<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 22, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CYRIX CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 75-2218250
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
</TABLE>
2703 NORTH CENTRAL EXPRESSWAY
RICHARDSON, TEXAS 75080
(214) 968-8387
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
GERALD D. ROGERS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
2703 NORTH CENTRAL EXPRESSWAY
RICHARDSON, TEXAS 75080
(214) 968-8387
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications, including all communications
to the agent for service, should be sent to:
DEREK R. MCCLAIN
VINSON & ELKINS L.L.P.
3700 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
BE REGISTERED TO BE REGISTERED PRICE PER NOTE (1) OFFERING PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
5 1/2% Convertible Subordinated Notes
due June 1, 2001 $126,500,000 100% $126,500,000 $43,620.69
Common Stock, par value $0.004 per
share (2) (2) (2) None
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Such indeterminate number of shares of Common Stock as shall be issuable
upon conversion of the Notes being registered hereunder. No additional
consideration will be received for the Common Stock and therefore no
registration fee is required pursuant to Rule 457(i).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 22, 1996
PROSPECTUS
$126,500,000
CYRIX CORPORATION
5 1/2% CONVERTIBLE SUBORDINATED NOTES
DUE JUNE 1, 2001
This Prospectus relates to the offering for resale by the Selling
Securityholders (the "Selling Securityholders") of up to an aggregate of
$126,500,000 of 5 1/2% Convertible Subordinated Notes due June 1, 2001 (the
"Notes") of Cyrix Corporation, a Delaware corporation ("Cyrix" or the
"Company"), and the 3,182,385 shares of Common Stock, par value $.004 per share
(the "Common Stock") that are issuable upon conversion of the Notes at the
initial conversion rate of 25.1572 shares per U.S. $1,000 principal amount of
Notes, subject to adjustment in certain events. The Notes offered hereby were
originally offered by the Company in an underwritten private placement.
The Notes will be convertible at any time on or after August 26, 1996 and
prior to the close of business on the maturity date, unless previously redeemed
or repurchased, at a conversion rate of 25.1572 shares of Common Stock per
$1,000 principal amount of Notes (equivalent to a conversion price of U.S.
$39.75 per share), subject to adjustment under certain circumstances. The
Company's Common Stock is quoted on the Nasdaq National Market. The last
reported sale price of the Common Stock on August 20, 1996 was $14 3/16 per
share. Interest on the Notes will be payable semiannually on June 1 and December
1 of each year, commencing on December 1, 1996.
The Notes are not redeemable prior to June 1, 1999. Thereafter, the Notes
are redeemable at the option of the Company, in whole or in part, at the
redemption prices set forth herein, plus accrued interest. Upon a Change in
Control (as defined herein), holders of Notes will have the right, subject to
certain restrictions and conditions, to require the Company to purchase all or
any portion of their Notes at the principal amount thereof plus accrued and
unpaid interest.
The Notes will be subordinate in right of payment to the extent set forth in
the Indenture (as defined herein) to the prior payment of all Senior
Indebtedness (as defined herein) of the Company. The principal amount of
outstanding Senior Indebtedness was approximately $15.8 million at June 30,
1996.
The Notes may be sold from time to time pursuant to this Prospectus by the
Selling Securityholders. The Notes may be sold by the Selling Securityholders in
ordinary brokerage transactions, in transactions in which brokers solicit
purchases, in negotiated transactions, or in a combination of such methods of
sale, at market prices prevailing at the time of sale, at prices relating to
such prevailing market prices or at negotiated prices. See "Plan of
Distribution." The distribution of the Notes is not subject to any underwriting
agreement. The Company will receive no part of the proceeds of sales from the
offering by the Selling Securityholders. All expenses of registration incurred
in connection with this offering are being borne by the Company, but all selling
and other expenses incurred by the Selling Securityholders will be borne by such
Selling Securityholders. None of the securities offered pursuant to this
Prospectus have been registered prior to the filing of the Registration
Statement of which this Prospectus is a part.
SEE "RISK FACTORS" ON PAGE 3 FOR CERTAIN FACTORS RELEVANT TO AN INVESTMENT
IN THE NOTES.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
, 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy and information statements and other information
with the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, NW, Washington, D.C. 20549, and at the Commission's Regional
Offices at Seven World Trade Center, 13th Floor, New York, New York 10048 and
CitiCorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material can be obtained by mail from the Public
Reference Section of the Commission at 450 West Fifth Street, NW, Washington,
D.C. 20549, at prescribed rates. The reports, proxy statements and other
information may also be obtained from the Web site that the Commission maintains
at http:/www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the securities offered hereby. This Prospectus
does not contain all of the information set forth in the Registration Statement,
certain parts of which were omitted in accordance with the rules and regulations
of the Commission. For further information, reference is hereby made to the
Registration Statement. Any statements contained herein concerning the
provisions of any document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission are not necessarily complete, and in each
instance reference is made to the copy of such document so filed. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(i) Annual Report on Form 10-K for the fiscal year ended December 31,
1995, as amended by the Annual Report on Form 10-K/A for the fiscal
year ended December 31, 1995, filed May 20, 1996;
(ii) Quarterly Report on Form 10-Q for the quarter ended March 31, 1996;
(iii) The description of the Company's Common Stock contained in Item 1
of the Registration Statement on Form 8-A dated June 10, 1993, as
amended by Form 8-A/A dated July 12, 1993 and Form 8-A/A dated July
14, 1993;
(iv) Current Report on Form 8-K filed May 23, 1996;
(v) Current Report on Form 8-K filed June 27, 1996; and
(vi) Quarterly Report on From 10-Q for the quarter ended June 30, 1996.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the securities offered hereby shall be deemed
to be incorporated by reference into this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents which are incorporated by reference herein,
other than exhibits to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Requests should be directed to
Russell N. Fairbanks, Jr., Vice President, General Counsel and Secretary, at the
Company's principal executive offices.
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<PAGE>
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION INCLUDED IN THIS PROSPECTUS, THE
FOLLOWING RISK FACTORS SHOULD BE CAREFULLY CONSIDERED IN EVALUATING AN
INVESTMENT IN THE NOTES OFFERED HEREBY AND THE SHARES OF COMMON STOCK ISSUABLE
UPON CONVERSION THEREOF. THIS PROSPECTUS CONTAINS CERTAIN FORWARD-LOOKING
STATEMENTS WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES ACT AND SECTION
21E OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"),
WHICH INVOLVE RISKS AND UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS MAY DIFFER
SIGNIFICANTLY FROM THE RESULTS DISCUSSED IN THE FORWARD-LOOKING STATEMENTS.
FACTORS THAT MIGHT CAUSE SUCH A DIFFERENCE INCLUDE, BUT ARE NOT LIMITED TO,
THOSE DISCUSSED IN THIS SECTION.
MANUFACTURING RISKS
Currently, all of the Company's microprocessors are manufactured by
International Business Machine Corporation's Microelectronics Division ("IBM").
Any disruption in the supply of microprocessors from IBM would have a material
adverse effect on the Company's business and results of operations. There are
several material risks to which the Company is exposed by its reliance on IBM as
its sole source of supply for its only product family. Among these risks are the
possible unavailability of or delays in obtaining access to certain process
technologies, the absence of controllable product delivery schedules, potential
inability to achieve acceptable manufacturing yields and production costs and
the possible breakdown in the parties' relationship. In addition, if a favorable
result in pending litigation is appealed and reversed on appeal, IBM could be
held not to have been licensed by Intel to act as a semiconductor foundry for
the Company free of claims by Intel of patent infringement, which outcome could
affect IBM's willingness or obligation to continue to manufacture microprocessor
products for Cyrix. See "-- Litigation General; Microprocessor Litigation."
While IBM has committed to manufacture and sell to Cyrix specified volumes of
wafers of Cyrix-designed microprocessor products through December 31, 1999 (the
"IBM Product Agreement") and to manufacture and sell to Cyrix through December
1997 supplemental volumes of wafers of Cyrix-designed microprocessors (the "IBM
Foundry Agreement"), there is no assurance that delivered or contract volumes
will be sufficient to allow the Company to penetrate larger original equipment
manufacturer ("OEM") accounts, which require demonstrated capacity to deliver
significant volumes. The IBM Product Agreement obligates the Company to pay for
certain minimum quantities of microprocessor products regardless of whether the
Company places orders for microprocessors in such quantities, and the IBM
Foundry Agreement requires that the Company make rolling six-month forward
purchase commitments for microprocessors to be manufactured and sold to the
Company thereunder. These provisions could have a material adverse effect on the
Company's business and results of operations if the Company found itself for any
period of time without a microprocessor product that is competitive with the
leading microprocessors offered by the Company's competitors.
Manufacture of the Company's current generation 6x86-TM- microprocessors
requires more advanced manufacturing processes than those required for the
Company's previous products. SGS Microelectronics ("SGS"), the other party with
which the Company has a manufacturing relationship, does not currently have the
appropriate combination of sophisticated manufacturing equipment and advanced
process technologies to manufacture the Company's 6x86 products with acceptable
performance and cost. Until SGS becomes capable of manufacturing the Company's
6x86 processors with acceptable performance and cost, the Company will obtain
most, if not all, of its microprocessors from IBM. As illustrated by the
Company's experience with SGS, each time the Company introduces a new product to
be manufactured using a new process technology there is a risk that problems
will be encountered in manufacturing the product. There can be no assurance that
third party manufacturers will consistently produce acceptable yields of
products in 1996 and beyond.
The Company currently uses 0.65 micron, five-level metal complementary
metal-oxide semiconductor ("CMOS") processes for its 6x86 products. In the
second half of fiscal 1996, the Company will seek to employ 0.5 micron,
five-level metal CMOS processes for certain of its products to improve die size
and product performance. The Company believes that its primary competitors,
Intel Corporation
3
<PAGE>
("Intel") and Advanced Micro Devices, Inc. ("AMD"), will use advanced 0.35
micron process technologies to manufacture microprocessors in 1996. Thus, Intel
and AMD may employ more advanced manufacturing processes than are available to
the Company from IBM and SGS in 1996, thereby potentially affording them
improved product performance and decreased manufacturing costs as compared to
the Company. See "-- Product Transitions; Dependence on Product Development" and
"-- Market Dominance by Intel."
The Company frequently engages in discussions with third parties concerning
access to additional manufacturing capacity and advanced process technology, but
there can be no assurance that it will be able to secure access to such
additional capacity or process technology or to do so on terms the Company
considers desirable. Reliance on any new third party manufacturer would entail
the same risks as are described above relating to the Company's reliance on IBM
and SGS.
PRODUCT TRANSITIONS; DEPENDENCE ON PRODUCT DEVELOPMENT
The microprocessor business is characterized by short product cycles,
intense price competition and rapid advances in product design and process
technology resulting in rapidly occurring product obsolescence. Next generation
microprocessor products are being introduced by the Company's competitors in
increasingly compressed time frames, thereby decreasing the product life cycles
of earlier generation microprocessors and placing additional pressure on
microprocessor companies to design and commence manufacturing next generation
products in a timely manner. The ability of the Company and its competitors to
introduce new products embodying improved performance characteristics and
competitive features and the emergence of new industry standards has rendered
and will continue to render existing products obsolete and unmarketable. As a
result, the Company must successfully develop and introduce on a timely basis
price-competitive microprocessor products that embody new features, meet
evolving industry standards and achieve levels of performance that are
acceptable to the market in order to be competitive. The only microprocessor
product the Company is currently producing for sale is its 6x86 microprocessor.
If the Company is unable to develop and successfully market in a timely manner
successor products with competitive performance, features and pricing, the
Company's business and operating results will be materially and adversely
affected.
The industry's short product cycles also increase the risk that the Company
will from time to time find itself with excessive amounts of inventory of
products for which there is rapidly declining demand and significantly reduced
average selling prices. For example, in the fourth quarter of 1995, average
selling prices of 486DX2 microprocessors fell below the Company's cost to
purchase such products, the demand for these products declined substantially
compared to prior quarters and the Company wrote off substantially all of its
486 inventory, which exceeded $10 million. The requirement that the Company make
rolling six-month forward purchase commitments for products purchased from IBM
pursuant to the IBM Foundry Agreement heightens this risk. See "-- Manufacturing
Risks."
PRODUCT DELAYS
The Company has in the past experienced delays in introducing certain of its
products. During 1995, the Company was not able to introduce and ramp production
of products with performance competitive with the leading performance processors
designed and manufactured by Intel. As a result, the Company's revenues and
profits declined significantly compared to prior periods. There can be no
assurance that the Company can successfully supply 6x86 products in adequate
commercial volumes with performance and cost characteristics comparable to
competitive products. There can be no assurance that the Company will not
encounter design, manufacturing process, manufacturing capacity or other
problems that could delay introduction of new products in the future. In
addition, the development of new products by the Company may require designing
around new or existing patents, resulting in lengthy delays or project
cancellations. If the Company is unable, for these or other reasons, to develop
and successfully market competitive products, in particular next generation
microprocessor products, in a timely manner, the Company's business and
operating results will be materially and adversely affected.
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MARKET DOMINANCE BY INTEL
Intel currently has a dominant microprocessor market share, dictates the
performance standards required to compete in the microprocessor market and
influences product life cycles through frequent product introductions, product
enhancements and price competition. In addition to its dominant microprocessor
market share, Intel is also beginning to dominate the entire personal computer
platform. For example, Intel has obtained a dominant market share in sales of
64-bit or Pentium-class core logic chip sets and has emerged as one of the
world's largest motherboard manufacturers. In fiscal 1995, Intel purchased an
equity interest in Phoenix Technologies Ltd., one of the leading suppliers of
BIOS (basic input/output system) software, which translates signals from the
personal computer's operating system software to interface with the computer's
hardware devices. Further, Intel manufactures personal computers, incorporating
Intel microprocessors, chip sets, motherboards and other Intel-designed
components, for resale by OEMs under such OEMs' names.
Intel's developments in semiconductor design and manufacturing processes
have allowed Intel to produce microprocessors that are smaller, faster and less
expensive to manufacture. These microprocessor cost and performance advantages,
coupled with Intel's financial strength, have enabled Intel to reduce prices on
its microprocessors within a short period of time following their introduction.
In addition, the Company believes that Intel has a strategy to maintain its
dominant market position through aggressive investments in manufacturing
capacity and research and development. According to reports filed by Intel with
the Commission, Intel spent during 1995 an estimated $1.3 billion on research
and development and $3.6 billion on property, plant and equipment, including
manufacturing facilities. In addition, the Company believes that Intel is
attempting to consolidate its dominant market position through an intensive
advertising campaign designed to strengthen brand loyalty to Intel by the
personal computer end-user. The Company does not have the financial resources to
compete with Intel on such a large scale. As long as Intel remains in this
dominant position, its product introduction schedule and pricing strategy may
have a material adverse effect on the Company's business, operating results and
financial condition.
COMPETITION AND MARKET ACCEPTANCE
The markets for the Company's products are increasingly competitive. In
order to compete effectively in the market for high performance IBM compatible
microprocessors, the Company must develop and introduce on a timely basis
competitive products that embody new technology, meet evolving industry
standards and achieve levels of performance and price acceptable to the market.
See "-- Product Transitions; Dependence on Product Development" and "-- Product
Delays." In the recent past, Intel and other competitors have increased the
frequency of product introductions and enhancements and have used price
decreases to protect or improve their market share. The Company expects that
Intel and other competitors will continue to improve the performance of their
microprocessor products and use price decreases to protect or improve their
market share. There can be no assurance that the Company will be able to
successfully improve the performance of its microprocessors and its
manufacturing costs at the rates required to remain competitive with the leading
performance processors in the market or compete against price decreases, since
Intel and several of the Company's other competitors have substantially greater
financial, technical, manufacturing and marketing resources than the Company. In
order to be competitive, the Company must have sufficiently low costs so that it
can meet such price decreases and introduce products subject to less price
competition; however, there can be no assurance that the Company can accomplish
these goals and be price competitive.
