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EXHIBIT 4.1
Cypress Semiconductor Corporation
and
State Street Bank and Trust Company of California, N.A.
Trustee
Supplemental Trust Indenture
Dated as of June 15, 2000
Supplementing that certain
Subordinated Indenture
Dated as of January 15, 2000
Authorizing the Issuance and Delivery of
Subordinated Debt Securities
3.75% Convertible Subordinated Notes due 2005
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TABLE OF CONTENTS
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PAGE
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ARTICLE ONE ISSUANCE OF NOTES....................................................................2
Section 101 Issuance of Notes; Principal Amount; Maturity..............................2
Section 102 Interest on the Notes; Payment of Interest.................................2
ARTICLE TWO CERTAIN DEFINITIONS..................................................................3
Section 201 Certain Definitions........................................................3
ARTICLE THREE CERTAIN COVENANTS..................................................................4
Section 301 Registration and Listing...................................................4
ARTICLE FOUR REDEMPTION OF NOTES.................................................................4
Section 401 Right of Redemption........................................................4
Section 402 Conversion Arrangement on Call for Redemption..............................5
ARTICLE FIVE CONVERSION OF NOTES.................................................................5
Section 501 Conversion Privilege and Conversion Price..................................5
Section 502 Adjustment of Conversion Price.............................................6
Section 503 No Adjustment.............................................................11
ARTICLE SIX REDEMPTION AT OPTION OF HOLDERS UPON A CHANGE IN CONTROL............................11
Section 601 Purchase of Securities at Option of the Holder Upon Change in
Control...................................................................11
Section 602 Effect of Change in Control Purchase Notice...............................14
Section 603 Deposit of Change in Control Purchase Price...............................15
Section 604 Notes Purchased In Part...................................................15
Section 605 Compliance With Securities Laws Upon Purchase of Notes....................15
Section 606 Repayment to the Company..................................................15
Section 607 Successive Consolidations, Mergers, Etc...................................16
ARTICLE SEVEN MISCELLANEOUS.....................................................................16
Section 701 Consent of Holders Required...............................................16
Section 702 Applicability of Certain Indenture Provisions.............................16
Section 703 Reference to and Effect on the Indenture..................................17
Section 704 Supplemental Indenture May be Executed In Counterparts....................17
Section 705 Effect of Headings........................................................17
Section 706 Separability..............................................................17
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This Supplemental Trust Indenture, dated as of June 15, 2000 (the
"SUPPLEMENTAL INDENTURE"), between Cypress Semiconductor Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(the "COMPANY"), and State Street Bank and Trust Company of California, N.A., a
national banking association organized and existing under the laws of the United
States of America, as Trustee (the "TRUSTEE"), supplementing that certain
Subordinated Indenture, dated as of January 15, 2000, between the Company and
the Trustee (such Indenture, as supplemented by this Supplemental Indenture for
this series of Securities, being referred to herein as the "INDENTURE").
Recitals
A. The Company has duly authorized the execution and delivery of the
Indenture heretofore executed and delivered to provide for the issuance from
time to time of its unsecured debentures, notes, or other evidences of
indebtedness to be issued in one or more series as provided for in the Indenture
heretofore executed and delivered.
B. The Indenture heretofore executed and delivered provides that the
Securities of each series shall be in substantially the form set forth in the
Indenture heretofore executed and delivered, or in such other form as may be
established by or pursuant to a Board Resolution or in one or more supplemental
indentures thereto, in each case with such appropriate insertions, omissions,
substitutions, and other variations as are required or permitted by the
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 or as may, consistently herewith, be
determined to be required by the officers executing such securities, as
evidenced by their execution thereof.
C. The Company and the Trustee have agreed that the Company shall issue
and deliver, and the Trustee shall authenticate, Securities denominated "3.75%
Convertible Subordinated Notes due 2005" (the "NOTES") pursuant to the terms of
this Supplemental Indenture and substantially in the form set forth below, in
each case with such appropriate insertions, omissions, substitutions, and other
variations as are required or permitted by the Indenture heretofore executed and
delivered and this Supplemental Indenture, and with 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 or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
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ARTICLE ONE
ISSUANCE OF NOTES
Section 101 Issuance of Notes; Principal Amount; Maturity.
(a) On June 26, 2000, the Company shall issue and deliver to the Trustee,
and the Trustee shall authenticate, Notes substantially in the form set forth in
Annex 1, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by the Indenture and this
Supplemental Indenture, and with 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 or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
(b) There is hereby authorized a series of Securities designated the
3.75% Convertible Subordinated Notes due 2005, which may be authenticated and
delivered under the Indenture in an unlimited principal amount. The Notes shall
mature on July 1, 2005, which shall be the Stated Maturity.
Section 102 Interest on the Notes; Payment of Interest.
(a) The Notes shall bear interest at the rate of 3.75% per annum from
June 26, 2000 and to and including July 1, 2005. Interest will be computed on
the basis of a 360-day year comprised of twelve 30-day months.
(b) The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date shall, as provided in such Indenture, be paid to the
Person in whose name a Note is registered at the close of business on the
Regular Record Date for such interest, which shall be the June 15 or December 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
(c) Payment of the principal of (and premium, if any) and any interest on
the Notes shall be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York (which shall
initially be State Street Bank and Trust Company, N.A., an Affiliate of the
Trustee, as agent of the Trustee) or at the Corporate Trust Office of the
Trustee in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
appears in the Security Register; provided that a Holder with an aggregate
principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder.
The Company hereby initially designates the Trustee as Paying Agent,
Security Registrar, Custodian and conversion agent, and each of the Corporate
Trust Office of the Trustee and the office
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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, as agent of the Trustee located at 61 Broadway, 15th floor, New York,
New York, 10006, Attn: Corporate Trust Administration (Cypress Semiconductor
Corporation 3.75% Convertible Subordinated Notes due 2005)), one such office or
agency of the Company for each of the aforesaid purposes.
ARTICLE TWO
CERTAIN DEFINITIONS
Section 201 Certain Definitions.
