi-chip solutions to products that integrate
the Codec, controller and synthesis into a single IC. The Company's
revenues from the sale of audio products in the fourth quarter of fiscal
1997 are likely to be significantly affected by the success of its
recently introduced fully-integrated, single-chip audio ICs. Moreover,
aggressive competitive pricing pressures have adversely affected and may
continue to adversely affect the Company's revenues and gross margins from
the sale of single-chip audio ICs. In addition, the introduction of new
audio products from the Company's competitors, the introduction of
mediaprocessors and the introduction of MMX processors with multimedia
features by Intel Corporation could adversely affect revenues and gross
margins from the sale of the Company's audio products.
Three-dimensional spatial effects audio is expected to become an important
feature in the fourth quarter of fiscal 1997 and in fiscal 1998, primarily
in products for the consumer marketplace. The Company has begun shipping
such products. If the Company's spatial effects audio products do not
meet the cost or performance requirements of the market, revenues from the
sale of audio products would be adversely affected.
Issues Relating to Mass Storage Market
The disk drive market has historically been characterized by a relatively
small number of disk drive manufacturers and by periods of rapid growth
followed by periods of oversupply and contraction. Growth in the mass
storage market is directly affected by growth in the PC market.
Furthermore, the price competitive nature of the disk drive industry
continues to put pressure on the price of all disk drive components. In
addition, consolidation in the disk drive industry has reduced the number
of customers for the Company's mass storage products and increased the
risk of large fluctuations in demand.
The Company believes that excess inventories held by its customers limited
sales of the Company's mass storage products in the second quarter of
fiscal 1997 and limited sales of the Company's optical disk drive products
in the third quarter of fiscal 1997. Revenues from mass storage products
in the fourth quarter of fiscal 1997 and fiscal 1998 are likely to depend
heavily on the success of certain 3.5 inch disk drive products selected
for use by various customers, which in turn depends upon obtaining timely
customer qualification of the new products and upon bringing the products
into volume production timely and cost-effectively.
The Company's revenues from mass storage products are dependent on the
successful introduction by its customers of new disk drive products.
Recent efforts by certain of the Company's customers to develop their own
ICs for mass storage products could in the future reduce demand for the
Company's mass storage products, which could have an adverse effect on the
Company's revenues and gross margins from such products. In addition, in
response to the current market trend towards integrating hard disk
controllers with microcontrollers, the Company's revenues and gross
margins from its mass storage products will be dependent on the Company's
ability to introduce such integrated products in a commercially
competitive manner.
Issues Relating to Communications Market
Most of the Company's revenues from communications products are expected
to derive from sales of voice/data/fax modem chip sets. The market for
these products is intensely competitive, and competitive pricing pressures
have affected and are likely to continue to affect the average selling
prices and gross margins from this product line. The success of the
Company's products will depend not only on the products themselves but
also on the degree and timing of market acceptance of new performance
levels developed by U.S. Robotics, which will be supported by the
Company's new products, and the development of standards with regard to
these new performance levels. Moreover, as a relatively new entrant to
this market, the Company may be at a competitive disadvantage to suppliers
who have long-term customer relationships, have greater market share or
have greater financial resources. In addition, the introduction of new
modem products from the Company's competitors, the introduction of
mediaprocessors and the introduction of MMX processors with multimedia
features by Intel Corporation could adversely affect revenues and gross
margins from the sale of the Company's modem products.
Intellectual Property Matters
The semiconductor industry is characterized by frequent litigation
regarding patent and other intellectual property rights. The Company and
certain of its customers from time to time have been notified that they
may be infringing certain patents and other intellectual property rights
of others. In addition, customers have been named in suits alleging
infringement of patents or other intellectual property rights by customer
products. Certain components of these products have been purchased from
the Company and may be subject to indemnification provisions made by the
Company to its customers. Although licenses are generally offered in
situations where the Company or its customers are named in suits alleging
infringement of patents or other intellectual property rights, there can
be no assurance that any licenses or other rights can be obtained on
acceptable terms. Because successive generations of the Company's
products tend to offer an increasing number of functions, there is a
likelihood that more of these claims will occur as the products become
more highly integrated. The Company cannot accurately predict the
eventual outcome of any suit or other alleged infringement of intellectual
property. An unfavorable outcome occurring in any such suit could have an
adverse effect on the Company's future operations and/or liquidity.
Foreign Operations and Markets
Because many of the Company's subcontractors and several of the Company's
key customers, which customers collectively account for a significant
percentage of the Company's revenues, are located in Japan and other Asian
countries, the Company's business is subject to risks associated with many
factors beyond its control. International operations and sales may be
subject to political and economic risks, including political instability,
currency controls, exchange rate fluctuations, and changes in
import/export regulations, tariff and freight rates. Although the Company
buys hedging instruments to reduce its exposure to currency exchange rate
fluctuations, the Company's competitive position can be affected by the
exchange rate of the U.S. dollar against other currencies, particularly
the Japanese yen.
Competition
The Company's business is intensely competitive and is characterized by
new product cycles, price erosion and rapid technological change.
Competition typically occurs at the design stage, where the customer
evaluates alternative design approaches that require integrated circuits.
Because of shortened product life cycles and even shorter design-in
cycles, the Company's competitors have increasingly frequent opportunities
to achieve design wins in next generation systems. In the event that
competitors succeed in supplanting the Company's products, the Company's
market share may not be sustainable and net sales, gross margin, and
earnings would be adversely affected. Competitors include major domestic
and international companies, many of which have substantially greater
financial and other resources than the Company with which to pursue
engineering, manufacturing, marketing and distribution of their products.
Emerging companies are also increasing their participation in the market,
as well as customers who develop their own integrated circuit products.
Competitors include manufacturers of standard semiconductors, application
specific integrated circuits and fully customized integrated circuits,
including both chip and board-level products. The ability of the Company
to compete successfully in the rapidly evolving area of high-performance
integrated circuit technology depends significantly on factors both within
and outside of its control, including, but not limited to, success in
designing, manufacturing and marketing new products, wafer supply,
protection of Company products by effective utilization of intellectual
property laws, product quality, reliability, ease of use, price, diversity
of product line, efficiency of production, the pace at which customers
incorporate the Company's integrated circuits into their products, success
of the customers' products and general economic conditions. Also the
Company's future success depends, in part, upon the continued service of
its key engineering, marketing, sales, manufacturing, support and
executive personnel, and on its ability to continue to attract, retain and
motivate qualified personnel. The competition for such employees is
intense, and the loss of the services of one or more of these key
personnel could adversely affect the Company. Because of this and other
factors, past results may not be a useful predictor of future results.
Part II. Other Information
Item 1. Legal Procedings
During December 1996, the Company and certain of its current and former
directors and officers, reached an agreement in principle which, if approved,
would settle all pending securities claims against the Company for an
aggregate sum of $31.3 million, exclusive of interest, $2.3 million of which
will be paid by the Company with the remainder being paid by the Company's
insurers.
The proposed settlement would include the amendment of the federal class
action filed in 1995 to include claims pending in the State court with the
intent that the settlement would have the effect of extinguishing the State
court claims. The proposed settlement is subject to a number of
contingencies, including the agreement to and execution of a definitive
agreement and court approval.
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits
Exhibit 10.31 Indenture Dated as of December 15, 1996
6% Convertible Suborinated Notes
Exhibit 11 Statement re: Computation of Earnings per share
Exhibit 27 Financial Data Schedule
b. Reports on Form 8-K
None.
<PAGE>
CIRRUS LOGIC, INC.
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.
CIRRUS LOGIC, INC.
(Registrant)
February 11, 1997 /s/ Thomas F. Kelly
Date Thomas F. Kelly
Executive Vice President, Finance and
Administration, Chief Financial Officer,
and Treasurer
(Principal Financial Officer)
February 11, 1997 /s/ Ronald K. Shelton
Date Ronald K. Shelton
Vice President, Finance
(Principal Accounting Officer)
________________________________________________
CIRRUS LOGIC, INC.
ISSUER
TO
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
________________
INDENTURE
Dated as of December 15, 1996
________________
6% CONVERTIBLE SUBORDINATED NOTES
DUE DECEMBER 15, 2003
________________________________________________
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY 1
ARTICLE I - DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION 1
SECTION 1.1 Definitions. 1
SECTION 1.2 Compliance Certificates and Opinions 10
SECTION 1.3 Form of Documents Delivered to the Trustee 10
SECTION 1.4 Acts of Holders of Securities 11
SECTION 1.5 Notices, Etc., to Trustee and Company 12
SECTION 1.6 Notice to Holders of Securities; Waiver 13
SECTION 1.7 Effect of Headings and Table of Contents 13
SECTION 1.8 Successors and Assigns 13
SECTION 1.9 Separability Clause 13
SECTION 1.10 Benefits of Indenture 14
SECTION 1.11 Governing Law 14
SECTION 1.12 Legal Holidays 14
SECTION 1.13 Conflict with Trust Indenture Act 14
ARTICLE II - SECURITY FORMS 15
SECTION 2.1 Form Generally 15
SECTION 2.2 Form of Security 16
SECTION 2.3 Form of Certificate of Authentication 29
SECTION 2.4 Form of Conversion Notice 29
ARTICLE III - THE SECURITIES 31
SECTION 3.1 Title and Terms 31
SECTION 3.2 Denominations 31
SECTION 3.3 Execution, Authentication, Delivery and
Dating 31
SECTION 3.4 Global Securities; Non-Global Securities 32
SECTION 3.5 Registration, Registration of Transfer and
Exchange; Restrictions on Transfer 34
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen
Securities 37
SECTION 3.7 Payment of Interest; Interest Rights
Preserved 38
SECTION 3.8 Persons Deemed Owners 39
SECTION 3.9 Cancellation 39
SECTION 3.10 Computation of Interest 39
SECTION 3.11 [Reserved] 39
SECTION 3.12 CUSIP Numbers 39
ARTICLE IV - SATISFACTION AND DISCHARGE 39
SECTION 4.1 Satisfaction and Discharge of Indenture 39
SECTION 4.2 Application of Trust Money 40
ARTICLE V - REMEDIES 41
SECTION 5.1 Events of Default 41
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment 42
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee 43
SECTION 5.4 Trustee May File Proofs of Claim 43
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities 44
SECTION 5.6 Application of Money Collected 44
SECTION 5.7 Limitation on Suits 45
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest and
to Convert 45
SECTION 5.9 Restoration of Rights and Remedies 45
SECTION 5.10 Rights and Remedies Cumulative 46
SECTION 5.11 Delay or Omission Not Waiver 46
SECTION 5.12 Control by Holders of Securities 46
SECTION 5.13 Waiver of Past Defaults 46
SECTION 5.14 Undertaking for Costs 46
SECTION 5.15 Waiver of Stay, Usury or Extension Laws 47
ARTICLE VI - THE TRUSTEE 47
SECTION 6.1 Certain Duties and Responsibilities 47
SECTION 6.2 Notice of Defaults 48
SECTION 6.3 Certain Rights of Trustee 48
SECTION 6.4 Not Responsible for Recitals or Issuance of
Securities 49
SECTION 6.5 May Hold Securities, Act as Trustee Under
Other Indentures 49
SECTION 6.6 Money Held in Trust 49
SECTION 6.7 Compensation and Reimbursement 50
SECTION 6.8 Corporate Trustee Required; Eligibility 50
SECTION 6.9 Resignation and Removal; Appointment of
Successor 50
SECTION 6.10 Acceptance of Appointment by Successor 51
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business 52
SECTION 6.12 Authenticating Agents 52
SECTION 6.13 Disqualification; Conflicting Interests 53
SECTION 6.14 Preferential Collection of Claims Against
Company 53
ARTICLE VII - CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE 54
SECTION 7.1 Company May Consolidate, Etc., Only on Certain Terms 54
SECTION 7.2 Successor Substituted 54
ARTICLE VIII - SUPPLEMENTAL INDENTURES 55
SECTION 8.1 Supplemental Indentures Without Consent of
Holders of Securities 55
SECTION 8.2 Supplemental Indentures with Consent of
Holders of Securities 56
SECTION 8.3 Execution of Supplemental Indentures 57
SECTION 8.4 Effect of Supplemental Indentures 57
SECTION 8.5 Reference in Securities to Supplemental
Indentures 57
SECTION 8.6 Notice of Supplemental Indentures 57
ARTICLE IX - MEETINGS OF HOLDERS OF SECURITIES 57
SECTION 9.1 Purposes for Which Meetings May Be
Called 57
SECTION 9.2 Call, Notice and Place of Meetings 58
SECTION 9.3 Persons Entitled to Vote at Meetings 58
SECTION 9.4 Quorum; Action 58
SECTION 9.5 Determination of Voting Rights; Conduct
and Adjournment of Meetings 59
SECTION 9.6 Counting Votes and Recording Action of
Meetings 59
ARTICLE X - COVENANTS 60
SECTION 10.1 Payment of Principal, Premium and
Interest 60
SECTION 10.2 Maintenance of Offices or Agencies 60
SECTION 10.3 Money for Security Payments To Be Held
in Trust 61
SECTION 10.4 [Reserved] 62
SECTION 10.5 Existence 62
SECTION 10.6 Maintenance of Properties 62
SECTION 10.7 Payment of Taxes and Other Claims 62
SECTION 10.8 Registration and Listing 62
SECTION 10.9 Statement by Officers as to Default 63
SECTION 10.10 Delivery of Certain Information 63
SECTION 10.11 Resale of Certain Securities 63
SECTION 10.12 Registration Rights 64
SECTION 10.13 Waiver of Certain Covenants 65
ARTICLE XI - REDEMPTION OF SECURITIES 65
SECTION 11.1 Right of Redemption 65
SECTION 11.2 Applicability of Article 65
SECTION 11.3 Election to Redeem; Notice to Trustee 66
SECTION 11.4 Selection by Trustee of Securities To Be
Redeemed 66
SECTION 11.5 Notice of Redemption 66
SECTION 11.6 Deposit of Redemption Price 67
SECTION 11.7 Securities Payable on Redemption Date 67
SECTION 11.8 Securities Redeemed in Part 68
SECTION 11.9 Conversion Arrangement on Call for
Redemption 68
ARTICLE XII - CONVERSION OF SECURITIES 68
SECTION 12.1 Conversion Privilege and Conversion Rate 68
SECTION 12.2 Exercise of Conversion Privilege 69
SECTION 12.3 Fractions of Shares 70
SECTION 12.4 Adjustment of Conversion Rate 71
SECTION 12.5 Notice of Adjustments of Conversion Rate 74
SECTION 12.6 Notice of Certain Corporate Action 75
SECTION 12.7 Company to Reserve Common Stock 75
SECTION 12.8 Taxes on Conversions 76
SECTION 12.9 Covenant as to Common Stock 76
SECTION 12.10 Cancellation of Converted Securities 76
SECTION 12.11 Provision in Case of Consolidation,
Merger or Sale of Assets 76
SECTION 12.12 Responsibility of Trustee for Conversion
Provisions 77
ARTICLE XIII - SUBORDINATION OF SECURITIES 77
SECTION 13.1 Securities Subordinate to Senior Indebtedness 77
SECTION 13.2 No Payment in Certain Circumstances;
Payment Over of Proceeds Upon
Dissolution, Etc. 78
SECTION 13.3 Prior Payment to Senior Indebtedness
Upon Acceleration of Securities 79
SECTION 13.4 Payment Permitted If No Default 80
SECTION 13.5 Subrogation to Rights of Holders of Senior
Indebtedness 80
SECTION 13.6 Provisions Solely to Define Relative
Rights 80
SECTION 13.7 Trustee to Effectuate Subordination 81
SECTION 13.8 No Waiver of Subordination Provisions 81
SECTION 13.9 Notice to Trustee 81
SECTION 13.10 Reliance on Judicial Order or Certificate of
Liquidating Agent 82
SECTION 13.11 Trustee Not Fiduciary for Holders of
Senior Indebtedness 82
SECTION 13.12 Reliance by Holders of Senior
Indebtedness on Subordination Provisions 82
SECTION 13.13 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of
Trustee's Rights 82
SECTION 13.14 Article Applicable to Paying Agents 83
SECTION 13.15 Certain Conversions and Repurchases
Deemed Payment 83
ARTICLE XIV - REPURCHASE OF SECURITIES AT THE
OPTION OF THE HOLDER UPON A
CHANGE IN CONTROL 83
SECTION 14.1 Right to Require Repurchase 83
SECTION 14.2 Conditions to the Company's Election to
Pay the 84
SECTION 14.3 Notices; Method of Exercising Repurchase
Right, Etc. 84
SECTION 14.4 Certain Definitions 87
SECTION 14.5 Consolidation, Merger, etc 88
ARTICLE XV - HOLDERS LISTS AND REPORTS BY TRUSTEE
AND COMPANY;
NON-RECOURSE 89
SECTION 15.1 Company to Furnish Trustee Names and
Addresses of Holders 89
SECTION 15.2 Preservation of Information 89
SECTION 15.3 No Recourse Against Others 89
SECTION 15.4 Reports by Trustee 89
SECTION 15.5 Reports by Company 90
ARTICLE XVI - IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS 90
SECTION 16.1 Indenture and Securities Solely Corporate Obligations 90
INDENTURE, dated as of December 15, 1996, between
Cirrus Logic, Inc., a corporation duly organized and existing under
the laws of the State of California, having its principal office at 3100
West Warren Avenue, Fremont, California 94538 (herein called the
"Company"), and State Street Bank and Trust Company, a trust
company duly organized and existing under the laws of The
Commonwealth of Massachusetts, as Trustee hereunder (herein called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 6% Convertible Subordinated Notes due December 15, 2003
(herein called the "Securities") of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when the
Securities are executed by the Company and authenticated and
delivered hereunder, the valid obligations of the Company, and to
make this Indenture a valid agreement of the Company, in accordance
with their and its terms, have been done. Further, all things necessary
to duly authorize the issuance of the Common Stock of the Company
issuable upon the conversion of the Securities, and to duly reserve for
issuance the number of shares of Common Stock issuable upon such
conversion, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION I.1 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
(3) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder of a Security,
has the meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the
purposes of this definition, "control", when used with respect to any
specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer
or transaction involving a Global Security or beneficial interest
therein, the rules and procedures of Euroclear and CEDEL, and of the
Depositary for such Security, in each case to the extent applicable to
such transaction and as in effect from time to time.
"Authorized Newspaper" means a newspaper in the English
language, customarily published on each Monday, Tuesday,
Wednesday, Thursday and Friday, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in a Place
of Payment.
"Authenticating Agent" means any Person authorized
pursuant to Section 6.12 to act on behalf of the Trustee to
authenticate Securities.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a resolution duly adopted by the
Board of Directors, a copy of which, certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of
such certification, shall have been delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, Place of Conversion or any other place, as the case may be,
means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in such Place of
Payment, Place of Conversion or other place, as the case may be, are
authorized or obligated by law or executive order to close; provided,
however, that a day on which banking institutions in San Jose,
California, Boston, Massachusetts or New York, New York are
authorized or obligated by law or executive order to close shall not be
a Business Day for purposes of Section 13.9.
"CEDEL" means Cedel Bank, S.A. (or any successor
securities clearing agency).
"Change in Control" has the meaning specified in
Section 14.4(2).
"Closing Price Per Share" means, with respect to the
Common Stock of the Company, for any day, (i) the closing bid price
regular way on the Nasdaq National Market or, (ii) if the Common
Stock is not quoted on the Nasdaq National Market, the reported last
sales price regular way per share or, in case no such reported sale
takes place on such day, the average of the reported closing bid and
asked prices regular way, in either case, on the principal national
securities exchange on which the Common Stock is listed or admitted
to trading, or (iii) if the Common Stock is not quoted on the Nasdaq
National Market or listed or admitted to trading on any national
securities exchange, the average of the closing bid prices in the over-
the-counter market as furnished by any New York Stock Exchange
member firm selected from time to time by the Company for that
purpose.
"Code" has the meaning specified in Section 2.1.
"Commission" means the United States Securities and
Exchange Commission, as from time to time constituted, created
under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means the Common Stock, no par value
per share, of the Company authorized at the date of this instrument as
originally executed. Subject to the provisions of Section 12.11, shares
issuable on conversion or repurchase of Securities shall include only
shares of Common Stock or shares of any class or classes of common
stock resulting from any reclassification or reclassifications thereof;
provided, however, that if at any time there shall be more than one
such resulting class, the shares so issuable on conversion of Securities
shall include shares of all such classes, and 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.
"common stock" includes any stock of any class of capital
stock 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 issuer thereof and which is not
subject to redemption by the issuer thereof.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Notice" has the meaning specified in Section
14.3.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or a Vice President, and by its principal
financial officer, Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Constituent Person" has the meaning specified in Section
12.11.
"Conversion Agent" means any Person authorized by the
Company to convert Securities in accordance with Article XII. The
Company has initially appointed the Trustee as its Conversion Agent
pursuant to Section 10.2 hereof.
"Conversion Price" has the meaning specified in
Section 14.4(3).
"Conversion Rate" has the meaning specified in Section 12.1.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered (which at the date of this Indenture is located
at 2 International Place, 4th Floor, Boston, Massachusetts 02110,
Attention: Corporate Trust Division (Cirrus Logic, Inc. 6%
Convertible Subordinated Notes due December 15, 2003).
"corporation" means a corporation, company, association,
joint-stock company or business trust.
"Credit Agreement " means that certain Amended and
Restated Multicurrency Credit Agreement, dated as of October 31,
1996, by and among the Company, certain of the Company's
subsidiaries, Bank of America National Trust and Savings
Association, as Agent and Letter of Credit Issuing Bank, Morgan
Guaranty Trust Company of New York and The Bank of Nova Scotia,
as Co-Agents, and the other financial institutions party thereto, as
arranged by BA Securities, Inc., as amended through the date hereof,
as further amended, amended and restated, supplemented or
otherwise modified from time to time.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to any Registered
Securities, a clearing agency that is registered as such under the
Exchange Act and is designated by the Company to act as Depositary
for such Registered Securities (or any successor securities clearing
agency so registered).
"Designated Senior Indebtedness" means the Company's
obligations under the Credit Agreement and any particular Senior
Indebtedness in which the instrument creating or evidencing the same
or the assumption or guarantee thereof (or related agreements or
documents to which the Company is a party) expressly provides that
such Senior Indebtedness shall be "Designated Senior Indebtedness"
for purposes of the Indenture (provided that such instrument,
agreement or other document may place limitations and conditions on
the right of such Senior Indebtedness to exercise the rights of
Designated Senior Indebtedness).
"Dollar" or "U.S. $" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time shall be
legal tender for the payment of public and private debts.
"DTC" means The Depository Trust Company, a New York
corporation.
"Euroclear" means the Euroclear Clearance System (or any
successor securities clearing agency).
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the United States Securities
Exchange Act of 1934 (or any successor statute), as amended from
time to time.
"Exchange Date" means the date and day on which the
Restricted Period expires.
"Global Security" means a Registered Security that is
registered in the Security Register in the name of a Depositary or a
nominee thereof.
"Holder" means the Person in whose name the Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively.