To compete with Intel at higher levels of integration as required by many
personal computer OEMs and dealers, Cyrix is dependent upon the infrastructure
of third-party designers and manufacturers of core logic chip sets,
motherboards, BIOS software, and other components of personal computers. As
Intel has become the dominant competitor in these segments of the personal
computer industry (see "-- Market Dominance by Intel"), third-party designers
and manufacturers of core logic chip sets, motherboards, BIOS software and other
components to support microprocessors have lost
5
<PAGE>
market share to Intel, which owns the microprocessor designs and enjoys
significantly greater financial, technical, manufacturing and marketing
resources than such parties. Further, as Intel expanded its role in designing
and setting standards for personal computer systems, many personal computer OEMs
reduced their system development expenditures and now require processor
technologies to be provided at various levels of integration. In order to
compete with Intel and deliver the higher levels of integration required by many
OEMs and dealers in 1996 and beyond, the Company intends to form closer
relationships with third-party designers and manufacturers of core logic chip
sets, motherboards, BIOS software and other components, expand its chip set and
system design capabilities, and sell a portion of the Company's processors at
higher levels of integration incorporated into modules, boards and systems, but
there can be no assurance that the infrastructure which supports non-Intel
personal computer platforms will be competitive with Intel or continue to
support the Company's products.
Other competitors in the IBM compatible microprocessor market include AMD,
IBM, SGS and Texas Instruments Incorporated ("TI"). Under a technology exchange
agreement and patent cross-license agreement between AMD and Intel, AMD has
historically competed in the microprocessor market with products which use
intellectual property developed by Intel. AMD recently acquired Nexgen, Inc.,
which has designed microprocessors which Nexgen claims were competitive with the
leading performance processors in the market. In recent years, IBM, SGS and TI
have entered the market using Cyrix's microprocessor designs. In addition, each
of these companies is in the process of designing IBM compatible
microprocessors. The Company may also face competition from manufacturers of
processors that are not currently IBM compatible, such as manufacturers of
IBM's, Motorola's and Apple's Power PC system processors. The Company believes
that other semiconductor manufacturers may enter the market, resulting in even
greater competition. Further, the rapid pace of technological change in the
industry means that companies other than Cyrix could develop a design or process
that radically advances microprocessor standards using a proprietary or
patent-protected design or process.
OEMs generally select processors for inclusion in their personal computer
products based on the processors' price/performance characteristics and mix of
features. In addition, OEMs consider the ability of microprocessor vendors to
have access to advanced process technologies, introduce microprocessors
competitive with the leading processors in the market in a timely manner, supply
adequate volumes of processors which meet such vendors' performance requirements
in a timely and reliable manner, and be price competitive. Even after a Cyrix
product has been designed into an OEM's personal computer, a "design win," the
Company still faces competition to keep its products in the OEM's design.
Generally, an OEM can qualify a second source for any of the Company's products
because SGS and IBM each have licenses to manufacture certain Cyrix-designed
products. As the Company does not have exclusive rights to the products it
designs, revenue and gross margin for such products could be reduced.
To date, the Company has been unable to sell significant quantities of its
microprocessors to most large OEMs such as Compaq, Hewlett Packard, Gateway
2000, Dell and Toshiba. During 1995 and the first quarter of 1996, AST Research
Inc. accounted for approximately 11% and 1%, respectively, of Cyrix's sales. As
the Company is currently transitioning its product offerings to higher
performance 6x86 processors, the Company must obtain design wins for its 6x86
processors with current or new OEM customers. There can be no assurance that the
Company will retain its current OEM customers during this product transition or
thereafter. The loss of such customers, if not replaced by other OEM customers
with similar sales volumes, could have a material adverse effect on the
Company's results of operations.
In order to obtain manufacturing capacity, the Company has had to grant its
product rights to others, thereby creating additional competition, and may need
to do so again in order to obtain new manufacturing relationships or expand its
relationship with IBM or SGS.
6
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INTELLECTUAL PROPERTY
There are many patents held by Intel and other companies which relate to the
design and manufacture of semiconductor components, including microprocessors,
and computer systems. The Company is engaged in litigation with Intel regarding
alleged infringement by the Company of Intel's patents (see "-- Litigation"),
and from time to time has been notified that it may infringe the intellectual
property rights of others. Currently, the Company is a licensee of a limited
number of specified patents under an agreement with Intel and is not a licensee
under any patent license agreement with any other party. If the Company is
alleged to infringe one or more patents, it may seek a license to the patent.
However, there can be no assurance that a license will be available or available
on reasonable terms. In such event, the Company may be forced to litigate the
matter. If litigation were to commence, a license is not available on reasonable
terms or if any other third party is found to have a valid claim against the
Company, it could have a material adverse effect on the Company.
LITIGATION
GENERAL; MICROPROCESSOR LITIGATION
The processor industry is characterized by litigation involving patent and
infringement claims. Since March 1992, the Company and Intel have been engaged
in litigation related to certain of the Company's microprocessor products. For a
more complete discussion of the litigation with Intel, see Note 6 of the Notes
to Consolidated Financial Statements in the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1996, which is incorporated herein by
reference. While the Company has received favorable judgments and rulings in
connection with such litigation, the Company believes that Intel has a strategy
of protecting its market share by filing intellectual property lawsuits against
its competitors, and that Intel may assert additional patent infringement claims
against the Company even though the Company has prevailed in all of the
remaining litigation with Intel referenced above. Potential additional Intel
litigation would likely involve different patents with new combination or system
claims. In addition, new patent applications are continually being filed, and
pending United States patent applications are confidential until patents are
issued. Thus, it is impossible to ascertain all potential patent infringement
claims. The damages and legal and other expenses of any such litigation could
materially and adversely affect the Company's future operating results. There
could be no assurance as to the outcome of any such litigation, and an adverse
decision could render the Company insolvent or severely impair the Company's
future business prospects.
STOCKHOLDERS CLASS ACTION
In December 1994, eleven class actions were filed in the United States
District Court for the Northern District of Texas, purportedly on behalf of
purchasers of the Company's Common Stock, alleging that the Company and various
of its officers and directors violated sections of the Exchange Act and Rule
10b-5 promulgated thereunder, by issuing false and misleading statements
concerning the introduction and production of the Company's Cx486DX2 40/80 MHZ
microprocessors. The complaints also allege that the conduct of the Company and
certain of its officers and directors constituted fraud and negligent
misrepresentation and that certain of such officers and directors sold shares of
Common Stock while in possession of material undisclosed information.
In June 1995, all of the actions were consolidated into one complaint in the
federal district court in Dallas, Texas. The Company moved to dismiss the
consolidated amended class action complaint in July 1995. On August 20, 1996,
the Honorable A. Joe Fish, United States District Judge for the Northern
District of Texas, Dallas Division, entered a Memorandum Order dismissing
plaintiffs' complaint in this action. Judge Fish concluded that plaintiffs had
not met the heightened requirements of Federal Rule of Civil Procedure 9(b) for
pleading fraud-based federal securities law claims, and therefore plaintiffs'
complaint should be dismissed. Judge Fish, however, dismissed plaintiffs'
complaint without prejudice, and permitted plaintiffs leave to amend their
complaint to cure its deficiencies, if they are able to do so. Judge Fish
further required that plaintiffs file any such amendment by September 10, 1996.
The ultimate outcome of the stockholders class action cannot
7
<PAGE>
presently be determined. A decision adverse to the Company in this matter could
have a material adverse effect on the Company, its financial condition, its
results of operations and its future prospects.
INTERNATIONAL OPERATIONS
International sales represent a significant portion of the Company's net
product sales. Further, many of the motherboards, chip sets and other components
required to manufacture personal computers are manufactured outside of the
United States. If air transportation between the United States and the Company's
overseas suppliers or customers were disrupted, or shortages in the various
essential materials were to occur due to foreign political or economic factors,
there could be a material adverse effect on the Company's operations.
THE SEMICONDUCTOR AND PERSONAL COMPUTER INDUSTRIES
The semiconductor industry has historically been characterized by wide
fluctuations in product supply and demand. A reduced rate of growth in the
demand for microprocessors could adversely affect the market for the Company's
products. From time to time, the personal computer and semiconductor industries
have also experienced significant downturns, often in connection with, or in
anticipation of, declines in general economic conditions. These downturns have
been characterized by diminished product demand, production overcapacity and
subsequent accelerated erosion of average selling prices. The Company's business
could be materially and adversely affected by industry-wide fluctuations in the
future.
More recently, the personal computer industry has been consolidating as the
larger, more established manufacturers have become more price aggressive and
have been gaining market share at the expense of other domestic and
international manufacturers. The majority of Cyrix's customer base consists of
smaller personal computer manufacturers. The continued market share gains of the
larger manufacturers could have the effect of reducing demand for the Company's
products and may adversely affect its operating results.
DEPENDENCE ON KEY EMPLOYEES
The Company's development, management of its growth and other activities
depend on the efforts of key management and technical employees, as well as its
directors. Competition to attract and retain such persons is intense. To attract
and retain well-qualified employees, the Company uses incentives such as
competitive compensation, stock options, an employee stock purchase plan and a
profit sharing plan. The Company's future success is also dependent upon its
ability to effectively attract, retain, train, motivate and manage its
employees, including its key management and technical personnel. The Company
from time to time experiences difficulty in meeting its internal hiring targets
with respect to technical personnel, and there can be no assurance that the
Company will continue to be able to attract and retain key management and
technical personnel in the future. Failure to do so could have a material
adverse effect on the Company's business and operating results. The Company's
future success is also dependent upon its ability to effectively attract, retain
and motivate qualified persons to serve as directors, and there can be no
assurance that the Company will be able to do so.
ABSENCE OF TRADING MARKET; TRANSFER RESTRICTIONS
There is no existing trading market for the Notes and there can be no
assurance as to the liquidity of any such market that may develop, the ability
of the holders of Notes to sell such securities, the price at which the holders
of Notes would be able to sell such securities or whether a trading market, if
it develops, will continue. If such a market were to exist, the Notes could
trade at prices higher or lower than their principal amount, depending on many
factors, including prevailing interest rates, the market for similar securities
and the operating results of the Company. Each purchaser of Notes offered hereby
in making its purchase will be deemed to have made certain acknowledgments,
representations and agreements. Transfers of Notes and Common Stock issuable
upon conversion of the Notes are subject to certain restrictions.
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QUARTERLY FLUCTUATIONS; STOCK PRICE VOLATILITY
The Company anticipates that its quarterly operating results will fluctuate
as a result of the number and timing of new product introductions, product
shipments, product returns, marketing expenditures, research and development
expenditures and promotional programs. The trading price of the Common Stock has
been and may continue to be subject to wide fluctuations in response to
quarter-to-quarter variations in operating results, changes in earnings
estimates by analysts, announcements concerning new products, strategic
relationships or technological innovations by the Company or its competitors,
general conditions in the computer industry and other events or facts. In recent
years the stock market in general, and the shares of technology companies in
particular, have experienced extreme price fluctuations. This volatility has had
a substantial effect on the market prices of securities issued by many companies
for reasons unrelated to their operating performance. These broad market
fluctuations may adversely affect the market price of the Common Stock.
FACTORS INHIBITING TAKEOVER
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law, which imposes certain restrictions on the ability of a
third party to effect an unsolicited change in control of the Company. In
addition, the Company's Restated Certificate of Incorporation, as amended, does
not provide for cumulative voting in the election of directors and includes
provisions which authorize the Board of Directors to establish the designations,
preferences, rights and powers of series of preferred stock without any vote by
the stockholders. The establishment of any such series and issuance of shares of
such series may have the effect of delaying or preventing changes in control or
management of the Company. These restrictions could adversely affect the market
price of the Company's Common Stock.
RECENT DEVELOPMENTS
In the first quarter of fiscal 1996, the Company began to receive volume
production of its 6x86 microprocessors which provide system-level performance
competitive with Intel's Pentium microprocessors. Competitive pressures resulted
in lower than anticipated unit sales and significant declines in average selling
prices of the Company's 6x86 microprocessors during the second quarter of fiscal
1996. The Company reported revenues of $27.1 million and a net loss of $16.4
million for the quarter ended June 30, 1996, compared with revenues of $50.2
million and net income of $7.5 million for the second quarter of fiscal 1995.
The Company began selling computer systems during the second quarter of 1996;
revenue from the sale of computer systems accounted for less than 10% of the
Company's net product sales for the quarter ended June 30, 1996. For additional
information regarding operating results, financial condition and factors
affecting the results of future periods, see the information incorporated by
reference herein and the risk factors included in this document.
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SELLING SECURITYHOLDERS
The following table sets forth the name of each Selling Securityholder and
relationship, if any, with the Company and (i) the amount of Notes owned by each
Selling Securityholder as of August 21, 1996 (assuming no Notes have been sold
under this Prospectus as of such date), (ii) the maximum amount of Notes which
may be offered for the account of such Selling Securityholder under the
Prospectus, (iii) the amount of Common Stock owned by each Selling
Securityholder as of August 21, 1996 and (iv) the maximum amount of Common Stock
which may be offered for the account of such Selling Securityholder under the
Prospectus.
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT COMMON STOCK COMMON STOCK
PRINCIPAL AMOUNT OF NOTES OFFERED OWNED PRIOR TO OFFERED HEREBY
NAME OF SELLING SECURITYHOLDER OF NOTES OWNED HEREBY OFFERING (1) (2)
- -------------------------------------- ----------------- ---------------- ---------------- -----------------
<S> <C> <C> <C> <C>
Convertible Holdings, Inc............. $ 2,000,000 $ 2,000,000 50,314 50,314
Republic New York Securities.......... 876,000 876,000 22,037 22,037
Wagner Stott Clearing Corp............ 435,000 435,000 10,943 10,943
Wagner Stott Clearing Corp............ 289,000 289,000 7,270 7,270
----------------- ---------------- ---------------- -----------------
SUBTOTAL.............................. 3,600,000 3,600,000 90,564 90,564
----------------- ---------------- ---------------- -----------------
Unnamed holders of Notes or any future
transferees, pledgees, donees or
successors of or from any such
unnamed holder (3)................... 122,900,000 122,900,000 3,091,819(4) 3,091,819
----------------- ---------------- ---------------- -----------------
TOTAL............................. $ 126,500,000 $ 126,500,000 3,182,385 3,182,385
----------------- ---------------- ---------------- -----------------
----------------- ---------------- ---------------- -----------------
</TABLE>
- ------------------------
(1) Comprises the shares of Common Stock into which the Notes held by such
Selling Securityholder are convertible at the initial conversion rate. The
Conversion Rate (as defined herein) and the number of shares of Common Stock
issuable upon conversion of the Notes are subject to adjustment under
certain circumstances. See "Description of Notes -- Conversion Rights."
Accordingly, the number of shares of Common Stock issuable upon conversion
of the Notes may increase or decrease from time to time.
(2) Assumes conversion into Common Stock of the full amount of Notes held by the
Selling Securityholder at the initial conversion rate and the offering of
such shares by such Selling Securityholder pursuant to the Registration
Statement of which this Prospectus forms a part. The Conversion Rate and the
number of shares of Common Stock issuable upon conversion of the Notes is
subject to adjustment under certain circumstances. See "Description of Notes
-- Conversion Rights." Accordingly, the number of shares of Common Stock
issuable upon conversion of the Notes may increase or decrease from time to
time. Fractional shares will not be issued upon conversion of the Notes;
rather, cash will be paid in lieu of fractional shares, if any.