The terms defined in this Section 201 (except as herein otherwise
expressly provided or unless the context of this Supplemental Indenture
otherwise requires) for all purposes of this Supplemental Indenture and of any
indenture supplemental hereto have the respective meanings specified in this
Section 201. All other terms used in this Supplemental Indenture that are
defined in the Indenture or the Trust Indenture Act, either directly or by
reference therein (except as herein otherwise expressly provided or unless the
context of this Supplemental Indenture otherwise requires), have the respective
meanings assigned to such terms in the Indenture or the Trust Indenture Act, as
the case may be, as in force at the date of this Supplemental Indenture as
originally executed.
"CAPITAL STOCK" or "CAPITAL STOCK" of any person means any and all
shares, interests, partnership interests, participations, rights or other
equivalents (however designated) of such person's equity interest (however
designated).
"INTEREST PAYMENT DATES" with respect to the Notes shall be January 1 and
July 1.
"PRINCIPAL AMOUNT" of a Security means the principal amount as set forth
on the face of the Security.
"REGULAR RECORD DATES" with respect to the Notes shall be June 15 and
December 15.
"TRADING DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
other than any day on which the Common Stock is not traded on the New York Stock
Exchange, or if the Common Stock is not traded on the New York Stock Exchange,
on the principal exchange or market on which the Common Stock is traded or
quoted.
"VOTING STOCK" means any class or classes of Capital Stock pursuant to
which the holders thereof under ordinary circumstances have the power to vote in
the election of the board of directors, managers or trustees of any Person (or
other persons performing similar functions), irrespective of whether or not, at
the time, Capital Stock of any other class or classes shall have, or might have,
voting power by reason of the happening of any contingency.
The definitions of other terms are specified in Articles Five and Six.
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ARTICLE THREE
CERTAIN COVENANTS
The following covenant shall be applicable to the Company for so long as
any of the Notes are outstanding.
Section 301 Registration and Listing.
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 Notes may be lawfully issued and delivered, and
thereafter publicly traded, and qualified or listed as contemplated by clause
(ii); and (ii) will list the shares of Common Stock required to be issued and
delivered upon conversion of the Notes prior to such issuance or delivery on the
New York Stock Exchange or such other exchange or automated quotation as the
Common Stock is then listed at such date of conversion. The provisions of
Section 1008 of the Indenture shall not apply to this Section 301.
ARTICLE FOUR
REDEMPTION OF NOTES
Section 401 Right of Redemption.
The Notes will not be subject to redemption prior to July 5, 2003 and
will be redeemable on and after such date at the option of the Company, in whole
or in part, upon not less than 20 nor more than 60 days' notice to the Holders,
at the Redemption Prices (expressed as a percentage of principal amount) set
forth below.
The Redemption Price (expressed as a percentage of principal amount) is
as follows:
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REDEMPTION
YEAR PRICE
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Beginning on July 5, 2003 and ending on June 30, 2004 100.9375%
Beginning on July 1, 2004 and thereafter 100.0000%
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in each case together with accrued and unpaid interest to, but excluding, the
Redemption Date; provided, however, that interest installments whose Stated
Maturity is on such Redemption Date will be payable to the Holders of such
Notes, 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.
The Notes are not subject to redemption through operation of any sinking
fund.
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Section 402 Conversion Arrangement on Call for Redemption.
In connection with any redemption of Notes, the Company may arrange for
the purchase and conversion of any Notes by an agreement with one or more
investment bankers or other purchasers to purchase such Notes by paying to the
Trustee in trust for the Holders, on or before the date fixed for redemption, an
amount not less than the applicable Redemption Price, together with interest
accrued to (but excluding) the date fixed for redemption, of such Notes.
Notwithstanding anything to the contrary contained herein, the obligation of the
Company to pay the Redemption Price of such Notes, together with interest
accrued to (but excluding) 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 will be filed with the Trustee
prior to the Redemption Date, any Notes not duly surrendered for conversion by
the Holders thereof may, at the option of the Company, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained herein) 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 Notes shall be
extended through 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 in the same manner as it would monies deposited
with it by the Company for the redemption of Notes. Without the Trustee's prior
written consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Notes shall increase or otherwise affect any of
the powers, duties, responsibilities or obligations of the Trustee as set forth
in this Indenture, and the Company agrees to indemnify the Trustee from, and
hold it harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion of any
Notes between the Company and such purchasers to which the Trustee has not
consented in writing, including the costs and expenses, 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 FIVE
CONVERSION OF NOTES
Section 501 Conversion Privilege and Conversion Price.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Note may be converted into fully paid and
nonassessable shares of Common Stock of the Company at the Conversion Price,
determined as hereinafter provided, in effect at the time of conversion. Such
conversion right shall commence on June 26, 2000 and expire at the close of
business on July 1, 2005, subject, in the case of the conversion of any Global
Security, to any applicable book-entry procedures of the Depositary therefor. In
case a Note is called for redemption at the election of the Company, such
conversion right in respect of the Note shall expire at the close of business on
the Business Day next preceding the Redemption Date. A Note in respect of which
a Holder is exercising its option to require redemption upon a Change in Control
may be converted
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only if such Holder withdraws its election to exercise its option in accordance
with Article Six of this Supplemental Indenture.
The initial Conversion Price of the Notes is $62.548 per share of Common
Stock, and shall be adjusted in certain instances as provided in this Article
Five.
Section 502 Adjustment of Conversion Price.
The Conversion Price shall be adjusted from time to time by the Company
as follows:
(a) In case the Company shall (i) pay a dividend on its Common Stock in
shares of Common Stock, (ii) make a distribution on its Common Stock in shares
of Common Stock, (iii) subdivide its outstanding Common Stock into a greater
number of shares, or (iv) combine its outstanding Common Stock into a smaller
number of shares, the Conversion Price in effect immediately prior thereto shall
be adjusted so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive that number of shares of Common Stock
which it would have owned had such Note been converted immediately prior to the
happening of such event. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of subdivision or combination. The Company will not
pay any dividend on or make any distribution on shares of its Common Stock held
in the treasury of the Company.