"Initial Purchasers" means Goldman, Sachs & Co., Salomon
Brothers Inc, J.P. Morgan Securities Inc. and Robertson, Stephens &
Company LLC.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Liquidated Damages" has the meaning specified in
Section 10.12.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security becomes due and
payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption, exercise of the
repurchase right set forth in Article XIV or otherwise.
"Non-electing Share" has the meaning specified in
Section 12.11.
"Notice of Default" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the Chief
Executive Officer, the President or a Vice President and by the
principal financial officer, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company and who shall be acceptable to
the Trustee.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities for the payment or redemption of
which money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such
Securities, provided that if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(iv) Securities converted into Common Stock
pursuant to Article XII;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities are present at a
meeting of Holders of Securities for quorum purposes or have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in
relying upon any such determination as to the presence of a quorum
or upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of or interest on any Securities on
behalf of the Company and, except as otherwise specifically set forth
herein, such term shall include the Company if it shall act as its own
Paying Agent. The Company has initially appointed the Trustee as its
Paying Agent pursuant to Section 10.2 hereof.
"Payment Blockage Notice" has the meaning specified in
Section 13.2.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, trust, estate, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Conversion" has the meaning specified in
Section 3.1.
"Place of Payment" has the meaning specified in Section 3.1.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under
Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"Purchase Agreement" means the Purchase Agreement, dated
as of December 12, 1996, between the Company and the Initial
Purchasers, as such agreement may be amended from time to time.
"Record Date" means any Regular Record Date or Special
Record Date.
"Record Date Period" means the period from the close of
business of any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment
Date.
"Redemption Date", when used with respect to any Security
to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued in
substantially the form set forth in Section 2.2 and registered in the
Security Register. A Global Security is a Registered Security.
"Registration Rights Agreement" has the meaning specified
in Section 2.2.
"Regular Record Date" for interest payable in respect of any
Registered Security on any Interest Payment Date means the June 1 or
December 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date.
"Regulation D Securities" means the Securities sold by the
Initial Purchasers in the initial offering contemplated by the Purchase
Agreement in reliance on an exemption from the registration
requirements of the Securities Act other than Rule 144A and
Regulation S.
"Regulation S" means Regulation S under the Securities Act
(or any successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially in
the form set forth in Annex A.
"Regulation S Global Security" has the meaning specified in
Section 2.1.
"Regulation S Legend" means a legend substantially in the
form of the legend required in the form of Security set forth in
Section 2.2 to be placed upon a Regulation S Global Security.
"Regulation S Securities" means all Securities required
pursuant to Section 3.5(3) to bear a Regulation S Legend. Such term
includes the Regulation S Global Security.
"Representative" means the (a) indenture trustee or other
trustee, agent or representative for any Senior Indebtedness or (b)
with respect to any Senior Indebtedness that does not have any such
trustee, agent or other representative, (i) in the case of such Senior
Indebtedness issued pursuant to an agreement providing for voting
arrangements as among the holders or owners of such Senior
Indebtedness, any holder or owner of such Senior Indebtedness acting
with the consent of the required persons necessary to bind such
holders or owners of such Senior Indebtedness and (ii) in the case of
all other such Senior Indebtedness, the holder or owner of such
Senior Indebtedness.
"Repurchase Date" has the meaning specified in Section
14.1.
"Repurchase Price" has the meaning specified in
Section 14.1.
"Responsible Officer", when used with respect to the Trustee,
means any officer within the Corporate Trust Office of the Trustee
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his
knowledge and familiarity with the particular subject.
"Restricted Global Security" has the meaning specified in
Section 2.1.
"Restricted Period" means the period of 41 consecutive days
beginning on and including the later of (i) the day on which Securities
are first offered to persons other than distributors (as defined in
Regulation S) in reliance on Regulation S and (ii) the last original
issuance date of the Securities.
"Restricted Securities" means all Securities required pursuant
to Section 3.5(3) to bear any Restricted Securities Legend. Such term
includes the Restricted Global Security.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex B.
"Restricted Securities Legend" means, collectively, the
legends substantially in the forms of the legends required in the form
of Security set forth in Section 2.2 to be placed upon each Restricted
Security.
"Rule 144A" means Rule 144A under the Securities Act (or
any successor provision), as it may be amended from time to time.
"Rule 144A Information" has the meaning specified in
Section 10.10.
"Rule 144A Securities" means the Securities purchased by
the Initial Purchasers from the Company pursuant to the Purchase
Agreement and resold by the Initial Purchasers, other than the
Regulation D Securities and the Regulation S Securities.
"Securities" has the meaning ascribed to it in the first
paragraph under the caption "Recitals of the Company".
"Securities Act" means the United States Securities Act of
1933 (or any successor statute), as amended from time to time.
"Securities Act Legend" means a Restricted Securities
Legend or a Regulation S Legend.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
"Senior Indebtedness" means the principal of (and premium,
if any) and interest (including all interest accruing subsequent to the
commencement of any bankruptcy or similar proceeding, whether or
not a claim for post-petition interest is allowable as a claim in any
such proceeding) on, and all fees and other amounts payable in
connection with, the following, whether absolute or contingent,
secured or unsecured, due or to become due, outstanding on the date
of the Indenture or thereafter created, incurred or assumed:
(a) indebtedness of the Company evidenced by credit or loan
agreements, notes, bonds, debentures, or other written obligations,
(b) all obligations of the Company for money borrowed, (c) all
obligations of the Company evidenced by a note or similar instrument
given in connection with the acquisition of any businesses, properties
or assets of any kind, (d) obligations of the Company as lessee (i)
under leases required to be capitalized on the balance sheet of the
lessee under generally accepted accounting principles and (ii) under
other leases for facilities, capital equipment and related operating
assets, whether or not capitalized, entered into or leased after the date
of this Indenture for financing purposes (as determined by the
Company), (e) obligations of the Company under interest rate and
currency swaps, caps, floors, collars, hedge agreements, forward
contracts, or similar agreements or arrangements, (f) all
reimbursement obligations of the Company with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account
of the Company, (g) all obligations of the Company issued or
assumed as the deferred purchase price of property or services (but
excluding trade accounts payable arising in the ordinary course of
business), (h) all obligations of the type referred to in clauses (a)
through (g) above of another Person and all dividends of another
Person, the payment of which, in either case, the Company has
assumed or guaranteed, or for which the Company is responsible or
liable, directly or indirectly, jointly or severally, as obligor, guarantor
or otherwise, or which is secured by a lien on property of the
Company, and (i) renewals, extensions, modifications, replacements,
restatements and refundings of, or any indebtedness or obligation
issued in exchange for, any such indebtedness or obligation described
in clauses (a) through (h) of this paragraph; provided, however, that
Senior Indebtedness shall not include the Securities or any such
indebtedness or obligation if the terms of such indebtedness or
obligation (or the terms of the instrument under which, or pursuant to
which it is issued) expressly provides that such indebtedness or
obligation is not superior in right of payment to the Securities.
"Shelf Registration Statement" has the meaning specified in
Section 10.12.
"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.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Company pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or
such installment of interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of
this definition, "voting stock" means stock or other similar interests in
the corporation which ordinarily has or have voting power for the
election of directors, or persons performing similar functions, whether
at all times or only so long as no senior class of stock or other
interests has or have such voting power by reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt
as that evidenced by, such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"Surrender Certificate" means a certificate substantially in
the form set forth in Annex D.
"Trading Days" means (i) if the Common Stock is quoted on
the Nasdaq National Market or any other system of automated
dissemination of quotations of securities prices, days on which trades
may be effected through such system; (ii) if the Common Stock is
listed or admitted for trading on any national securities exchange,
days on which such national securities exchange is open for business;
or (iii) if the Common Stock is not listed or admitted for trading on
any national securities exchange or quoted on the Nasdaq National
Market or any other system of automated dissemination of quotation
of securities prices, days on which the Common Stock is traded
regular way in the over-the-counter market and for which a closing
bid and a closing asked price for the Common Stock are available.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean such successor Trustee.
"United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (its
"possessions" including Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands).
"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Annex C.
"Vice President", when used with respect to the Company,
means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION I.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee 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, if any, have been complied with, except
that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including
certificates provided for in Section 10.9) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such
individual, 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, in the opinion of
each such individual, such condition or covenant has been complied
with.
SECTION I.3 Form of Documents Delivered to the Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which
such certificate or opinion is based are erroneous. Any such
certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company or any other Person stating that
the information with respect to such factual matters is in the
possession of the Company or such other Person, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
SECTION I.4 Acts of Holders of Securities.
(1) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this
Indenture to be given or taken by Holders of Securities may be
embodied in and evidenced by (A) one or more instruments of
substantially similar tenor signed by such Holders in person or by an
agent or proxy duly appointed in writing by such Holders or (B) the
record of Holders of Securities voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of
Holders of Securities duly called and held in accordance with the
provisions of Article IX. Such action shall become effective when
such instrument or instruments or record is delivered to the Trustee
and, where it is hereby expressly required, to the Company. The
Trustee shall promptly deliver to the Company copies of all such
instruments and records delivered to the Trustee. Such instrument or
instruments and record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders of Securities signing such instrument or instruments and
so voting at such meeting. Proof of execution of any such instrument
or of a writing appointing any such agent or proxy, or of the holding
by any Person of a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the
Trustee and the Company if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 9.6.
(2) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute sufficient proof of his
authority.
(3) The principal amount and serial number of any
Registered Security held by any Person, and the date of his holding
the same, shall be proved by the Security Register.
(4) The fact and date of execution of any such
instrument or writing and the authority of the Person executing the
same may also be proved in any other manner which the Trustee
deems sufficient; and the Trustee may in any instance require further
proof with respect to any of the matters referred to in this Section 1.4.
(5) The Company may set any day as the record date for
the purpose of determining the Holders entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or
other action, or to vote on any action, authorized or permitted by this
Indenture to be given or taken by Holders. Promptly and in any case
not later than ten days after setting a record date, the Company shall
notify the Trustee and the Holders of such record date. If not set by
the Company prior to the first solicitation of a Holder made by any
Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 15.1) prior to such first
solicitation or vote, as the case may be. With regard to any record
date, the Holders on such date (or their duly appointed agents or
proxies), and only such Persons, shall be entitled to give or take, or
vote on, the relevant action, whether or not such Holders remain
Holders after such record date. Notwithstanding the foregoing, the
Company shall not set a record date for, and the provisions of this
paragraph shall not apply with respect to, any notice, declaration or
direction referred to in the next paragraph.
Upon receipt by the Trustee from any Holder of (i) any notice
of default or breach referred to in Section 5.1(4), if such default or
breach has occurred and is continuing and the Trustee shall not have
given such a notice to the Company, (ii) any declaration of
acceleration referred to in Section 5.2, if an Event of Default has
occurred and is continuing and the Trustee shall not have given such
a declaration to the Company, or (iii) any direction referred to in
Section 5.12, if the Trustee shall not have taken the action specified
in such direction, then, with respect to clauses (ii) and (iii), a record
date shall automatically and without any action by the Company or
the Trustee be set for determining the Holders entitled to join in such
declaration or direction, which record date shall be the close of
business on the tenth day (or, if such day is not a Business Day, the
first Business Day thereafter) following the day on which the Trustee
receives such declaration or direction, and, with respect to clause (i),
the Trustee may set any day as a record date for the purpose of
determining the Holders entitled to join in such notice of default.
Promptly after such receipt by the Trustee of any such declaration or
direction referred to in clause (ii) or (iii), and promptly after setting
any record date with respect to clause (i), and as soon as practicable
thereafter, the Trustee shall notify the Company and the Holders of
any such record date so fixed. The Holders on such record date (or
their duly appointed agents or proxies), and only such Persons, shall
be entitled to join in such notice, declaration or direction, whether or
not such Holders remain Holders after such record date; provided
that, unless such notice, declaration or direction shall have become
effective by virtue of Holders of the requisite principal amount of
Securities on such record date (or their duly appointed agents or
proxies) having joined therein on or prior to the 90th day after such
record date, such notice, declaration or direction shall automatically
and without any action by any Person be canceled and of no further
effect. Nothing in this paragraph shall be construed to prevent a
Holder (or a duly appointed agent or proxy thereof) from giving,
before or after the expiration of such 90-day period, a notice,
declaration or direction contrary to or different from, or, after the
expiration of such period, identical to, the notice, declaration or
direction to which such record date relates, in which event a new
record date in respect thereof shall be set pursuant to this paragraph.
In addition, nothing in this paragraph shall be construed to render
ineffective any notice, declaration or direction of the type referred to
in this paragraph given at any time to the Trustee and the Company
by Holders (or their duly appointed agents or proxies) of the requisite
principal amount of Securities on the date such notice, declaration or
direction is so given.
(6) Except as provided in Sections 5.12 and 5.13, any
request, demand, authorization, direction, notice, consent, election,
waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(7) The provisions of this Section 1.4 are subject to the
provisions of Section 9.5.
SECTION I.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of Holders of Securities or
other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder of Securities or by the
Company shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee and received
at its Corporate Trust Office, Attention: Corporate Trust
Department. (Cirrus Logic, Inc. 6% Convertible Subordinated Notes
due December 15, 2003).
(2) the Company by the Trustee or by any Holder of
Securities shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing, mailed, first-class
postage prepaid, or telecopied and confirmed by mail, first-class
postage prepaid, or delivered by hand or overnight courier, addressed
to the Company at 3100 West Warren Avenue, Fremont, California,
94538, Attention: Chief Financial Officer, or at any other address
previously furnished in writing to the Trustee by the Company.
Any request, demand, authorization, direction, notice,
consent, election or waiver required or permitted under this Indenture
shall be in the English language, except that any published notice
may be in an official language of the country of publication.
SECTION I.6 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of Securities of any event,
such notice shall be sufficiently given to Holders if in writing and
mailed, first-class postage prepaid, to each Holder of a Security
affected by such event, at the address of such Holder as it appears in
the Security Register, not earlier than the earliest date and not later
than the latest date prescribed for the giving of such notice.
Neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities. In case by reason of the suspension
of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification to
Holders of Registered Securities as shall be made with the approval
of the Trustee, which approval shall not be unreasonably withheld,
shall constitute a sufficient notification to such Holders for every
purpose hereunder.
Such notice shall be deemed to have been given when such
notice is mailed.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders of Securities
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
SECTION I.7 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION I.8 Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed
or not.
SECTION I.9 Separability Clause.
In case any provision in this Indenture or the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION I.10 Benefits of Indenture.
Except as provided in the next sentence, nothing in this
Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors and assigns
hereunder and the Holders of Securities, any benefit or legal or
equitable right, remedy or claim under this Indenture. The provisions
of Article XIII are intended to be for the benefit of, and shall be
enforceable directly by, the holders of Senior Indebtedness.
SECTION I.11 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, THE
UNITED STATES OF AMERICA.
SECTION I.12 Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date, Repurchase Date or Stated Maturity of any Security or the last
day on which a Holder of a Security has a right to convert his Security
shall not be a Business Day at a Place of Payment or Place of
Conversion, as the case may be, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of principal
of, premium, if any, or interest on, or the payment of the Repurchase
Price (whether the same is payable in cash or in shares of Common
Stock) with respect to, or delivery for conversion of, such Security
need not be made at such Place of Payment or Place of Conversion, as
the case may be, on or by such day, but may be made on or by the
next succeeding Business Day at such Place of Payment or Place of
Conversion, as the case may be, with the same force and effect as if
made on the Interest Payment Date, Redemption Date or Repurchase
Date, or at the Stated Maturity or by such last day for conversion;
provided, however, that in the case that payment is made on such
succeeding Business Day, no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date,
Redemption Date, Repurchase Date, Stated Maturity or last day for
conversion, as the case may be.
SECTION I.13 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to
be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be. Until
such time as this Indenture shall be qualified under the Trust
Indenture Act, this Indenture, the Company and the Trustee shall be
deemed for all purposes hereof to be subject to and governed by the
Trust Indenture Act to the same extent as would be the case if this
Indenture were so qualified on the date hereof.
ARTICLE II
SECURITY FORMS
SECTION II.1 Form Generally.
The Securities shall be in substantially the form set forth in
this Article, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required
to comply with the rules of any securities exchange, the Internal
Revenue Code of 1986, as amended, and regulations thereunder (the
"Code"), or as may, consistent herewith, be determined by the
officers executing such Securities, as evidenced by their execution
thereof. All Securities shall be Registered Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in Section 2.3.
Conversion notices shall be in substantially the form set forth
in Section 2.4.
Repurchase notices shall be substantially in the form set forth
in Section 2.2.
The Securities shall be printed, lithographed, typewritten or
engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any
automated quotation system or securities exchange (including on steel
engraved borders if so required by any securities exchange upon
which the Securities may be listed) on which the Securities may be
quoted or listed, as the case may be, all as determined by the officers
executing such Securities, as evidenced by their execution thereof.
Upon their original issuance, Rule 144A Securities shall be
issued in the form of one or more Global Securities without interest
coupons and shall be registered in the name of DTC, as Depositary,
or its nominee and deposited with the Trustee, as custodian for DTC,
for credit by DTC to the respective accounts of beneficial owners of
the Securities represented thereby (or such other accounts as they may
direct). Such Global Security, together with its Successor Securities
which are Global Securities other than the Regulation S Global
Security, are collectively herein called the "Restricted Global
Security".
Upon their original issuance, Regulation S Securities shall be
issued in the form of one or more Global Securities without interest
coupons and shall be registered in the name of DTC, as Depositary,
or its nominee and deposited with the Trustee, as custodian for DTC
for credit to the respective accounts at DTC of the depositaries for
Morgan Guaranty Trust Company of New York, Brussels office, as
operator of Euroclear, or CEDEL. Such Global Security, together
with its Successor Securities which are Global Securities other than
the Restricted Global Security, are collectively herein called the
"Regulation S Global Security".
Upon their original issuance, Regulation D Securities shall be
issued as Registered Securities but not in the form of a Global
Security or in any other form intended to facilitate book-entry trading
in beneficial interests in such Securities.
SECTION II.2 Form of Security.
[FORM OF FACE]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE
FACE OF EACH RESTRICTED SECURITY OTHER THAN
ANY RESTRICTED GLOBAL SECURITY:
THIS SECURITY HAS NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND THIS SECURITY AND
ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS
CONVERSION MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE
INITIAL INVESTOR (I) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (II) IN AN
OFFSHORE TRANSACTION COMPLYING WITH THE
PROVISIONS OF RULE 903 OR 904 OF REGULATION S
UNDER THE SECURITIES ACT, (III) PURSUANT TO THE
EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, AND (B) BY SUBSEQUENT INVESTORS AS SET
FORTH IN (A) ABOVE OR TO AN INSTITUTION THAT IS
AN "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, AND IN EACH OF CASES (A) OR (B) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF THE STATES AND OTHER JURISDICTIONS OF
THE UNITED STATES.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE
FACE OF EACH RESTRICTED GLOBAL SECURITY:
THE SECURITIES EVIDENCED BY THIS GLOBAL
SECURITY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND SUCH SECURITIES AND ANY
SHARES OF COMMON STOCK ISSUABLE UPON THEIR
CONVERSION MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE
INITIAL INVESTOR (I) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (II) IN AN
OFFSHORE TRANSACTION COMPLYING WITH THE
PROVISIONS OF RULE 903 OR 904 OF REGULATION S
UNDER THE SECURITIES ACT, (III) PURSUANT TO THE
EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, AND (B) BY SUBSEQUENT INVESTORS AS SET
FORTH IN (A) ABOVE OR TO AN INSTITUTION THAT IS
AN "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, AND IN EACH OF CASES (A) OR (B) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF THE STATES AND OTHER JURISDICTIONS OF
THE UNITED STATES.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE
FACE OF EACH GLOBAL SECURITY:
THIS SECURITY IS A GLOBAL SECURITY WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF
THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY,
WHICH MAY BE TREATED BY THE COMPANY, THE
TRUSTEE AND ANY AGENT THEREOF AS OWNER AND
HOLDER OF THIS SECURITY FOR ALL PURPOSES.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE
FACE OF EACH GLOBAL SECURITY FOR WHICH THE
DEPOSITORY TRUST COMPANY IS TO BE THE
DEPOSITARY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OR TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR REGISTERED SECURITIES IN
DEFINITIVE REGISTERED FORM IN THE LIMITED
CIRCUMSTANCES REFERRED TO IN THE INDENTURE,
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE
FACE OF EACH REGULATION S GLOBAL SECURITY:
THE SECURITIES EVIDENCED BY THIS GLOBAL
SECURITY (OR ITS PREDECESSOR) WERE ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO
AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ALL
APPLICABLE STATE SECURITIES LAWS. TERMS USED
ABOVE HAVE THE MEANINGS GIVEN THEM IN
REGULATION S UNDER THE SECURITIES ACT.]
CIRRUS LOGIC, INC.
6% CONVERTIBLE SUBORDINATED NOTE
DUE DECEMBER 15, 2003
No. _____________ U.S. $ _____
[IF RESTRICTED GLOBAL SECURITY - CUSIP NO.
172755AA8]
[IF REGULATION S GLOBAL SECURITY - CUSIP NO.
U1717DAA8]
[IF REGULATION D SECURITY - CUSIP NO. 172755AB6]
CIRRUS LOGIC, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value received,
hereby promises to pay to _______________, or registered assigns,
the principal sum of _____________ United States Dollars (U.S.$
_____) [if this Security is a Global Security, then insert -- (which
principal amount may from time to time be increased or decreased to
such other principal amounts (which, taken together with the
principal amounts of all other Outstanding Securities, shall not
exceed $300,000,000 in the aggregate at any time) by adjustments
made on the records of the Trustee hereinafter referred to in
accordance with the Indenture)] on December 15, 2003 and to pay
interest thereon, from December 18, 1996, or from the most recent
Interest Payment Date (as defined below) to which interest has been
paid or duly provided for, semi-annually in arrears on June 15 and
December 15 in each year (each, an "Interest Payment Date"),
commencing June 15, 1997, at the rate of 6% per annum, until the
principal hereof is due, and at the rate of 6% per annum on any
overdue principal and premium, if any, and, to the extent permitted
by law, on any overdue interest. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, which shall be the June 1 or December 1 (whether or
not a Business Day), as the case may be, next preceding such Interest
Payment Date. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record
Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Company, notice whereof shall
be given to Holders of Registered Securities not less than 10 days
prior to the Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
automated quotation system or securities exchange on which the
Securities may be quoted or listed, and upon such notice as may be
required by such exchange, all as more fully provided in the
Indenture. Payments of principal shall be made upon the surrender of
this Security at the option of the Holder at the Corporate Trust Office
of the Trustee, or at such other office or agency of the Company as
may be designated by it for such purpose in the Borough of
Manhattan, The City of New York, 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, or at such other
offices or agencies as the Company may designate, by United States
Dollar check drawn on, or transfer to, a United States Dollar account
(such a transfer to be made only to a Holder of an aggregate principal
amount of Registered Securities in excess of U.S.$2,000,000, and
only if such Holder shall have furnished wire instructions in writing
to the Trustee no later than 15 days prior to the relevant payment
date). Payment of interest on this Security may be made by United
States Dollar check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register, or, upon
written application by the Holder to the Security Registrar setting
forth wire instructions not later than the relevant Record Date, by
transfer to a United States Dollar account (such a transfer to be made
only to a Holder of an aggregate principal amount of Registered
Securities in excess of U.S.$2,000,000 and only if such Holder shall
have furnished wire instructions in writing to the Trustee no later than
15 days prior to the relevant payment date).