(3) No such holder may offer Notes pursuant to the Registration Statement of
which this Prospectus forms a part until such holder is included as a
Selling Securityholder in a supplement to this Prospectus in accordance with
the Registration Rights Agreement.
(4) Assumes that the unnamed holders of Notes or any future transferees,
pledgees, donees or successors of or from any such unnamed holder do not
beneficially own any Common Stock other than the Common Stock issuable upon
conversion of the Notes at the initial conversion rate.
Because the Selling Securityholders may, pursuant to this Prospectus, offer
all or some portion of the Notes they presently hold, no estimate can be given
as to the amount of the Notes that will be held by the Selling Securityholders
upon termination of any such sales. In addition, the Selling Securityholders
identified above may have sold, transferred or otherwise disposed of all or a
portion of their Notes since the date on which they provided the information
regarding their Notes, in transactions exempt from the registration requirements
of the Securities Act. See "Plan of Distribution."
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Only Selling Securityholders identified above who beneficially own the Notes
set forth opposite each such Selling Securityholder's name in the foregoing
table on the effective date of the Registration Statement of which this
Prospectus forms a part may sell such Notes pursuant to the Registration
Statement. The Company may from time to time, in accordance with the
Registration Rights Agreement, include additional Selling Securityholders in
supplements to this Prospectus.
The Company will pay the expenses of registering the Notes being sold
hereunder.
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<PAGE>
DESCRIPTION OF NOTES
The Notes are issued under an Indenture, dated as of May 28, 1996 (the
"Indenture"), between the Company and Bank of Montreal Trust Company, as Trustee
(the "Trustee"), copies of which will be available for inspection at the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York. Wherever particular defined terms of the Indenture (including the
Notes and the various forms thereof) are referred to, such defined terms are
incorporated herein by reference (the Notes and various terms relating to the
Notes being referred to in the Indenture as "Securities"). References in this
section to the "Company" are solely to Cyrix Corporation and not its
subsidiaries. The following summaries of certain provisions of the Indenture do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, the detailed provisions of the Notes and the
Indenture, including the definitions therein of certain terms. Section
references below are to Sections of the Indenture.
GENERAL
The Notes are unsecured subordinated obligations of the Company, are limited
to U.S.$110,000,000 aggregate principal amount (plus an additional U.S.
$16,500,000 aggregate principal amount to cover over-allotments) and will mature
on June 1, 2001 and be payable at a price of 100% of the principal amount
thereof. The Notes will bear interest at the rate per annum shown on the front
cover of this Prospectus from May 28, 1996, payable semiannually on June 1 and
December 1 of each year, commencing on December 1, 1996. Interest payable per
$1,000 principal amount of Notes for the period from May 28, 1996 to December 1,
1996 will be U.S.$27.9583. (SectionSection 3.1 and 3.7)
The Notes will be convertible into Common Stock initially at the conversion
rate stated on the cover page hereof, subject to adjustment upon the occurrence
of certain events described under "-- Conversion Rights," at any time on or
after the 90th day following the last original issue date of the Notes and prior
to the close of business on the maturity date, unless previously redeemed or
repurchased. (Section 12.1)
The Notes are redeemable at the option of the Company, on or after June 1,
1999, in whole or in part, at the redemption prices set forth below under "--
Redemption," plus accrued interest to the redemption date. (Section 2.2)
FORM AND DENOMINATION
Regulation S Notes will initially be represented by one or more global Notes
in fully registered form (collectively, the "Regulation S Global Note") without
interest coupons registered in the name of a nominee of The Depository Trust
Company ("DTC") and deposited with the Trustee, for the accounts of Cedel Bank,
Societe Anonyme ("CEDEL") and for Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of Euroclear, on the date of payment for and
delivery of such Notes (the "Settlement Date"), which occurred on May 28, 1996.
Upon deposit of the Regulation S Global Note, CEDEL or Euroclear, as
appropriate, credited each subscriber with a principal amount of Notes equal to
the principal amount thereof for which it had subscribed and paid. Until the
40th day (such date, the "Exchange Date") after the later of the commencement of
the offering of the Notes and the last original issue date of the Notes (such
period, the "Restricted Period"), beneficial interests in the Regulation S
Global Note were held only through Euroclear or CEDEL, unless delivery was made
through the Restricted Global Note (as defined) in accordance with the
certification requirements described below.
Rule 144A Notes initially were represented by one or more global Notes in
fully registered form without interest coupons (collectively, the "Restricted
Global Note" and, together with the Regulation S Global Note, the "Registered
Global Notes"). Rule 144A Notes are issued in minimum denominations of $1,000
and integral multiples thereof. The Restricted Global Note was deposited with
the Trustee as custodian for DTC and registered in the name of a nominee of DTC.
Beneficial interests in the Restricted Global Note may not be exchanged for
beneficial interests in the Regulation S Global
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<PAGE>
Note at any time except in the limited circumstances described below. See "--
Transfer, Exchange and Withdrawal Exchanges between the Regulation S Global Note
and the Restricted Global Note." (Articles Two and Three)
Owners of beneficial interests in any Registered Global Note will hold such
interests pursuant to the procedures and practices of DTC and must exercise any
rights in respect of their interests (including any right to convert, exchange
or require repurchase of their interests) in accordance with those procedures
and practices. Such beneficial owners will not be Holders, and will not be
entitled to any rights under any Note or the Indenture, with respect to any
Registered Global Note, and the Company and the Trustee, and any of their
respective agents, may treat DTC as the Holder and owner of any Registered
Global Note. See "-- Depository Procedures with Respect to Registered Global
Notes."
Except as set forth below, the Registered Global Notes may be transferred,
in whole and not in part, only to another nominee of DTC or to a successor of
DTC or its nominee. Beneficial interests in the Registered Global Notes may not
be exchanged for Notes in certificated form except in the limited circumstances
described below. See "-- Transfer, Exchange and Withdrawal -- Exchange of
Interests in Registered Global Notes for Registered Certificated Notes." The
Notes are not issuable in bearer form.
Rule 144A Notes (including beneficial interests in the Restricted Global
Note) will be subject to certain restrictions on transfer and bear a restrictive
legend. The Regulation S Global Note will be subject to restrictions on resale
and bears a legend regarding those restrictions, as provided in the Indenture.
In addition, transfer of beneficial interests in the Registered Global Notes
will be subject to the applicable rules and procedures of DTC and its
Participants or Indirect Participants (including, if applicable, those of
Euroclear and CEDEL), which may change from time to time.
For a description of the depository procedures with respect to the
Registered Global Notes, see "-- Depository Procedures with Respect to
Registered Global Notes."
CONVERSION RIGHTS
The Holder of any Note will have the right, at the Holder's option, to
convert any portion of the principal amount of any Note that is an integral
multiple of $1,000 into shares of Common Stock at any time on or after the 90th
day following the last original issue date of the Notes and prior to the close
of business on the maturity date, unless previously redeemed or repurchased, at
a conversion rate of 25.1572 shares of Common Stock per $1,000 principal amount
of Notes (the "Conversion Rate") (equivalent to a conversion price of $39.75 per
share of Common Stock), subject to adjustment as described below. The right to
convert a Note called for redemption or delivered for repurchase will terminate
at the close of business on the Redemption Date for such Note or the Repurchase
Date, as the case may be. (Section 12.1)
The right of conversion attaching to any Note may be exercised by the Holder
by delivering the Note at the Corporate Trust Office of the Trustee in the
Borough of Manhattan, The City of New York, accompanied by a duly signed and
completed notice of conversion. Such notice of conversion can be obtained at the
office of the Trustee at its Corporate Trust Offices in New York City. The
conversion date will be the date on which the Note and the duly signed and
completed notice of conversion are so delivered. As promptly as practicable on
or after the conversion date, the Company will issue and deliver to the Trustee
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; such certificate will be sent by the Trustee to the Conversion Agent for
delivery to the Holder. Such shares of Common Stock issuable upon conversion of
the Notes, in accordance with the provisions of the Indenture, will be fully
paid and nonassessable and will rank PARI PASSU with the other shares of Common
Stock of the Company outstanding from time to time. Any Note surrendered for
conversion during the period from the close of business on any Regular Record
Date to the opening of business on the next succeeding Interest Payment Date
(except Notes (or portions thereof) called for redemption on a Redemption
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<PAGE>
Date or repurchaseable on a Repurchase Date occurring, in either case, within
such period) must be accompanied by payment of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of Notes being
surrendered for conversion. The interest payable on such Interest Payment Date
with respect to any Note (or portion thereof, if applicable) which has been
called for redemption on a Redemption Date, or is repurchaseable on a Repurchase
Date, occurring, in either case, during the period referred to in the
parenthetical in the immediately preceding sentence, which Note (or portion
thereof, if applicable) is surrendered for conversion during such period, shall
be paid to the Holder of such Note being converted in an amount equal to the
interest that would have been payable on such Note if such Note had been
converted as of the close of business on such Interest Payment Date. The
interest payable on such Interest Payment Date in respect of any Note (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 such period, which Note (or portion thereof,
as the case may be) is surrendered for conversion during such period, shall be
paid to the Holder of such Note as of such Regular Record Date. Interest payable
in respect of any Note surrendered for conversion on or after an Interest
Payment Date shall be paid to the Holder of such Note as of the next preceding
Regular Record Date, notwithstanding the exercise of the right of conversion. As
a result of the foregoing provisions, except as provided above, Holders that
surrender Notes for conversion on a date that is not an Interest Payment Date
will not receive any interest for the period from the Interest Payment Date next
preceding the date of conversion to the date of conversion or for any later
period, even if the Notes are surrendered after a notice of redemption (except
for the payment of interest on Notes called for redemption on a Redemption Date
or repurchaseable on a Repurchase Date between a Regular Record Date and the
Interest Payment Date to which it relates, as provided above). No other payment
or adjustment for interest, or for any dividends in respect of Common Stock,
will be made upon conversion. Holders of Common Stock issued upon conversion
will not be entitled to receive any dividends payable to holders of Common Stock
as of any record time or date before the close of business on the conversion
date. No fractional shares will be issued upon conversion but, in lieu thereof,
an appropriate amount will be paid in cash by the Company based on the market
bid price of Common Stock at the close of business on the day of conversion.
(SectionSection 2.2, 3.7, 12.2 and 12.3)
A Holder delivering a Note for conversion will not be required to pay any
taxes or duties in respect of the issue or delivery of Common Stock on
conversion but will be required to pay any tax or duty which may be payable in
respect of any transfer involved in the issue or delivery of the Common Stock in
a name other than that of the Holder of the Note. Certificates representing
shares of Common Stock will not be issued or delivered unless all taxes and
duties, if any, payable by the Holder have been paid. (Section 2.8)
The Conversion Rate is subject to adjustment in certain events, including,
without duplication: (a) dividends (and other distributions) payable in Common
Stock, (b) the issuance to all holders of Common Stock of rights, options or
warrants entitling them to subscribe for or purchase Common Stock at less than
the then Current Market Price of such Common Stock (determined as provided in
the Indenture) as of the record date for shareholders entitled to receive such
rights, options or warrants, (c) subdivisions, combinations and
reclassifications of Common Stock, (d) distributions to all holders of Common
Stock of evidences of indebtedness of the Company, shares of capital stock, cash
or assets (including securities, but excluding those dividends, rights, options,
warrants and distributions referred to above, dividends and distributions paid
exclusively in cash and in mergers and consolidations to which the next
succeeding paragraph applies), (e) distributions consisting exclusively of cash
(excluding any cash portion of distributions referred to in (d) above, or cash
distributed upon a merger or consolidation to which the next succeeding
paragraph applies) to all holders of Common Stock in an aggregate amount that,
combined together with (i) other such all-cash distributions made within the
preceding 12 months in respect of which no adjustment has been made and (ii) any
cash and the fair market value of other consideration payable in respect of any
tender offer (including the type described in (f) below) by the Company or any
of its subsidiaries for Common Stock concluded within the preceding 12 months in
respect of which no adjustment has been made, exceeds
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<PAGE>
10% of the Company's market capitalization (being the product of the Current
Market Price per share of the Common Stock on the record date for such
distribution times the number of shares of Common Stock outstanding) on such
date, and (f) the successful completion of a tender offer made by the Company or
any of its subsidiaries for Common Stock which involves an aggregate
consideration that, together with (i) any cash and other consideration payable
in a tender offer by the Company or any of its subsidiaries for Common Stock
expiring within the 12 months preceding the expiration of such tender offer in
respect of which no adjustment has been made and (ii) the aggregate amount of
any such all-cash distributions referred to in (e) above to all holders of
Common Stock within the 12 months preceding the expiration of such tender offer
in respect of which no adjustments have been made, exceeds 10% of the Company's
market capitalization on the expiration of such tender offer. The Company
reserves the right to make such reductions in the Conversion Rate in addition to
those required in the foregoing provisions as it considers to be advisable in
order that any event treated for United States federal income tax purposes as a
dividend of stock or stock rights will not be taxable to the recipients. No
adjustment of the Conversion Rate will be required to be made until the
cumulative adjustments amount to 1.0% or more of the Conversion Rate. (Section
12.4) The Company will compute any adjustments to the Conversion Rate pursuant
to this paragraph and will give notice by mail to Holders of the Registered
Notes of any adjustments. (Section 12.5)
In case of any consolidation or merger of the Company with or into another
Person or any merger of another Person into the Company (other than a merger
which does not result in any reclassification, conversion, exchange or
cancellation of the Common Stock), or in case of any sale or transfer of all or
substantially all of the assets of the Company, each Note then outstanding will,
without the consent of the Holder of any Note, become convertible only into the
kind and amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Common Stock into which such Note was convertible immediately prior thereto
(assuming such holder of Common Stock failed to exercise any rights of election
and that such Note was then convertible). (Section 12.11)
If at any time the Company makes a distribution of property to its
stockholders which would be taxable to such stockholders as a dividend for
United States federal income tax purposes (E.G., distributions of evidences of
indebtedness or assets of the Company, but generally not stock dividends on
Common Stock or rights to subscribe for Common Stock) and, pursuant to the
anti-dilution provisions of the Indenture, the number of shares into which Notes
are convertible is increased, such increase may be deemed for federal income tax
purposes to be the payment of a taxable dividend to Holders of Notes.
SUBORDINATION
The payment of the principal of, premium, if any, and interest on the Notes
(including any Liquidated Damages (as defined) and any amounts payable upon the
redemption or the repurchase of the Notes permitted by the Indenture) will be
subordinated in right of payment to the extent set forth in the Indenture to the
prior payment in full of the principal of, premium, if any, interest and other
amounts in respect of all Senior Indebtedness of the Company. The principal
amount of outstanding Senior Indebtedness was approximately $15.8 million at
June 30, 1996. A substantial portion of the Company's Senior Indebtedness is
secured by a lien on substantially all the Company's assets, including a lien on
all or a portion of the outstanding shares of capital stock of certain of the
Company's subsidiaries.
"Senior Indebtedness" is defined in the Indenture to mean: 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
15
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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 under leases required to be capitalized on the balance sheet of the
lessee under generally accepted accounting principles and leases for capital
equipment, whether or not capitalized, including, without limitation,
obligations of the Company under the Master Lease Finance Agreement, dated March
31, 1992, between the Company and BancBoston Leasing, Inc., (e) obligations of
the Company under interest rate and currency swaps, caps, floors, collars, hedge
agreements, forward contracts, or similar agreements or arrangements intended to
protect the Company against fluctuations in interest or currency exchange rates
or commodity prices, (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 or accrued liabilities 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) provides that such indebtedness or obligation
is not superior in right of payment to the Securities.