(b) In case the Company shall issue rights or warrants to all or
substantially all holders of its Common Stock entitling them (for a period
commencing no earlier than the record date described below and expiring not more
than 60 days after such record date) to subscribe for or purchase shares of
Common Stock (or securities convertible into Common Stock) at a price per share
(or having a conversion price per share) less than the current market price per
share of Common Stock (as determined in accordance with subsection (e) of this
Section 502) on the record date for the determination of shareholders entitled
to receive such rights or warrants, the Conversion Price in effect immediately
prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
such record date by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding on such record date plus the number of shares
which the aggregate offering price of the total number of shares of Common Stock
so offered (or the aggregate conversion price of the convertible securities so
offered, which shall be determined by multiplying the number of shares of Common
Stock issuable upon conversion of such convertible securities by the conversion
price per share of Common Stock pursuant to the terms of such convertible
securities) would purchase at the current market price per share (as defined in
subsection (e) of this Section 502) of Common Stock on such record date and of
which the denominator shall be the number of shares of Common Stock outstanding
on such record date plus the number of additional shares of Common Stock offered
(or into which the convertible securities so offered are convertible). Such
adjustment shall be made successively whenever any such rights or warrants are
issued, and shall become effective immediately after such record date. If at the
end of the period during which such rights or warrants are exercisable not all
rights or warrants shall have been exercised, the adjusted Conversion Price
shall be immediately readjusted to what it would have been based upon the number
of additional shares of Common Stock actually issued (or
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the number of shares of Common Stock issuable upon conversion of convertible
securities actually issued).
(c) In case the Company shall distribute to all or substantially all
holders of its Common Stock any shares of capital stock (other than dividends or
distributions of Common Stock on Common Stock to which Section 502(a) applies)
of the Company, or evidences of indebtedness or other assets (including
securities of any person other than the Company, but excluding all-cash
distributions to which 502(d) applies or any rights or warrants referred to in
502(b)), then in each such case the Conversion Price shall be adjusted so that
the same shall equal the price determined by multiplying the current Conversion
Price by a fraction of which the numerator shall be the current market price per
share (as defined in subsection (e) of this Section 502) of the Common Stock on
the record date mentioned below less the fair market value on such record date
(as determined by the Board of Directors, whose determination shall be
conclusive evidence of such fair market value and which shall be evidenced by an
Officers' Certificate delivered to the Trustee) of the portion of the capital
stock, evidences of indebtedness or other non-cash assets so distributed or of
such rights or warrants applicable to one share of Common Stock (determined on
the basis of the number of shares of Common Stock outstanding on the record
date) and of which the denominator shall be the current market price per share
(as defined in subsection (e) of this Section 502) of the Common Stock on such
record date. Such adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of shareholders entitled to receive such
distribution.
In the event that the Company implements a stockholder rights plan, such
rights plan shall provide, subject to customary exceptions, that upon conversion
of the Notes the Holders will receive, in addition to the Common Stock issuable
upon such conversion, the rights issued under such rights plan (notwithstanding
the occurrence of an event causing such rights to separate from the Common Stock
at or prior to the time of conversion). Any distribution of rights or warrants
pursuant to a stockholder rights plan complying with the requirements set forth
in the immediately preceding sentence of this paragraph shall not constitute a
distribution of rights or warrants for the purposes of this Section 502(c).
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
Company's capital stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("TRIGGER EVENT"): (i) are deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 502(c) (and no adjustment to the Conversion Price under
this Section 502(c) will be required) until the occurrence of the earliest
Trigger Event. If such right or warrant is subject to subsequent events, upon
the occurrence of which such right or warrant shall become exercisable to
purchase different securities, evidences of indebtedness or other assets or
entitle the holder to purchase a different number or amount of the foregoing or
to purchase any of the foregoing at a different purchase price, then the
occurrence of each such event shall be deemed to be the date of issuance and
record date with respect to a new right or warrant (and a termination or
expiration of the existing right or warrant without exercise by
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the holder thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto, that resulted in
an adjustment to the Conversion Price under this Section 502(c), (1) in the case
of any such rights or warrants which shall all have been redeemed or repurchased
without exercise by any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder of Common Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of
such rights or warrants all of which shall have expired or been terminated
without exercise, the Conversion Price shall be readjusted as if such rights and
warrants had never been issued.
(d) (1) In case the Company shall, by dividend or otherwise, at any time
distribute (a "TRIGGERING DISTRIBUTION") to all or substantially all holders of
its Common Stock all cash distributions in an aggregate amount that, together
with the aggregate amount of (A) any cash and the fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
evidence thereof and which shall be evidenced by an Officers' Certificate
delivered to the Trustee) of any other consideration payable in respect of any
tender offer by the Company or a Subsidiary of the Company for Common Stock
consummated within the 12 months preceding the date of payment of the Triggering
Distribution and in respect of which no Conversion Price adjustment pursuant to
this Section 502 has been made and (B) all other cash distributions to all or
substantially all holders of its Common Stock made within the 12 months
preceding the date of payment of the Triggering Distribution and in respect of
which no Conversion Price adjustment pursuant to this Section 502 has been made,
exceeds an amount equal to 10% of the product of the current market price per
share of Common Stock (as determined in accordance with subsection (e) of this
Section 502) on the Business Day (the "DETERMINATION DATE") immediately
preceding the day on which such Triggering Distribution is declared by the
Company multiplied by the number of shares of Common Stock outstanding on the
Determination Date (excluding shares held in the treasury of the Company), the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying such Conversion Price in effect immediately prior to
the Determination Date by a fraction of which the numerator shall be the current
market price per share of the Common Stock (as determined in accordance with
subsection (e) of this Section 502) on the Determination Date less the sum of
the aggregate amount of cash and the aggregate fair market value (determined as
aforesaid) of any such other consideration so distributed, paid or payable
within such 12 months (including, without limitation, the Triggering
Distribution) applicable to one share of Common Stock (determined on the basis
of the number of shares of Common Stock outstanding on the Determination Date),
and of which the denominator shall be such current market price per share of the
Common Stock (as determined in accordance with subsection (e) of this Section
502) on the Determination Date, such reduction to become effective immediately
prior to the opening of business on the day following the date on which the
Triggering Distribution is paid; provided that, in the event the portion of the
cash so distributed applicable to one share of Common Stock is equal to or
greater than such current market price per share of the Common Stock, in lieu of
the foregoing, an adequate adjustment provision shall be made so that each
holder of Notes shall have the right to
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receive upon conversion the amount of cash such holder would have received had
such holder converted each Note immediately prior to such distribution.