Except as specifically provided herein and in the Indenture,
the Company shall not be required to make any payment with respect
to any tax, assessment or other governmental charge imposed by any
government or any political subdivision or taxing authority thereof or
therein.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof or an
Authenticating Agent by the manual signature of one of their
respective authorized signatories, this Security shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
Security to be duly executed under its corporate seal.
Dated: [Date of Authentication] CIRRUS
LOGIC, INC.
[Corporate Seal]
By:
Na
me:
Titl
e:
Attest:
Name:
Title:
[FORM OF REVERSE]
This Security is one of a duly authorized issue of securities of
the Company designated as its "6% Convertible Subordinated Notes
due December 15, 2003" (herein called the "Securities"), limited in
aggregate principal amount to U.S. $300,000,000, issued and to be
issued under an Indenture, dated as of December 15, 1996 (herein
called the "Indenture"), between the Company and State Street Bank
and Trust Company, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities and
of the terms upon which the Securities are, and are to be,
authenticated and delivered. As provided in the Indenture and subject
to certain limitations therein set forth, Registered Securities are
exchangeable for a like aggregate principal amount of Registered
Securities of any authorized denominations as requested by the
Holder surrendering the same upon surrender of the Registered
Security or Registered Securities to be exchanged, at the Corporate
Trust Office of the Trustee. The Trustee upon such surrender by the
Holder will issue the new Registered Securities in the requested
denominations.
No sinking fund is provided for the Securities. The
Securities are subject to redemption at the option of the Company at
any time on or after December 16, 1999, in whole or in part, upon not
less than 20 nor more than 60 days' notice to the Holders prior to the
Redemption Date at the following Redemption Prices (expressed as
percentages of the principal amount) for the twelve-month period
beginning on December 15 of the following years (or December 16,
in the case of 1999):
Y
e
a
r
R
e
d
e
m
p
t
i
o
n
P
r
i
c
e
1
9
9
9
1
0
3
.
4
2
9
%
2
0
0
0
1
0
2
.
5
7
1
2
0
0
1
1
0
1
.
7
1
4
2
0
0
2
1
0
0
.
8
5
7
and thereafter at a Redemption Price equal to 100% of the principal
amount, together, in each case, with accrued interest to the
Redemption Date; provided, however, that interest installments on
Registered Securities whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business
on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
In the event of a redemption of the Securities, the Company
will not be required (a) to register the transfer or exchange of
Registered Securities for a period of 15 days immediately preceding
the date notice is given identifying the serial numbers of the
Securities called for such redemption or (b) to register the transfer or
exchange of any Registered Security, or portion thereof, called for
redemption.
Notice to the Holders will be given not less than 20 nor more
than 60 days prior to the Redemption Date as provided in the
Indenture.
In any case where the due date for the payment of the
principal of, premium, if any, interest, or Liquidated Damages on any
Security or the last day on which a Holder of a Security has a right to
convert his Security shall be, at any Place of Payment or Place of
Conversion, as the case may be, a day on which banking institutions
at such Place of Payment or Place of Conversion are authorized or
obligated by law or executive order to close, then payment of
principal, premium, if any, interest, or Liquidated Damages, or
delivery for conversion of such Security need not be made on or by
such date at such place but may be made on or by the next succeeding
day at such place which is not a day on which banking institutions are
authorized or obligated by law or executive order to close, with the
same force and effect as if made on the date for such payment or the
date fixed for redemption or repurchase, or by such last day for
conversion, and no interest shall accrue on the amount so payable for
the period after such date.
Subject to and upon compliance with the provisions of the
Indenture, the Holder of this Security is entitled, at his option, at any
time on or after the 90th day following the last original issue date of
the Securities and on or before the close of business on December 15,
2003, or in case this Security or a portion hereof is called for
redemption or the Holder hereof has exercised his right to require the
Company to repurchase this Security or such portion hereof, then in
respect of this Security until and including, but (unless the Company
defaults in making the payment due upon redemption or repurchase,
as the case may be) not after, the close of business on the Business
Day prior to the Redemption Date or the Repurchase Date, as the case
may be, to convert this Security (or any portion of the principal
amount hereof that is an integral multiple of U.S.$1,000, provided
that the unconverted portion of such principal amount is U.S.$1,000
or any integral multiple of U.S.$1,000 in excess thereof) into fully
paid and nonassessable shares of Common Stock of the Company at
an initial Conversion Rate of 41.2903 shares of Common Stock for
each U.S. $1,000 principal amount of Securities (or at the current
adjusted Conversion Rate if an adjustment has been made as provided
in the Indenture) by surrender of this Security, duly endorsed or
assigned to the Company or in blank and, in case such surrender shall
be made during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening
of business on such Interest Payment Date (except if this Security or
portion thereof has been called for redemption on a Redemption Date
or is repurchasable on a Repurchase Date occurring, in either case,
during such period and is surrendered for such conversion during
such period (including any Securities or portions thereof called for
redemption on a Redemption Date or submitted for repurchase on a
Repurchase Date that is a Regular Record Date or an Interest Payment
Date, as the case may be)), also accompanied by payment in New
York Clearing House or other funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date
on the principal amount of this Security then being converted, and
also the conversion notice hereon duly executed, to the Company at
the Corporate Trust Office of the Trustee, or at such other office or
agency of the Company, subject to any laws or regulations applicable
thereto and subject to the right of the Company to terminate the
appointment of any Conversion Agent (as defined below) as may be
designated by it for such purpose in the Borough of Manhattan, The
City of New York, or at such other offices or agencies as the
Company may designate (each a "Conversion Agent"), provided,
further, that if this Security or portion hereof has been called for
redemption on a Redemption Date or is repurchasable on a
Repurchase Date occurring, in either case, during the period from the
close of business on any Regular Record Date next preceding any
Interest Payment Date to the opening of business on such succeeding
Interest Payment Date (including any Securities or portions thereof
called for redemption on a Redemption Date or submitted for
repurchase on a Repurchase Date that is a Regular Record Date or an
Interest Payment Date, as the case may be) and is surrendered for
conversion during such period (or on the last Business Day prior to
the Regular Record Date or Interest Payment Date in case of any
Security (or portion thereof) called for redemption on a Redemption
Date or submitted for repurchase on a Repurchase Date on a Regular
Record Date or Interest Payment Date, as the case may be), then the
Holder of this Security who converts this Security or a portion hereof
during such period will be entitled to receive the interest accruing
hereon from the Interest Payment Date next preceding the date of
such conversion to such succeeding Interest Payment Date and shall
not be required to pay such interest upon surrender of this Security for
conversion. Subject to the provisions of the preceding sentence and,
in the case of a conversion after the close of business on the Regular
Record Date next preceding any Interest Payment Date and on or
before the close of business on such Interest Payment Date, to the
right of the Holder of this Security (or any Predecessor Security of
record as of such Regular Record Date) to receive the related
installment of interest to the extent and under the circumstances
provided in the Indenture, no cash payment or adjustment is to be
made on conversion for interest accrued hereon from the Interest
Payment Date next preceding the day of conversion, or for dividends
on the Common Stock issued on conversion hereof. The Company
shall thereafter deliver to the Holder the fixed number of shares of
Common Stock (together with any cash adjustment, as provided in
the Indenture) into which this Security is convertible and such
delivery will be deemed to satisfy the Company's obligation to pay
the principal amount of this Security. No fractions of shares or scrip
representing fractions of shares will be issued on conversion, but
instead of any fractional interest (calculated to the nearest 1/100th of
a share) the Company shall pay a cash adjustment as provided in the
Indenture. The Conversion Rate is subject to adjustment as provided
in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party
(other than a consolidation or merger that does not result in any
reclassification, conversion, exchange or cancellation of the Common
Stock) or the conveyance, transfer, sale or lease of all or substantially
all of the property and assets of the Company, the Indenture shall be
amended, without the consent of any Holders of Securities, so that
this Security, if then Outstanding, will be convertible thereafter,
during the period this Security shall be convertible as specified above,
only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, transfer,
sale or lease by a holder of the number of shares of Common Stock of
the Company into which this Security could have been converted
immediately prior to such consolidation, merger, conveyance,
transfer, sale or lease (assuming such holder of Common Stock is not
a Constituent Person, failed to exercise any rights of election and
received per share the kind and amount received per share by a
plurality of Non-electing Shares and further assuming, if such
consolidation, merger, conveyance, transfer, sale or lease occurs prior
to 90 days following the last original issue date of the Securities, that
the Security was convertible at the time of such occurrence at the
Conversion Rate specified above as adjusted from the issue date of
such Security to such time as provided in the Indenture). No
adjustment in the Conversion Rate will be made until such adjustment
would require an increase or decrease of at least one percent of such
rate, provided that any adjustment that would otherwise be made will
be carried forward and taken into account in the computation of any
subsequent adjustment.
Subject to certain limitations in the Indenture, at any time
when the Company is not subject to Section 13 or 15(d) of the United
States Securities Exchange Act of 1934, as amended, upon the
request of a Holder of a Restricted Security or the holder of shares of
Common Stock issued upon conversion thereof, the Company will
promptly furnish or cause to be furnished Rule 144A Information (as
defined below) to such Holder of Restricted Securities or such holder
of shares of Common Stock issued upon conversion of Restricted
Securities, or to a prospective purchaser of any such security
designated by any such Holder or holder, as the case may be, to the
extent required to permit compliance by such Holder or holder with
Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act"), in connection with the resale of any such security.
"Rule 144A Information" shall be such information as is specified
pursuant to Rule 144A(d)(4) under the Securities Act (or any
successor provision thereto).
If this Security is a Registrable Security, then the Holder of
this Security [if this Security is a Global Security, then insert --
(including any Person that has a beneficial interest in this Security)]
and the Common Stock of the Company issuable upon conversion
hereof is entitled to the benefits of a Registration Rights Agreement
(subject to the provisions thereof), dated as of December 18, 1996,
executed by the Company (the "Registration Rights Agreement").
Pursuant to the Registration Rights Agreement, the Company has
agreed for the benefit of the Holders from time to time of the
Registrable Securities (as defined in the Indenture) that it will, at its
expense, (a) within 90 days after December 18, 1996 (the "Issue
Date") of the Securities, file a shelf registration statement (the "Shelf
Registration Statement") with the Commission with respect to resales
of the Registerable Securities, (b) use its reasonable efforts to cause
such Shelf Registration Statement to be declared effective by the
Commission within 180 days after the Issue Date of the Securities,
and (c) use its reasonable efforts to maintain such Shelf Registration
Statement effective under the Securities Act of 1933, as amended,
until the third annual anniversary of the Issue Date or such earlier
date as is provided in the Registration Rights Agreement (the
"Effectiveness Period"). The Company will be permitted to suspend
the use of the prospectus which is part of the Shelf Registration
Statement during certain periods of time as provided in the
Registration Rights Agreement.
If (i) on or prior to 90 days following the Issue Date of the
Securities, a Shelf Registration Statement has not been filed with the
Commission, or (ii) on or prior to the 180th day following the Issue
Date of the Securities, such Shelf Registration Statement is not
declared effective (each, a "Registration Default"), additional interest
("Liquidated Damages") will accrue on this Restricted Security from
and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured.
Liquidated Damages will be paid semi-annually in arrears, with the
first semi-annual payment due on the first Interest Payment Date in
respect of the Restricted Securities following the date on which such
Liquidated Damages begin to accrue, and will accrue at a rate per
annum equal to an additional one-quarter of one percent (0.25%) of
the principal amount of the Restricted Securities to and including the
90th day following such Registration Default and at a rate per annum
equal to one-half of one percent (0.50%) thereof from and after the
91st day following such Registration Default. Pursuant to the
Registration Rights Agreement, in the event that the Shelf
Registration Statement ceases to be effective during the Effectiveness
Period for more than 90 days or the Company suspends the use of the
prospectus which is a part thereof for more than 90 days, whether or
not consecutive, during any 12-month period, then the interest rate
borne by the Restricted Securities shall increase by an additional one-
half of one percent (0.50%) per annum from the 91st day of the
applicable 12-month period such Shelf Registration Statement ceases
to be effective or such prospectus continues to be suspended to but
excluding the day on which (i) the Shelf Registration Statement again
becomes effective, (ii) the use of the related prospectus ceases to be
suspended or (iii) the Effectiveness Period expires.
Whenever in this Security there is a reference, in any context,
to the payment of the principal of, premium, if any, or interest on, or
in respect of, any Security, such mention shall be deemed to include
mention of the payment of Liquidated Damages payable as described
in the preceding paragraph to the extent that, in such context,
Liquidated Damages are, were or would be payable in respect of such
Security and express mention of the payment of Liquidated Damages
(if applicable) in any provisions of this Security shall not be construed
as excluding Liquidated Damages in those provisions of this Security
where such express mention is not made.
[If this Security is a Registrable Security and the Holder of
this Security [if this Security is a Global Security, then insert--
(including any Person that has a beneficial interest in this Security)]
elects to sell this Security pursuant to the Shelf Registration
Statement then, by its acceptance hereof, such Holder of this Security
agrees to be bound by the terms of the Registration Rights Agreement
relating to the Registrable Securities which are the subject of such
election.]
If a Change in Control occurs, the Holder of this Security, at
the Holder's option, shall have the right, in accordance with the
provisions of the Indenture, to require the Company to repurchase this
Security (or any portion of the principal amount hereof that is an
integral multiple of $1,000, provided that the portion of the principal
amount of this Security to be Outstanding after such repurchase is at
least equal to U.S.$1,000) for cash at a Repurchase Price equal to
100% of the principal amount thereof plus interest accrued to the
Repurchase Date. At the option of the Company, the Repurchase
Price may be paid in cash or, subject to the conditions provided in the
Indenture, by delivery of shares of Common Stock having a fair
market value equal to the Repurchase Price. For purposes of this
paragraph, the fair market value of shares of Common Stock shall be
determined by the Company and shall be equal to 95% of the average
of the Closing Prices Per Share for the five consecutive Trading Days
immediately preceding the second Trading Day prior to the
Repurchase Date. Whenever in this Security there is a reference, in
any context, to the principal of any Security as of any time, such
reference shall be deemed to include reference to the Repurchase
Price payable in respect of such Security to the extent that such
Repurchase Price is, was or would be so payable at such time, and
express mention of the Repurchase Price in any provision of this
Security shall not be construed as excluding the Repurchase Price so
payable in those provisions of this Security when such express
mention is not made; provided, however, that, for the purposes of the
second succeeding paragraph, such reference shall be deemed to
include reference to the Repurchase Price only to the extent the
Repurchase Price is payable in cash.
[The following paragraph shall appear in each Registered
Security that is not a Global Security:
In the event of redemption, repurchase or conversion of this
Security in part only, a new Registered Security or Registered
Securities for the unredeemed, unrepurchased or unconverted portion
hereof will be issued in the name of the Holder hereof.]
[The following paragraph shall appear in each Global
Security:
In the event of a deposit or withdrawal of an interest in this
Security, including an exchange, transfer, redemption, repurchase or
conversion of this Security in part only, the Trustee, as custodian of
the Depositary, shall make an adjustment on its records to reflect such
deposit or withdrawal in accordance with the Applicable Procedures.]
The indebtedness evidenced by this Security is, to the extent
and in the manner provided in the Indenture, subordinate and subject
in right of payment to the prior payment in full of all Senior
Indebtedness of the Company, and this Security is issued subject to
such provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee
his attorney-in-fact for any and all such purposes.
If an Event of Default shall occur and be continuing, the
principal of all the Securities, together with accrued interest to the
date of declaration, may be declared due and payable in the manner
and with the effect provided in the Indenture. Upon payment (i) of
the amount of principal so declared due and payable, together with
accrued interest to the date of declaration, and (ii) of interest on any
overdue principal and, to the extent permitted by applicable law,
overdue interest, all of the Company's obligations in respect of the
payment of the principal of and interest on the Securities shall
terminate.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the
Trustee with either (a) the written consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding,
or (b) by the adoption of a resolution, at a meeting of Holders of the
Outstanding Securities at which a quorum is present, by the lesser of
(i) the Holders of not less than a majority in principal amount of
Outstanding Securities and (ii) the Holders of 66-2/3% in principal
amount of the Outstanding Securities represented and entitled to vote
at such meeting. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any
Security issued in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security or such
other Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such
Holder shall have previously given the Trustee written notice of a
continuing Event of Default, the Holders of not less than 25% in
principal amount of the Outstanding Securities shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable
indemnity and the Trustee shall not have received from the Holders of
a majority in principal amount of the Securities Outstanding a
direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of
any payment of principal hereof, premium, if any, or interest
(including Liquidated Damages) or additional interest hereon on or
after the respective due dates expressed herein or for the enforcement
of the right to convert this Security as provided in the Indenture.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal
of, premium, if any, and interest (including Liquidated Damages) and
additional interest on this Security at the times, places and rate, and in
the coin or currency, herein prescribed or to convert this Security as
provided in the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of Registered Securities is
registrable on the Security Register upon surrender of a Registered
Security for registration of transfer at the Corporate Trust Office of
the Trustee or at such other office or agency of the Company as may
be designated by it for such purpose in the Borough of Manhattan,
The City of New York (which shall initially be an office or agency of
the Trustee), or at such other offices or agencies as the Company may
designate, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing, and thereupon one or more new Registered
Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees by the Registrar. No service charge shall be made for any
such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to recover any tax or other
governmental charge payable in connection therewith.
Prior to due presentation of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such
Registered Security is registered, as the owner thereof for all
purposes, whether or not such Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
No recourse for the payment of the principal (and premium, if
any) or interest on this Security 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 Security, or because of
the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, employee, agent, officer or
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 consideration for the issue hereof,
expressly waived and released.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New York,
United States of America.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription of
the face of this Security, 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 the entireties
(Cust)
JT TEN - as joint tenants with right of Custodian
under Uniform
survivorship and not as tenants
(Minor)
in common Gifts to
Minors Act
(
State)
Additional abbreviations may also be used though not in the above
list.
ELECTION OF HOLDER TO REQUIRE REPURCHASE
(1) Pursuant to Section 14.1 of the Indenture, the
undersigned hereby elects to have this Security repurchased by the
Company.
(2) The undersigned hereby directs the Trustee or the
Company to pay it or __________________ an amount in cash or, at
the Company's election, Common Stock valued as set forth in the
Indenture, equal to 100% of the principal amount to be repurchased
(as set forth below), plus interest accrued to the Repurchase Date, as
provided in the Indenture.
Dated:
Signature(s)
Signature(s) must
be guaranteed by an
Eligible Guarantor
Institution with
membership in an
approved signature
guarantee program
pursuant to Rule
17Ad-15 under the
Securities Exchange
Act of 1943.
Signature
Guaranteed
Principal amount to be repurchased
(an integral multiple of U.S. $1,000):
Remaining principal amount following such repurchase
(not less than U.S. $1,000):
NOTICE: The signature to the foregoing Election must correspond to
the Name as written upon the face of this Security in every particular,
without alteration or any change whatsoever.
SECTION II.3 Form of Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities referred to in the within-
mentioned Indenture.
STATE STREET
BANK AND TRUST COMPANY
as Trustee
By:
Authorized
Signatory
SECTION II.4 Form of Conversion Notice.
CONVERSION NOTICE
The undersigned Holder of this Security hereby irrevocably
exercises the option to convert this Security, or any portion of the
principal amount hereof (which is an integral multiple of U.S. $1,000,
provided that the unconverted portion of such principal amount is
U.S. $1,000 or any integral multiple of U.S. $1,000 in excess thereof)
below designated, into shares of Common Stock in accordance with
the terms of the Indenture referred to in this Security, and directs that
such shares, together with a check in payment for any fractional share
and any Securities representing any unconverted principal amount
hereof, be delivered to and be registered in the name of the
undersigned unless a different name has been indicated below. If
shares of Common Stock or Securities are to be registered in the
name of a Person other than the undersigned, (a) the undersigned will
pay all transfer taxes payable with respect thereto and (b) signature(s)
must be guaranteed by an Eligible Guarantor Institution with
membership in an approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934. Any
amount required to be paid by the undersigned on account of interest
accompanies this Security.
Dated:
Signature(s)
If shares or
Registered
Securities
are to be
registered
in the
name of a
Person
other than
the Holder,
please print
such
Person's
name and
address:
Name
Address
Social
Security or
other
Taxpayer
Identificati
on
Number, if
any
If only a
portion of
the
Securities
is to be
converted,
please
indicate:
1.
Principal amount to be converted:
U.S. $___________
2.
Principal amount and denomination of Registered Securities
representing unconverted principal amount to be issued:
Amount: U.S. $
Denominat
ions:
U.S. $
(any
integral
multiple of
U.S.
$1,000,
provided
that the
unconverte
d portion
of such
principal
amount is
U.S.
$1,000 or
any
integral
multiple of
U.S.
$1,000 in
excess
thereof)
[Signature Guaranteed]
SECTION 2.5 Form of 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 Security, and hereby
irrevocably constitutes and appoints
as attorney to transfer the said Security on the books of the
Company, with full power of substitution in the premises.
Dated:
Signature(s)
Signature(s)
must be
guaranteed
by an
Eligible
Guarantor
Institution
with
membership
in an
approved
signature
guarantee
program
pursuant to
Rule 17Ad-
15 under
the
Securities
Exchange
Act of
1934.
ARTICLE III
THE SECURITIES
SECTION III.1 Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to U.S.
$300,000,000, except for Securities authenticated and delivered in
exchange for, or in lieu of, other Securities pursuant to Section 3.4,
3.5, 3.6, 8.5, 11.8, 12.2 or 14.3(6).
The Securities shall be known and designated as the "6%
Convertible Subordinated Notes due December 15, 2003" of the
Company. Their Stated Maturity shall be December 15, 2003 and
they shall bear interest on their principal amount from December 18,
1996, payable semi-annually in arrears on June 15 and December 15
in each year, commencing June 15, 1997, at the rate of 6% per annum
until the principal thereof is due and at the rate of 6% per annum on
any overdue principal and, to the extent permitted by law, on any
overdue interest; provided, however, that payments shall only be
made on a Business Day as provided in Section 1.12.
The principal of, premium, if any, and interest on the
Securities shall be payable as provided in the form of Securities set
forth in Section 2.2, and the Repurchase Price, whether payable in
cash or in shares of Common Stock, shall be payable at such places as
are identified in the Company Notice given pursuant to Section 14.3
(any city in which any Paying Agent is located being herein called a
"Place of Payment").
The Registrable Securities are entitled to the benefits of a
Registration Rights Agreement as provided by Sections 2.2 and
10.12. The Securities are entitled to the payment of Liquidated
Damages and additional interest as provided by Section 10.12.
The Securities shall be redeemable at the option of the
Company at any time on or after December 16, 1999, in whole or in
part, as provided in Article XI and in the form of Securities set forth
in Section 2.2.