No payment on account of principal of, premium, if any, or interest on the
Notes (including any Liquidated Damages (as defined) and any amounts payable
upon the redemption or the repurchase of the Notes permitted by the Indenture)
may be made by the Company if there is 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
or if any other event of default with respect to any Senior Indebtedness,
permitting the holders thereof to accelerate the maturity thereof, shall have
occurred and shall not have been cured or waived or shall not have ceased to
exist after written notice to the Company and the Trustee by any holder of
Senior Indebtedness. Upon any acceleration of the principal due on the Notes or
payment or distribution of assets of the Company to creditors upon any
dissolution, winding up, liquidation or reorganization, whether voluntary or
involuntary, marshaling of assets, assignment for the benefit of creditors, or
in bankruptcy, insolvency, receivership or other similar proceedings of the
Company, all principal, premium, if any, and interest or other amounts due on
all Senior Indebtedness must be paid in full before the Holders of the Notes are
entitled to receive any payment. By reason of such subordination, in the event
of insolvency, creditors of the Company who are holders of Senior Indebtedness
may recover more, ratably, than the Holders of the Notes, and such subordination
may result in a reduction or elimination of payments to the Holders of the
Notes. (Section 13.3)
In addition, the Notes will be structurally subordinated to all indebtedness
and other liabilities (including trade payables and lease obligations) of the
Company's subsidiaries, as any right of the Company to receive any assets of its
subsidiaries upon their liquidation or reorganization (and the consequent right
of the Holders of the Notes to participate in those assets) will be effectively
subordinated to the claims of that subsidiary's creditors (including trade
creditors), except to the extent that the Company itself is recognized as a
creditor of such subsidiary, in which case the claims of the Company would still
be subordinate to any security interest in the assets of such subsidiary and any
indebtedness of such subsidiary senior to that held by the Company. As of June
30, 1996, there was outstanding approximately $1.4 million of indebtedness of
subsidiaries of the Company (excluding intercompany indebtedness); this amount
has been guaranteed by the Company and is included in the principal amount of
the Company's outstanding Senior Indebtedness at June 30, 1996, as set forth
above.
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The Indenture does not limit the Company's or its subsidiaries' ability to
incur Senior Indebtedness or any other indebtedness.
REDEMPTION
The Notes may not be redeemed at the option of the Company prior to June 1,
1999. On and after June 1, 1999, the Notes may be redeemed, in whole or in part,
at the option of the Company, at the redemption prices specified below, upon not
less than 30 nor more than 60 days' prior notice as provided under "-- Notices"
below.
The redemption price (expressed as a percentage of principal amount) is as
follows for the 12-month periods beginning on June 1 of the following years:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
- ------------------------------------------------------------- -----------
<S> <C>
1999......................................................... 102.200
2000......................................................... 101.100
</TABLE>
and thereafter is equal to 100% of the principal amount, in each case together
with accrued interest to the date of redemption. (SectionSection 2.2, 11.1,
11.5, 11.7)
No sinking fund is provided for the Notes.
PAYMENT AND CONVERSION
The principal of Notes will be payable in U.S. dollars, against surrender
thereof at the Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York, by dollar check drawn on, or by transfer to a
dollar account (such transfer to be made only to Holders of an aggregate
principal amount of Notes in excess of U.S. $2,000,000) maintained by the Holder
with, a bank in New York City. Payment of any installment of interest on Notes
will be made to the Person in whose name such Notes (or any predecessor Note) is
registered at the close of business on the May 15 or the November 15 (whether or
not a Business Day) immediately preceding the relevant Interest Payment Date (a
"Regular Record Date"). Payments of such interest will be made by a dollar check
drawn on a bank in New York City mailed to the Holder at such Holder's
registered address or, upon application by the Holder thereof to the Trustee not
later than the applicable Regular Record Date, by transfer to a dollar account
(such transfer to be made only to Holders of an aggregate principal amount of
Notes in excess of U.S $2,000,000) maintained by the Holder with a bank in New
York City. No transfer to a dollar account will be made unless the Trustee has
received written wire instructions not less than 15 days prior to the relevant
payment date. (Section 2.2)
Payments in respect of the principal of (and premium, if any) and interest
on any Registered Global Note registered in the name of DTC or its nominee will
be payable by the Trustee to DTC or its nominee in its capacity as the
registered Holder under the Indenture. Under the terms of the Indenture, the
Company and the Trustee will treat the Persons in whose names the Notes,
including the Registered Global Notes, are registered as the owners thereof for
the purpose of receiving such payments and for any and all other purposes
whatsoever. Consequently, neither the Company, the Trustee nor any agent of the
Company or the Trustee has or will have any responsibility or liability for (i)
any aspect of DTC's records or any Participant's or Indirect Participant's
records relating to or payments made on account of beneficial ownership
interests in the Registered Global Notes, or for maintaining, supervising or
reviewing any of DTC's records or any Participant's or Indirect Participant's
records relating to the beneficial ownership interests in the Registered Global
Notes, or (ii) any other matter relating to the actions and practices of DTC or
any of its Participants or Indirect Participants.
Any payment on the Notes due on any day which is not a Business Day need not
be made on such day, but may be made on the next succeeding Business Day with
the same force and effect as if made on such due date, and no interest shall
accrue on such payment for the period from and after such date. "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
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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 New York, New York or London, England are authorized or
obligated by law or executive order to close shall not be a Business Day for
certain purposes. (Section 1.1 and 2.2)
Notes may be surrendered for conversion at the Corporate Trust Office of the
Trustee in the Borough of Manhattan, The City of New York. Notes surrendered for
conversion must be accompanied by appropriate notices and any payments in
respect of interest or taxes, as applicable, as described above under "--
Conversion Rights." (Section 2.2 and 12.2)
The Company has initially appointed the Trustee as Paying Agent and
Conversion Agent. The Company may at any time terminate the appointment of any
Paying Agent or Conversion Agent and appoint additional or other Paying Agents
and Conversion Agents, provided that until the Notes have been delivered to the
Trustee for cancellation, or moneys sufficient to pay the principal of, premium,
if any, and interest on the Notes have been made available for payment and
either paid or returned to the Company as provided in the Indenture, it will
maintain an office or agency in the Borough of Manhattan, The City of New York
for surrender of Notes for conversion. Notice of any such termination or
appointment and of any change in the office through which any Paying Agent or
Conversion Agent will act will be given in accordance with "-- Notices" below.
(Section 10.2)
All moneys deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of principal of, premium, if any, or
interest on any Notes which remain unclaimed at the end of two years after such
payment has become due and payable will be repaid to the Company, and the Holder
of such Note will thereafter look only to the Company for payment thereof.
(Section 10.3)
REPURCHASE AT OPTION OF HOLDERS UPON A CHANGE IN CONTROL
If a Change in Control (as defined) occurs, each Holder of Notes shall have
the right, at the Holder's option, to require the Company to repurchase all of
such Holder's Notes not theretofore called for redemption, or any portion of the
principal amount thereof, that is $5,000 or an integral multiple of $1,000 in
excess thereof, on the date (the "Repurchase Date") that is 45 days after the
date of the Company Notice (as defined), at a price equal to 100% of the
principal amount of the Notes to be repurchased, together with interest accrued
to the Repurchase Date (the "Repurchase Price"). (Section 14.1)
The Company may, at its option, in lieu of paying the Repurchase Price in
cash, pay the Repurchase Price in Common Stock valued at 95% of the average of
the closing bid prices of the Common Stock for the five trading days immediately
preceding the second day prior to the Repurchase Date; provided that payment may
not be made in Common Stock unless the Company satisfies certain conditions with
respect to such payment prior to the Repurchase Date as provided in the
Indenture. (SectionSection 14.1 and 14.2)
Within 30 days after the occurrence of a Change in Control, the Company is
obligated to give to all Holders of the Notes notice, as provided in the
Indenture (the "Company Notice"), of the occurrence of such Change in Control
and of the repurchase right arising as a result thereof. The Company must also
deliver a copy of the Company Notice to the Trustee. To exercise the repurchase
right, a Holder of Notes must deliver on or before the 30th day after the date
of the Company Notice irrevocable written notice to the Trustee of the Holder's
exercise of such right, together with the Notes with respect to which the right
is being exercised. (Section 14.3)
A "Change in Control" shall be deemed to have occurred at such time after
the original issuance of the Notes as there shall occur:
(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
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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 elections of directors, other than any such
acquisition by the Company, any subsidiary of the Company or any employee
benefit plan of the Company; or
(ii) any consolidation or merger of the Company with or into, any other
Person, any merger of another Person into the Company, or any conveyance,
sale, transfer or lease of all or substantially all of the assets of the
Company to another Person (other than (a) any such transaction (x) which
does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of capital stock of the Company and (y)
pursuant to which the holders of the Common Stock immediately prior to such
transaction have the entitlement to exercise, directly or indirectly, 50% or
more of the total voting power of all shares of capital stock entitled to
vote generally in the election of directors of the continuing or surviving
corporation immediately after such transaction and (b) any merger 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 the closing bid 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 (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 (ii) above) shall equal
or exceed 105% of the Conversion Price of the Notes in effect on each such
trading day. The "Conversion Price" is equal to $1,000 divided by the Conversion
Rate. "Beneficial Owner" shall be determined in accordance with Rule 13d-3
promulgated by the Commission under the Exchange Act, as in effect on the date
of execution of the Indenture. "Person" includes any syndicate or group which
would be deemed to be a "person" under section 13(d)(3) of the Exchange Act.
(Section 14.4)
Rule 13e-4 under the Exchange Act requires the dissemination of certain
information to security holders in the event of an issuer tender offer and may
apply in the event that the repurchase option becomes available to Holders of
the Notes. The Company will comply with this rule to the extent applicable at
that time.
The Company may, to the extent permitted by applicable law, at any time
purchase Notes in the open market or by tender at any price or by private
agreement. Any Note so purchased by the Company may, to the extent permitted by
applicable law and subject to restrictions contained in the Underwriting
Agreement, be re-issued or resold or may, at the Company's option, be
surrendered to the Trustee for cancellation. Any Notes surrendered as aforesaid
may not be re-issued or resold and will be canceled promptly.
The foregoing provisions would not necessarily afford Holders of the Notes
protection in the event of highly leveraged or other transactions involving the
Company that may adversely affect Holders.
MERGERS AND SALES OF ASSETS BY THE COMPANY
The Company may not consolidate with or merge into any other Person or
convey, transfer, sell or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer, sell or lease
such Person's properties and assets substantially as an entirety to the Company
unless (a) the Person formed by such consolidation or into or with which the
Company is merged or the Person to which the properties and assets of the
Company are so conveyed, transferred, sold or leased shall be a corporation,
limited liability company, partnership or trust organized and existing under the
laws of the United States, any State thereof or the District of Columbia and, if
other than the Company, shall expressly assume the payment of the principal of,
premium, if any, and interest on the Notes and the
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<PAGE>
performance of the other covenants of the Company under the Indenture, and (b)
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 occurred and be continuing. (Section 7.1)
EVENTS OF DEFAULT
The following will be Events of Default under the Indenture: (a) failure to
pay principal of or premium, if any, on any Note when due, whether or not such
payment is prohibited by the subordination provisions of the Notes and the
Indenture; (b) failure to pay any interest (including any Liquidated Damages) on
any Note when due, continuing for 30 days, whether or not such payment is
prohibited by the subordination provisions of the Notes and the Indenture; (c)
failure to provide a Company Notice in the event of a Change in Control, whether
or not such notice is prohibited by the subordination provisions of the Notes
and the Indenture; (d) failure to perform any other covenant of the Company in
the Indenture, continuing for 60 days (plus an additional 60 days in the case of
defaults subject to cure, provided the Company commences such cure within the
initial 60 days and is diligently pursuing such cure) after written notice as
provided in the Indenture; (e) default in respect of any indebtedness for money
borrowed by the Company that results in acceleration of the maturity of an
amount in excess of $10,000,000 of indebtedness if such indebtedness is not
discharged, or such acceleration is not annulled, within 30 days after written
notice as provided in the Indenture; and (f) certain events of bankruptcy,
insolvency or reorganization. (Section 5.1) Subject to the provisions of the
Indenture relating to the duties of the Trustee in case an Event of Default
shall occur and be continuing, the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request or
direction of any of the Holders, unless such Holders shall have offered to the
Trustee reasonable indemnity. (Section 6.3) Subject to such provisions for the
indemnification of the Trustee, the Holders of a majority in aggregate principal
amount of the Outstanding Notes will 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. (Section 5.12)
If an Event of Default shall occur and be continuing, either the Trustee or
the Holders of at least 25% in principal amount of the Outstanding Notes may,
subject to the subordination provisions of the Indenture, accelerate the
maturity of all Notes; provided, however, that after such acceleration, but
before a judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of Outstanding Notes may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than the non-payment of principal of the Notes which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in the Indenture. (Section 5.2) For information as to waiver of
defaults, see "-- Meetings, Modification and Waiver."
No Holder of any Note will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default and the Holders of at least 25% in aggregate principal amount of the
Outstanding Notes shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, and the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of the Outstanding Notes a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days.
(Section 5.7) However, such limitations do not apply to a suit instituted by a
Holder of a Note for the enforcement of payment of the principal of, premium, if
any, or interest on such Note on or after the respective due dates expressed in
such Note or of the right to convert such Note in accordance with the Indenture.