(2) In case any tender offer made by the Company or any of its
Subsidiaries for Common Stock shall expire and such tender offer (as amended
upon the expiration thereof) shall involve the payment of aggregate
consideration in an amount (determined as the sum of the aggregate amount of
cash consideration and the aggregate fair market value (as determined by the
Board of Directors, whose determination shall be conclusive evidence thereof and
which shall be evidenced by an Officers' Certificate delivered to the Trustee
thereof ) of any other consideration) that, together with the aggregate amount
of (A) any cash and the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive evidence thereof and which
shall be evidenced by an Officers' Certificate delivered to the Trustee) of any
other consideration payable in respect of any other tender offers by the Company
or any Subsidiary of the Company for Common Stock consummated within the 12
months preceding the date of the Expiration Date (as defined below) and in
respect of which no Conversion Price adjustment pursuant to this Section 502 has
been made and (B) all cash distributions to all or substantially all holders of
its Common Stock made within the 12 months preceding the Expiration Date and in
respect of which no Conversion Price adjustment pursuant to this Section 502 has
been made, exceeds an amount equal to 10% of the product of the current market
price per share of Common Stock (as determined in accordance with subsection (e)
of this Section 502) as of the last date (the "EXPIRATION DATE") tenders could
have been made pursuant to such tender offer (as it may be amended) (the last
time at which such tenders could have been made on the Expiration Date is
hereinafter sometimes called the "EXPIRATION TIME") multiplied by the number of
shares of Common Stock outstanding (including tendered shares but excluding any
shares held in the treasury of the Company) at the Expiration Time, then,
immediately prior to the opening of business on the day after the Expiration
Date, the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to close of business on the Expiration Date by a fraction of which the numerator
shall be the product of the number of shares of Common Stock outstanding
(including tendered shares but excluding any shares held in the treasury of the
Company) at the Expiration Time multiplied by the current market price per share
of the Common Stock (as determined in accordance with subsection (e) of this
Section 502) on the Trading Day next succeeding the Expiration Date, and of
which the denominator shall be the sum of (x) the aggregate consideration
(determined as aforesaid) payable to stockholders based on the acceptance (up to
any maximum specified in the terms of the tender offer) of all shares validly
tendered and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "PURCHASED SHARES")
and (y) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares and excluding any shares held in the treasury of the
Company) at the Expiration Time and the current market price per share of Common
Stock (as determined in accordance with subsection (e) of this Section 502) on
the Trading Day next succeeding the Expiration Date, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Date. In the event that the Company is obligated to purchase shares
pursuant to any such tender offer, but the Company is permanently prevented by
applicable law from effecting any or all such purchases or any or all such
purchases are rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would have been in
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effect based upon the number of shares actually purchased. If the application of
this Section 502(d)(2) to any tender offer would result in a decrease in the
Conversion Price, no adjustment shall be made for such tender offer under this
Section 502(d)(2).
(3) For purposes of this Section 502(d), the term "TENDER OFFER"
shall mean and include both tender offers and exchange offers, all references to
"purchases" of shares in tender offers (and all similar references) shall mean
and include both the purchase of shares in tender offers and the acquisition of
shares pursuant to exchange offers, and all references to "tendered shares" (and
all similar references) shall mean and include shares tendered in both tender
offers and exchange offers.
(e) For the purpose of any computation under subsections (b), (c) and (d)
of this Section 502, the current market price per share of Common Stock on any
date shall be deemed to be the average of the daily closing prices for the 30
consecutive Trading Days ending on the last full Trading Day before (i) the
Determination Date or the Expiration Date, as the case may be, with respect to
distributions or tender offers under subsection (d) of this Section 502 or (ii)
the record date with respect to distributions, issuances or other events
requiring such computation under subsection (b) or (c) of this Section 502. The
closing price for each day shall be the last reported sales price or, in case no
such reported sale takes place on such date, the average of the reported closing
bid and asked prices in either case on the New York Stock Exchange (the "NYSE")
or, if the Common Stock is not listed or admitted to trading on the NYSE, on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, the last reported sales price of the Common Stock as quoted
on NASDAQ (the term "NASDAQ" shall include, without limitation, the Nasdaq
National Market) or, in case no reported sales takes place, the average of the
closing bid and asked prices as quoted on NASDAQ or any comparable system or, if
the Common Stock is not quoted on NASDAQ or any comparable system, the closing
sales price or, in case no reported sale takes place, the average of the closing
bid and asked prices, as furnished by any two members of the National
Association of Securities Dealers, Inc. selected from time to time by the
Company for that purpose. If no such prices are available, the current market
price per share shall be the fair value of a share of Common Stock as determined
by the Board of Directors (which shall be evidenced by an Officers' Certificate
delivered to the Trustee).
(f) In any case in which this Section 502 shall require that an
adjustment be made following a record date or a Determination Date or Expiration
Date, as the case may be, established for purposes of this Section 502, the
Company may elect to defer (but only until five Business Days following the
filing by the Company with the Trustee of the certificate described in Section
1405 of the Indenture) issuing to the Holder of any Note converted after such
record date or Determination Date or Expiration Date the shares of Common Stock
and other capital stock of the Company issuable upon such conversion over and
above the shares of Common Stock and other capital stock of the Company issuable
upon such conversion only on the basis of the Conversion Price prior to
adjustment; and, in lieu of the shares the issuance of which is so deferred, the
Company shall issue or cause its transfer agents to issue due bills or other
appropriate evidence prepared by the Company of the right to receive such
shares. If any distribution in respect of which an adjustment to the
-10-
<PAGE> 13
Conversion Price is required to be made as of the record date or Determination
Date or Expiration Date therefor is not thereafter made or paid by the Company
for any reason, the Conversion Price shall be readjusted to the Conversion Price
which would then be in effect if such record date had not been fixed or such
effective date or Determination Date or Expiration Date had not occurred.