The Securities shall be convertible as provided in Article XII
(any city in which any Conversion Agent is located being herein
called a "Place of Conversion").
The Securities shall be subordinated in right of payment to
Senior Indebtedness of the Company as provided in Article XIII.
The Securities shall be subject to repurchase by the Company
at the option of the Holders as provided in Article XIV.
SECTION III.2 Denominations.
The Securities shall be issuable only in registered form,
without coupons, in denominations of U.S. $1,000 and integral
multiples of U.S. $1,000 in excess thereof.
SECTION III.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company
by its Chairman of the Board, its Vice Chairman of the Board, its
Chief Executive Officer, its President or one of its Vice Presidents,
under a facsimile of its corporate seal reproduced thereon attested by
its Chief Financial Officer, Secretary or one of its Assistant
Secretaries. Any such signature may be manual or facsimile.
Securities bearing the manual or facsimile signature of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the date
of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee or to its order for
authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with
such Company Order shall authenticate and make available for
delivery such Securities as in this Indenture provided and not
otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual
signature of an authorized signatory, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.
SECTION III.4 Global Securities; Non-Global Securities.
(1) Global Securities
(i) Each Global Security authenticated under this
Indenture shall be registered in the name of the Depositary designated
by the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(ii) Subject to the provisions of Sections 3.4 and
3.5, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or
in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless
(A) such Depositary (i) has notified the Company that it is unwilling
or unable to continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered as such under the
Exchange Act or announces an intention permanently to cease
business or does in fact do so or (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security.
(iii) If any Global Security is to be exchanged for
other Securities or canceled in whole, it shall be surrendered by or on
behalf of the Depositary or its nominee to the Trustee, as Security
Registrar, for exchange or cancellation, as provided in this Article III.
If any Global Security is to be exchanged for other Securities or
canceled in part, or if another Security is to be exchanged in whole or
in part for a beneficial interest in any Global Security, in each case, as
provided in Section 3.5, then either (A) such Global Security shall be
so surrendered for exchange or cancellation, as provided in this
Article III, or (B) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so
exchanged or canceled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the
records of the Trustee, as Security Registrar, whereupon the Trustee,
in accordance with the Applicable Procedures, shall instruct the
Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a
Global Security, the Trustee shall, subject to Section 3.5(3) and as
otherwise provided in this Article III, authenticate and deliver any
Securities issuable in exchange for such Global Security (or any
portion thereof) to or upon the order of, and registered in such names
as may be directed by, the Depositary or its authorized representative.
Upon the request of the Trustee in connection with the occurrence of
any of the events specified in the preceding paragraph, the Company
shall promptly make available to the Trustee a reasonable supply of
Securities that are not in the form of Global Securities. The Trustee
shall be entitled to rely upon any order, direction or request of the
Depositary or its authorized representative which is given or made
pursuant to this Article III if such order, direction or request is given
or made in accordance with the Applicable Procedures.
(iv) Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Article III or otherwise, shall be authenticated and delivered in the
form of, and shall be, a registered Global Security, unless such
Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof, in which
case such Registered Security shall be authenticated and delivered in
definitive, fully registered form, without interest coupons.
(v) The Depositary or its nominee, as registered
owner of a Global Security, shall be the Holder of such Global
Security for all purposes under the Indenture and the Registered
Securities, and owners of beneficial interests in a Global Security
shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security
will be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its
nominee or its Agent Members and such owners of beneficial
interests in a Global Security will not be considered the owners or
holders thereof.
(2) Non-Global Securities
Regulation D Securities shall be initially issued as Registered
Securities in definitive, fully registered form, without interest
coupons, shall initially be registered in such names and be in such
authorized denominations as the Initial Purchasers shall designate and
shall bear the legends required hereunder. The Company will make
available to the Trustee a reasonable supply of Registered Securities
in definitive form.
Pending the preparation of definitive Securities, the Company
may execute, and upon Company Order the Trustee shall authenticate
and make available for delivery, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor
of the definitive Registered Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Registered Securities
may determine, as evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After
the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the
temporary Securities at any office or agency of the Company
designated pursuant to Section 10.2, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a
like principal amount of definitive Securities of authorized
denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION III.5 Registration, Registration of Transfer and Exchange;
Restrictions on Transfer.
(1) The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained in such
office referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers of
Registered Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Registered Securities and
transfers and exchanges of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Security at
an office or agency of the Company designated pursuant to Section
10.2 for such purpose, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount
and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, and subject to the other
provisions of this Section 3.5, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so
surrendered for exchange, and subject to the other provisions of this
Section 3.5, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive. Every Security presented or
surrendered for registration of transfer or for exchange shall (if so
required by the Company or the Security Registrar) be duly endorsed,
or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed,
by the Holder thereof or his attorney duly authorized in writing.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and subject to the other provisions of this
Section 3.5, entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Securities except as provided in
Section 3.6, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section 3.4, 8.5, 11.8,
12.2 or 14.3 (other than where the shares of Common Stock are to be
issued or delivered in a name other than that of the Holder of the
Security) not involving any transfer and other than any stamp and
other duties, if any, which may be imposed in connection with any
such transfer or exchange by the United States or any political
subdivision thereof or therein, which shall be paid by the Company.
In the event of a redemption of the Securities, the Company
will not be required (a) to register the transfer of or exchange
Securities for a period of 15 days immediately preceding the date
notice is given identifying the serial numbers of the Securities called
for such redemption or (b) to register the transfer of or exchange any
Security, or portion thereof, called for redemption.
(2) Certain Transfers and Exchanges. Notwithstanding
any other provision of this Indenture or the Securities, transfers and
exchanges of Securities and beneficial interests in a Global Security
of the kinds specified in this Section 3.5(2) shall be made only in
accordance with this Section 3.5(2).
(i) Restricted Global Security to Regulation S
Global Security. If the owner of a beneficial interest in the Restricted
Global Security wishes at any time to transfer such interest to a
Person who wishes to acquire the same in the form of a beneficial
interest in the Regulation S Global Security, such transfer may be
effected only in accordance with the provisions of this Clause (2)(i)
and Clause (2)(v) below and subject to the Applicable Procedures.
Upon receipt by the Trustee, as Security Registrar, of (A) an order
given by the Depositary or its authorized representative directing that
a beneficial interest in the Regulation S Global Security in a specified
principal amount be credited to a specified Agent Member's account
and that a beneficial interest in the Restricted Global Security in an
equal principal amount be debited from another specified Agent
Member's account and (B) a Regulation S Certificate, satisfactory to
the Trustee and duly executed by the owner of such beneficial interest
in the Restricted Global Security or his attorney duly authorized in
writing, then the Trustee, as Security Registrar but subject to Clause
(2)(v) below, shall reduce the principal amount of the Restricted
Global Security and increase the principal amount of the Regulation S
Global Security by such specified principal amount as provided in
Section 3.4(1)(iii).
(ii) Regulation S Global Security to Restricted
Global Security. If the owner of a beneficial interest in the
Regulation S Global Security wishes at any time to transfer such
interest to a Person who wishes to acquire the same in the form of a
beneficial interest in the Restricted Global Security, such transfer may
be effected only in accordance with this Clause (2)(ii) and subject to
the Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Restricted
Global Security in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial interest in the
Regulation S Global Security in an equal principal amount be debited
from another specified Agent Member's account and (B) if such
transfer is to occur during the Restricted Period, a Restricted
Securities Certificate, satisfactory to the Trustee and duly executed by
the owner of such beneficial interest in the Regulation S Global
Security or his attorney duly authorized in writing, then the Trustee,
as Security Registrar, shall reduce the principal amount of the
Regulation S Global Security and increase the principal amount of the
Restricted Global Security by such specified principal amount as
provided in Section 3.4(1)(iii).
(iii) Restricted Non-Global Security to Restricted
Global Security or Regulation S Global Security. If the Holder of a
Restricted Security (other than a Global Security) wishes at any time
to transfer all or any portion of such Restricted Security to a Person
who wishes to take delivery thereof in the form of a beneficial interest
in the Restricted Global Security or the Regulation S Global Security,
such transfer may be effected only in accordance with the provisions
of this Clause (2)(iii) and Clause (2)(v) below and subject to the
Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) such Restricted Security as provided in
Section 3.5(1) and instructions satisfactory to the Trustee directing
that a beneficial interest in the Restricted Global Security or
Regulation S Global Security in a specified principal amount not
greater than the principal amount of such Security be credited to a
specified Agent Member's account and (B) a Restricted Securities
Certificate, if the specified account is to be credited with a beneficial
interest in the Restricted Global Security, or a Regulation S
Certificate, if the specified account is to be credited with a beneficial
interest in the Regulation S Global Security, in either case satisfactory
to the Trustee and duly executed by such Holder or his attorney duly
authorized in writing, then the Trustee, as Security Registrar but
subject to Clause (2)(v) below, shall cancel such Restricted Security
(and issue a new Restricted Security in respect of any untransferred
portion thereof) as provided in Section 3.5(1) and increase the
principal amount of the Restricted Global Security or the Regulation
S Global Security, as the case may be, by the specified principal
amount as provided in Section 3.4(1)(iii).
(iv) Exchanges between Global Security and Non-
Global Security. A beneficial interest in a Global Security may be
exchanged for a Security that is not a Global Security as provided in
Section 3.4, provided that, if such interest is a beneficial interest in
the Restricted Global Security, or if such interest is a beneficial
interest in the Regulation S Global Security and such exchange is to
occur during the Restricted Period, then such interest shall be
exchanged for a Restricted Security (subject in each case to Section
3.5(3)). A Security that is not a Global Security may be exchanged
for a beneficial interest in a Global Security only if such exchange
occurs in connection with a transfer effected in accordance with
Clause (2)(iii) above.
(v) Regulation S Global Security to be Held
Through Euroclear or CEDEL during Restricted Period. The
Company shall use its best efforts to cause the Depositary to ensure
that, until the expiration of the Restricted Period, beneficial interests
in the Regulation S Global Security may be held only in or through
accounts maintained at the Depositary by Euroclear or CEDEL (or by
Agent Members acting for the account thereof), and no person shall
be entitled to effect any transfer or exchange that would result in any
such interest being held otherwise than in or through such an account;
provided that this Clause (2)(v) shall not prohibit any transfer or
exchange of such an interest in accordance with Clause (2)(ii) or (iv)
above.
(3) Securities Act Legends. Rule 144A Securities,
Regulation D Securities and their respective Successor Securities
shall bear the applicable Restricted Securities Legend, and the
Regulation S Securities and their Successor Securities shall bear a
Regulation S Legend, subject to the following:
(i) subject to the following Clauses of this
Section 3.5(3), a Security or any portion thereof which is exchanged,
upon transfer or otherwise, for a Global Security or any portion
thereof shall bear the Securities Act Legend borne by such Global
Security while represented thereby;
(ii) subject to the following Clauses of this Section
3.5(3), a new Security which is not a Global Security and is issued in
exchange for another Security (including a Global Security) or any
portion thereof, upon transfer or otherwise, shall bear the Securities
Act Legend borne by such other Security, provided that, if such new
Security is required pursuant to Section 3.5(2)(iv) to be issued in the
form of a Restricted Security, it shall bear a Restricted Securities
Legend and, if such new Security is so required to be issued in the
form of a Regulation S Security, it shall bear a Regulation S Legend;
(iii) any Securities which are sold or otherwise
disposed of pursuant to an effective registration statement under the
Securities Act (including the Shelf Registration Statement), together
with their Successor Securities shall not bear a Securities Act Legend;
the Company shall inform the Trustee in writing of the effective date
of any such registration statement registering the Securities under the
Securities Act and shall notify the Trustee at any time when
prospectuses need not be delivered with respect to Securities to be
sold pursuant to such registration statement. The Trustee shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned registration statement;
(iv) at any time after the Securities may be freely
transferred without registration under the Securities Act or without
being subject to transfer restrictions pursuant to the Securities Act, a
new Security which does not bear a Securities Act Legend may be
issued in exchange for or in lieu of a Security (other than a Global
Security) or any portion thereof which bears such a legend if the
Trustee has received an Unrestricted Securities Certificate,
satisfactory to the Trustee and duly executed by the Holder of such
Security bearing a Securities Act Legend or his attorney duly
authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and deliver such new
Security in exchange for or in lieu of such other Security as provided
in this Article III;
(v) a new Security which does not bear a Securities
Act Legend may be issued in exchange for or in lieu of a Security
(other than a Global Security) or any portion thereof which bears such
a legend if, in the Company's judgment, placing such a legend upon
such new Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at the
direction of the Company, shall authenticate and deliver such a new
Security as provided in this Article III; and
(vi) notwithstanding the foregoing provisions of this
Section 3.5(3), a Successor Security of a Security that does not bear a
particular form of Securities Act Legend shall not bear such form of
legend unless the Company has reasonable cause to believe that such
Successor Security is a "restricted security" within the meaning of
Rule 144, in which case the Trustee, at the direction of the Company,
shall authenticate and deliver a new Security bearing a Restricted
Securities Legend in exchange for such Successor Security as
provided in this Article III.
(4) Neither the Trustee, the Paying Agent nor any of
their agents shall (i) have any duty to monitor compliance with or
with respect to any federal or state or other securities or tax laws or
(ii) have any duty to obtain documentation on any transfers or
exchanges other than as specifically required hereunder.
SECTION III.6 Mutilated, Destroyed, Lost or Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a new Security of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there be delivered to the Company and to the Trustee:
(1) evidence to their satisfaction of the destruction, loss
or theft of any Security, and
(2) such security or indemnity as may be satisfactory to
the Company and the Trustee to save each of them and any agent of
either of them harmless, then, in the absence of actual notice to the
Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in
its discretion, but subject to any conversion rights, may, instead of
issuing a new Security, pay such Security, upon satisfaction of the
conditions set forth in the preceding paragraph.
Upon the issuance of any new Security under this Section
3.6, 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 (other than any stamp and other duties, if any, which
may be imposed in connection therewith by the United States or any
political subdivision thereof or therein, which shall be paid by the
Company) and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.6 in lieu
of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and such new Security shall be entitled
to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section 3.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies of any
Holder with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION III.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue
of having been such Holder, and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in Clause (1)
or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security, the date of the proposed
payment and the Special Record Date, and at the same time the
Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed 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.
The Special Record Date for the payment of such Defaulted Interest
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at such Holder's address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may
be listed, and upon such notice as may be required by such exchange,
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.
Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Interest on any Security which is converted in accordance
with Section 12.2 during a Record Date Period shall be payable in
accordance with the provisions of Section 12.2.
SECTION III.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving
payment of principal of, premium, if any, and (subject to Section 3.7)
interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION III.9 Cancellation.
All Securities surrendered for payment, redemption,
repurchase, registration of transfer or exchange or conversion shall, if
surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Securities so delivered to the Trustee shall be canceled
promptly by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this
Section 3.9. The Trustee shall dispose of all canceled Securities in
accordance with applicable law and its customary practices in effect
from time to time.
SECTION III.10 Computation of Interest.
Interest on the Securities (including any Liquidated Damages
and additional interest) shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION III.11 [Reserved].
SECTION III.12 CUSIP Numbers.
The Company in issuing Securities may use "CUSIP"
numbers (if then generally in use) in addition to serial numbers, if so,
the Trustee shall use such CUSIP numbers in addition to serial
numbers in notices of redemption and repurchase as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness of such CUSIP numbers
either as printed on the Securities or as contained in any notice of a
redemption or repurchase and that reliance may be placed only on the
serial or other identification numbers printed on the Securities, and
any such redemption or repurchase shall not be affected by any defect
in or omission of such CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION IV.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of conversion, or
registration of transfer or exchange, or replacement of Securities
herein expressly provided for and any right to receive Liquidated
Damages as provided in the form of Securities set forth in Section 2.2
and the Company's obligations to the Trustee pursuant to Section
6.7), and the Trustee, at the expense of the Company, shall execute
proper instruments in form and substance satisfactory to the Trustee
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(i) all Securities theretofore authenticated and
delivered (other than (A) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
3.6 and (B) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore delivered to
the Trustee or its agent for cancellation (other than Securities referred
to in clauses (A) and (B) of clause (1)(i) above)
(a) have become due and payable, or
(b) will have become due and payable at their
Stated Maturity within one year, or
(c) are to be called for redemption within one
year under arrangements satisfactory
to the Trustee for the giving of
notice of redemption by the Trustee
in the name, and at the expense, of
the Company,
and the Company, in the case of clause (a), (b) or (c) above, has
deposited or caused to be deposited with the Trustee as trust funds
(immediately available to the Holders in the case of clause (a)) in trust
for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal, premium, if any, and interest
(including any Liquidated Damages) to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(iii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(iv) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 6.7, the obligations of the Company to any Authenticating
Agent under Section 6.12, the obligation of the Company to pay
Liquidated Damages, if money shall have been deposited with the
Trustee pursuant to clause (1)(ii) of this Section 4.1, the obligations
of the Trustee under Section 4.2 and the last paragraph of Section
10.3 and the obligations of the Company and the Trustee under
Section 3.5 and Article XII shall survive. Funds held in trust
pursuant to this Section are not subject to the provisions of Article
XIII.
SECTION IV.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1
and in accordance with the provisions of Article XIII shall be held in
trust for the sole benefit of the Holders and not be subject to the
subordination provisions of Article XIII, and such monies shall be
applied by the Trustee, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or
through any Paying Agent, to the Persons entitled thereto, of the
principal, premium, if any, and interest for whose payment such
money has been deposited with the Trustee.
All moneys deposited with the Trustee pursuant to Section
4.1 (and held by it or any Paying Agent) for the payment of Securities
subsequently converted shall be returned to the Company upon
Company Request.
ARTICLE V
REMEDIES
SECTION V.1 Events of Default.
"Event of Default", wherever used herein, means any one of
the following events (whatever the reason for such Event of Default
and whether it shall be occasioned by the provisions of Article XIII or
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):
(1) default in the payment of the principal of or
premium, if any, on any Security at its Maturity; or
(2) default in the payment of any interest (including any
Liquidated Damages) upon any Security when it becomes due and
payable, and continuance of such default for a period of 30 days; or
(3) failure by the Company to give the Company notice
in accordance with Section 14.3; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance or breach of which
is specifically dealt with elsewhere in this Section), and continuance
of such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; provided,
however, that if such default or breach is capable of being cured and
the Company commences efforts to cure such default or breach within
such 60 day period, such default or breach shall not be considered an
"Event of Default" hereunder for an additional 60 days so long as the
Company is diligently pursuing the cure; or
(5) any indebtedness under any bond, debenture, note or
other evidence of indebtedness for money borrowed by the Company
or under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (an "Instrument")
with a principal amount then outstanding in excess of U.S.
$20,000,000, whether such indebtedness now exists or shall hereafter
be created, is not paid at final maturity of any Instrument (either at its
stated maturity or upon acceleration thereof), and such indebtedness
is not discharged, or such acceleration is not rescinded or annulled,
within a period of 30 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities a written notice specifying such
default and requiring the Company to cause such indebtedness to be
discharged or cause such default to be cured or waived or such
acceleration to be rescinded or annulled and stating that such notice is
a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or similar relief under any
applicable Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action
by the Company in furtherance of any such action.
SECTION V.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.1(6) or 5.1(7)) occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities may, subject to the
provisions of Article XIII, declare the principal of all the Securities to
be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any
such declaration such principal and all accrued interest thereon shall
become immediately due and payable. If an Event of Default
specified in Section 5.1(6) or 5.1(7) occurs, the principal of, and
accrued interest on, all the Securities shall, subject to the provisions
of Article XIII, ipso facto become immediately due and payable
without any declaration or other Act of the Holder or any act on the
part of the Trustee.
At any time after such declaration of acceleration has been
made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article V
provided, the Holders of a majority in principal amount of the
Outstanding Securities, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences
if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(i) all overdue interest on all Securities,
(ii) the principal of and premium, if any, on any
Securities which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate borne by the
Securities,
(iii) to the extent permitted by applicable law,
interest upon overdue interest at a rate of 6% per annum, and
(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the nonpayment of
the principal of, and any premium and interest on, Securities which
have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.13.
No rescission or annulment referred to above shall affect any
subsequent default or impair any right consequent thereon.
SECTION V.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest
(including any Liquidated Damages) on any Security when it
becomes due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of or
premium, if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee but subject to the
provisions of Article XIII pay to it, for the benefit of the Holders of
such Securities the whole amount then due and payable on such
Securities for principal and interest (including any Liquidated
Damages) and interest on any overdue principal and premium, if any,
and, to the extent permitted by applicable law, on any overdue
interest (including any Liquidated Damages), at a rate of 6% per
annum, and in addition thereto, such further amount as shall be
sufficient to cover the reasonable costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the
Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy.
SECTION V.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company
or of such other obligor or the creditors of either, the Trustee
(irrespective of whether the principal of, and any interest on, the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect
of the Securities and take such other actions, including participating
as a member, voting or otherwise, of any official committee of
creditors appointed in such matter, and to file such other papers or
documents, in each of the foregoing cases, as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders of
Securities allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder of Securities to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders of Securities to pay to the
Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel and any other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of the
claim of any Holder of a Security in any such proceeding; provided,
however, that the Trustee may, on behalf of such Holders, vote for the
election of a trustee in bankruptcy or similar official.
SECTION V.5 Trustee May Enforce Claims Without Possession of
Securities
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, 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 of the Securities in respect of which judgment
has been recovered.
SECTION V.6 Application of Money Collected.
Subject to Article XIII, any money collected by the Trustee
pursuant to this Article V shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal, premium, if any, or interest,
upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7;
SECOND: To the payment of the amounts then due and
unpaid for principal of, premium, if any, or interest on, the
Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and
payable on such Securities for principal, premium, if any, and
interest, respectively; and
THIRD: Any remaining amounts shall be repaid to the
Company.
SECTION V.7 Limitation on Suits.
No Holder of any Security shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities;
it being understood and intended that no one or more of such 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 of such Holders, or to obtain or seek
to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all such Holders.
SECTION V.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert.
Notwithstanding any other provision in this Indenture, but
subject to the provisions of Article XIII, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive
payment of the principal of, premium, if any, and (subject to Section
3.7) interest (including Liquidated Damages, if any) on such Security
on the respective Stated Maturities expressed in such Security (or, in
the case of redemption or repurchase, on the Redemption Date or
Repurchase Date, as the case may be), and to convert such Security in
accordance with Article XII, and to institute suit for the enforcement
of any such payment and right to convert, and such rights shall not be
impaired without the consent of such Holder.
SECTION V.9 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and
such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders of Securities
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and
such Holders shall continue as though no such proceeding had been
instituted.
SECTION V.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities is intended to
be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
SECTION V.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or any acquiescence therein. Every right
and remedy given by this Article V or by law to the Trustee or to the
Holders of Securities may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or (subject to the
limitations contained in this Indenture) by the Holders of Securities as
the case may be.
SECTION V.12 Control by Holders of Securities.
The Holders of a majority in principal amount of the
Outstanding Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee,
provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION V.13 Waiver of Past Defaults.