(Section 5.8)
The Company will be required to furnish to the Trustee annually a statement
as to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Section 10.9)
MEETINGS, MODIFICATION AND WAIVER
The Indenture contains provision for convening meetings of the Holders of
Notes to consider matters affecting their interests. (Article Nine)
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<PAGE>
Certain limited modifications of the Indenture may be made without the
necessity of obtaining the consent of the Holders of the Notes. Other
modifications and amendments of the Indenture may be made, and certain past
defaults by the Company may be waived, either (i) with the written consent of
the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding or (ii) by the adoption of a resolution, at a
meeting of Holders of the Notes at which a quorum is present, by the Holders of
at least 66 2/3% in aggregate principal amount of the Notes represented at such
meeting. However, no such modification or amendment may, without the consent of
the Holder of each Outstanding Note affected thereby, (a) change the Stated
Maturity of the principal of, or any installment of interest on, any Note, (b)
reduce the principal amount of, or the premium, if any, or interest on, any
Note, (c) reduce the amount payable upon a redemption or mandatory repurchase,
(d) modify the provisions with respect to the repurchase right of the Holders in
a manner adverse to the Holders, (e) change the place or currency of payment of
principal of, premium, if any, or interest on, any Note (including any payment
of Liquidated Damages or of the Repurchase Price in respect of such Note), (f)
impair the right to institute suit for the enforcement of any payment on or with
respect to any Note, (g) modify the obligation of the Company to maintain an
office or agency in New York City, (h) except as otherwise permitted or
contemplated by provisions concerning consolidation, merger, conveyance,
transfer, sale or lease of all or substantially all of the property and assets
of the Company, adversely affect the right of Holders to convert any of the
Notes or to require the Company to repurchase any Note other than as provided in
the Indenture, (i) modify the subordination provisions in a manner adverse to
the Holders of the Notes, (j) reduce the above-stated percentage of Outstanding
Notes necessary to modify or amend the Indenture, (k) reduce the percentage of
aggregate principal amount of Outstanding Notes necessary for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults, (l) reduce the percentage in aggregate principal amount of Outstanding
Notes required for the adoption of a resolution or the quorum required at any
meeting of Holders of Notes at which a resolution is adopted, or (m) modify the
obligation of the Company to deliver information required under Rule 144A to
permit resales of Notes and Common Stock issuable upon conversion thereof in the
event the Company ceases to be subject to certain reporting requirements under
the United States securities laws (SectionSection 8.2 and 5.13). The quorum at
any meeting called to adopt a resolution will be persons holding or representing
a majority in aggregate principal amount of the Notes at the time Outstanding
and, at any reconvened meeting adjourned for lack of a quorum, 25% of such
aggregate principal amount. (Section 9.4)
The Holders of a majority in aggregate principal amount of the Outstanding
Notes may waive compliance by the Company with certain restrictive provisions of
the Indenture by written consent or by the adoption of a resolution at a
meeting. (Section 10.13) The Holders of a majority in aggregate principal amount
of the Outstanding Notes also may waive any past default under the Indenture,
except a default in the payment of principal, premium, if any, or interest, by
written consent. (Section 5.13)
TRANSFER, EXCHANGE AND WITHDRAWAL
At the option of the Holder upon request confirmed in writing, and subject
to the terms of the Indenture, any Registered Note will be exchangeable at any
time into an equal aggregate principal amount of Registered Notes of different
authorized denominations provided that any applicable transfer restrictions are
satisfied. (Section 3.5)
Registered Notes may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed) or exchange, at the office of
any transfer agent or at the office of the security registrar, without service
charge but, in the case of a transfer, upon payment of any taxes and other
governmental charges as described in the Indenture. Any registration of transfer
or exchange will be effected upon the transfer agent or the security registrar,
as the case may be, being satisfied with the documents of title and identity of
the person making the request, and subject to such reasonable regulations as the
Company may from time to time agree upon with the transfer agents and the
security registrar, all as described in the Indenture. Subject to the applicable
transfer restrictions, Registered Notes may be transferred in whole or in part
in authorized denominations. (Section 3.5)
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The Company has initially appointed the Trustee as security registrar and
transfer agent, acting through its Corporate Trust Office in New York City. The
Company reserves the right to vary or terminate the appointment of the security
registrar or of any transfer agent or to appoint additional or other transfer
agents or to approve any change in the office through which any security
registrar or any transfer agent acts. (SectionSection 3.5 and 10.2)
In the event of a redemption of the Notes for any of the reasons set forth
below under "-- Redemption," the Company will not be required (a) to register
the transfer or exchange of Notes for a period of 15 days immediately preceding
the date notice is given identifying the serial numbers of the Notes called for
such redemption or (b) to register the transfer of or exchange any Registered
Note, or portion thereof, called for redemption. (Section 2.2)
EXCHANGE OF INTERESTS IN REGISTERED GLOBAL NOTES FOR REGISTERED CERTIFICATED
NOTES. As long as DTC, or its nominee, is the registered Holder of a Registered
Global Note, DTC or such nominee, as the case may be, will be considered the
sole owner and Holder of the Notes represented by such Registered Global Note
for all purposes under the Indenture and the Notes. Unless DTC notifies the
Company that it is unwilling or unable to continue as depository for a
Registered Global Note, or ceases to be a "Clearing Agency" registered under the
Exchange Act, or announces an intention permanently to cease business or does in
fact do so, or an Event of Default has occurred and is continuing with respect
to a Registered Global Note, owners of beneficial interests in a Registered
Global Note will not be entitled to have any portions of such Registered Global
Note registered in their names, will not receive or be entitled to receive
physical delivery of Notes in definitive form and will not be considered the
owners or Holders of the Registered Global Note (or any Notes represented
thereby) under the Indenture or the Notes. In addition, no beneficial owner of
an interest in a Registered Global Note will be able to transfer that interest
except in accordance with DTC's applicable procedures (in addition to those
under the Indenture referred to herein). In the event that owners of beneficial
interests in a Registered Global Note become entitled to receive Registered
Notes in certificated form, such Notes will be issued only as Registered Notes
in certificated form in denominations of U.S.$1,000 and integral multiples
thereof.
EXCHANGE OF REGISTERED CERTIFICATED NOTES FOR INTERESTS IN REGISTERED GLOBAL
NOTES. Regulation D Notes, which initially were issued in certificated (i.e.,
non-global) form, may not be exchanged for beneficial interests in any
Registered Global Note unless such exchange occurs in connection with or
following a transfer of such Regulation D Notes and, in the case of initial
purchasers thereof, the transferor first delivers to the Trustee a written
certificate (in the form provided in the Indenture) to the effect that such
transfer will comply with the appropriate transfer restrictions applicable to
such Notes as set forth in Appendix III to this Prospectus. In the case of any
such exchange of a Regulation D Note initially issued in certificated form for
(a) an interest in the Regulation S Global Note, such transfer must occur
pursuant to Regulation S or Rule 144 (if available) or (b) an interest in the
Restricted Global Note, such transfer must occur pursuant to Rule 144A.
EXCHANGES BETWEEN THE REGULATION S GLOBAL NOTE AND THE RESTRICTED GLOBAL
NOTE. Prior to the expiration of the Restricted Period, beneficial interests in
the Regulation S Global Note may be exchanged for beneficial interests in the
Restricted Global Note only if such exchange occurs in connection with a
transfer of the Notes pursuant to Rule 144A and the transferor first delivers to
the Trustee a written certificate (in the form provided in the Indenture) to the
effect that the Notes are being transferred to a person who the transferor
reasonably believes is a qualified institutional buyer within the meaning of
Rule 144A under the Securities Act, purchasing for its own account or the
account of a qualified institutional buyer in a transaction meeting the
requirements of Rule 144A and in accordance with all applicable securities laws
of the states of the United States and other jurisdictions.
Beneficial interests in the Restricted Global Note may be transferred to a
person who acquires the same in the form of a beneficial interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written
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certificate (in the form provided in the Indenture) to the effect that such
transfer is being made in accordance with Rule 904 of Regulation S or Rule 144
(if available) and that, if such transfer occurs prior to the expiration of the
Restricted Period, the interest transferred will be held immediately thereafter
through Euroclear or CEDEL.
Any beneficial interest in one of the Registered Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Registered Global Note will, upon transfer, cease to be an interest in
such Registered Global Note and will become an interest in the other Registered
Global Note and, accordingly, will thereafter be subject to all transfer
restrictions and other procedures applicable to beneficial interests in such
other Registered Global Note for so long as it remains such an interest.
Transfers involving an exchange of a beneficial interest in the Regulation S
Global Note for a beneficial interest in the Restricted Global Note or vice
versa will be effected in DTC by means of an instruction originated by the
Trustee through the DTC/Deposit Withdraw at Custodian (DWAC) system.
Accordingly, appropriate adjustments will be made to reflect a decrease in the
principal amount of the Regulation S Global Note and a corresponding increase in
the principal amount of the Restricted Global Note or vice versa, as applicable.
TITLE
The Company, the Trustee, any Paying Agent and any Conversion Agent may
treat the registered owner (as reflected in the Security Register) of any Note
as the absolute owner thereof (whether or not such Note shall be overdue) for
the purpose of making payment and for all other purposes. (Section 2.2)
NOTICES
Notice to Holders of the Notes will be given by mail to the addresses of
such Holders as they appear in the Security Register. Such notices will be
deemed to have been given on the date of such mailing. (SectionSection 1.1 and
1.6)
Notice of a redemption of Notes will be given at least once not less than 30
nor more than 60 days prior to the redemption date (which notice shall be
irrevocable) and will specify the redemption date.
REPLACEMENT OF NOTES
Notes that become mutilated, destroyed, stolen or lost will be replaced by
the Company at the expense of the Holder upon delivery to the Trustee of the
mutilated Notes or evidence of the loss, theft or destruction thereof
satisfactory to the Company and the Trustee. In the case of a lost, stolen or
destroyed Note, indemnity satisfactory to the Trustee and the Company may be
required at the expense of the Holder of such Note before a replacement Note
will be issued. (Section 3.6)
PAYMENT OF STAMP AND OTHER TAXES
The Company will pay all stamp and other duties, if any, which may be
imposed by the United States or the United Kingdom or any political subdivision
thereof or taxing authority thereof or therein with respect to the issuance of
the Notes. The Company will not be required to make any payment with respect to
any other tax, assessment or governmental charge imposed by any government or
any political subdivision thereof or taxing authority thereof or therein.
DEPOSITORY PROCEDURES WITH RESPECT TO REGISTERED GLOBAL NOTES
With respect to the Registered Global Notes, DTC has advised the Company as
follows: DTC is a limited purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the Uniform Commercial Code, as amended, and
a "Clearing Agency" registered pursuant to the provisions of Section 17A of the
Exchange Act. DTC was created to hold securities for its participating
organizations (collectively, the "Participants") and to facilitate the clearance
and settlement of transactions in those securities between Participants through
electronic book-entry changes in accounts of its Participants. The Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. Access to DTC's system is also
available to other entities such as banks,
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<PAGE>
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly (collectively,
the "Indirect Participants"). Persons who are not Participants may beneficially
own securities held by or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interest and transfer of ownership interest
of each actual purchaser of each security held by or on behalf of DTC are
recorded on the records of the Participants and Indirect Participants.
DTC has also advised the Company that pursuant to procedures established by
it, (i) upon deposit of the Registered Global Notes, DTC will credit the
accounts of Participants designated by the Purchasers with portions of the
principal amount of the Registered Global Notes and (ii) ownership of such
interests in the Registered Global Notes will be shown on, and the transfer of
ownership thereof will be effected only through, records maintained by DTC (with
respect to the Participants) or by the Participants and the Indirect
Participants (with respect to other owners of beneficial interest in the
Registered Global Notes).
Investors in the Restricted Global Note may hold their interests therein
directly through DTC, if they are Participants in such system, or indirectly
through organizations (including Euroclear and CEDEL) which are Participants in
such system. Investors in the Regulation S Global Note, which will be issued
only after the expiration of the Restricted Period (but not earlier), may hold
interests therein through Euroclear or CEDEL or organizations other than
Euroclear and CEDEL that are Participants in the DTC system. Euroclear and CEDEL
will hold interests in the Regulation S Global Note on behalf of their
Participants through customers' securities accounts in their respective names on
the books of their respective depositaries, which are Morgan Guaranty Trust
Company of New York, Brussels office, as operator of Euroclear, and Citibank,
N.A., as operator of CEDEL. The depositaries, in turn, will hold such interests
in the Regulation S Global Note in customers' securities accounts in the
depositaries' names on the books of DTC. All interests in a Registered Global
Note, including those held through Euroclear or CEDEL, may be subject to the
procedures and requirements of DTC. Those interests held through Euroclear or
CEDEL may also be subject to the procedures and requirements of such system.
The laws of some states require that certain persons take physical delivery
in definitive form of securities that they own. Consequently, the ability to
transfer beneficial interests in a Registered Global Note to such persons may be
limited to that extent. Because DTC can act only on behalf of its Participants,
which in turn act on behalf of Indirect Participants and certain banks, the
ability of a person having beneficial interests in a Registered Global Note to
pledge such interests to persons or entities that do not participate in the DTC
system, or otherwise take actions in respect of such interests, may be affected
by the lack of a physical certificate evidencing such interests.
EXCEPT AS DESCRIBED ABOVE UNDER "-- TRANSFER, EXCHANGE AND WITHDRAWAL,"
OWNERS OF INTERESTS IN THE REGISTERED GLOBAL NOTES WILL NOT HAVE NOTES
REGISTERED IN THEIR NAMES, WILL NOT RECEIVE PHYSICAL DELIVERY OF NOTES IN
CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE REGISTERED OWNERS OR HOLDERS
THEREOF UNDER THE INDENTURE FOR ANY PURPOSE.
DTC has advised the Company that its current practice, upon receipt of any
payment in respect of interests in securities such as the Registered Global
Notes (including principal and interest) held by it or its nominee, is to credit
the accounts of the relevant Participants with the payment on the payment date,
in amounts proportionate to their respective holdings in principal amount of
beneficial interests in the relevant security such as the Registered Global
Notes as shown on the records of DTC unless DTC has reason to believe it will
not receive payment on such payment date. Payments by the Participants and the
Indirect Participants to the beneficial owners of Notes will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers registered in "street name." Such
payments will be the responsibility of the Participants or the Indirect
Participants and will not be the responsibility of DTC, the Trustee or the
Company. Neither the Company nor the Trustee will be liable for any delay by DTC
or any of its Participants in
24
<PAGE>
identifying the beneficial owners of the Notes, and the Company and the Trustee
may conclusively rely on and will be protected in relying on instructions from
DTC or its nominee as the registered owner of the Registered Global Notes for
all purposes.
Transfers of beneficial interests in the Restricted Global Note between
Participants in DTC will be effected in accordance with DTC's procedures, and
such beneficial interests will trade in DTC's Same-Day Funds Settlement System;
and consequently, secondary market trading activity in such interests will
settle in immediately available funds. Transfers of beneficial interests in the
Regulation S Global Note between participants in Euroclear and CEDEL will be
effected in the ordinary way in accordance with their respective rules and
operating procedures, whereas cross-market transfers of such interests
(including, by DTC Participants other than Euroclear and CEDEL) will be subject
to considerations described below.
Subject to compliance with the transfer restrictions applicable to the Notes
described herein, cross-market transfers with respect to the Registered Global
Notes between the Participants in DTC, on the one hand, and Euroclear or CEDEL
participants, on the other hand, will be effected through DTC in accordance with
DTC's rules on behalf of Euroclear or CEDEL, as the case may be, by its
respective depository; however, such cross-market transactions will require
delivery of instructions to Euroclear or CEDEL, as the case may be, by the
counterparts in such system in accordance with the rules and procedures and
within the established deadlines (Brussels time) of such system. Euroclear or
CEDEL, as the case may be, will, if the transaction meets its settlement
requirements, deliver instructions to its respective depositary to take action
to effect final settlement on its behalf by delivering or receiving interests in
the relevant Registered Global Note in DTC, and making or receiving payment in
accordance with normal procedures for same-day funds settlement applicable to
DTC. Euroclear participants and CEDEL participants may not deliver instructions
directly to the depositories for Euroclear or CEDEL.
Because of time zone differences, the securities account of a Euroclear or
CEDEL participant purchasing an interest in a Registered Global Note from a
Participant in DTC will be credited, and any such crediting will be reported to
the relevant Euroclear or CEDEL participant, during the securities settlement
processing day (which must be a business day for Euroclear and CEDEL)
immediately following the settlement date of DTC. Cash received in Euroclear or
CEDEL as a result of sales of interests in a Registered Global Note by or
through a Euroclear or CEDEL participant to a Participant in DTC will be
received with value on the settlement date of DTC but will be available in the
relevant Euroclear or CEDEL cash account only as of the business day for
Euroclear or CEDEL following DTC's settlement date.
DTC has advised the Company that it will take any action permitted to be
taken by a Holder of Notes only at the direction of one or more Participants to
whose account with DTC interests in the Registered Global Notes are credited and
only in respect of such portion of the aggregate principal amount of the Notes
as to which such Participant or Participants has or have given such direction.
However, if there is an Event of Default under the Notes, DTC reserves the right
to exchange the Registered Global Notes for legended Notes in certificated form,
and to distribute such Notes to its Participants.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of beneficial ownership interests in the Registered Global Notes among
Participants of DTC, it is under no obligation to perform or continue to perform
such procedures, and such procedures may be discontinued at any time. None of
the Company, the Trustee nor any of their respective agents will have any
responsibility for the performance by DTC, its Participants or Indirect
Participants of their respective obligations under the rules and procedures
governing their operations, including maintaining, supervising or reviewing the
records relating to, or payments made on account of, beneficial ownership
interests in Registered Global Notes.