(g) The Company may make such reductions to the Conversion Price, in
addition to those required by Article Five, as the board of directors of the
Company considers to be advisable to avoid or diminish any income tax to holders
of Common Stock or rights to purchase Common Stock resulting from any dividend
or distribution of stock (or rights to acquire stock) or from any event treated
as such for income tax purposes.
To the extent permitted by applicable law, the Company may from time to
time reduce the Conversion Price by any amount for any period of time if the
period is at least 20 days, the reduction is irrevocable during the period and
the board of directors of the Company shall have made a determination that such
reduction would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Conversion Price is reduced pursuant to the
preceding sentence, the Company shall mail to the holders of record of the Notes
a notice of reduction at least 15 days prior to the date the reduced Conversion
Price takes effect, and such notice shall state the reduced Conversion Price and
the period during which it will be in effect.
Section 503 No Adjustment.
No adjustment in the Conversion Price shall be required unless the
adjustment would require an increase or decrease of at least 1% in the
Conversion Price as last adjusted; provided, however, that any adjustments which
by reason of this Section 503 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article 4 shall be made to the nearest cent or to the nearest
1/1000th of a share, as the case may be.
ARTICLE SIX
REDEMPTION AT OPTION OF HOLDERS UPON A CHANGE IN CONTROL
Section 601 Purchase of Securities at Option of the Holder Upon Change in
Control.
(a) If at any time that Notes remain outstanding there shall occur a
Change in Control, Notes shall be purchased by the Company at the option of the
Holders thereof as of the date that is 30 Business Days after the occurrence of
the Change in Control (the "CHANGE IN CONTROL PURCHASE DATE") at a purchase
price equal to the principal amount of the Notes, plus accrued and unpaid
interest to, but excluding, the Change in Control Purchase Date (the "CHANGE IN
CONTROL PURCHASE PRICE"), subject to satisfaction by or on behalf of any Holder
of the requirements set forth in subsection (c) of this Section 601.
A "CHANGE IN CONTROL" shall be deemed to have occurred if any of the
following occurs after the date hereof:
-11-
<PAGE> 14
(1) any "person" or "group" (as such terms are defined below) is
or becomes the "beneficial owner" (as defined below), directly or indirectly, of
shares of Voting Stock of the Company representing 50% or more of the total
voting power of all outstanding classes of Voting Stock of the Company or has
the power, directly or indirectly, to elect a majority of the members of the
Board of Directors of the Company; or
(2) the Company consolidates with, or merges with or into, another
Person or the Company sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of the assets of the Company, or any Person
consolidates with, or merges with or into, the Company, in any such event other
than pursuant to a transaction in which the Persons that "beneficially owned"
(as defined below), directly or indirectly, shares of Voting Stock of the
Company immediately prior to such transaction "beneficially own" (as defined
below), directly or indirectly, shares of Voting Stock of the Company
representing at least a majority of the total voting power of all outstanding
classes of Voting Stock of the surviving or transferee Person; or
(3) there shall occur the liquidation or dissolution of the
Company.
For the purpose of the definition of "Change in Control," (i) "person"
and "group" have the meanings given such terms under Section 13(d) and 14(d) of
the Exchange Act or any successor provision to either of the foregoing, and the
term "group" includes any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act (or any successor provision thereto), (ii) a "beneficial owner"
shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in
effect on the date of this Indenture, except that the number of shares of Voting
Stock of the Company shall be deemed to include, in addition to all outstanding
shares of Voting Stock of the Company and Unissued Shares deemed to be held by
the "person" or "group" (as such terms are defined above) or other Person with
respect to which the Change in Control determination is being made, all Unissued
Shares deemed to be held by all other Persons, and (iii) the terms "beneficially
owned" and "beneficially own" shall have meanings correlative to that of
"beneficial owner". The term "UNISSUED SHARES" means shares of Voting Stock not
outstanding that are subject to options, warrants, rights to purchase or
conversion privileges exercisable within 60 days of the date of determination of
a Change in Control.
Notwithstanding anything to the contrary in this Section 601, a Change in
Control shall not be deemed to have occurred if either (i) the closing price (as
defined in Section 502(e)) of the Common Stock for any five Trading Days during
the ten Trading Days immediately preceding the Change in Control is at least
equal to 105% of the Conversion Price in effect on such day; or (ii) in the case
of a merger or consolidation, all of the consideration excluding cash payments
for fractional shares in such merger or consolidation constituting the Change in
Control consists of common stock traded on a United States national securities
exchange or quoted on NASDAQ (or which will be so traded or quoted when issued
or exchanged in connection with such Change in Control) and as a result of such
transaction or transactions the Notes become convertible solely into such common
stock.
(b) Within 10 Business Days after the occurrence of a Change in Control,
the Company shall mail a written notice of the Change in Control to the Trustee
and to each Holder (and to
-12-
<PAGE> 15
beneficial owners as required by applicable law) and shall cause a copy of such
notice to be published in a daily newspaper of national circulation. The notice
shall include the form of a Change in Control Purchase Notice to be completed by
the Holder and shall state:
(1) the date of such Change in Control and, briefly, the events
causing such Change in Control;
(2) the date by which the Change in Control Purchase Notice
pursuant to this Section 601 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) briefly, the conversion rights of the Notes;
(6) the name and address of each Paying Agent and Conversion
Agent;
(7) the Conversion Price and any adjustments thereto;
(8) that Notes as to which a Change in Control Purchase Notice has
been given may be converted into Common Stock pursuant to Article 5 of the
Supplemental Indenture only to the extent that the Change in Control Purchase
Notice has been withdrawn in accordance with the terms of this Indenture;
(9) the procedures that the Holder must follow to exercise rights
under this Section 601;
(10) the procedures for withdrawing a Change in Control Purchase
Notice, including a form of notice of withdrawal; and
(11) that the Holder must satisfy the requirements set forth in
the Securities in order to convert the Securities.
If any of the Notes is in the form of a Global Security, then the Company
shall modify such notice to the extent necessary to accord with the procedures
of the Depositary applicable to the repurchase of Global Securities.