The Holders, either (i) through the written consent of not less
than a majority in principal amount of the Outstanding Securities or
(ii) by the adoption of a resolution at a meeting of Holders of the
Outstanding Securities at which a quorum is present, by the lesser of
(i) the Holders of not less than a majority in principal amount of
Outstanding Securities and (ii) the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities represented at such
meeting, may on behalf of the Holders of all the Securities waive any
past default hereunder and its consequences, except a default (A) in
the payment of the principal of, premium, if any, or interest on any
Security, or (B) in respect of a covenant or provision hereof which
under Article VIII cannot be modified or amended without the
consent of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right
consequent thereon.
SECTION V.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered 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; but the provisions of this Section 5.14 shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding
Securities, or to any suit instituted by any Holder of any Security for
the enforcement of the payment of the principal of, premium, if any,
or interest on any Security on or after the respective Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption
or repurchase, on or after the Redemption Date or Repurchase Date,
as the case may be) or for the enforcement of the right to convert any
Security in accordance with Article XII.
SECTION V.15 Waiver of Stay, Usury or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, usury
or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede by reason of such
law the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION VI.1 Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of
Default,
(i) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture, but not to verify the contents thereof.
(2) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(3) 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
(i) this paragraph (3) shall not be construed to limit
the effect of paragraph (1) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall not be liable 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 a majority in principal
amount of the Outstanding Securities 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
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(4) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION VI.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
as to which the Trustee has received written notice, the Trustee shall
give to all Holders of Securities, in the manner provided in
Section 1.6, notice of such default, unless such default shall have
been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of, premium, if any, or interest
on any Security the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of
the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders; and provided, further, that in
the case of any default of the character specified in Section 5.1(4), no
such notice to Holders of Securities shall be given until at least
60 days after the occurrence thereof or, if applicable, the cure period
specified therein. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both
would become, an Event of Default.
SECTION VI.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate,
other certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon,
other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel of its selection
and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other
evidence of indebtedness or other paper or document, but the Trustee
may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by
agent or attorney; and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION VI.4 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility
for their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture, of the Securities or of the
Common Stock issuable upon the conversion of the Securities. The
Trustee shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION VI.5 May Hold Securities, Act as Trustee Under Other
Indentures.
The Trustee, any Authenticating Agent, any Paying Agent,
any Conversion Agent or any other agent of the Company or the
Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Conversion Agent or such other
agent.
The Trustee may become and act as trustee under other
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding in
the same manner as if it were not Trustee hereunder.
SECTION VI.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with
the Company.
SECTION VI.7 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee (and its directors, officers,
employees and agents) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs, expenses
and reasonable attorneys' fees of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(6) or
Section 5.1(7), the expenses (including the reasonable charges of its
counsel) and the compensation for the services are intended to
constitute expenses of the administration under any applicable
Federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture or the earlier resignation or removal of the Trustee.
SECTION VI.8 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as
such, having a combined capital and surplus of at least U.S.
$50,000,000, subject to supervision or examination by federal or state
authority, and in good standing. The Trustee or an Affiliate of the
Trustee shall maintain an established place of business in the
Borough of Manhattan, The City of New York. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article and a
successor shall be appointed pursuant to Section 6.9.
SECTION VI.9 Resignation and Removal; Appointment of
Successor.
(1) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of
Section 6.10.
(2) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.10 shall not have been
delivered to the Trustee within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(3) The Trustee may be removed at any time by Act of
the Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and the Company. If the
instrument of acceptance by a successor Trustee required by Section
6.10 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the removed Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(4) If at any time:
(i) the Trustee shall cease to be eligible under
Section 6.8 and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case (i) the Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 5.14, any Holder of a
Security who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(5) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee and shall comply with the applicable
requirements of this Section and Section 6.10. If, within one year
after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of
Section 6.10, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee
shall have been so appointed by the Company or the Holders of
Securities and accepted appointment in the manner required by this
Section and Section 6.10, any Holder of a Security who has been a
bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(6) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a successor
Trustee to all Holders of Securities in the manner provided in Section
1.6. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.
SECTION VI.10 Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be eligible
under this Article.
SECTION VI.11 Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee
(including the trust created by this Indenture), shall be the successor
of the Trustee hereunder, provided such corporation shall be
otherwise eligible under this Article, without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated
such Securities.
SECTION VI.12 Authenticating Agents.
The Trustee may, with the consent of the Company, appoint
an Authenticating Agent or Agents acceptable to the Company with
respect to the Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities issued upon exchange or
substitution pursuant to this Indenture.
Securities authenticated by an Authenticating Agent shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee
hereunder, and every reference in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication shall be deemed to include authentication and delivery
on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be subject to
acceptance by the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent and subject to
supervision or examination by government or other fiscal authority.
If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.12, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section 6.12.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section 6.12, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent
and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of
this Section 6.12, the Trustee may appoint a successor Authenticating
Agent which shall be subject to acceptance by the Company. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section 6.12.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this
Section 6.12.
If an Authenticating Agent is appointed with respect to the
Securities pursuant to this Section 6.12, the Securities may have
endorsed thereon, in addition to or in lieu of the Trustee's
certification of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities referred to in the within-
mentioned Indenture.
STATE STREET
BANK AND TRUST COMPANY,
as Trustee
By:
As
Authenticating Agent
By:
Authorized
Signatory
SECTION VI.13 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
SECTION VI.14 Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE
SECTION VII.1 Company May Consolidate, Etc., Only on
Certain Terms.
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease all its properties and assets
substantially as an entirety to any Person unless:
(1) in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged,
or the Person which acquires by conveyance or transfer, or which
leases the properties and assets of the Company substantially as an
entirety, shall be a corporation, limited liability company, partnership
or trust, shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of,
premium, if any, and interest (including Liquidated Damages, if any)
on all of the Securities as applicable, and the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed and shall have provided for
conversion rights in accordance with Article XII;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event that after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with, together with any documents
required under Section 8.3.
SECTION VII.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of
the Company into any other Person or any conveyance, transfer or
lease of all or substantially all the properties and assets of the
Company in accordance with Section 7.1, the successor Person
formed by such consolidation or into or with which the Company is
merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall
be relieved of all obligations and covenants under this Indenture and
the Securities.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION VIII.1 Supplemental Indentures Without Consent of
Holders of Securities.
Without the consent of any Holders of Securities the
Company, when authorized by a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more
indentures supplemental hereto for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
and obligations of the Company herein and in the Securities as
permitted by this Indenture; or
(2) to add to the covenants of the Company for the
benefit of the Holders of Securities or to surrender any right or power
herein conferred upon the Company; or
(3) to secure the Securities; or
(4) to make provision with respect to the conversion
rights of Holders of Securities pursuant to Section 12.11 or to make
provision with respect to the repurchase rights of Holders of
Securities pursuant to Section 14.5; or
(5) to make any changes or modifications to this
Indenture necessary in connection with the registration of any
Registrable Securities under the Securities Act as contemplated by
Section 10.12, provided, such action pursuant to this clause (5) shall
not adversely affect the interests of the Holders of Securities; or
(6) to comply with the requirements of the Trust
Indenture Act or the rules and regulations of the Commission
thereunder in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act, as contemplated by this
Indenture or otherwise; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee; or
(8) subject to Section 13.12, to make any change in
Article XIII that would limit or terminate the benefits available to any
holder of Senior Indebtedness under such Article; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein or which is otherwise defective, or to make any other
provisions with respect to matters or questions arising under this
Indenture as the Company and the Trustee may deem necessary or
desirable, provided such action pursuant to this clause (9) shall not
adversely affect the interests of the Holders of Securities in any
material respect.
Upon Company Request, accompanied by a Board
Resolution authorizing the execution of any such supplemental
indenture, and subject to and upon receipt by the Trustee of the
documents described in Section 8.3 hereof, the Trustee shall join with
the Company in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and to make
any further appropriate agreements and stipulations which may be
therein contained.
SECTION VIII.2 Supplemental Indentures with Consent of
Holders of Securities.
With either (i) the written consent of the Holders of not less
than a majority in principal amount of the Outstanding Securities, by
the Act of said Holders delivered to the Company and the Trustee, or
(ii) by the adoption of a resolution, at a meeting of Holders of the
Outstanding Securities at which a quorum is present, by the lesser of
(i) the Holders of not less than a majority in principal amount of the
Outstanding Securities and (ii) the Holders of 66-2/3% in principal
amount of the Outstanding Securities represented at such meeting, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in
any manner the rights of the Holders of Securities under this
Indenture; provided, however, that no such supplemental indenture
shall, without the consent or affirmative vote of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount of, or the premium, if any, or the rate of interest payable
thereon (including Liquidated Damages), or reduce the amount
payable upon a redemption or mandatory repurchase, or change the
place or currency of payment of the principal of, premium, if any, or
interest on any Security (including any payment of Liquidated
Damages or Redemption Price or Repurchase Price in respect of such
Security) or impair the right to institute suit for the enforcement of
any payment in respect of any Security on or after the Stated Maturity
thereof (or, in the case of redemption or any repurchase, on or after
the Redemption Date or Repurchase Date, as the case may be) or,
except as permitted by Section 12.11, adversely affect the right to
convert any Security as provided in Article XII, or modify the
provisions of this Indenture with respect to the subordination of the
Securities in a manner adverse to the Holders; or
(2) reduce the requirements of Section 9.4 for quorum or
voting, or reduce the percentage in principal amount of the
Outstanding Securities the consent of whose Holders is required for
any such supplemental indenture or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(3) modify the obligation of the Company to maintain an
office or agency in the Borough of Manhattan, The City of New
York, pursuant to Section 10.2; or
(4) modify any of the provisions of this Section or
Section 5.13 or 10.13, except to increase any percentage contained
herein or therein or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; or
(5) modify the provisions of Article XIV in a manner
adverse to the Holders; or
(6) modify any of the provisions of Section 10.10 in a
manner adverse to the Holders or Section 10.11.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION VIII.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Sections 6.1 and 6.3) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted
by this Indenture, and that such supplemental indenture has been duly
authorized, executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION VIII.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder appertaining thereto shall be
bound thereby.
SECTION VIII.5 Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities so modified as to
conform, in the opinion of the Company and the Trustee, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange
for Outstanding Securities.
SECTION VIII.6 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of Section
8.2, the Company shall give notice to all Holders of Securities of such
fact, setting forth in general terms the substance of such supplemental
indenture, in the manner provided in Section 1.6. Any failure of the
Company to give such notice, or any defect therein, shall not in any
way impair or affect the validity of any such supplemental indenture.
ARTICLE IX
MEETINGS OF HOLDERS OF SECURITIES
SECTION IX.1 Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities may be called at any time
and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken
by Holders of Securities.
SECTION IX.2 Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of
Holders of Securities for any purpose specified in Section 9.1, to be
held at such time and at such place in the Borough of Manhattan, The
City of New York, as the Trustee shall determine. Notice of every
meeting of Holders of Securities, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner provided in Section 1.6,
not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(2) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities shall have requested the Trustee to call a
meeting of the Holders of Securities for any purpose specified in
Section 9.1, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not
have mailed the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of
Securities in the amount specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New
York, for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in paragraph (1) of this Section.
SECTION IX.3 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities,
a Person shall be (i) a Holder of one or more Outstanding Securities,
or (ii) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities by such
Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons
entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company
and its counsel.
SECTION IX.4 Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities shall constitute a quorum. In the absence
of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of
Securities, be dissolved. In any other case, the meeting may be
adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period not less than
10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting (subject to repeated
applications of this sentence). Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 9.2(1), except
that such notice need be given only once not less than five days prior
to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state
expressly the percentage of the principal amount of the Outstanding
Securities which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum, the Persons entitled to vote 25% in
principal amount of the Outstanding Securities at the time shall
constitute a quorum for the taking of any action set forth in the notice
of the original meeting.
At a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid, any resolution and all matters
(except as limited by the proviso to Section 8.2 and except to the
extent Section 10.13 requires a different vote) shall be effectively
passed and decided if passed or decided by the lesser of (i) the
Holders of not less than a majority in principal amount of Outstanding
Securities and (ii) the Persons entitled to vote not less than 66-2/3% in
principal amount of Outstanding Securities represented and entitled to
vote at such meeting.
Any resolution passed or decisions taken at any meeting of
Holders of Securities duly held in accordance with this Section shall be
binding on all the Holders of Securities whether or not present or
represented at the meeting. The Trustee shall, in the name and at the
expense of the Company, notify all the Holders of Securities of any
such resolutions or decisions pursuant to Section 1.6.
SECTION IX.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(1) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities in regard
to proof of the holding of Securities 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 shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 1.4 and
the appointment of any proxy shall be proved in the manner specified
in Section 1.4 or by having the signature of the Person executing the
proxy guaranteed by any bank, broker or other eligible institution
participating in a recognized medallion signature guarantee program.
(2) The Trustee shall, by an instrument in writing,
appoint a temporary chairman (which may be the Trustee) of the
meeting, unless the meeting shall have been called by the Company or
by Holders of Securities as provided in Section 9.2(1), in which case
the Company or the Holders of Securities 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 Persons entitled to vote a majority in
principal amount of the Outstanding Securities represented at the
meeting.
(3) At any meeting, each Holder of a Security or proxy
shall be entitled to one vote for each U.S. $1,000 principal amount of
Securities held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security
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, except as a Holder of a Security or proxy.
(4) Any meeting of Holders of Securities duly called
pursuant to Section 9.2 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities represented at the
meeting, and the meeting may be held as so adjourned without further
notice.
SECTION IX.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities or of their
representatives by proxy and the principal amounts at Stated Maturity
and serial numbers of the Outstanding Securities 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, at least in duplicate, of the proceedings of each
meeting of Holders of Securities 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 given as provided in Section 9.2 and, if applicable,
Section 9.4. Each copy shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another 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.
ARTICLE X
COVENANTS
SECTION X.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and
punctually pay the principal of and premium, if any, and interest
(including Liquidated Damages, if any) on the Securities in accordance
with the terms of the Securities and this Indenture. The Company will
deposit or cause to be deposited with the Trustee, no later than the
opening of business on the date of the Stated Maturity of any Security
or no later than the opening of business on the due date for any
installment of interest, all payments so due, which payments shall be in
immediately available funds on the date of such Stated Maturity or due
date, as the case may be.
SECTION X.2 Maintenance of Offices or Agencies.
The Company will maintain in the Borough of Manhattan,
The City of New York, an office or agency where the Securities may
be surrendered for registration of transfer or exchange or for
presentation for payment or for conversion, redemption or repurchase
and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company will
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 shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust
Office or the office or agency of the Trustee in the Borough of
Manhattan, The City of New York.
The Company may at any time and from time to time vary or
terminate the appointment of any such agent or appoint any additional
agents for any or all of such purposes; provided, however, that until
all of the Securities have been delivered to the Trustee for
cancellation, or moneys sufficient to pay the principal of, premium, if
any, and interest on the Securities have been made available for
payment and either paid or returned to the Company pursuant to the
provisions of Section 10.3, the Company will maintain in the
Borough of Manhattan, The City of New York, an office or agency
where Securities may be presented or surrendered for payment and
conversion, where Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be
served. The Company will give prompt written notice to the Trustee,
and notice to the Holders in accordance with Section 1.6, of the
appointment or termination of any such agents and of the location and
any change in the location of any such office or agency.
The Company hereby initially designates the Trustee as
Paying Agent, Security Registrar and Conversion Agent, and each of
the Corporate Trust Office of the Trustee and the office or agency of
the Trustee in the Borough of Manhattan, The City of New York
(which shall initially be State Street Bank and Trust Company, N.A.,
an Affiliate of the Trustee located at 61 Broadway, Concourse Level,
Corporate Trust Window, New York, New York 10006), one such
office or agency of the Company for each of the aforesaid purposes.
SECTION X.3 Money for Security Payments To Be Held in Trust.
If the Company shall act as its own Paying Agent, it will, on
or before each due date of the principal of, premium, if any, or
interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the
principal, premium, if any, or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided and the Company will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying
Agents, it will, no later than the opening of business on each due date
of the principal of, premium, if any, or interest on any Securities,
deposit with the Trustee a sum in funds immediately payable on the
payment date sufficient to pay the principal, premium, if any, or
interest so becoming due, such sum to be held for the benefit of the
Persons entitled to 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 so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on Securities for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the making of
any payment of principal, premium, if any, or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held by such Paying Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal
of, premium, if any, or interest on any Security and remaining
unclaimed for two years after such principal, premium, if any, or
interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that in the event that the Securities were not held in global
form at maturity, the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper in
each Place of Payment, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION X.4 [Reserved].
SECTION X.5 Existence.
Subject to Article VII, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect
its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION X.6 Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Significant Subsidiary
to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may
be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties
if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Significant
Subsidiary and not disadvantageous in any material respect to the
Holders.
SECTION X.7 Payment of Taxes and Other Claims.
The Company will pay or discharge, or cause to be paid or
discharged, before the same may become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the
Company or any Significant Subsidiary or upon the income, profits or
property of the Company or any Significant Subsidiary, (ii) all claims
for labor, materials and supplies which, if unpaid, might by law
become a lien or charge upon the property of the Company or any
Significant Subsidiary, and (iii) all stamps and other duties, if any,
which may be imposed by the United States or any political
subdivision thereof or therein in connection with the issuance,
transfer, exchange or conversion of any Securities or with respect to
this Indenture; provided, however, that, in the case of clauses (i) and
(ii), the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim (A) if
the failure to do so will not, in the aggregate, have a material adverse
impact on the Company, or (B) if the amount, applicability or validity
is being contested in good faith by appropriate proceedings.
SECTION X.8 Registration and Listing.
Prior to the Exchange Date, the Company (i) will effect all
registrations with, and obtain all approvals by, all governmental
authorities that may be necessary under any United States Federal or
state law (including the Securities Act, the Exchange Act and state
securities and Blue Sky laws) before the shares of Common Stock
issuable upon conversion of Securities may be lawfully issued and
delivered, and qualified or listed as contemplated by clause (ii) (it
being understood that the Company shall not be required to register
the Securities under the Securities Act, except pursuant to the
Registration Rights Agreement referred to in Section 10.12); and
(ii) will qualify the shares of Common Stock required to be issued
and delivered upon conversion of Securities, prior to such issuance or
delivery, for quotation on the Nasdaq National Market or, if the
Common Stock is not then quoted on the Nasdaq National Market,
list the Common Stock on each national securities exchange on which
outstanding Common Stock is listed or quoted at the time of such
delivery.
Nothing in this Section will limit the application of
Section 10.12.
SECTION X.9 Statement by Officers as to Default.
The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall
be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
The Company will deliver to the Trustee, forthwith upon
becoming aware of any default in the performance or observance of
any covenant, agreement or condition contained in this Indenture, or
any Event of Default, an Officers' Certificate specifying with
particularity such default or Event of Default and further stating what
action the Company has taken, is taking or proposes to take with
respect thereto.
Any notice required to be given under this Section 10.9 shall
be delivered to the Trustee at its Corporate Trust Office.
SECTION X.10 Delivery of Certain Information.
At any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, upon the request of a Holder of a
Restricted Security or the holder of shares of Common Stock issued
upon conversion thereof, the Company will promptly furnish or cause
to be furnished Rule 144A Information (as defined below) to such
Holder of Restricted Securities or such holder of shares of Common
Stock issued upon conversion of Restricted Securities, or to a
prospective purchaser of any such security designated by any such
Holder or holder, as the case may be, to the extent required to permit
compliance by such Holder or holder with Rule 144A under the
Securities Act (or any successor provision thereto) in connection with
the resale of any such security; provided, however, that the Company
shall not be required to furnish such information in connection with
any request made on or after the date which is three years from the
later of (i) the date such a security (or any such predecessor security)
was last acquired from the Company or (ii) the date such a security
(or any such predecessor security) was last acquired from an
"affiliate" of the Company within the meaning of Rule 144 under the
Securities Act (or any successor provision thereto). "Rule 144A
Information" shall be such information as is specified pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto).
SECTION X.11 Resale of Certain Securities.
During the period beginning on the last date of original
issuance of the Securities and ending on the date that is three years
from such date (or such shortened period under Rule 144(K) under
the Securities Act or any successor rule), the Company will not, and
will use reasonable efforts not to permit any of its subsidiaries or
other "affiliates" (as defined under Rule 144 under the Securities Act
or any successor provision thereto) controlled by the Company to,
resell (i) any Securities which constitute "restricted securities" under
Rule 144 or (ii) any securities into which the Securities have been
converted under this Indenture which constitute "restricted securities"
under Rule 144, that in either case have been reacquired by any of
them. The Trustee shall have no responsibility in respect of the
Company's performance of its agreement in the preceding sentence.
SECTION X.12 Registration Rights.
The Company agrees that the Holders from time to time of
Registrable Securities (as defined below) are entitled to the benefits
of a Registration Rights Agreement, dated as of December 18, 1996
(the "Registration Rights Agreement"), executed by the Company.
Pursuant to the Registration Rights Agreement, the Company has
agreed for the benefit of the holders from time to time of the
Registrable Securities that it will, at its expense, (i) within 90 days
after the Issue Date (as defined below) of the Securities, file a shelf
registration statement (the "Shelf Registration Statement") with the
Commission with respect to resales of the Registrable Securities,
(ii) use its reasonable efforts to cause such Shelf Registration
Statement to be declared effective by the Commission within 180
days after Issue Date of the Securities and (iii) use its reasonable
efforts to maintain such Shelf Registration Statement effective under
the Securities Act until the third annual anniversary of the Issue Date
or such earlier date as is provided in the Registration Rights
Agreement (the "Effectiveness Period"). The Company will be
permitted to suspend the use of the prospectus which is a part of the
Shelf Registration Statement during certain periods of time as
provided in the Registration Rights Agreement.
If (i) on or prior to 90 days following the Issue Date of the
Securities, a Shelf Registration Statement has not been filed with the
Commission, or (ii) on or prior to the 180th day following the Issue
Date of the Securities, such Shelf Registration Statement is not
declared effective (each, a "Registration Default"), additional interest
("Liquidated Damages") will accrue on the Restricted Securities from
and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured.
Liquidated Damages will be paid semi-annually in arrears, with the
first semi-annual payment due on the first Interest Payment Date in
request of the Restricted Securities following the date on which such
Liquidated Damages begin to accrue, and will accrue at a rate per
annum equal to an additional one-quarter of one percent (0.25%) of
the principal amount of the Restricted Securities to and including the
90th day following such Registration Default and at a rate per annum
equal to one-half of one percent (0.50%) thereof from and after the
91st day following such Registration Default. Pursuant to the
Registration Rights Agreement, in the event that the Shelf
Registration Statement ceases to be effective during the Effectiveness
Period for more than 90 days or the Company suspends the use of the
prospectus which is a part thereof for more than 90 days, whether or
not consecutive, during any 12-month period, then the interest rate
borne by the Restricted Securities shall increase by an additional one-
half of one percent (0.50%) per annum on the 91st day of the
applicable 12-month period such Shelf Registration Statement ceases
to be effective or such prospectus continues to be suspended to but
excluding the day on which (i) the Shelf Registration Statement
becomes effective, (ii) the use of the related prospectus ceases to be
suspended or (iii) the Effectiveness Period expires.
Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of, premium, if any, or interest
on, or in respect of, any Security, such mention shall be deemed to
include mention of the payment of Liquidated Damages provided for
in this Section to the extent that, in such context, Liquidated Damages
are, were or would be payable in respect thereof pursuant to the
provisions of this Section and express mention of the payment of
Liquidated Damages (if applicable) in any provisions hereof shall not
be construed as excluding Liquidated Damages in those provisions
hereof where such express mention is not made.
For the purposes of the Registration Rights Agreement:
"Registrable Securities" means all or any portion of the Restricted
Securities issued from time to time under this Indenture and the
shares of Common Stock issuable upon conversion of such Restricted
Securities except any such Restricted Security or share of Common
Stock issuable upon conversion thereof which (i) has been effectively
registered under the Securities Act and sold in a manner contemplated
by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor
provision thereto) or is transferable pursuant to paragraph (k) of such
Rule 144 (or any successor provision thereto) or (iii) has been resold
in compliance with Regulation S under the Securities Act (or any
successor thereto) and does not constitute the unsold allotment of a
distributor within the meaning of Regulation S under the Securities
Act, or (iv) otherwise has been transferred and a new Security or
share of Common Stock not subject to transfer restrictions under the
Securities Act has been delivered by or on behalf of the Company in
accordance with Section 3.5(2); and "Issue Date" means
December 18, 1996.
If a Security, or the shares of Common Stock issuable upon
conversion of a Security, is a Registrable Security, and the Holder
thereof elects to sell such Registrable Security pursuant to the Shelf
Registration Statement then, by its acceptance thereof, the Holder of
such Registrable Security will have agreed to be bound by the terms
of the Registration Rights Agreement relating to the Registrable
Securities which are the subject of such election.
For the purposes of the Registration Rights Agreement, the
term "Holder" includes any Person that has a beneficial interest in any
Restricted Global Security or any beneficial interest in a global
security representing shares of Common Stock issuable upon
conversion of a Security.
SECTION X.13 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any covenant or conditions set forth in Sections 10.5 to 10.7,
inclusive (other than a covenant or condition which under Article VIII
cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected), if before the time for such
compliance the Holders shall, through the written consent of, or the
adoption of a resolution at a meeting of Holders of the Outstanding
Securities at which a quorum is present by, not less than a majority in
principal amount of the Outstanding Securities, either waive such
compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee or any Paying or Conversion
Agent in respect of any such covenant or condition shall remain in
full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION XI.1 Right of Redemption.
The Securities may be redeemed in accordance with the
provisions of the form of Securities set forth in Section 2.2.
SECTION XI.2 Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of the Securities
or this Indenture, shall be made in accordance with such provision
and this Article XI.
SECTION XI.3 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of any of the Securities, the Company shall,
at least 30 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date.
SECTION XI.4 Selection by Trustee of Securities To Be Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected by the Trustee
within five Business Days after it receives the notice described in
11.3, from the Outstanding Securities not previously called for
redemption, by such method as the Trustee may deem fair and
appropriate.
If any Registered Security selected for partial redemption is
converted in part before termination of the conversion right with
respect to the portion of the Security so selected, the converted
portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed may be
treated by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Company and each
Security Registrar in writing of the securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION XI.5 Notice of Redemption.
Notice of redemption shall be given in the manner provided
in Section 1.6 to the Holders of Securities to be redeemed not less
than 20 nor more than 60 days prior to the Redemption Date, and
such notice shall be irrevocable.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, and accrued interest,
if any,
(3) if less than all Outstanding Securities are to
be redeemed, the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities which will
be outstanding after such partial redemption,
(4) that on the Redemption Date the Redemption
Price, and accrued interest, if any, will become due and payable upon
each such Security to be redeemed, and that interest thereon shall
cease to accrue on and after said date,
(5) the Conversion Rate, the date on which the
right to convert the Securities to be redeemed will terminate and the
places where such Securities, may be surrendered for conversion, and
(6) the place or places where such Securities, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any.
In case of a partial redemption, the notice shall specify the
serial and CUSIP numbers (if any) and the portions thereof called for
redemption and that transfers and exchanges may occur on or prior to
the Redemption Date.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's written request, by the Trustee in the name of and at the
expense of the Company. Notice of redemption of Securities to be
redeemed at the election of the Company received by the Trustee
shall be given by the Trustee to each Paying Agent in the name of and
at the expense of the Company.
SECTION XI.6 Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall
deposit with the Trustee (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.3)
an amount of money (which shall be in immediately available funds
on such Redemption Date) sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment
Date) accrued interest on, all the Securities which are to be redeemed
on that date other than any Securities called for redemption on that
date which have been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money
deposited with the Trustee or so segregated and held in trust for the
redemption of such Security shall (subject to any right of the Holder
of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 3.7) be paid to the Company
on Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION XI.7 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified and from
and after such date (unless the Company shall default in the payment
of the Redemption Price, including accrued interest) such Securities
shall cease to bear interest. Upon surrender of any Security for
redemption in accordance with said notice such Security shall be paid
by the Company at the Redemption Price together with accrued and
unpaid interest to the Redemption Date; provided, however, that
installments of interest on Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such
on the relevant Record Date according to their terms and the
provisions of Section 3.7.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal amount of,
premium, if any, and, to the extent permitted by applicable law,
accrued interest on such Security shall, until paid, bear interest from
the Redemption Date at a rate of 6 % per annum and such Security
shall remain convertible until the Redemption Price of such Security
(or portion thereof, as the case may be) shall have been paid or duly
provided for.
SECTION XI.8 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or an office or agency of
the Company designated for that purpose pursuant to Section 10.2
(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 make available for delivery to
the Holder of such Security without service charge, a new Registered
Security or Securities, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security
so surrendered.
SECTION 11.9 Conversion Arrangement on Call for Redemption.
In connection with any redemption of Securities, the
Company may arrange for the purchase and conversion of any
Securities by an agreement with one or more investment bankers or
other purchasers (the "Purchasers") to purchase such securities by
paying to the Trustee in trust for the Holders, on or before the
Redemption Date, an amount not less than the applicable Redemption
Price, together with interest accrued to the Redemption Date, of such
Securities. Notwithstanding anything to the contrary contained in this
Article XI, the obligation of the Company to pay the Redemption
Price, together with interest accrued to the Redemption Date, shall be
deemed to be satisfied and discharged to the extent such amount is so
paid by such Purchasers. If such an agreement is entered into (a copy
of which shall be filed with the Trustee prior to the close of business
on the Business Day immediately prior to the Redemption Date), any
Securities called for redemption that are not duly surrendered for
conversion by the Holders thereof may, at the option of the Company,
be deemed, to the fullest extent permitted by law, and consistent with
any agreement or agreements with such Purchasers, to be acquired by
such Purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article XII) surrendered by such Purchasers
for conversion, all as of immediately prior to the close of business on
the Redemption Date (and the right to convert any such Securities
shall be extended though such time), subject to payment of the above
amount as aforesaid. At the direction of the Company, the Trustee
shall hold and dispose of any such amount paid to it to the Holders in
the same manner as it would monies deposited with it by the
Company for the redemption of Securities. Without the Trustee's
prior written consent, no arrangement between the Company and such
Purchasers for the purchase and conversion of any Securities shall
increase or otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee as set forth in this Indenture, and the
Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in connection
with any such arrangement for the purchase and conversion of any
Securities between the Company and such purchasers, including the
costs and expenses, including reasonable legal fees, incurred by the
Trustee in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of its powers,
duties, responsibilities or obligations under this Indenture.
ARTICLE XII
CONVERSION OF SECURITIES
SECTION XII.1 Conversion Privilege and Conversion Rate.
Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Security may be
converted into fully paid and nonassessable shares (calculated as to
each conversion to the nearest 1/100th of a share) of Common Stock
of the Company at the Conversion Rate, determined as hereinafter
provided, in effect at the time of conversion. Such conversion right
shall commence on the 90th day after the last original issuance date of
the Securities and expire at the close of business on December 15,
2003, subject, in the case of conversion of any Global Security, to any
Applicable Procedures. In case a Security or portion thereof is called
for redemption at the election of the Company or the Holder thereof
exercises his right to require the Company to repurchase the Security,
such conversion right in respect of the Security, or portion thereof so
called, shall expire at the close of business on the Business Day prior
to the Redemption Date or the Repurchase Date, as the case may be,
unless the Company defaults in making the payment due upon
redemption or repurchase, as the case may be (in each case subject as
aforesaid to any Applicable Procedures with respect to any Global
Security).
The rate at which shares of Common Stock shall be delivered
upon conversion (herein called the "Conversion Rate") shall be
initially 41.2903 shares of Common Stock for each U.S. $1,000
principal amount of Securities. The Conversion Rate shall be
adjusted in certain instances as provided in this Article XII.
SECTION XII.2 Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of
any Security to be converted shall surrender such Security, duly
endorsed in blank, at any office or agency of the Company maintained
for that purpose pursuant to Section 10.2, accompanied by a duly
signed conversion notice substantially in the form set forth in Section
2.4 stating that the Holder elects to convert such Security or, if less
than the entire principal amount thereof is to be converted, the portion
thereof to be converted. Each Security surrendered for conversion (in
whole or in part) during the Record Date Period shall (except in the
case of any Security or portion thereof which has been called for
redemption on a Redemption Date, or is repurchasable on a
Repurchase Date, occurring, in either case, within such Record Date
Period (including any Securities or portions thereof called for
redemption on a Redemption Date or submitted for repurchase on a
Repurchase Date that is a Regular Record Date or an Interest Payment
Date, as the case may be)) be accompanied by payment in New York
Clearing House funds or other funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date
on the principal amount of such Security (or part thereof, as the case
may be) being surrendered for conversion. The interest so payable on
such Interest Payment Date with respect to any Security (or portion
thereof, if applicable) which has been called for redemption on a
Redemption Date, or is repurchasable on a Repurchase Date,
occurring, in either case, during the Record Date Period (including
any securities or portions thereof called for redemption on a
Redemption Date or submitted for repurchase on a Repurchase Date
that is a Regular Record Date or Interest Payment Date, as the case
may be), which Security (or portion thereof, if applicable) is
surrendered for conversion during the Record Date Period (or on the
last Business Day prior to the Regular Record Date or Interest
Payment Date in the case of any Security (or portion thereof, as the
case may be) called for redemption on a Redemption Date or
submitted for repurchase on a Repurchase Date on such Regular
Record Date or Interest Payment Date, as the case may be) shall be
paid to the Holder of such Security being converted in an amount
equal to the interest that would have been payable on such Security if
such Security had been converted as of the close of business on such
Interest Payment Date. The interest so payable on such Interest
Payment Date in respect of any Security (or portion thereof, as the
case may be) which has not been called for redemption on a
Redemption Date, or is not eligible for repurchase on a Repurchase
Date, occurring, in either case, during the Record Date Period, which
Security (or portion thereof, as the case may be) is surrendered for
conversion during the Record Date Period, shall be paid to the Holder
of such Security as of such Regular Record Date. Interest payable in
respect of any Security surrendered for conversion on or after an
Interest Payment Date shall be paid to the Holder of such Security as
of the next preceding Regular Record Date, notwithstanding the
exercise of the right of conversion. Except as provided in this
paragraph and subject to the last paragraph of Section 3.7, no cash
payment or adjustment shall be made upon any conversion on account
of any interest accrued from the Interest Payment Date next preceding
the conversion date, in respect of any Security (or part thereof, as the
case may be) surrendered for conversion, or on account of any
dividends on the Common Stock issued upon conversion. The
Company's delivery to the Holder of the number of shares of
Common Stock (and cash in lieu of fractions thereof, as provided in
this Indenture) into which a Security is convertible will be deemed to
satisfy the Company's obligation to pay the principal amount of the
Security.
Securities shall be deemed to have been converted
immediately prior to the close of business on the day of surrender of
such Securities for conversion in accordance with the foregoing
provisions, and at such time the rights of the Holders of such
Securities as Holders shall cease, and the Person or Persons entitled to
receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common
Stock at such time. As promptly as practicable on or after the
conversion date, the Company shall issue and deliver to the Trustee,
for delivery to the Holder, a certificate or certificates for the number
of full shares of Common Stock issuable upon conversion, together
with payment in lieu of any fraction of a share, as provided in
Section 12.3.
All shares of Common Stock delivered upon such conversion
of Restricted Securities shall bear restrictive legends substantially in
the form of the legends required to be set forth on the Restricted
Securities pursuant to Section 3.5 and shall be subject to the
restrictions on transfer provided in such legends. Neither the Trustee
nor any agent maintained for the purpose of such conversion shall
have any responsibility for the inclusion or content of any such
restrictive legends on such Common Stock; provided, however, that
the Trustee or any agent maintained for the purpose of such
conversion shall have provided, to the Company or to the Company's
transfer agent for such Common Stock, prior to or concurrently with a
request to the Company to deliver such Common Stock, written
notice that the Securities delivered for conversion are Restricted
Securities.
In the case of any Security which is converted in part only,
upon such conversion the Company shall execute and the Trustee
shall authenticate and deliver to the Holder thereof, at the expense of
the Company, a new Registered Security or Securities of authorized
denominations in an aggregate principal amount equal to the
unconverted portion of the principal amount of such Security. A
Security may be converted in part, but only if the principal amount of
such Security to be converted is any integral multiple of U.S. $1,000
and the principal amount of such security to remain Outstanding after
such conversion is equal to U.S. $1,000 or any integral multiple of
$1,000 in excess thereof.
If shares of Common Stock to be issued upon conversion of a
Restricted Security, or Registered Securities to be issued upon
conversion of a Restricted Security in part only, are to be registered in
a name other than that of the beneficial owner of such Restricted
Security, then such Holder must deliver to the Conversion Agent a
Surrender Certificate, dated the date of surrender of such Restricted
Security and signed by such beneficial owner, as to compliance with
the restrictions on transfer applicable to such Restricted Security.
Neither the Trustee nor any Conversion Agent, Registrar or Transfer
Agent shall be required to register in a name other than that of the
beneficial owner, shares of Common Stock or Securities issued upon
conversion of any such Restricted Security not so accompanied by a
properly completed Surrender Certificate.
SECTION XII.3 Fractions of Shares.
No fractional shares of Common Stock shall be issued upon
conversion of any Security or Securities. If more than one Security
shall be surrendered for conversion at one time by the same Holder,
the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable upon conversion of any Security or
Securities (or specified portions thereof), the Company shall calculate
and pay a cash adjustment in respect of such fraction (calculated to
the nearest 1/100th of a share) in an amount equal to the same
fraction of the Closing Price Per Share at the close of business on the
day of conversion.
SECTION XII.4 Adjustment of Conversion Rate.
The Conversion Rate shall be subject to adjustments from
time to time as follows:
(1) In case the Company shall pay or make a dividend or
other distribution on Common Stock payable in shares of Common
Stock, the Conversion Rate in effect at the opening of business on the
day following the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution shall be
increased by dividing such Conversion Rate by a fraction of which
the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date 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 increase to become effective immediately
after the opening of business on the day following the date fixed for
such determination. If, after any such date fixed for determination,
any dividend or distribution is not in fact paid, the Conversion Rate
shall be immediately readjusted, effective as of the date the Board of
Directors determines not to pay such dividend or distribution, to the
Conversion Rate that would have been in effect if such determination
date had not been fixed. For the purposes of this paragraph (1), 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 will not pay any
dividend or make any distribution on shares of Common Stock held
in the treasury of the Company.
(2) In case the Company shall issue rights, options or
warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per
share less than the current market price per share (determined as
provided in paragraph (8) of this Section 12.4) of the Common Stock
on the date fixed for the determination of stockholders entitled to
receive such rights, options or warrants (other than any rights, options
or warrants that by their terms will also be issued to any Holder upon
conversion of a Security into shares of Common Stock without any
action required by the Company or any other Person), the Conversion
Rate in effect at the opening of business on the day following the date
fixed for such determination shall be increased by dividing such
Conversion Rate by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate of the offering price of
the total number of shares of Common Stock so offered for
subscription or purchase would purchase at such current market price
and the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered
for subscription or purchase, such increase to become effective
immediately after the opening of business on the day following the
date fixed for such determination. If, after any such date fixed for
determination, any such rights, options or warrants are not in fact
issued, or are not exercised prior to the expiration thereof, the
Conversion Rate shall be immediately readjusted, effective as of the
date such rights, options or warrants expire, or the date the Board of
Directors determines not to issue such rights, options or warrants, to
the Conversion Rate that would have been in effect if the unexercised
rights, options or warrants had never been granted or such
determination date had not been fixed, as the case may be. For the
purposes of this paragraph (2), 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 will not issue any rights, options or warrants in
respect of shares of Common Stock held in the treasury of the
Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective
shall be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, the Conversion Rate in
effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately
reduced, such increase or reduction, 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.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, shares of any class of capital stock, or other property
(including securities, but excluding (i) any rights, options or warrants
referred to in paragraph (2) of this Section, (ii) any dividend or
distribution paid exclusively in cash, (iii) any dividend or distribution
referred to in paragraph (1) of this Section) the Conversion Rate shall
be adjusted so that the same shall equal the rate determined by
dividing the Conversion Rate in effect immediately prior to the close
of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the
numerator shall be the current market price per share (determined as
provided in paragraph (8) of this Section 12.4) of the Common Stock
on the date fixed for such determination less the then fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution filed with the
Trustee) of the portion of the assets, shares or evidences of
indebtedness so distributed applicable to one share of Common Stock
and the denominator shall be such current market price per share of
the Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such
distribution. If, after any such date fixed for determination, any such
distribution is not in fact made, the Conversion Rate shall be
immediately readjusted, effective as of the date the Board of Directors
determines not to make such distribution, to the Conversion Rate that
would have been in effect if such determination date had not been
fixed.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any
cash that is distributed as part of a distribution referred to in
paragraph (4) of this Section) in an aggregate amount that, combined
together with (I) the aggregate amount of any other cash distributions
to all holders of its Common Stock made exclusively in cash within
the 12 months preceding the date of payment of such distribution and
in respect of which no adjustment pursuant to this paragraph (5) has
been made and (II) 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 12 months preceding the date of payment of
such distribution and in respect of which no adjustment pursuant to
paragraph (6) of this Section 12.4 has been made (the "combined
cash and tender amount") exceeds 12.5% of the product of the current
market price per share (determined as provided in paragraph (8) of
this Section 12.4) of the Common Stock on the date for the
determination of holders of shares of Common Stock entitled to
receive such distribution times the number of shares of Common
Stock outstanding on such date (the "aggregate current market
price"), then, and in each such case, immediately after the close of
business on such date for determination, the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by dividing
the Conversion Rate in effect immediately prior to the close of
business on the date fixed for determination of the stockholders
entitled to receive such distribution by a fraction (i) the numerator of
which shall be equal to the current market price per share (determined
as provided in paragraph (8) of this Section) of the Common Stock on
the date fixed for such determination less an amount equal to the
quotient of (x) the excess of such combined cash and tender amount
over such aggregate current market price divided by (y) the number of
shares of Common Stock outstanding on such date for determination
and (ii) the denominator of which shall be equal to the current market
price per share (determined as provided in paragraph (8) of this
Section 12.4) of the Common Stock on such date for determination.
(6) In case a tender offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire
and such tender offer (as amended upon the expiration thereof) shall
require the payment to stockholders (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 (I) 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 offer by the Company or any
Subsidiary for all or any portion of the Common Stock expiring
within the 12 months preceding the expiration of such tender offer
and in respect of which no adjustment pursuant to this paragraph (6)
has been made and (II) the aggregate amount of any cash distributions
to all holders of the Company's Common Stock within 12 months
preceding the expiration of such tender offer and in respect of which
no adjustment pursuant to paragraph (5) of this Section has been
made (the "combined tender and cash amount") exceeds 12.5% of the
product of the current market price per share of the Common Stock
(determined as provided in paragraph (8) of this Section 12.4) 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) as of 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 Rate shall be adjusted so
that the same shall equal the rate determined by dividing the
Conversion Rate immediately prior to close of business on the date of
the Expiration Time by a fraction (i) the numerator of which shall be
equal to (A) the product of (I) the current market price per share of
the Common Stock (determined as provided in paragraph (8) of this
Section 12.4) on the date of the Expiration Time multiplied by (II) the
number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time less (B) the combined tender
and cash amount, and (ii) the denominator of which shall be equal to
the product of (A) the current market price per share of the Common
Stock (determined as provided in paragraph (8) of this Section 12.4)
as of the Expiration Time multiplied by (B) the number of shares of
Common Stock outstanding (including any tendered shares) as of the
Expiration Time less the number 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").
(7) The reclassification of Common Stock into securities
including other than Common Stock (other than any reclassification
upon a consolidation or merger to which Section 12.11 applies) shall
be deemed to involve (a) a distribution of such securities other than
Common Stock to all holders of Common Stock (and the effective
date of such reclassification shall be deemed to be "the date fixed for
the determination of stockholders entitled to receive such
distribution" and "the date fixed for such determination" within the
meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares of Common
Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately
thereafter (and the effective date of such reclassification shall be
deemed to be "the day upon which such subdivision becomes
effective" or "the day upon which such combination becomes
effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of
paragraph (3) of this Section 12.4).
(8) For the purpose of any computation under paragraphs
(2), (4), (5) or (6) of this Section 12.4, the current market price per
share of Common Stock on any date shall be calculated by the
Company and be deemed to be the average of the daily Closing Prices
Per Share for the five consecutive Trading Days selected by the
Company commencing not more than 10 Trading Days before, and
ending not later than, the earlier of the day in question and the day
before the "ex" date with respect to the issuance or distribution
requiring such computation. For purposes of this paragraph, the term
"'ex' date", when used with respect to any issuance or distribution,
means the first date on which the Common Stock trades regular way
in the applicable securities market or on the applicable securities
exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be
required unless such adjustment (plus any adjustments not previously
made by reason of this paragraph (9)) would require an increase or
decrease of at least one percent in such rate; provided, however, that
any adjustments which by reason of this paragraph (9) are not
required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article shall
be made to the nearest cent or to the nearest one-hundredth of a share,
as the case may be.
(10) The Company may make such increases in the
Conversion Rate, for the remaining term of the Securities or any
shorter term, in addition to those required by paragraphs (1), (2), (3),
(4), (5) and (6) of this Section 12.4, as it considers to be advisable in
order to avoid or diminish any income tax to any holders of shares of
Common Stock resulting from any dividend or distribution of stock or
issuance of rights or warrants to purchase or subscribe for stock or
from any event treated as such for income tax purposes. The
Company shall have the power to resolve any ambiguity or correct
any error in this paragraph (10) and its actions in so doing shall,
absent manifest error, be final and conclusive.
(11) Notwithstanding the foregoing provisions of this
Section, no adjustment of the Conversion Rate shall be required to be
made (a) upon the issuance of shares of Common Stock pursuant to
any present or future plan for the reinvestment of dividends or (b)
because of a tender or exchange offer of the character described in
Rule 13e-4(h)(5) under the Exchange Act or any successor rule
thereto.