25
<PAGE>
GOVERNING LAW
The Indenture and the Notes will be governed by and construed in accordance
with the laws of the State of New York, United States of America. (Section 1.11)
THE TRUSTEE
In case an Event of Default shall occur (and shall not be cured), the
Trustee will be required to use the degree of care of a prudent person in the
conduct of his own affairs in the exercise of its powers. Subject to such
provisions, the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request of any of the Holders of
Notes, unless they shall have offered to the Trustee reasonable security or
indemnity. (SectionSection 6.1 and 6.3)
PLAN OF DISTRIBUTION
The Notes were issued to the Selling Securityholders in connection with an
underwritten private placement. The Notes may be sold from time to time by the
Selling Securityholders. The Selling Securityholders may from time to time sell
all or a portion of the Notes in transactions on the Nasdaq National Market, in
the over-the-counter market, in negotiated transactions, or a combination of
such methods of sale, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Notes may
be sold directly or through broker-dealers. If shares of Common Stock are sold
through broker-dealers, the Selling Securityholders may pay brokerage
commissions and charges. The methods by which the Notes may be sold include (a)
a block trade (which may involve crosses) in which the broker or dealer so
engaged will attempt to sell the securities as agent but may position and resell
a portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
own account pursuant to this Prospectus; (c) exchange distributions and/or
secondary distributions in accordance with the rules of the Nasdaq National
Market; (d) ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and (e) privately negotiated transactions.
Pursuant to the provisions of the Registration Rights Agreement entered into
by and between the Company and Goldman, Sachs & Co., the Company will pay the
costs and expenses incident to its registration and qualification of the Notes
offered hereby, including registration and filing fees. In addition, the Company
has agreed to indemnify the Selling Securityholders against certain liabilities,
including liabilities arising under the Securities Act.
The Selling Securityholders and any broker-dealer participating in the
distribution of the Notes may be deemed to be "underwriters" within the meaning
of the Securities Act, and any profit and any commissions paid or any discounts
or concessions allowed to any such broker-dealer may be deemed to be
underwriting discounts and commissions under the Securities Act. The Selling
Securityholders may indemnify any broker-dealer that participates in
transactions involving the sale of Notes against certain liabilities, including
liabilities under the Securities Act.
There can be no assurances that the Selling Securityholders will sell any or
all of the Notes offered by them hereunder.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon by Vinson
& Elkins L.L.P., Dallas, Texas.
EXPERTS
The consolidated financial statements of Cyrix Corporation appearing in
Cyrix Corporation's Annual Report (Form 10-K) for the year ended December 31,
1995, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
26
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY, BY ANY SELLING SECURITYHOLDER OR UNDERWRITER. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Available Information.......................... 2
Incorporation of Certain Information by
Reference..................................... 2
Risk Factors................................... 3
Recent Developments............................ 9
Selling Securityholders........................ 10
Description of Notes........................... 12
Plan of Distribution........................... 26
Legal Matters.................................. 26
Experts........................................ 26
</TABLE>
$126,500,000
CYRIX CORPORATION
5 1/2% CONVERTIBLE SUBORDINATED NOTES
DUE JUNE 1, 2001
---------------------
PROSPECTUS
---------------------
, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses, all of which will be paid by the Registrant, in connection
with the registration of Notes offered hereby, other than commissions, are as
follows:
<TABLE>
<S> <C>
SEC Registration Fee........................................... $43,620.69
Nasdaq National Market Filing Fee.............................. 17,500.00
Printing and Engraving Expenses................................ *
Legal Fees and Expenses........................................ *
Accounting Fees and Expenses................................... *
"Blue Sky" Fees and Expenses................................... *
Transfer Agent and Registrar Fees.............................. --
Miscellaneous.................................................. *
----------
Total...................................................... *
----------
----------
</TABLE>
- ------------------------
* Estimate
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law (the
"DGCL"), the Company has included in its Restated Certificate of Incorporation,
as amended, a provision that eliminates the personal liability of a director to
the Company or its stockholders for monetary damages for breach of his fiduciary
duty as a director except for (i) any breach of the duty of loyalty to the
Company or its stockholders, (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) payment of
an improper dividend or improper repurchase or improper redemption of the
Company's stock under Section 174 of the DGCL or (iv) any transaction from which
the director derived an improper personal benefit. The Company's Restated
Certificate of Incorporation, as amended, further provides that in the event the
DGCL is amended to allow the further elimination or limitation of the liability
of directors, then the liability of the Company's directors shall be eliminated
or limited to the fullest extent permitted by the amended DGCL.
Pursuant to Section 145 of the DGCL, the Company has included in its Bylaws,
as amended, provisions that require the Company to indemnify its directors,
officers, employees and agents to the fullest extent permitted by the DGCL. The
Company is required to indemnify any person who was or is (or is threatened to
be made) a party to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Company) by reason of the fact that such
person is or was a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation or enterprise. The indemnity includes expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided such director, officer, employee or agent acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
Company's best interests and, with respect to any criminal action or proceeding,
provided he had no reasonable cause to believe that his conduct was unlawful.
In addition, the Company is required to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the Company or is or was serving in such role in another
enterprise at the request of the Company. The indemnity includes expenses
(including attorneys' fees) actually and reasonably incurred by him, provided
the officer or director acted in good faith and in a manner he
II-1
<PAGE>
reasonably believed to be in or not opposed to the Company's best interests.
However, no such person will be indemnified as to matters for which he is found
to be liable to the Company unless, and only to the extent that, indemnification
is ordered by a court.
Pursuant to Section 145(g) of the DGCL, the Company's Bylaws, as amended,
authorize the Company to obtain insurance to protect officers and directors from
certain liabilities, including liabilities against which the Company cannot
indemnify its directors and officers.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ----------- --------------------------------------------------------------------------------------------------------
<C> <C> <S>
1.1 -- Purchase Agreement dated May 22, 1996 between the Registrant and Goldman, Sachs & Co.
3.1 -- Restated Certificate of Incorporation filed May 15, 1996.
3.2 -- Bylaws of the Registrant, as adopted by the Board of Directors as of February 12, 1988, together with
Certificate of Amendment of Bylaws as adopted by the Board of Directors as of March 16, 1988 and
Certificate of Amendment of Bylaws adopted by the Board of Directors as of April 15, 1993 (filed as an
exhibit to the Registrant's Registration Statement on Form S-1, File No. 33-63144, as amended, and
incorporated herein by reference).
3.3 -- Certificate of Amendment of Bylaws of the Registrant as adopted by the Board of Directors as of August
26, 1993 (filed as an exhibit to the Registrant's Registration Statement on Form S-1, File No. 33-63144,
as amended, and incorporated herein by reference).
3.4 -- Certificate of Amendment of Bylaws of the Registrant as adopted by the Board of Directors as of March
10, 1994 (filed as an exhibit to the Registrant's Registration Statement on Form S-8, File No. 33-87604,
and incorporated herein by reference).
3.5 -- Certificate of Amendment of Bylaws of the Registrant as adopted by the Board of Directors as of March
24, 1995.
3.6 -- Certificate of Amendment of Bylaws of the Registrant as adopted by the Board of Directors as of January
26, 1996.
4.1 Indenture, dated as of May 28, 1996 between the Registrant and Bank of Montreal Trust Company as
Trustee.
4.2 -- Registration Rights Agreement, dated as of May 28, 1996 between the Registrant and Goldman, Sachs & Co.
5.1 -- Opinion of Vinson & Elkins L.L.P.
23.1 -- Consent of Vinson & Elkins L.L.P. (set forth in Exhibit 5.1).
23.2 -- Consent of Ernst & Young LLP, Independent Auditors.
24.1 -- Powers of Attorney (set forth on signature page).
25.1 -- Form T-1
</TABLE>
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
<TABLE>
<S> <C> <C>
(1) (i) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(ii) To include any prospectus required in Section 10(a) (3) of the Securities Act of
1933, as amended (the "Securities Act");
(iii) To reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of Prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iv) To include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
</TABLE>
PROVIDED, HOWEVER, that paragraphs (1)(ii) and (1)(iii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Richardson, State of Texas, on August 21, 1996.
CYRIX CORPORATION
By: /s/ GERALD D. ROGERS
-----------------------------------
Gerald D. Rogers
PRESIDENT AND CHIEF FINANCIAL
OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints GERALD D. ROGERS, JAMES W. SWENT, III AND
TIMOTHY W. KINNEAR and each or any of them, his true and lawful
attorneys-in-fact and agents (with full power to each of them to act alone),
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done (with full power to each
of them to act alone), as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or either of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated.
SIGNATURE TITLE DATE
- --------------------------------- ------------------------- ------------------
President, Chief
/s/ GERALD D. ROGERS Executive Officer and
- --------------------------------- Director (Principal August 21, 1996
Gerald D. Rogers Executive Officer)
/s/ JAMES W. SWENT, III Chief Financial Officer
- --------------------------------- (Principal Financial August 21, 1996
James W. Swent, III Officer)
/s/ TIMOTHY W. KINNEAR Vice President of Finance
- --------------------------------- and Treasurer (Principal August 21, 1996
Timothy W. Kinnear Accounting Officer)
/s/ HARVEY B. CASH
- --------------------------------- Chairman of the Board August 21, 1996
Harvey B. Cash
/s/ L.J. SEVIN
- --------------------------------- Director August 21, 1996
L.J. Sevin
/s/ JACK KEMP
- --------------------------------- Director August 21, 1996
Jack Kemp
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- --------- -------------------------------------------------------------------------------------------
<C> <C> <S> <C>
1.1 -- Purchase Agreement dated May 22, 1996 between the Registrant and Goldman, Sachs & Co.
3.1 -- Restated Certificate of Incorporation filed May 15, 1996.
3.2 -- Bylaws of the Registrant, as adopted by the Board of Directors as of February 12, 1988,
together with Certificate of Amendment of Bylaws as adopted by the Board of Directors as of
March 16, 1988 and Certificate of Amendment of Bylaws adopted by the Board of Directors as
of April 15, 1993 (filed as an exhibit to the Registrant's Registration Statement on Form
S-1, File No. 33-63144, as amended, and incorporated herein by reference).
3.3 -- Certificate of Amendment of Bylaws of the Registrant as adopted by the Board of Directors
as of August 26, 1993 (filed as an exhibit to the Registrant's Registration Statement on
Form S-1, File No. 33-63144, as amended, and incorporated herein by reference).
3.4 -- Certificate of Amendment of Bylaws of the Registrant as adopted by the Board of Directors
as of March 10, 1994 (filed as an exhibit to the Registrant's Registration Statement on
Form S-8, File No. 33-87604, and incorporated herein by reference).
3.5 -- Certificate of Amendment of Bylaws of the Registrant as adopted by the Board of Directors
as of March 24, 1995.
3.6 -- Certificate of Amendment of Bylaws of the Registrant as adopted by the Board of Directors
as of January 26, 1996.
4.1 -- Indenture, dated as of May 28, 1996 between the Registrant and Bank of Montreal Trust
Company as Trustee.
4.2 -- Registration Rights Agreement, dated as of May 28, 1996 between the Registrant and Goldman,
Sachs & Co.
5.1 -- Opinion of Vinson & Elkins L.L.P.
23.1 -- Consent of Vinson & Elkins L.L.P. (set forth in Exhibit 5.1).
23.2 -- Consent of Ernst & Young LLP, Independent Auditors.
24.1 -- Powers of Attorney (set forth on signature page).
25.1 -- Form T-1
</TABLE>
<PAGE>
EXHIBIT 1.1
CYRIX CORPORATION
5 1/2 % CONVERTIBLE SUBORDINATED NOTES DUE JUNE 1, 2001
PURCHASE AGREEMENT
May 22, 1996
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Cyrix Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to you
(the "Purchaser") an aggregate of U.S.$110,000,000 principal amount of the
5 1/2 % Convertible Subordinated Notes due June 1, 2001, convertible into
Common Stock, par value U.S.$.004 per share (the "Stock"), of the Company,
specified above (the "Firm Securities"), and, at the election of the
Purchaser, up to an aggregate of U.S.$16,500,000 additional aggregate
principal amount of such Notes (the "Optional Securities"). The Firm
Securities and the Optional Securities which the Purchaser elect to purchase
pursuant to Section 2 hereof are herein collectively called the "Securities".
As used herein, the term "Securities" shall be deemed, unless the context
otherwise requires, to include the Securities in the form of a temporary
global Security representing the Securities issued and sold in reliance on
Regulation S, and the term "Purchaser" shall be deemed to include Goldman
Sachs International ("GSI"), who is acting as your selling agent in making
certain resales of the Securities pursuant to Section 3.
The Purchaser and other holders (including subsequent transferees) of
Securities in registered form without coupons will be entitled to the
benefits of the registration rights agreement, to be dated as of the Time of
Delivery (as defined below) (the "Registration Rights Agreement") among the
Company and the Purchaser, in the form attached hereto as Exhibit A.
Pursuant to the Registration Rights Agreement, the Company will agree to file
with the Securities and Exchange Commission (the "Commission") under the
circumstances set forth therein a shelf registration statement pursuant to
Rule 415 under the Securities Act of 1933, as amended (the "Securities Act"),
relating to the resale of (i) such Securities and (ii) the shares of Stock
initially issuable upon conversion of the Securities by holders thereof, and
to use its reasonable efforts to cause such shelf registration statement to
be declared effective.