(c) A Holder may exercise its rights specified in subsection (a) of this
Section 601 upon delivery of a written notice (which shall be in substantially
the form included in Exhibit A hereto and which may be delivered by letter,
overnight courier, hand delivery, facsimile transmission or in any other written
form and, in the case of Global Securities, may be delivered electronically or
by other means in accordance with the Depositary's customary procedures) of the
exercise of such rights (a "CHANGE IN CONTROL PURCHASE NOTICE") to any Paying
Agent at any time prior to the close of business on the Business Day next
preceding the Change in Control Purchase Date.
-13-
<PAGE> 16
The delivery of such Security to any Paying Agent (together with all
necessary endorsements) at the office of such Paying Agent shall be a condition
to the receipt by the Holder of the Change in Control Purchase Price therefor.
The Company shall purchase from the Holder thereof, pursuant to this
Section 601, a portion of a Note if the Principal Amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of the Indenture that apply
to the purchase of all of a Note pursuant to Sections 601 through 606 also apply
to the purchase of such portion of such Note.
Notwithstanding anything herein to the contrary, any Holder delivering to
a Paying Agent the Change in Control Purchase Notice contemplated by this
subsection (c) shall have the right to withdraw such Change in Control Purchase
Notice in whole or in a portion thereof that is a Principal Amount of $1,000 or
in an integral multiple thereof at any time prior to the close of business on
the Business Day next preceding the Change in Control Purchase Date by delivery
of a written notice of withdrawal to the Paying Agent in accordance with Section
602.
A Paying Agent shall promptly notify the Company of the receipt by it of
any Change in Control Purchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case of Global
Securities, any Change in Control Purchase Notice may be delivered or withdrawn
and such Securities may be surrendered or delivered for purchase in accordance
with the applicable procedures of the Depositary as in effect from time to time.
Section 602 Effect of Change in Control Purchase Notice.
Upon receipt by any Paying Agent of the Change in Control Purchase Notice
specified in Section 601(c), the Holder of the Note in respect of which such
Change in Control Purchase Notice was given shall (unless such Change in Control
Purchase Notice is withdrawn as specified below) thereafter be entitled to
receive the Change in Control Purchase Price with respect to such Note. Such
Change in Control Purchase Price shall be paid to such Holder promptly following
the later of (a) the Change in Control Purchase Date with respect to such Note
(provided the conditions in Section 601(c) have been satisfied) and (b) the time
of delivery of such Security to a Paying Agent by the Holder thereof in the
manner required by Section 601(c). Notes in respect of which a Change in Control
Purchase Notice has been given by the Holder thereof may not be converted into
shares of Common Stock on or after the date of the delivery of such Change in
Control Purchase Notice unless such Change in Control Purchase Notice has first
been validly withdrawn.
A Change in Control Purchase Notice may be withdrawn by means of a
written notice (which may be delivered by letter, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case
of Global Securities, may be delivered electronically or by other means in
accordance with the Depositary's customary procedures) of withdrawal delivered
by the Holder to a Paying Agent at any time prior to the close of business on
the Business Day immediately preceding the Change in Control Purchase Date,
specifying the Principal Amount of the Security or portion
-14-
<PAGE> 17
thereof (which must be a Principal Amount of $1,000 or an integral multiple of
$1,000 in excess thereof) with respect to which such notice of withdrawal is
being submitted.
Section 603 Deposit of Change in Control Purchase Price.
On or before 11:00 a.m. New York City time on the Change in Control
Purchase Date, the Company shall deposit with the Trustee or with a Paying Agent
(other than the Company or an Affiliate of the Company) an amount of money (in
immediately available funds if deposited on such Business Day) sufficient to pay
the aggregate Change in Control Purchase Price of all the Notes or portions
thereof that are to be purchased as of such Change in Control Purchase Date. The
manner in which the deposit required by this Section 603 is made by the Company
shall be at the option of the Company, provided that such deposit shall be made
in a manner such that the Trustee or a Paying Agent shall have immediately
available funds on the Change in Control Purchase Date.
If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Change in Control Purchase Price of any Note for which a
Change in Control Purchase Notice has been tendered and not withdrawn in
accordance with this Indenture then, on the Change in Control Purchase Date,
such Note will cease to be outstanding and the rights of the Holder in respect
thereof shall terminate (other than the right to receive the Change in Control
Purchase Price as aforesaid). The Company shall publicly announce the Principal
Amount of Notes purchased as a result of such Change in Control on or as soon as
practicable after the Change in Control Purchase Date.
Section 604 Notes Purchased In Part.
Any Note that is to be purchased only in part shall be surrendered at the
office of a Paying Agent and promptly after the Change in Control Purchase Date
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Note, without service charge, a new Note or Notes, of such
authorized denomination or denominations as may be requested by such Holder, in
aggregate Principal Amount equal to, and in exchange for, the portion of the
Principal Amount of the Note so surrendered that is not purchased.
Section 605 Compliance With Securities Laws Upon Purchase of Notes.
In connection with any offer to purchase or purchase of Notes under
Section 601, the Company shall (a) comply with Rule 13e-4 and Rule 14e-1 (or any
successor to either such Rule), if applicable, under the Exchange Act, (b) file
the related Schedule 13E-4 (or any successor or similar schedule, form or
report) if required under the Exchange Act, and (c) otherwise comply with all
federal and state securities laws in connection with such offer, all so as to
permit the rights of the Holders and obligations of the Company under Sections
601 through 604 to be exercised in the time and in the manner specified therein.
Section 606 Repayment to the Company.
To the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 603 exceeds the aggregate Change in Control Purchase Price
together with interest, if any,
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<PAGE> 18
thereon of the Notes or portions thereof that the Company is obligated to
purchase, then promptly after the Change in Control Purchase Date the Trustee or
a Paying Agent, as the case may be, shall return any such excess to the Company.
Section 607 Successive Consolidations, Mergers, Etc.