(12) To the extent permitted by applicable law, the
Company from time to time may increase the Conversion Rate by any
amount for any period of time if the period is at least twenty (20)
days, the reduction is irrevocable during such period, and the Board
of Directors shall have made a determination that such reduction
would be in the best interests of the Company, which determination
shall be conclusive; provided, however, that no such reduction shall
be taken into account for purposes of determining whether the
Closing Price Per Share of the Common Stock exceeds the
Conversion Price by 105% in connection with an event which would
otherwise be a Change of Control pursuant to Section 14.4.
Whenever the Conversion Rate is increased pursuant to the preceding
sentence, the Company shall give notice of the reduction to the
Holders in the manner provided in Section 1.6 at least fifteen (15)
days prior to the date the increased Conversion Rate takes effect, and
such notice shall state the increased Conversion Rate and the period
during which it will be in effect.
SECTION XII.5 Notice of Adjustments of Conversion Rate.
Whenever the Conversion Rate is adjusted as herein
provided:
(1) the Company shall compute the adjusted Conversion
Rate in accordance with Section 12.4 and shall prepare a certificate
signed by the Chief Financial Officer of the Company setting forth
the adjusted Conversion Rate and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall
promptly be filed with the Trustee and with each Conversion Agent;
and
(2) upon each such adjustment, a notice stating that the
Conversion Rate has been adjusted and setting forth the adjusted
Conversion Rate shall be required, and as soon as practicable after it
is required, such notice shall be provided by the Company to all
Holders in accordance with Section 1.6.
Neither the Trustee nor any Conversion Agent shall be under any
duty or responsibility with respect to any such certificate or the
information and calculations contained therein, except to exhibit the
same to any Holder of Securities desiring inspection thereof at its
office during normal business hours.
SECTION XII.6 Notice of Certain Corporate Action.
In case:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable (i) otherwise than
exclusively in cash or (ii) exclusively in cash in an amount that would
require any adjustment pursuant to Section 12.4; or
(2) the Company shall authorize the granting to all or
substantially all of the holders of its Common Stock of rights, options
or warrants to subscribe for or purchase any shares of capital stock of
any class or of any other rights; or
(3) of any reclassification of the Common Stock of the
Company, or of any consolidation, merger or share exchange to which
the Company is a party and for which approval of any stockholders of
the Company is required, or of the conveyance, sale, transfer or lease
of all or substantially all of the assets of the Company; or
(4) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to
Section 10.2, and shall cause to be provided to all Holders in
accordance with Section 1.6, at least 20 days (or 10 days in any case
specified in clause (1) or (2) above) prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend,
distribution, rights, options 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, rights, options or warrants
are to be determined or (y) the date on which such reclassification,
consolidation, merger, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such
reclassification, consolidation, merger, conveyance, transfer, sale,
lease, dissolution, liquidation or winding up. Neither the failure to
give such notice or the notice referred to in the following paragraph
nor any defect therein shall affect the legality or validity of the
proceedings described in clauses (1) through (4) of this Section 12.6.
If at the time the Trustee shall not be the conversion agent, a copy of
such notice shall also forthwith be filed by the Company with the
Trustee.
The Company shall cause to be filed at the Corporate Trust
Office and each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.2, and shall cause to
be provided to all Holders in accordance with Section 1.6, notice of
any tender offer by the Company or any Subsidiary for all or any
portion of the Common Stock at or about the time that such notice of
tender offer is provided to the public generally.
SECTION XII.7 Company to Reserve Common Stock.
The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued
Common Stock, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then issuable
upon the conversion of all Outstanding Securities.
SECTION XII.8 Taxes on Conversions.
Except as provided in the next sentence, the Company will
pay any and all taxes and duties that may be payable in respect of the
issue or delivery of shares of Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be
required to pay any tax or duty which may be payable in respect of
any transfer involved in the issue and delivery of shares of Common
Stock in a name other than that of the Holder of the Security or
Securities to be converted, and no such issue or delivery shall be
made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax or duty, or has established to
the satisfaction of the Company that such tax or duty has been paid.
SECTION XII.9 Covenant as to Common Stock.
The Company agrees that all shares of Common Stock which
may be delivered upon conversion of Securities, upon such delivery,
will have been duly authorized and validly issued and will be fully
paid and nonassessable and, except as provided in Section 12.8, the
Company will pay all taxes, liens and charges with respect to the
issue thereof.
SECTION XII.10 Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to
the Trustee or its agent to be canceled by or at the direction of the
Trustee, which shall dispose of the same as provided in Section 3.9.
SECTION XII.11 Provision in Case of Consolidation, Merger or
Sale of Assets.
In case of any consolidation or merger of the Company with
or into any other Person, any merger of another Person with or into
the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock of the Company) or any conveyance, sale,
transfer or lease of all or substantially all of the assets of the
Company, the Person formed by such consolidation or resulting from
such merger or which acquires such assets, as the case may be, shall
execute and deliver to the Trustee a supplemental indenture providing
that the Holder of each Security then Outstanding shall have the right
thereafter, during the period such Security shall be convertible as
specified in Section 12.1, to convert such Security only into the kind
and amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, sale, transfer or lease by a
holder of the number of shares of Common Stock of the Company
into which such Security might have been converted immediately
prior to such consolidation, merger, conveyance, sale, transfer or
lease, assuming such holder of Common Stock of the Company (i) is
not a Person with which the Company consolidated or merged with or
into or which merged into or with the Company or to which such
conveyance, sale, transfer or lease was made, as the case may be (a
"Constituent Person"), or an Affiliate of a Constituent Person and
(ii) failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease (provided
that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale,
transfer, or lease is not the same for each share of Common Stock of
the Company held immediately prior to such consolidation, merger,
conveyance, sale, transfer or lease by others than a Constituent Person
or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("Non-electing Share"), then for the
purpose of this Section 12.11 the kind and amount of securities, cash
and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease by the holders of 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), and
further assuming, if such consolidation, merger, conveyance, transfer,
sale or lease occurs prior to the 90th day following the last original
issue date of the Securities, that the Security was convertible at the
time of such occurrence at the Conversion Rate specified in Section
12.1 as adjusted from the issue date of such Security to such time as
provided in this Article XII. Such supplemental indenture shall
provide for adjustments which, for events subsequent to the effective
date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article.
The above provisions of this Section 12.11 shall similarly apply to
successive consolidations, mergers, conveyances, sales, transfers or
leases. Notice of the execution of such a supplemental indenture
shall be given by the Company to the Holder of each Security as
provided in Section 1.6 promptly upon such execution.
Neither the Trustee nor any Conversion Agent shall be under
any responsibility to determine the correctness of any provisions
contained in any such supplemental indenture relating either to the
kind or amount of shares of stock or other securities or property or
cash receivable by Holders of Securities upon the conversion of their
Securities after any such consolidation, merger, conveyance, transfer,
sale or lease or to any such adjustment, but may accept as conclusive
evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Opinion of Counsel with respect thereto,
which the Company shall cause to be furnished to the Trustee upon
request.
SECTION XII.12 Responsibility of Trustee for Conversion
Provisions.
The Trustee, subject to the provisions of Section 6.1, and any
Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Conversion Rate,
or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the
same, or whether a supplemental indenture need be entered into.
Neither the Trustee, subject to the provisions of Section 6.1, nor any
Conversion Agent shall be accountable with respect to the validity or
value (or the kind or amount) of any Common Stock, or of any other
securities or property or cash, which may at any time be issued or
delivered upon the conversion of any Security; and it or they do not
make any representation with respect thereto. Neither the Trustee,
subject to the provisions of Section 6.1, nor any Conversion Agent
shall be responsible for any failure of the Company to make or
calculate any cash payment or to issue, transfer or deliver any shares
of Common Stock or share certificates or other securities or property
or cash upon the surrender of any Security for the purpose of
conversion; and the Trustee, subject to the provisions of Section 6.1,
and any Conversion Agent shall not be responsible for any failure of
the Company to comply with any of the covenants of the Company
contained in this Article.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION XIII.1 Securities Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article IV), the indebtedness
represented by the Securities and the payment of the principal of, or
premium, if any, or interest (including Liquidated Damages, if any)
on, each and all of the Securities (including, but not limited to, the
Redemption Price with respect to the Securities to be called for
redemption in accordance with Article XI or the Repurchase Price
with respect to Securities submitted for repurchase in accordance with
Article XIV, are hereby expressly made subordinate and subject in
right of payment to the prior payment in full of all Senior
Indebtedness.
SECTION XIII.2 No Payment in Certain Circumstances;
Payment Over of Proceeds Upon Dissolution, Etc.
No payment shall be made with respect to the principal of, or
premium, if any, or interest (including Liquidated Damages, if any)
on the Securities (including, but not limited to, the Redemption Price
with respect to the Securities to be called for redemption in
accordance with Article XI or the Repurchase Price with respect to
Securities submitted for repurchase in accordance with Article XIV),
except payments and distributions made by the Trustee as permitted
by Section 13.9, if:
(i) a default in the payment of principal,
premium, if any, or interest (including a default under any
repurchase or redemption obligation) or other amounts with
respect to any Senior Indebtedness occurs and is continuing
(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) unless and
until such default shall have been cured or waived or shall
have ceased to exist; or
(ii) a default, other than a payment default, on
any Designated Senior Indebtedness occurs and is continuing
that then permits holders of such Designated Senior
Indebtedness to accelerate its maturity and the Trustee
receives a notice of the default (a "Payment Blockage
Notice") from a Representative of Designated Senior
Indebtedness or the Company.
If the Trustee receives any Payment Blockage Notice
pursuant to clause (ii) above, no subsequent Payment Blockage
Notice shall be effective for purposes of this Section unless and until
(A) at least 365 days shall have elapsed since the initial effectiveness
of the immediately prior Payment Blockage Notice, and (B) all
scheduled payments of principal, premium, if any, and interest on the
Notes that have come due have been paid in full in cash. No
nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or
be made, the basis for a subsequent Payment Blockage Notice.
The Company may and shall resume payments on and
distributions in respect of the Notes upon the earlier of:
(1) the date upon which the default is cured or waived or
ceases to exist, or
(2) in the case of a default referred to in clause (ii)
above, 179 days pass after notice is received if the maturity of such
Designated Senior Indebtedness has not been accelerated,
unless this Article XIII otherwise prohibits the payment or
distribution at the time of such payment or distribution.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to the
Company or to its creditors, as such, or to its assets, or (b) any
liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any
other marshaling of assets and liabilities of the Company, then and in
any such event the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due on or in
respect of all Senior Indebtedness in cash before the Holders of the
Securities are entitled to receive any payment on account of principal
of (or premium, if any) or interest (including any Liquidated
Damages) on the Securities or on account of the purchase, redemption
or other acquisition of Securities, and to that end the holders of Senior
Indebtedness shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character,
whether in cash, property or securities, which may be payable or
deliverable in respect of the Securities in any such case, proceeding,
dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Company of any
kind or character, whether in cash, securities or other property, before
all Senior Indebtedness is paid in full, and if such fact shall, at or
prior to the time of such payment or distribution, have been made
known to the Trustee or, as the case may be, such Holder, then and in
such event such payment or distribution shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment
of all Senior Indebtedness remaining unpaid, 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.
For purposes of this Article only, the words "cash, securities
or other property" 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, which shares of stock or securities are
subordinated in right of payment to all then outstanding Senior
Indebtedness to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the
Company following the conveyance or transfer of its properties and
assets substantially as an entirety to another Person upon the terms
and conditions set forth in Article VII shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshaling of assets and liabilities of the
Company for the purposes of this Section if the Person formed by
such consolidation or into which the Company is merged or which
acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article VII.
In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any
Security prohibited by the foregoing provisions of this Section, and if
such fact shall, at or prior to the time of such payment, have been
made known to the Trustee or, as the case may be, such Holder, then
and in such event such payment shall be paid over and delivered
forthwith to the Company, in the case of the Trustee, or the Trustee,
in the case of such Holder.
SECTION XIII.3 Prior Payment to Senior Indebtedness Upon
Acceleration of Securities.
In the event of the acceleration of the Securities because of an
Event of Default, no payment or distribution shall be made to the
Trustee or any holder of Securities in respect of the principal of,
premium, if any, or interest (including Liquidated Damages, if any)
on the Securities (including, but not limited to, the Redemption Price
with respect to the Securities called for redemption in accordance
with Article XI or the Repurchase Price with respect to the Securities
submitted for repurchase in accordance with Article XIV), except
payments and distributions made by the Trustee as permitted by
Section 13.9, until all Senior Indebtedness has been paid in full in
cash or other payment satisfactory to the holders of Senior
Indebtedness or such acceleration is rescinded in accordance with the
terms of this Indenture. If payment of the Securities is accelerated
because of an Event of Default, the Company shall promptly notify
holders of Senior Indebtedness of the acceleration, and the Trustee
shall promptly notify the Bank of America National Trust and
Savings Association, as Agent under the Credit Agreement (or any
successor agent thereunder of which it has received prior written
notice) of such acceleration, in each case at the address set forth in the
notice from the Agent (or successor agent) to the Trustee as being the
address to which the Trustee should send its notice pursuant to this
Section 13.3, unless, in each case, there are no payment obligations of
the Company thereunder and all obligations thereunder to extend
credit have been terminated or expired; provided, however that if the
Trustee has not received such notice address from such Agent (or
successor Agent) it need not send such notice.
SECTION XIII.4 Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the Company, at
any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the
Company referred to in Section 13.2, or during the circumstances
referred to in the first paragraph of Section 13.2, or under the
conditions described in Section 13.3, from making payments at any
time of principal of (and premium, if any) or interest on the
Securities, or (b) the application by the Trustee of any money
deposited with it hereunder to the payment of or on account of the
principal of (and premium, if any) or interest on the Securities or the
retention of such payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge that such
payment would have been prohibited by the provisions of this Article.
SECTION XIII.5 Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities 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 to the rights of
the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium, if any) and interest
on the Securities shall be paid in full. For 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
of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Indebtedness by
Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior
Indebtedness.
SECTION XIII.6 Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Indebtedness on
the other hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall (i) impair, as
among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders
of the Securities the principal of (and premium, if any) and interest on
the Securities as and when the same shall become due and payable in
accordance with their terms; or (ii) affect the relative rights against
the Company of the Holders of the Securities and creditors of the
Company other than the holders of Senior Indebtedness; or
(iii) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of
the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such
Holder.
SECTION XIII.7 Trustee to Effectuate Subordination.
Each holder of a Security 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 and appoints the Trustee his attorney-in-fact
for any and all such purposes.
SECTION XIII.8 No Waiver of Subordination Provisions.
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 of any Senior Indebtedness, or by any non-
compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or
the Holders of the Securities, without incurring responsibility to the
Holders of the Securities and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of
the Holders of the Securities to the holders of Senior Indebtedness, do
any one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same
or any agreement under which Senior Indebtedness is outstanding;
(ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of
Senior Indebtedness; and (iv) exercise or refrain from exercising any
rights against the Company and any other Person.
SECTION XIII.9 Notice to Trustee.
The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and
until the Trustee shall have received written notice thereof from the
Company or a Representative or a holder of Senior Indebtedness
(including, without limitation, a holder of Designated Senior
Indebtedness) and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 6.1, shall be entitled in
all respects to assume that no such facts exist; provided, however, that
if the Trustee shall not have received the notice provided for in this
Section 13.9 prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without
limitation, the payment of the principal of (and premium, if any) or
interest (including Liquidated Damages, if any) on any Security),
then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and
to apply the same to the purpose for which such money was received
and shall not be affected by any notice to the contrary which may be
received by it within one Business Day prior to such date.
Notwithstanding anything in this Article XIII to the contrary,
nothing shall prevent any payment by the Trustee to the Holders of
monies deposited with it pursuant to Section 4.1, and any such
payment shall not be subject to the provisions of Section 13.2 or 13.3.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a Representative or a holder of Senior
Indebtedness (including, without limitation, a holder of Designated
Senior Indebtedness) to establish that such notice has been given by a
Representative or a holder of Senior Indebtedness (including, without
limitation, a holder of Designated Senior Indebtedness). In the event
that 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, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee 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, and if such evidence is not furnished, the Trustee may defer
any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION XIII.10 Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of
Section 6.1, and the Holders of the Securities shall be entitled to rely
upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such
payment or 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.
SECTION XIII.11 Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any such
holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash,
property or securities to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article or otherwise.
SECTION XIII.12 Reliance by Holders of Senior Indebtedness on
Subordination Provisions.
Each Holder by accepting a Security acknowledges and
agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of
any Senior Indebtedness, whether such Senior Indebtedness was
created or acquired before or after the issuance of the Securities, to
acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness, and no amendment or modification of the
provisions contained herein shall diminish the rights of such holders
of Senior Indebtedness unless such holders shall have agreed in
writing thereto.
SECTION XIII.13 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent
as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7.
SECTION XIII.14 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article shall in such
case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however,
that Section 13.13 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION XIII.15 Certain Conversions and Repurchases Deemed
Payment.
For the purposes of this Article only, (i) the issuance and
delivery of junior securities upon conversion of Securities in
accordance with Article XII or upon the repurchase of Securities in
accordance with Article XIV shall not be deemed to constitute a
payment or distribution on account of the principal of or premium or
interest (including Liquidated Damages, if any) on Securities or on
account of the purchase or other acquisition of Securities, and (ii) the
payment, issuance or delivery of cash (except in satisfaction of
fractional shares pursuant to Section 12.3), property or securities
(other than junior securities) upon conversion of a Security shall be
deemed to constitute payment on account of the principal of such
Security. For the purposes of this Section, the term "junior
securities" means (a) shares of any stock of any class of the Company
and securities into which the Securities are convertible pursuant to
Article XII 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 securities to
substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of
the Securities, the right, which is absolute and unconditional, of the
Holder of any Security to convert such Security in accordance with
Article XII or to exchange such Security for Common Stock in
accordance with Article XIV if the Company elects to satisfy the
obligations under Article XIV by the delivery of Common Stock.
ARTICLE XIV
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE IN CONTROL
SECTION XIV.1 Right to Require Repurchase.
In the event that a Change in Control (as hereinafter defined)
shall occur, then each Holder shall have the right, at the Holder's
option, but subject to the provisions of Section 14.2, to require the
Company to repurchase, and upon the exercise of such right the
Company shall repurchase, all of such Holder's Securities not
theretofore called for redemption, or any portion of the principal
amount thereof that is equal to U.S. $1,000 or any integral multiple of
U.S. $1,000 in excess thereof (provided that no single Security may
be repurchased in part unless the portion of the principal amount of
such Security to be Outstanding after such repurchase is equal to U.S.
$1,000 or integral multiples of U.S. $1,000 in excess thereof), on the
date (the "Repurchase Date") that is 45 days after the date of the
Company Notice (as defined in Section 14.3) at a purchase price
equal to 100% of the principal amount of the Securities to be
repurchased plus interest accrued to the Repurchase Date (the
"Repurchase Price"); provided, however, that installments of interest
on Securities whose Stated Maturity is on or prior to the Repurchase
Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such on the relevant
Record Date according to their terms and the provisions of
Section 3.7. Such right to require the repurchase of the Securities
shall not continue after a discharge of the Company from its
obligations with respect to the Securities in accordance with Article
IV, unless a Change in Control shall have occurred prior to such
discharge. At the option of the Company, the Repurchase Price may
be paid in cash or, subject to the fulfillment by the Company of the
conditions set forth Section 14.2, by delivery of shares of Common
Stock having a fair market value equal to the Repurchase Price.
Whenever in this Indenture (including Sections 2.2, 3.1, 5.1(1) and
5.8) there is a reference, in any context, to the principal of any
Security as of any time, such reference shall be deemed to include
reference to the Repurchase Price payable in respect of such Security
to the extent that such Repurchase Price is, was or would be so
payable at such time, and express mention of the Repurchase Price in
any provision of this Indenture shall not be construed as excluding the
Repurchase Price in those provisions of this Indenture when such
express mention is not made; provided, however, that for the
purposes of Article XIII such reference shall be deemed to include
reference to the Repurchase Price only to the extent the Repurchase
Price is payable in cash.
SECTION XIV.2 Conditions to the Company's Election to Pay
the Repurchase Price in Common Stock.
The Company may elect to pay the Repurchase Price by
delivery of shares of Common Stock pursuant to Section 14.1 if and
only if the following conditions shall have been satisfied:
(1) The shares of Common Stock deliverable in payment
of the Repurchase Price shall have a fair market value as of the
Repurchase Date of not less than the Repurchase Price. For purposes
of Section 14.1 and this Section 14.2, the fair market value of shares
of Common Stock shall be determined by the Company and shall be
equal to 95% of the average of the Closing Prices Per Share for the
five consecutive Trading Days immediately preceding the second
Trading Day prior to the Repurchase Date;
(2) The Repurchase Price shall be paid only in cash in
the event any shares of Common Stock to be issued upon repurchase
of Securities hereunder (i) require registration under any federal
securities law before such shares may be freely transferrable without
being subject to any transfer restrictions under the Securities Act
upon repurchase and if such registration is not completed or does not
become effective prior to the Repurchase Date, and/or (ii) require
registration with or approval of any governmental authority under any
state law or any other federal law before such shares may be validly
issued or delivered upon repurchase and if such registration is not
completed or does not become effective or such approval is not
obtained prior to the Repurchase Date;
(3) Payment of the Repurchase Price may not be made in
Common Stock unless such stock is, or shall have been, approved for
quotation on the Nasdaq National Market or listed on a national
securities exchange, in either case, prior to the Repurchase Date; and
(4) All shares of Common Stock which may be issued
upon repurchase of Securities will be issued out of the Company's
authorized but unissued Common Stock and, will upon issue, be duly
and validly issued and fully paid and non-assessable and free of any
preemptive rights.
If all of the conditions set forth in this Section 14.2 are not
satisfied in accordance with the terms thereof, the Repurchase Price
shall be paid by the Company only in cash.
SECTION XIV.3 Notices; Method of Exercising Repurchase
Right, Etc.
(1) Unless the Company shall have theretofore called for
redemption all of the Outstanding Securities, on or before the 30th
day after the occurrence of a Change in Control, the Company or, at
the request and expense of the Company on or before the 15th day
after such occurrence, the Trustee, shall give to all Holders of
Securities, in the manner provided in Section 1.6, notice (the
"Company Notice") of the occurrence of the Change of Control 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.
Each notice of a repurchase right shall state:
(i) the Repurchase Date,
(ii) the date by which the repurchase right must
be exercised,
(iii) the Repurchase Price, and whether the
Repurchase Price shall be paid by the
Company in cash or by delivery of shares of
Common Stock,
(iv) a description of the procedure which a
Holder must follow to exercise a repurchase
right, and the place or places where such
Securities, are to be surrendered for payment
of the Repurchase Price and accrued interest,
if any,
(v) that on the Repurchase Date the Repurchase
Price, and accrued interest, if any, will
become due and payable upon each such
Security designated by the Holder to be
repurchased, and that interest thereon shall
cease to accrue on and after said date,
(vi) the Conversion Rate then in effect, the date
on which the right to convert the principal
amount of the Securities to be repurchased
will terminate and the place or places where
such Securities may be surrendered for
conversion, and
(vii) the place or places that the Security
certificate with the Election of Holder to
Require Repurchase as specified in Section
2.2 shall be delivered, and if the Security is a
Restricted Securities Certificate the place or
places that the Surrender Certificate required
by Section 14.3(9) shall be delivered.