1. The Company represents and warrants to, and agrees with, the
Purchaser that:
(a) An offering circular dated May 22, 1996 (the "Offering
Circular"), including the international supplement thereto, has been
prepared in connection with the offering of the Securities and the
shares of Stock issuable upon conversion thereof. Any reference herein
to the Offering Circular shall be deemed to refer to and include the
Company's Annual Report on Form 10-K for the year ended December 31,
1995, Annual Report on 10-K/A for the year ended December 31, 1995, as
amended by the Company's
<PAGE>
Amendment No. 1 on Form 10-K/A filed with the Commission on May 20,
1996, and Quarterly Report on Form 10-Q for the quarter ended March 31,
1996 attached to and made a part of the Offering Circular and all
subsequent documents filed with the Commission pursuant to Section
13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on or prior to the date of the Offering Circular;
and any reference to the Offering Circular as amended or supplemented as
of any specified date shall be deemed to include (i) any documents filed
with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the
Exchange Act after the date of the Offering Circular and prior to such
specified date and (ii) any Additional Issuer Information (as defined in
Section 5(g) of this Agreement) furnished by the Company prior to the
completion of the distribution of the Securities; and all documents
filed under the Exchange Act and so deemed to be included in the
Offering Circular or any amendment or supplement thereto are hereinafter
called the "Exchange Act Reports". The Exchange Act Reports, when they
were or are filed with the United States Securities and Exchange
Commission (the "Commission"), conformed or will conform in all material
respects to the applicable requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder. The
Offering Circular and any amendments or supplements thereto did not and
will not, as of their respective dates, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by you expressly for use therein;
(b) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited consolidated financial statements
of the Company included in the Offering Circular any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Offering Circular; and, since the
respective dates as of which information is given in the Offering
Circular, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development that could reasonably be anticipated
to involve a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Offering
Circular;
(c) The Company and its subsidiaries have good and indefeasible
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Offering Circular or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its
subsidiaries material to the Company's operations or condition are held
by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company
and its subsidiaries;
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(d) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Circular, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no liability or disability
material to the Company and its subsidiaries taken as a whole by reason
of the failure to be so qualified in any such jurisdiction; and each
subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation;
(e) The Company has an authorized capitalization as set forth in
the Offering Circular, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid and non-assessable; the shares of common stock, par value
$.004 per share ("Stock"), of the Company initially issuable upon
conversion of the Securities have been duly and validly authorized and
reserved for issuance out of the Company's authorized and unissued
shares of Common Stock and, when issued and delivered in accordance with
the provisions of the Securities and the Indenture referred to below,
will be duly and validly issued, fully paid and non-assessable and will
conform to the description of the Stock contained in the Offering
Circular; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for directors'
qualifying shares and except as otherwise set forth in the Offering
Circular) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(f) The Securities have been duly authorized by the Company and,
when issued and delivered pursuant to this Agreement and the Indenture
(hereinafter defined), will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture to be dated as of May 28, 1996 (the "Indenture"), between the
Company and Bank of Montreal Trust Company, as trustee (the "Trustee"),
under which they are to be issued; the Indenture has been duly
authorized and, when executed and delivered by the parties thereto, will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent conveyance, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Securities and the Indenture will
conform to the descriptions thereof in the Offering Circular and will be
in substantially the form previously delivered to you;
(g) The issue and sale of the Securities, and the compliance by
the Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject which individually or in
the aggregate would have a material adverse effect on the general
affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole, nor
will such action result in any
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violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required to
be obtained by the Company for the issue and sale of the Securities or
the consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, other than such consents, approvals,
authorizations, registrations or qualifications as may be required under
"blue sky" or foreign securities laws in connection with the purchase
and distribution of the Securities by the Purchaser or which this
Agreement or the Indenture contemplate will be obtained or made after
the Time of Delivery;
(h) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any material obligation, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound which would
individually or in the aggregate have a material adverse effect on the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole;
(i) The statements set forth in the Offering Circular under the
captions "Description of Notes" and "Description of Capital Stock",
insofar as they purport to constitute a summary of the terms of the
Securities and the shares of Stock, under the captions "Notice to
Investors", "United States Taxation" and "Offer and Resale" insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are accurate and complete in all material respects
and fair;
(j) Other than as set forth in the Offering Circular, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, are expected individually or in
the aggregate to have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and, to
the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(k) Except as otherwise set forth in the Offering Circular, the
Company owns, possesses or has obtained adequate rights to use or have
used all intellectual property necessary for the conduct of its business
as described in the Offering Circular, except where the failure to own,
possess or obtain such rights would not individually or in the aggregate
have a material adverse effect on the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole; and, except as set forth
in the Offering Circular, the Company has not received any notice of
conflict with the asserted rights of others with respect to the
Company's continuing right, directly or indirectly, to use or have used
all intellectual property necessary for the conduct of its business,
except for any conflict or proceedings that would not individually or in
the aggregate have a material adverse effect on the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole;
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(l) The Company is a reporting issuer as such term is defined by
Regulation S under the United States Securities Act of 1933, as amended
(the "Securities Act");
(m) When the Securities are issued and delivered pursuant to
this Agreement, such Securities will not be of the same class (within
the meaning of Rule 144A under the Securities Act) as securities which
are listed on a national securities exchange registered under Section 6
of the Exchange Act, or quoted in a U.S. automated interdealer quotation
system;
(n) The Company is not an open-end investment company, unit
investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under
Section 8 of the United States Investment Company Act of 1940, as
amended (the "Investment Company Act");
(o) Neither the Company nor any person acting on its behalf
(other than the Purchaser, as to whom the Company makes no
representation) has, with respect to any Securities sold in the United
States, offered or sold the Securities by means of any general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act or, with respect to Securities sold in reliance
on Rule 903 under the Securities Act, by means of any directed selling
efforts within the meaning of Rule 903 under the Securities Act and the
Company has complied and will comply with the offering restriction
requirements of such Rule 903;
(p) Within the six months preceding the date hereof, neither
the Company nor any person acting on behalf of the Company has offered
or sold, directly or indirectly, in the United States or to any U.S.
person (as such terms are defined in Regulation S under the Securities
Act) any Securities or any substantially similar security issued by the
Company. The Company will observe reasonable precautions designed to
ensure that any offer or sale, direct or indirect, in the United States
or to any U.S. person of any Securities or any substantially similar
security issued by the Company, within six months subsequent to the date
on which the distribution of the Securities has been completed (as
notified to the Company by the Purchaser), is made under restrictions
and other circumstances reasonably designed not to affect the status of
the offer and sale of the Securities in the United States and to U.S.
persons contemplated by Annex I to this Agreement as transactions exempt
from the registration requirements of the Securities Act;
(q) Each of the directors and executive officers of the
Company listed in Schedule I who are holders of outstanding shares of or
securities exercisable or exchangeable for or convertible into shares of
capital stock of the Company has entered into (or, in the case of Thomas
B. Brightman, prior to the First Time of Delivery (as defined below)
will have entered into) a written agreement with the Company in the form
of Exhibit B hereto (each such agreement a "Lock-up Agreement"), and
executed originals of each Lock-up Agreement have been delivered to you;
(r) None of the holders of outstanding shares of capital stock
of the Company and no other person has or will have any preemptive or
other rights (other than the conversion rights of the Securities) to
purchase, subscribe for or otherwise acquire (i) the shares of Stock to
be issued upon conversion of the Securities or any rights to such shares
or (ii) as a result of or in connection with the transactions
contemplated by the Indenture or this Agreement, any other capital stock
of the Company or rights thereto; and
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<PAGE>
(s) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants with respect to the Company and its subsidiaries as required
by the American Institute of Certified Public Accountants.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to the Purchaser, and the Purchaser agrees
to purchase from the Company, at a purchase price of 97% of the principal
amount thereof, plus accrued interest, if any, from May 28, 1996 to the Time
of Delivery hereunder, the principal amount of Securities, and (b) in the
event and to the extent that the Purchaser shall exercise the election to
purchase Optional Securities as provided below, the Company agrees to issue
and sell to the Purchaser, and the Purchaser agrees to purchase from the
Company, at the same purchase price set forth in clause (a) of this Section
2, the aggregate principal amount of the Optional Securities as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
denominations of less than U.S.$1,000).
The Company hereby grants to the Purchaser the right to purchase at its
election up to U.S.$16,500,000 aggregate principal amount of Optional
Securities, at the purchase price set forth in clause (a) of the first
paragraph of this Section 2, for the sole purpose of covering overallotments
in the sale of Firm Securities. Any such election to purchase Optional
Securities may be exercised by written notice from you to the Company, given
within a period of 30 calendar days after the date of this Agreement, setting
forth the aggregate principal amount of Optional Securities to be purchased
and the date on which such Optional Securities are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery or,
unless you and the Company otherwise agree in writing earlier than two or
later than ten business days after the date of such notice.
3. The Purchaser is offering the Securities for sale upon the terms
and conditions set forth in the Offering Circular and Annex I to this
Agreement. The Purchaser hereby makes to and with the Company the
representations and agreements set forth in Annex I to this Agreement.
4. (a) The Securities to be purchased will be represented (i) in
the case of Securities purchased by Goldman, Sachs & Co. (except in the case
of Securities to be acquired by Institutional Accredited Investors, which
will be represented in definitive certificated registered form), by one or
more definitive global Securities in book-entry form which will be deposited
by or on behalf of the Company with The Depository Trust Company ("DTC") or
its designated custodian and (ii) in the case of Securities purchased by GSI,
by one or more definitive global Securities in book-entry form which will be
deposited by or on behalf of the Company with DTC or its designated custodian
for the benefit of Morgan Guaranty Trust Company of New York (Brussels
office), as operator of the Euroclear System, or Cedel Bank, Societe Anomyme,
or both, for credit to the account of GSI, unless otherwise directed by GSI.
The Company will deliver the Securities to Goldman, Sachs & Co., for its
account, against payment therefor by or on behalf of the Purchaser of the
purchase price therefor by certified or official bank check or checks, or by
wire transfer, payable to the order of the Company in Federal (same day)
funds, by causing DTC to credit the Securities to the
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respective accounts of Goldman, Sachs & Co. and GSI, as the case may be, at
DTC. The Company will cause the certificates representing the Securities to
be made available to Goldman, Sachs & Co. for checking at least twenty-four
hours prior to the Time of Delivery (as defined below) at the office of DTC
or its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Securities,
10:00 a.m., New York City time, on May 28, 1996, or such other time and date
as the Purchaser and the Company may agree upon in writing and, with respect
to the Optional Securities, 10:00 a.m., New York City time, on the date
specified by the Purchaser in the written notice given by the Purchaser of
the Purchaser's election to purchase such Optional Securities, or such other
time and date as the Purchaser and the Company may agree upon in writing.
Such time and date for delivery of the Firm Securities is herein called the
"First Time of Delivery", such time and date for delivery of the Optional
Securities, if not the First Time of Delivery, is herein called the "Second
Time of Delivery", and each such time and date for delivery is herein called
a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by
the Purchaser pursuant to Section 7(h) hereof, will be delivered at the
offices of Sullivan & Cromwell, 125 Broad Street, New York, New York 10004
(the "Closing Location"), and the Securities will be delivered at the offices
of Goldman, Sachs & Co. referred to in paragraph 4(a) above, all at such Time
of Delivery. A meeting will be held at the Closing Location at 3:00 p.m.,
New York City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in New York City are generally authorized
or obligated by law or executive order to close.
5. The Company agrees with the Purchaser:
(a) To make no amendment or supplement to the Offering Circular
which shall be disapproved by the Purchaser promptly after reasonable
notice thereof, provided that approval of the Purchaser of any such
amendment or supplement that may be required by law shall not be
unreasonably withheld;
(b) To furnish the Purchaser with copies of the Offering
Circular in such quantities as you may from time to time reasonably
request, and, if, at any time prior to the earlier of the expiration of
nine months after the date of the Offering Circular and the date on
which the distribution of the Securities has been completed, as
determined by the Purchaser, any event shall have occurred as a result
of which the Offering Circular as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Offering
Circular is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Offering Circular, to notify the Purchaser, and upon the request of the
Purchaser to prepare and
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<PAGE>
furnish without charge to the Purchaser and to any dealer in securities
as many copies as the Purchaser may from time to time reasonably request
of an amended Offering Circular or a supplement to the Offering Circular
which will correct such statement or omission;
(c) To furnish you with ten copies of the Offering Circular and of
each amendment or supplement thereto signed by an authorized officer of the
Company and with the independent accountants' report in the Offering
Circular, and any amendment or supplement containing amendments to the
financial statements covered by such report, signed by such accountants;
(d) (i) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Offering Circular, not to offer, sell, contract to sell or otherwise
dispose of any shares of any class of the Company's common stock, any
securities of the Company substantially similar to the Securities or
shares of any class of common stock of the Company or any securities of
the Company convertible into or exchangeable or exercisable for shares
of any class of common stock of the Company or substantially similar
securities of the Company (other than pursuant to director and employee
stock option and stock purchase plans existing on, or upon the
conversion or exchange of the Securities or existing convertible or
exchangeable securities outstanding as of, the date of this Agreement),
without the prior written consent of the Purchaser and (ii) that it will
use its reasonable efforts to cause each person who has entered into a
Lock-up Agreement to comply therewith, will not grant any waivers or
consents to non-compliance therewith and will enforce its rights under
each such agreement, in each case unless and to the extent that it shall
have obtained the prior written consent of the Purchaser;
(e) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Offering Circular under the caption "Use of Proceeds";
(f) Not to be or become, at any time prior to the expiration
of three years after the latest Time of Delivery, an open-end investment
company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act;
(g) At any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, for the benefit of holders from time to
time of Securities and the Stock issuable upon conversion thereof, to
furnish at its expense, upon request, to holders of Securities and the
Stock issuable upon conversion thereof and prospective purchasers of
Securities and the Stock issuable upon conversion thereof information
satisfying the requirement of subsection (d)(4)(i) of Rule 144A (the
"Additional Issuer Information");
(h) To use its best efforts to cause the Securities sold in
reliance on Rule 144A to be eligible for the PORTAL trading system of
the National Association of Securities Dealers, Inc.;
(i) During the period of three years after the latest Time of
Delivery, (i) not to, and to cause its subsidiaries and other affiliates
(as defined in Rule 144(a) under the Securities Act) controlled by it
not to, resell any Securities that are reacquired by the Company or any
such subsidiary or affiliate and (ii) promptly to advise the
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Purchaser in writing if, to its knowledge, any other affiliates (as
defined in Rule 144(a) under the Securities Act) of the Company sell any
Securities that are acquired by them;
(j) Promptly from time to time to take such action as the
Purchaser may reasonably request to qualify such Securities and the
Stock issuable upon conversion thereof for offering and sale under the
securities laws of such jurisdictions in the United States as the
Purchaser may reasonably request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities and the Stock issuable upon conversion
thereof, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(k) To reserve and keep available at all times, free of preemptive
rights, shares of Stock for the purpose of enabling the Company to
satisfy any obligations to issue shares of Stock upon conversion of the
Securities;
(l) Until such time as any Security or any Stock issuable upon
conversion thereof is registered under the Securities Act pursuant to
the Registration Rights Agreement and transferred pursuant to such
registration, to include a legend on the Securities and the Stock
issuable upon the conversion thereof to the effect set forth under
"Notice to Investors" in the Offering Circular; and
(m) During a period of five years from the date of the
Offering Circular, to furnish to you, upon request, copies of all
reports mailed to stockholders generally, together with the exhibits
thereto, and copies of any reports filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed, together with the exhibits thereto.
6. The Company covenants and agrees with the Purchaser that the
Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants and all
other expenses of the Company in connection with the issue and listing of the
Securities and the Stock issuable upon conversion thereof, the preparation
and delivery of the Securities in temporary and definitive forms, the
preparation and printing of the Offering Circular and any amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Purchaser and dealers; (ii) the cost of reproducing this Agreement, the
Indenture, the Registration Rights Agreement, any Blue Sky Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) the fees and expenses of the Trustee and any agent of the Trustee and
the reasonable fees and disbursements of counsel for the Trustee and any such
agent in connection with the Indenture and the Securities; (iv) the fees and
expenses of Euroclear, CEDEL and any other depositary used in connection with
the Securities and of any transfer or conversion agent or registrar for the
Securities or the Stock issuable upon conversion of the Securities; (v) all
expenses in connection with the qualification of the Securities for trading
in the PORTAL System of the National Association of Securities Dealers, Inc.
and the listing of the Stock issuable upon conversion of the Securities on
the Nasdaq National Market; (vi) fees, if any, charged by securities rating
services chosen by the Company for rating the Securities; (vii) all expenses
in connection with the qualification of the Securities and the shares of
Stock issuable upon the conversion of the Securities for offering and sale
under state securities or Blue Sky laws as provided in Section 5(j) hereof,
including the reasonable fees and
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<PAGE>
disbursements of counsel for the Purchaser in connection with the Blue Sky
surveys; and (x) all other costs and expenses incident to the performance of
the Company's obligations hereunder which are not otherwise specifically
provided for in this Section including any expenses incurred in connection
with complying with Section 5(g) hereof; and to indemnify and hold harmless
the Purchaser from any documentary stamp or similar issue tax and any related
interest or penalties on the issue, sale or delivery of the Securities to the
Purchaser which are or may be due in the United Kingdom or the United States
of America. It is understood, however, that, except as provided in this
Section and Sections 8 and 10 hereof, the Purchaser will pay all of its own
costs and expenses, including the fees of its counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses
connected with any offers it may make.