In the case of consolidation, merger, conveyance, transfer or lease to
which Section 1409 of the Indenture applies, in which the Common Stock of the
Company is changed or exchanged as a result into the right to receive equity
securities, cash or other property which includes shares of common Stock of the
Company or 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 securities, cash and other
property (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 which acquires such assets, 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 the Indenture and this Supplemental
Indenture, as applicable, relating to the right of the Holders of the Notes to
cause the Company to redeem the Notes following a Change in Control, including
without limitation the applicable provisions of this Article Six, as determined
in good faith by the Company (which determination shall be conclusive and
binding), to make such provisions apply to the common stock of the issuer
thereof if different from the Company and the Common Stock of the Company (in
lieu of Common Stock of the Company).
ARTICLE SEVEN
MISCELLANEOUS
Section 701 Consent of Holders Required.
In addition to those modifications or amendments requiring the consent of
the Holder of each Outstanding Note effected thereby specified in Section 902 of
the Indenture, there can be no modification or amendment that would change the
obligation of the Company to redeem any Note upon the happening of a Change in
Control in a manner adverse to the Holder of Notes without the consent of the
Holder of each outstanding Note effected thereby.
Section 702 Applicability of Certain Indenture Provisions.
Each of the defeasance and covenant defeasance provisions of Article
Thirteen of the Indenture shall apply to the Notes; provided, however, that the
Company will not be able to defease the right of the Holders to convert the
Notes pursuant to Article Fourteen of the Indenture.
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<PAGE> 19
Section 703 Reference to and Effect on the Indenture.
This Supplemental Indenture shall be construed as supplemental to the
Indenture and all the terms and conditions of this Supplemental Indenture shall
be deemed to be part of the terms and conditions of the Indenture. Except as set
forth herein, the Indenture heretofore executed and delivered is hereby
ratified, approved and confirmed. The provisions of this Supplemental Indenture
shall for the purposes of this series of Securities supersede the provisions of
the Indenture heretofore executed and delivered to the extent such Indenture
heretofore executed and delivered is inconsistent herewith. This Supplemental
Indenture is subject to the provisions of the Trust Indenture Act, and shall, to
the extent applicable, be governed by such provisions.
Section 704 Supplemental Indenture May be Executed In Counterparts.
This instrument may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
Section 705 Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 706 Separability.
In case any one or more of the provisions contained in this Supplemental
Indenture or in the Notes shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not effect any other provisions of this Supplemental Indenture or of the
Notes, but this Supplemental Indenture and the Notes shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
-17-
<PAGE> 20
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed all as of the day and year first above written.
CYPRESS SEMICONDUCTOR CORPORATION
By: /s/EMMANUEL HERNANDEZ
------------------------------------------
Name: Emmanuel Hernandez
Title: Vice President and CFO
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N. A., AS TRUSTEE
By: /s/PAULA M. OSWALD
------------------------------------------
Name: Paula M. Oswald
Title: Vice President
<PAGE> 21
Annex 1
[Form of Face of Security]
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
CYPRESS SEMICONDUCTOR CORPORATION
3.75% Convertible Subordinated Note due 2005
No. _________ $_____________
CUSIP:
Cypress Semiconductor Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "COMPANY," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ________________, or registered
assigns, the principal sum of ___________________ Dollars on July 1, 2005 and to
pay interest thereon from June 26, 2000 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
January 1 and July 1 in each year, commencing January 1, 2001, at the rate of
3.75% per annum, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such 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 15 or December 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. 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 Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any interest on
this Security will be made at the office or agency of the Company maintained for
such purpose in the Borough of
<PAGE> 22
Manhattan, The City of New York, or at the option of the Holder of this
Security, at the Corporate Trust Office, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register;
provided, further, that a Holder with an aggregate principle amount in excess of
$2,000,000 will be paid by wire transfer in immediately available funds at the
election of such Holder. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
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 by manual signature, 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 instrument to be signed
manually or by facsimile by their duly authorized officers and by its corporate
seal to be affixed or imported hereon.
Dated: June 26, 2000 CYPRESS SEMICONDUCTOR
CORPORATION
By:
-------------------------------------
Title:
Attest:
By:
-------------------------------
Title:
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A.
As Trustee
By:
-------------------------------------
Authorized Signatory
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<PAGE> 23
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (herein called the "SECURITIES"), issued and to be issued in one or more
series under a Subordinated Indenture, dated as of January 15, 2000 (herein
called the "INDENTURE," which term shall have the meaning assigned to it in such
instrument), between the Company and State Street Bank and Trust Company of
California, N.A., as Trustee (herein called the "TRUSTEE," which term includes
any successor trustee under the Indenture), and reference is hereby made to the
Indenture and all indentures supplemental thereto 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. This Security is one of the series designated on
the face hereof and is issued pursuant to a Supplemental Trust Indenture
supplementing the Indenture, dated as of June 15, 2000, from the Company to
Trustee relating to the issuance of the "3.75% Convertible Subordinated Notes
due 2005" of this series (the "SUPPLEMENTAL INDENTURE").
The Securities will not be subject to redemption prior to July 5, 2003
and will be redeemable on and after such date at the option of the Company, in
whole or in part, upon not less than 20 nor more than 60 days' notice to the
Holders, at the Redemption Prices (expressed as a percentage of principal
amount) set forth below.
The Redemption Price (expressed as a percentage of principal amount) is
as follows:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
Beginning on July 5, 2003 and ending on June 30, 2004 100.9375%
Beginning on July 1, 2004 and thereafter 100.0000%
</TABLE>
in each case together with accrued and unpaid interest to, but excluding, the
Redemption Date; provided, however, that interest installments whose Stated
Maturity is on 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.
The Securities are not subject to redemption through operation of any
sinking fund.
In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
If a Change in Control (as defined in the Supplemental Indenture) occurs
at any time prior to July 1, 2005, the Securities will be redeemable on the 30th
day after notice thereof at the option of the Holder. Such payment shall be made
at a purchase price equal to the principal amount of the Security plus accrued
and unpaid interest to, but excluding, the Change in Control Purchase Date (as
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<PAGE> 24
defined in the Supplemental Indenture). The Company shall mail to all Holders a
notice of the occurrence of a Change in Control and of the redemption right
arising as a result thereof on or before the 10th Business Day after the
occurrence of such Change in Control. For a Security to be so repaid at the
option of the Holder, the Company must receive at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, the City of New
York, or, at the option of the Holder, the Corporate Trust Office of the
Trustee, such Security with the form entitled "Option to Elect Redemption Upon a
Change in Control" on the reverse thereof duly completed, together with such
Securities duly endorsed for transfer, on or before the 30th day after the date
of such notice (or if such 30th day is not a Business Day, the immediately
succeeding Business Day).