No failure of the Company to give the foregoing notices or
defect therein shall limit any Holder's right to exercise a repurchase
right or affect the validity of the proceedings for the repurchase of
Securities.
If any of the foregoing provisions or other provisions of this
Article XIV are inconsistent with applicable law, such law shall
govern.
(2) To exercise a repurchase right, a Holder shall deliver
to the Trustee on or before the 30th day after the date of the Company
Notice (i) written notice of the Holder's exercise of such right, which
notice shall set forth the name of the Holder, the principal amount of
the Securities to be repurchased (and, if any Security is to
repurchased in part, the serial number thereof, the portion of the
principal amount thereof to be repurchased and the name of the
Person in which the portion thereof to remain Outstanding after such
repurchase is to be registered) and a statement that an election to
exercise the repurchase right is being made thereby, and, in the event
that the Repurchase Price shall be paid in shares of Common Stock,
the name or names (with addresses) in which the certificate or
certificates for shares of Common Stock shall be issued, and (ii) the
Securities with respect to which the repurchase right is being
exercised. Such written notice shall be irrevocable, except that the
right of the Holder to convert the Securities with respect to which the
repurchase right is being exercised shall continue until the close of
business on the Business Day prior to the Repurchase Date.
(3) In the event a repurchase right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause to
be paid to the Trustee the Repurchase Price in cash or shares of
Common Stock, as provided above, for payment to the Holder on the
Repurchase Date or, if shares of Common Stock are to be paid, as
promptly after the Repurchase Date as practicable, together with
accrued and unpaid interest to the Repurchase Date payable with
respect to the Securities as to which the purchase right has been
exercised; provided, however, that installments of interest that mature
on or prior to the Repurchase Date shall be payable in cash to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular
Record Date.
(4) If any Security (or portion thereof) surrendered for
repurchase shall not be so paid on the Repurchase Date, the principal
amount of such Security (or portion thereof, as the case may be) shall,
until paid, bear interest to the extent permitted by applicable law from
the Repurchase Date at the rate of 6% per annum, and each Security
shall remain convertible into Common Stock until the principal of
such Security (or portion thereof, as the case may be) shall have been
paid or duly provided for.
(5) Any Security 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 make available for delivery to the Holder of such
Security without service charge, a new Security or Securities,
containing identical terms and conditions, each in an authorized
denomination in aggregate principal amount equal to and in exchange
for the unrepurchased portion of the principal of the Security so
surrendered.
(6) Any issuance of shares of Common Stock in respect
of the Repurchase Price shall be deemed to have been effected
immediately prior to the close of business on the Repurchase Date
and the Person or Persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such
repurchase shall be deemed to have become on the Repurchase Date
the holder or holders of record of the shares represented thereby;
provided, however, that any surrender for repurchase on a date when
the stock transfer books of the Company shall be closed shall
constitute the Person or Persons in whose name or names the
certificate or certificates for such shares are to be issued as the record
holder or holders thereof for all purposes at the opening of business
on the next succeeding day on which such stock transfer books are
open. No payment or adjustment shall be made for dividends or
distributions on any Common Stock issued upon repurchase of any
Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon
repurchase of Securities. If more than one Security shall be
repurchased from the same Holder and the Repurchase Price shall be
payable in shares of Common Stock, the number of full shares which
shall be issuable upon such repurchase shall be computed on the basis
of the aggregate principal amount of the Securities so repurchased.
Instead of any fractional share of Common Stock which would
otherwise be issuable on the repurchase of any Security or Securities,
the Company will deliver to the applicable Holder its check for the
current market value of such fractional share. The current market
value of a fraction of a share is determined by multiplying the current
market price of a full share by the fraction, and rounding the result to
the nearest cent. For purposes of this Section, the current market
price of a share of Common Stock is the Closing Price Per Share of
the Common Stock on the Trading Day immediately preceding the
Repurchase Date.
(8) Any issuance and delivery of certificates for shares of
Common Stock on repurchase of Securities shall be made without
charge to the Holder of Securities being repurchased for such
certificates or for any tax or duty in respect of the issuance or delivery
of such certificates or the securities represented thereby; provided,
however, that the Company shall not be required to pay any tax or
duty which may be payable in respect of (i) income of the Holder or
(ii) any transfer involved in the issuance or delivery of certificates for
shares of Common Stock in a name other than that of the Holder of
the Securities being repurchased, and no such issuance or delivery
shall be made unless and until the Person requesting such issuance or
delivery has paid to the Company the amount of any such tax or duty
or has established, to the satisfaction of the Company, that such tax or
duty has been paid.
(9) If shares of Common Stock to be delivered upon
repurchase of a Security are to be registered in a name other than that
of the beneficial owner of such Security, then such Holder must
deliver to the Trustee a Surrender Certificate, dated the date of
surrender of such Restricted Security and signed by such beneficial
owner, as to compliance with the restrictions on transfer applicable to
such Restricted Security. Neither the Trustee nor any Registrar or
Transfer Agent or other agents shall be required to register in a name
other than that of the beneficial owner shares of Common Stock
issued upon repurchase of any such Restricted Security not so
accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be
delivered to the Trustee to be canceled at the direction of the Trustee,
which shall dispose of the same as provided in Section 3.9.
SECTION XIV.4 Certain Definitions.
For purposes of this Article XIV,
(1) the term "beneficial owner" shall be determined in
accordance with Rule 13d-3, as in effect on the date of the original
execution of this Indenture, promulgated by the Commission pursuant
to the Exchange Act;
(2) a "Change in Control" shall be deemed to have
occurred at the time, after the original issuance of the Securities, of:
(i) the acquisition by any Person (including any
syndicate or group deemed to be a "person" under Section 13(d)(3) of
the Exchange Act) of beneficial ownership, directly or indirectly,
through a purchase, merger or other acquisition transaction or series
of transactions, of shares of capital stock of the Company entitling
such person to exercise 50% or more of the total voting power of all
shares of capital stock of the Company entitled to vote generally in
the elections of directors (any shares of voting stock of which such
person or group is the beneficial owner that are not then outstanding
being deemed outstanding for purposes of calculating such
percentage), other than any such acquisition by the Company, any
Subsidiary of the Company or any employee benefit plan of the
Company existing on the date of this Indenture; or
(ii) any consolidation of the Company with, or
merger of the Company into, any other Person, any merger of another
Person into the Company, or any sale or transfer of all or substantially
all of the assets (other than to a wholly-owned subsidiary of the
Company) of the Company to any other Person (other than (a) any
such transaction pursuant to which the holders of 50% or more of the
total voting power of all shares of capital stock of the Company
entitled to vote generally in elections of directors immediately prior to
such transaction have, directly or indirectly, at least 50% or more of
the total voting power of all shares of capital stock of the continuing
or surviving corporation entitled to vote generally in elections of
directors of the continuing or surviving corporation immediately after
such transaction and (b) a merger (x) which does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of capital stock of the Company or (y) which is effected solely
to change the jurisdiction of incorporation of the Company and results
in a reclassification, conversion or exchange of outstanding shares of
Common Stock into solely shares of common stock);
provided, however, that a Change in Control shall not be deemed to
have occurred if either (a) the Closing Price Per Share of the
Common Stock for any five Trading Days within the period of 10
consecutive Trading Days ending immediately after the later of the
Change in Control or the public announcement of the Change in
Control (in the case of a Change in Control under clause 14.4(2)(i)
above) or the period of 10 consecutive Trading Days ending
immediately before the Change in Control (in the case of a Change in
Control under clause 14.4(2) (ii) above) shall equal or exceed 105%
of the Conversion Price of the Securities in effect on each such
Trading Day, or (b) all of the consideration (excluding cash payments
for fractional shares and cash payments made pursuant to dissenters'
appraisal rights) in a merger or consolidation constituting the Change
in Control described in clause 14.4(2)(i) and/or clause 14.4(2) (ii)
above consists of shares of common stock traded on a national
securities exchange or quoted on the Nasdaq National Market (or will
be so traded or quoted immediately following the Change in Control)
and as a result of such transaction or transactions the Securities
become convertible solely into such common stock.
(3) the term "Conversion Price" shall equal U.S. $1,000
divided by the Conversion Rate; and
(4) for purposes of Section 14.4(2)(i), the term "person"
shall include any syndicate or group which would be deemed to be a
"person" under Section 13(d)(3) of the Exchange Act, as in effect on
the date of the original execution of this Indenture.
SECTION XIV.5 Consolidation, Merger, etc. In the
case of any consolidation, conveyance, sale, transfer or lease of all or
substantially all of the assets of the Company to which Section 12.11
applies, in which the Common Stock of the Company is changed or
exchanged as a result into the right to receive shares of stock and
other securities or property or assets (including cash) which includes
shares of Common Stock of the Company or common stock of
another Person that are, 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 such shares constitute at the time such change or exchange
becomes effective in excess of 50% of the aggregate fair market value
of such shares of stock and other securities, property and assets
(including cash) (as determined by the Company, which
determination shall be conclusive and binding), then the Person
formed by such consolidation or resulting from such merger or
combination or which acquires the properties or assets (including
cash) of the Company, as the case may be, shall execute and deliver
to 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) modifying the provisions of this Indenture
relating to the right of Holders to cause the Company to repurchase
the Securities following a Change in Control, including without
limitation the applicable provisions of this Article XIV and the
definitions of the Common Stock and Change in Control, as
appropriate, and such other related definitions set forth herein as
determined in good faith by the Company (which determination shall
be conclusive and binding), to make such provisions apply in the
event of a subsequent Change of Control to the common stock and
the issuer thereof if different from the Company and Common Stock
of the Company (in lieu of the Company and the Common Stock of
the Company).
ARTICLE XV
HOLDERS LISTS AND REPORTS BY TRUSTEE AND
COMPANY; NON-RECOURSE
SECTION XV.1 Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(1) semi-annually, not more than 15 days after the
Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Securities as of such Regular Record Date, and
(2) at such other times as the Trustee may reasonably
request in writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that no such list need be furnished so long as the
Trustee is acting as Security Registrar.
SECTION XV.2 Preservation of Information.
(1) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section
15.1 and the names and addresses of Holders received by the Trustee
in its capacity as Security Registrar. The Trustee may destroy any
list, if any, furnished to it as provided in Section 15.1 upon receipt of
a new list so furnished.
(2) After this Indenture has been qualified under the
Trust Indenture Act, the rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and duties of the Trustee,
shall be as provided by the Trust Indenture Act.
(3) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust Indenture
Act.
SECTION XV.3 No Recourse Against Others.
An incorporator or any past, present or future director,
officer, employee or stockholder, as such, of the Company or any
subsidiary shall not have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Holder shall waive and release all such
liability. Such waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION XV.4 Reports by Trustee.
(1) After this Indenture has been qualified under the
Trust Indenture Act, the Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(2) After this Indenture has been qualified under the
Trust Indenture Act, a copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when
the Securities are listed on any stock exchange.
SECTION XV.5 Reports by Company.
After this Indenture has been qualified under the Trust
Indenture Act, the Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE XVI
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 16.1 Indenture and Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or premium,
if any, or interest on any Security 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 Security, or because of the
creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, employee, agent, officer, or director or
subsidiary, as such, past, present or future, of the Company or of 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 waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Securities.
_____________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year
first above written.
CIRRUS LOGIC,
INC.
By
Name:
Title:
Attest:
______________________________
Name:
Title:
STATE STREET
BANK AND TRUST COMPANY,
as Trustee
By
Name:
Title:
Attest:
_______________________________
Name:
Title:
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to 3.5(2)(i), (iii) and (v)
of the Indenture)
State Street Bank and Trust Company
2 International Place
4th Floor
Boston, Massachusetts 02110
Re: 6% Convertible Subordinated Notes due
December 15, 2003 of Cirrus Logic, Inc. (the
"Securities")
Reference is made to the Indenture, dated as of December 15
, 1996 (the "Indenture"), from Cirrus Logic, Inc. (the "Company") to
State Street Bank and Trust Company, as Trustee. Terms used herein
and defined in the Indenture or in Regulation S or Rule 144 under the
U.S. Securities Act of 1933 (the "Securities Act") are used herein as
so defined.
This certificate relates to U.S. $____________ principal
amount of Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized
by them to do so. Such beneficial owner or owners are referred to
herein collectively as the "Owner". If the Specified Securities are
represented by a Global Security, they are held through the
Depositary or an Agent Member in the name of the Undersigned, as
or on behalf of the Owner. If the Specified Securities are not
represented by a Global Security, they are registered in the name of
the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in
the form of a Regulation S Security. In connection with such transfer,
the Owner hereby certifies that, unless such transfer is being effected
pursuant to an effective registration statement under the Securities
Act, it is being effected in accordance with Rule 904 or Rule 144
under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the
Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected
in accordance with Rule 904:
(A) the Owner is not a distributor of the
Securities, an affiliate of the Company or any such distributor or a
person acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not
made to a person in the United States;
(C) either:
(i) at the time the buy order was
originated, the Transferee was outside the United States or the Owner
and any person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in,
on or through the facilities of the Eurobond market, as regulated by
the Association of International Bond Dealers, or another designated
offshore securities market and neither the Owner nor any person
acting on its behalf knows that the transaction has been prearranged
with a buyer in the United States;
(D) no directed selling efforts have been made in
the United States by or on behalf of the Owner or any affiliate
thereof;
(E) if the Owner is a dealer in securities or has
received a selling concession, fee or other remuneration in respect of
the Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding
period of at least two years (computed in accordance with paragraph
(d) of Rule 144) has elapsed since the date the Specified Securities
were acquired from the Company or from an affiliate (as such term is
defined in Rule 144) of the Company, whichever is later, and is being
effected in accordance with the applicable amount, manner of sale
and notice requirements of paragraphs (e), (f) and (h) of Rule 144; or
(B) the transfer is occurring after a period of at
least three years has elapsed since the date the Specified Securities
were acquired from the Company or from an affiliate (as such term is
defined in Rule 144) of the Company, whichever is later, and the
Owner is not, and during the preceding three months has not been, an
affiliate of the Company.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial
Purchasers.
Dated:
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Undersigned must be
stated.)
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to 3.5(2)(ii), (iii), (iv) and (v)
of the Indenture)
State Street Bank and Trust Company
2 International Place
4th Floor
Boston, Massachusetts 02110
Re: 6% Convertible Subordinated Notes due
December 15, 2003 of Cirrus Logic, Inc. (the
"Securities")
Reference is made to the Indenture, dated as of December 15,
1996 (the "Indenture"), from Cirrus Logic, Inc. (the "Company") to
State Street Bank and Trust Company, as Trustee. Terms used herein
and defined in the Indenture or in Regulation S or Rule 144 under the
U.S. Securities Act of 1933 (the "Securities Act") are used herein as
so defined.
This certificate relates to U.S. $_____________ principal
amount of Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized
by them to do so. Such beneficial owner or owners are referred to
herein collectively as the "Owner". If the Specified Securities are
represented by a Global Security, they are held through the
Depositary or an Agent Member in the name of the Undersigned, as
or on behalf of the Owner. If the Specified Securities are not
represented by a Global Security, they are registered in the name of
the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in
the form of a Restricted Security. In connection with such transfer,
the Owner hereby certifies that, unless such transfer is being effected
pursuant to an effective registration statement under the Securities
Act, it is being effected in accordance with Rule 144A or Rule 144
under the Securities Act and all applicable securities laws of the states
of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as:
(1) Rule 144A Transfers. If the transfer is being
effected in accordance with Rule 144A:
(A) the Specified Securities are being
transferred to a person that the Owner and any person acting on its
behalf reasonably believe is a "qualified institutional buyer" within
the meaning of Rule 144A, acquiring for its own account or for the
account of a qualified institutional buyer; and
(B) the Owner and any person acting on
its behalf have taken reasonable steps to ensure that the Transferee is
aware that the Owner may be relying on Rule 144A in connection
with the transfer; and
(2) Rule 144 Transfers. If the transfer is being
effected pursuant to Rule 144:
(A) the transfer is occurring after a
holding period of at least two years (computed in accordance with
paragraph (d) of Rule 144) has elapsed since the date the Specified
Securities were acquired from the Company or from an affiliate (as
such term is defined in Rule 144) of the Company, whichever is later,
and is being effected in accordance with the applicable amount,
manner of sale and notice requirements of paragraphs (e), (f) and (h)
of Rule 144; or
(B) the transfer is occurring after a
period of at least three years has elapsed since the date the Specified
Securities were acquired from the Company or from an affiliate (as
such term is defined in Rule 144) of the Company, whichever is later,
and the Owner is not, and during the preceding three months has not
been, an affiliate of the Company.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial
Purchasers.
Dated:
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of
the Undersigned must be stated.)
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to 3.5(3))
State Street Bank and Trust Company
2 International Place
4th Floor
Boston, Massachusetts 02110
Re: 6% Convertible Subordinated Notes due
December 15, 2003 of Cirrus Logic, Inc. (the
"Securities")
Reference is made to the Indenture, dated as of December 15
, 1996 (the "Indenture"), from Cirrus Logic, Inc. (the "Company") to
State Street Bank and Trust Company, as Trustee. Terms used herein
and defined in the Indenture or in Regulation S or Rule 144 under the
U.S. Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to U.S. $_____________ principal
amount of Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by
them to do so. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are represented
by a Global Security, they are held through the Depositary or an Agent
Member in the name of the Undersigned, as or on behalf of the
Owner. If the Specified Securities are not represented by a Global
Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be
exchanged for Securities bearing no Securities Act Legend pursuant to
Section 3.5(3) of the Indenture. In connection with such exchange,
the Owner hereby certifies that the exchange is occurring after a
period of at least three years has elapsed since the date the Specified
Securities were acquired from the Company or from an affiliate (as
such term is defined in Rule 144) of the Company, whichever is later,
and the Owner is not, and during the preceding three months has not
been, an affiliate of the Company. The Owner also acknowledges that
any future transfers of the Specified Securities must comply with all
applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial
Purchasers.
Dated:
(Print the name of the Undersigned, as such term is defined in
the second paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary,
the title of the person signing on behalf of the Undersigned
must be stated.)
ANNEX D -- Form of
Surrender Certificate
In connection with the certification contemplated by Section
12.2 or 14.3(9) relating to compliance with certain restrictions relating
to transfers of Restricted Securities, such certification shall be provided
substantially in the form of the following certificate, with only such
changes thereto as shall be approved by the Company and Goldman,
Sachs & Co.:
"CERTIFICATE
CIRRUS LOGIC, INC.
6% CONVERTIBLE NOTES DUE DECEMBER 15, 2003
This is to certify that as of the date hereof with respect to U.S.
$________ principal amount (as defined in the Indenture) of the
above-captioned securities surrendered on the date hereof (the
"Surrendered Securities") for registration of transfer, or for conversion
or repurchase where the securities issuable upon such conversion or
repurchase are to be registered in a name other than that of the
undersigned Holder (each such transaction being a "transfer"), the
undersigned Holder (as defined in the Indenture) certifies that the
transfer of Surrendered Securities associated with such transfer
complies with the restrictive legend set forth on the face of the
Surrendered Securities for the reason checked below:
_______ The transfer of the Surrendered Securities complies
with Rule 144 under the United States Securities Act
of 1933, as amended (the "Securities Act"); or
_______ The transfer of the Surrendered Securities complies
with Rule 144A under the Securities Act; or
_______ The transfer of the Surrendered Securities complies
with Rule 904 under the Securities Act.
_______ The transfer of the Surrendered Securities has been
made to an institution that is an "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act in a transaction exempt from
the registration requirements of the Securities Act.
[Name of Holder]
____________________
Dated: ____________, ____*"
*To be dated the date
of surrender
[ARTICLE] 5
[MULTIPLIER] 1,000
<TABLE>
Part II. Other information, Item 6a.
Exhibit 11
CIRRUS LOGIC, INC.
STATEMENT RE: COMPUTATION OF EARNINGS PER SHARE
(In thousands, except per share amounts)
<CAPTION>
Quarter Ended Three Quarters Ended
------------------------- -------------------------
December 28, December 30, December 28, December 30,
1996 1995 1996 1995
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Primary:
Weighted average shares outstanding 65,179 63,273 64,704 62,409
Dilutive common stock equivalents:
Common stock options, using treasury stock
or modified treasury stock method 1,281 N/A 1,678 7,020
Common stock warrants, using treasury
stock or modified treasury stock method - - - 8
------------ ------------ ------------ ------------
Common and common equivalent shares used in
the calculation of net income (loss) per share 66,460 63,273 66,382 69,437
============ ============ ============ ============
Net income (loss) $10,310 ($3,601) $5,703 $52,173
============ ============ ============ ============
Net income (loss) per share $0.16 ($0.06) $0.09 $0.75
============ ============ ============ ============
Fully diluted:
Weighted average shares outstanding 65,179 63,273 64,704 62,409
Dilutive common stock equivalents:
Common stock options, using treasury stock
or modified treasury stock method 1,282 N/A 2,309 7,528
Convertible subordinated debt, using the
"if converted" method N/A - N/A -
Common stock warrants, using treasury
stock or modified treasury stock method - - - 9
------------ ------------ ------------ ------------
Common and common equivalent shares used in
the calculation of net income (loss) per share 66,461 63,273 67,013 69,946
============ ============ ============ ============
Net income (loss) $10,310 ($3,601) $5,703 $52,173
============ ============ ============ ============
Net income (loss) per share $0.16 ($0.06) $0.09 $0.75
============ ============ ============ ============
</TABLE>
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED
FROM THE ACCOMPANYING FINANCIAL STATEMENTS AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<FISCAL-YEAR-END> Mar-29-1997
<PERIOD-START> Mar-31-1996
<PERIOD-END> Dec-28-1996
<PERIOD-TYPE> 9-MOS
<CASH> 213,767
<SECURITIES> 140,103
<RECEIVABLES> 152,384
<ALLOWANCES> 0
<INVENTORY> 128,034
<CURRENT-ASSETS> 776,551
<PP&E> 152,698
<DEPRECIATION> 0
<TOTAL-ASSETS> 1,133,721
<CURRENT-LIABILITIES> 311,463
<BONDS> 0
0
0
<COMMON> 349,165
<OTHER-SE> 104,795
<TOTAL-LIABILITY-AND-EQUITY> 1,133,721
<SALES> 704,237
<TOTAL-REVENUES> 704,237
<CGS> 434,890
<TOTAL-COSTS> 434,890
<OTHER-EXPENSES> 253,592
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 7,977
<INCOME-TAX> 2,274
<INCOME-CONTINUING> 5,703
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,703
<EPS-PRIMARY> $0.09
<EPS-DILUTED> $0.09
</TABLE>