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
or her behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee as his or
her attorney-in-fact for any and all such purposes.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture, except that the Company will not
be able to defease the right of the Holders to convert this Security pursuant to
Article Fourteen of the Indenture.
Subject to the provisions of the Indenture, the Holder of this Security
is entitled, at its option, at any time on or before July 1, 2005 (except that,
in case this Security or any portion hereof shall be redeemed, such right shall
terminate with respect to this Security or portion hereof, as the case may be,
so redeemed at the close of business on the first Business Day next preceding
the date fixed for redemption as provided in the Indenture, unless the Company
defaults in making the payment due upon redemption or except as otherwise
provided in the Indenture), to convert the principal amount of this Security (or
any portion hereof which is $1,000 or an integral multiple thereof) into fully
paid and non-assessable shares of the Common Stock of the Company, as said
shares shall be constituted at the date of conversion, at the initial Conversion
Price of $62.548 or at the adjusted Conversion Price in effect at the date of
conversion determined as provided in the Supplemental Indenture, upon surrender
of this Security, together with the conversion notice hereon duly executed, to
be accompanied (if so required by the Company) by instruments of transfer, in
form satisfactory to the Company and to the Trustee, duly executed by the Holder
or by its duly authorized attorney in writing. Such surrender shall, if made
during any period beginning at the close of business on a Regular Record Date
and ending at the opening of business on the Interest Payment Date next
following such Regular Record Date (unless this Security or the portion being
converted shall have been called for redemption on a Redemption Date during the
period beginning at the close of business on a Regular Record Date and ending at
the opening of business on the first Business Day after the next succeeding
Interest Payment Date, or if such Interest Payment Date is not a Business Day,
the second such Business Day), also be accompanied by payment in funds
acceptable to the
-23-
<PAGE> 25
Company of an amount equal to the interest payable on such Interest Payment Date
on the principal amount of this Security then being converted. Subject to the
aforesaid requirement for payment and, in the case of a conversion after the
Regular Record Date next preceding any Interest Payment Date and on or before
such Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest (with certain exceptions provided in the Indenture), no
adjustment is to be made on conversion for interest accrued hereon or for
dividends on shares of Common Stock issued on conversion. The Company is not
required to issue fractional shares upon any such conversion, but shall make
adjustment therefor as provided in the Indenture. The Conversion Price is
subject to adjustment as provided in the Indenture. In the event of conversion
of this Security in part only, a new Security or Securities for the unconverted
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
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 of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of more than 50% in principal amount of the Outstanding
Securities of each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, 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 upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this 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 with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding 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
Securities of this series at the time 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 or any premium or interest hereon
on or after the respective due dates expressed herein.
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<PAGE> 26
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 and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, 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 hereof or its
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
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 cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be deemed to be a contract made under the laws of New
York and for all purposes shall be construed in accordance with the laws of New
York, without regard to principles of conflicts of laws.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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<PAGE> 27
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:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________________
TEN ENT - as tenants by the entireties Custodian ____________ under Uniform
(Cust) (Minor)
JT TEN - as joint tenants with right of Gifts to Minors Act ________________
survivorship and not as tenants (State)
in common
</TABLE>
Additional abbreviations may also be used though not in the above list.
CONVERSION NOTICE
To Cypress Semiconductor Corporation:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or portion hereof (which is $1,000 or an
integral multiple thereof) below designated, into shares of Common Stock of the
Company in accordance with the terms of the Indenture referred to in this
Security, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares and any
Securities representing any unconverted principal amount hereof, be issued and
delivered to the registered Holder hereof unless a different name has been
indicated below. If this Notice is being delivered on a date after the close of
business on a Regular Record Date and prior to the opening of business on the
related Interest Payment Date (unless this Security or the portion thereof being
converted has been called for redemption on a Redemption Date after the close of
business on a Regular Record Date and prior to the opening of business on the
first Business Day after the next succeeding Interest Payment Date, or if such
Interest Payment Date is not a Business Day, the next such Business Day), this
Notice is accompanied by payment, in funds acceptable to the Company, of an
amount equal to the interest payable on such Interest Payment Date of the
principal of this Security to be converted. If shares are to be issued in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect hereto. Any amount required to be paid by
the undersigned on account of interest accompanies this Security.
-26-
<PAGE> 28
Principal Amount to be Converted
(in an integral multiple of $1,000, if less than all)
$
-------------------
Owner:
Dated:
------------------------------- ------------------------------------
------------------------------------
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule
17Ad-15 under the Securities
Exchange Act of 1934 if shares of
Common Stock are to be delivered, or
Securities to be issued, other than
to and in the name of the registered
owner.
------------------------------------
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered Holder.
------------------------------------- ------------------------------------
(Name) Social Security or Other Taxpayer
Identification Number
-------------------------------------
(Address)
-------------------------------------
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<PAGE> 29
OPTION TO ELECT REDEMPTION
UPON A CHANGE OF CONTROL
To: Cypress Semiconductor Corporation
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from Cypress Semiconductor Corporation (the
"COMPANY") as to the occurrence of a Change in Control with respect to the
Company and requests and instructs the Company to redeem the entire principal
amount of this Security, or the portion thereof (which is $1,000 or an integral
multiple thereof) below designated, in accordance with the terms of the
Indenture referred to in this Security at the redemption price, together with
accrued interest to, but excluding, such date, to the registered Holder hereof.
Dated:------------------------------- ------------------------------------
------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule
17Ad-15 under the Securities
Exchange Act of 1934.
------------------------------------
Signature Guaranty
Principal amount to be redeemed
(in an integral multiple of $1,000, if less than all):
-------------------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
-28-