7. The obligations of the Purchaser hereunder at each Time of Delivery
shall be subject, in its discretion, to the condition that all
representations and warranties and other statements of the Company herein
are, at and as of such Time of Delivery, true and correct, the condition that
the Company shall have performed all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) Sullivan & Cromwell, counsel for the Purchaser, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
in form and substance satisfactory to the Purchaser, with respect to the
incorporation of the Company, the validity of the Indenture, the
Securities, the shares of Stock issuable upon conversion of the
Securities, the Offering Circular and other related matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
(b) Vinson & Elkins, counsel for the Company, shall have furnished
to you their written opinion, dated such Time of Delivery, in form and
substance satisfactory to the Purchaser, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Offering Circular;
(ii) The Company has an authorized capitalization as set forth
in the Offering Circular, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; the shares of Stock
initially issuable upon conversion of the Securities have been duly
and validly authorized and reserved for issuance and, when issued
and delivered in accordance with the provisions of the Securities
and the Indenture, will be duly and validly issued, fully paid and
non-assessable and will conform to the description of the Stock
contained in the Offering Circular;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, or is subject to no liability or disability material
to the Company and its subsidiaries taken as a whole by reason of
the
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failure to be so qualified in any such jurisdiction (such counsel
being entitled to rely in respect of the opinion in this clause
upon opinions of local counsel or, without any other investigation,
certificates of public officials, and in respect of matters of fact
upon certificates of officers of the Company, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(iv) Each subsidiary of the Company listed on Schedule II to
this Agreement (a "Specified Subsidiary") has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation; and
all of the issued shares of capital stock of each such subsidiary
have been duly and validly authorized and issued, are fully paid
and non-assessable, and (except for directors' qualifying shares
and except as otherwise set forth in the Offering Circular) are
owned of record directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims known to such
counsel (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state
that they believe that both you and they are justified in relying
upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other than as
set forth in the Offering Circular, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which are expected
individually or in the aggregate to have a material adverse effect
on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) The Securities have been duly authorized, executed,
issued and delivered by the Company and, assuming due
authentication by the Trustee, constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture; and the Securities and the Indenture conform to the
descriptions thereof in the Offering Circular in all material
respects;
(viii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
conveyance, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(ix) The issue and sale of the Securities, the issuance of the
Stock upon conversion of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions
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of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument listed in an officer's certificate as constituting all
such material agreements or otherwise known to such counsel to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its Specified Subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, except any conflict, breach, violation or
default which individually or in the aggregate would not have a
material adverse effect on the general affairs, management,
financial position, stockholders' equity or results of operations
of the Company and its subsidiaries taken as a whole, nor will such
action result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties;
(x) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or
body of the United States of America or any political subdivision
thereof is required for the issue and sale of the Securities, the
issuance of the Stock upon conversion of the Securities or the
consummation of the transactions contemplated by this Agreement or
the Indenture, other than such consents, approvals, authorizations,
registrations or qualifications as may be required under "blue sky"
or foreign securities laws in connection with the purchase and
distribution of the Securities by the Purchaser or which this
Agreement or the Indenture contemplate will be obtained or made
after the Time of Delivery;
(xi) The statements set forth in the Offering Circular under
the caption "Description of Notes" and "Description of Capital
Stock", insofar as they purport to constitute a summary of the
terms of the Securities and the Stock and under the caption "Offer
and Resale", insofar as they purport to describe the provisions of
the laws and document referred to therein, are accurate and
complete in all material respects and fair;
(xii) No registration of the Securities under the
Securities Act, and no qualification of an indenture under the
United States Trust Indenture Act of 1939, as amended, with respect
thereto, is required for the offer and sale of the Securities in
the manner contemplated by this Agreement (including the provisions
of Annex I to this Agreement), and the Offering Circular;
(xiii) The Exchange Act Reports (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they were filed with the Commission,
complied appeared on their face to comply as to form in all
material respects with the requirements of the Exchange Act, and
the rules and regulations of the Commission thereunder; and
(xiv) The Company is not an open-end investment company, unit
investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under
the Investment Company Act.
-12-
<PAGE>
In addition, such opinion shall also contain a statement that,
based on the discussions and conferences disclosed in such
statement, and while such counsel assumes no responsibility
for the Exchange Act Reports mentioned below, no facts have
come to such counsel's attention that lead them to believe
that the Exchange Act Reports (other than financial statements
and related schedules and other financial data included
therein), when they were filed with the Commission, or the
Offering Circular or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery
(other than the financial statements and related schedules and
other financial data included therein), as of its date or as
of the Time of Delivery, contained an untrue statement of
material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) At 10:00 a.m., New York City time on the business day
preceding the date of this Agreement, and also at such Time of Delivery,
Ernst & Young LLP shall have furnished to you a letter or letters, dated
the respective date of delivery thereof, in form and substance
satisfactory to you to the effect set forth in Annex II hereto and to
such other matters as you may reasonably request;
(d) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements of
the Company included in the Offering Circular any loss or interference
with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Circular, and (ii) since the respective
dates as of which information is given in the Offering Circular there
shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Offering Circular, the effect of which, in
any such case described in clause (i) or (ii), is in the judgment of the
Purchaser so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the
Securities being issued at such Time of Delivery on the terms and in the
manner contemplated in the Offering Circular;
(e) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Securities or any other debt
securities of the Company by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of the Securities or any of the Company's other debt securities;
(f) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on NASDAQ; (ii) a
suspension or material limitation in trading in the Company's securities
on NASDAQ; (iii) a general moratorium on
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<PAGE>
commercial banking activities in New York declared by either Federal or
New York State authorities; (iv) the outbreak or the escalation of
hostilities involving the United States or the declaration by the United
States, on or after the date hereof, of a national emergency or war; or
(v) the occurrence of any change in national or international financial,
political or economic conditions or currency exchange rates or controls,
if the effect of any event specified in this clauses (iv) or (v) above,
in the judgment of the Purchaser, makes it impracticable or inadvisable
to proceed with the offering or the delivery of the Securities being
issued at such Time of Delivery on the terms and in the manner
contemplated in the Offering Circular; and
(g) The Company shall have furnished or caused to be furnished to
you at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder to
be performed at or prior to such Time of Delivery, as to the matters set
forth in subsection (d) of this Section and as to such other matters as
you may reasonably request.
8. (a) The Company will indemnify and hold harmless the Purchaser
against any losses, claims, damages or liabilities, joint or several, to
which the Purchaser may become subject insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in the Offering Circular, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading, and
will periodically reimburse the Purchaser for any legal or other expenses
reasonably incurred by the Purchaser in connection with investigating or
defending any such action or claim as such expenses are incurred, it being
understood that the Company shall not, in connection with any one such action
or separate but substantially similar related actions arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm or attorneys (other than local counsel) for all
indemnified parties; PROVIDED, HOWEVER, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Offering Circular or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by the Purchaser expressly for
use therein.
(b) The Purchaser will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Offering
Circular, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Offering Circular or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by you expressly for use therein; and
will periodically
-14-
<PAGE>
reimburse the Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such action or
claim as such expenses are incurred, it being understood that the Purchaser
shall not, in connection with any one such action or separate but
substantially similar related actions arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm or attorneys (other than local counsel) for the
Company.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Purchaser on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Purchaser on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Purchaser on the other shall be deemed
to be in the same proportion as the total net
-15-
<PAGE>
proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by
the Purchaser. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Purchaser on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Purchaser agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Purchaser shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to purchasers were so
offered exceeds the amount of any damages which the Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Purchaser; and the obligations of the Purchaser under this
Section 8 shall be in addition to any liability which the respective
Purchaser may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person,
if any, who controls the Company.
9. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Purchaser, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of the Purchaser or any controlling person of the Purchaser, or the
Company or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
10. If the Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, the Company shall not
be under any liability to the Purchaser except as provided in Section 6 and 8
hereof, but if for any other reason the Securities are not delivered by or on
behalf of the Company as provided herein, the Company agrees to reimburse the
Purchaser for all out-of-pocket expenses approved in writing by the
Purchaser, including fees, disbursements and expenses of counsel, reasonably
incurred by the Purchaser in making preparations for the purchase, sale and
delivery of the Securities, but the Company shall then be under no further
liability to the Purchaser except as provided in Sections 6 and 8 hereof.
-16-
<PAGE>
11. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Purchaser shall be delivered or sent by mail, telex
or facsimile transmission to you in care of Goldman, Sachs & Co., 85 Broad
Street, New York, New York 10004, Attention: Registration Department; and if
to the Company shall be delivered or sent by mail, telex or facsimile
transmission to Cyrix Corporation, 2703 North Central Expressway, Richardson
Texas 75080, Attention: Chief Financial Officer, facsimile transmission no.
(214) 234-4443. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely to the
benefit of, the Purchaser, the Company and, to the extent provided in
Sections 8 and 9 hereof, the officers and directors of the Company and each
person who controls the Company or the Purchaser, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser
of any of the Securities from the Purchaser shall be deemed a successor or
assign by reason merely of such purchase.
13. Time shall be of the essence of this Agreement.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
15. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the
same instrument.
-17-
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us seven counterparts hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding
agreement between the Purchaser and the Company.
Very truly yours,
Cyrix Corporation
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
- -------------------------------
(Goldman, Sachs & Co.)
-18-
<PAGE>
SCHEDULE I
OFFICERS AND DIRECTORS SIGNING LOCKUP AGREEMENTS
Gerald D. Rogers
Thomas B. Brightman
Michael E. Barton
Harvey B. Cash
James N. Chapman
Nancy B. Dechaud
Russell N. Fairbanks, Jr.
Jack Kemp
Timothy W. Kinnear
Kevin C. McDonough
Lewis R. Paceley
Everett J. Roach
L.J. Sevin
Stephen A. Tobak
-19-
<PAGE>
SCHEDULE II
SPECIFIED SUBSIDIARIES
Cyrix Manufacturing, Inc.
Cyrix International, Inc.
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<PAGE>
ANNEX I
(1) The Securities and the Stock issuable upon the conversion thereof
have not been and will not be registered under the Securities Act and may not
be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with Regulation S under the
Securities Act or pursuant to an exemption from the registration requirements
of the Securities Act. The Purchaser represents that it has offered and
sold, and will offer and sell, the Securities and the Stock issuable upon the
conversion thereof (i) as part of its distribution at any time and (ii)
otherwise until 40 days after the later of the commencement of the offering
and the latest Time of Delivery, only in accordance with Rule 903 of
Regulation S or Rule 144A or pursuant to paragraph (2) of this Annex I.
Accordingly, the Purchaser agrees that neither it, its affiliates nor any
persons acting on its or their behalf have engaged or will engage in any
directed selling efforts with respect to the Securities or the Stock issuable
upon conversion thereof. The Purchaser agrees that, at or prior to
confirmation of sale of Securities (other than a sale pursuant to Rule 144A
or pursuant to paragraph (2) of this Annex I)), it will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby and the Stock issuable upon the
conversion thereof have not been registered under the U.S. Securities
Act of 1933 (the "Securities Act") and may not be offered and sold
within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and
the closing date, except in either case in accordance with Regulation S
(or Rule 144A if available) under the Securities Act. Terms used above
have the meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
The Purchaser further agrees that it has not entered and will not enter
into any contractual arrangement with respect to the distribution or delivery
of the Securities, except with its affiliates or with the prior written
consent of the Company.
(2) Notwithstanding the foregoing, Securities in registered form may be
offered, sold and delivered by the Purchaser in the United States and to U.S.
persons in a manner designed to be exempt from the registration provisions of
the Securities Act and the rules and regulations thereunder and without
delivery of the written statement required by paragraph (1) above. In
connection therewith, Goldman, Sachs & Co. represents and warrants to, and
agrees with, the Company that:
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<PAGE>
(a) It has offered and sold, and will offer and sell, Securities
and the Stock issuable upon conversion thereof only to persons that it
reasonably believes are (i) qualified institutional buyers within the
meaning of Rule 144A under the Act in transactions meeting the
requirements of such Rule 144A, or (ii) institutions that are
"accredited investors" within the meaning of Rule 501(a)(1), (2), (3) or
(7) under the Act; and
(b) It has offered the Securities to not more than 50
institutional accredited investors; each institutional accredited
investor that purchases Securities from it shall (i) purchase not less
than U.S.$250,000 principal amount of Securities, and (ii) execute and
deliver a purchaser's letter substantially in the form of Annex III to
the Offering Circular; and
(c) It has not offered or sold, and will not offer or sell,
Securities or the Stock issuable upon the conversion thereof by any form
of general solicitation or general advertising, including but not
limited to the methods described in Rule 502(c) under the Securities Act.
(3) The Purchaser further represents and agrees that (i) it has not
offered or sold, and will not offer or sell, in the United Kingdom by means
of any document, any Securities other than to persons whose ordinary business
it is to buy or sell debentures, whether as principal or as agent, or in
circumstances which do not constitute an offer to the public within the
meaning of the Companies Act 1985 of Great Britain, (ii) it has complied, and
will comply, with all applicable provisions of the Financial Services Act
1986 of Great Britain with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom, and (iii) it
has only issued or passed on, and will only issuance or pass on, in the
United Kingdom, any document received by it in connection with the issuance
of the Securities to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1995 of Great Britain or is a person to whom the document may otherwise
lawfully be issued or passed on.
(4) The Purchaser agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside of the United States except under
circumstances that will result in compliance with the applicable laws
thereof, and that it will take at its own expense whatever action is required
to permit its purchase and resale of the Securities in such jurisdictions.
The Purchaser understands that no action has been taken to permit a public
offering in any jurisdiction outside of the United States where action would
be required for such purpose. The Purchaser agrees not to cause any
advertisement of the Securities to be published in any newspaper or
periodical or posted in any public place and not to issue any circular
relating to the Securities, except in any such case with the Purchaser's
express written consent and then only at its own risk and expense.
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<PAGE>
ANNEX II
Pursuant to Section 7(c) of the Purchase Agreement, Ernst & Young LLP
shall have furnished at a time prior to the execution of the Purchase
Agreement letters to the Purchaser to the effect that:
(i) They are independent auditors with respect to the Company and
its subsidiaries within the meaning of the Securities Exchange Act of
1934 (the "Exchange Act") and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
financial statement schedules audited by them and included in the
Offering Circular comply as to form in all material respects with the
applicable requirements of the Exchange Act and the related published
rules and regulations;
(iii) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Offering
Circular agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such
five fiscal years;
(iv) On the basis of limited procedures not constituting an audit
in accordance with generally accepted auditing standards, consisting of
a reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included in the Offering Circular,
inquiries of officials of the Company and its subsidiaries responsible
for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Offering Circular are not in conformity with
generally accepted accounting principles applied on the basis
substantially consistent with the basis for the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Offering
Circular;
(B) any other unaudited income statement data and balance
sheet items included in the Offering Circular do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Offering Circular;
(C) the unaudited financial statements which were not
included in the Offering Circular but from which were derived any
unaudited condensed financial statements referred to in Clause (A)
and any unaudited income statement data and balance sheet items
included in the Offering Circular and referred to in Clause (B)
were not determined on a basis substantially consistent
<PAGE>
with the basis for the audited consolidated financial statements
included in the Offering Circular;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Offering Circular do not comply as to
form in all material respects with the applicable accounting
requirements or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest financial statements included in the Offering Circular) or
any increase in the consolidated long-term debt of the Company and
its subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Purchaser, or any increases in any items specified by the
Purchaser, in each case as compared with amounts shown in the
latest balance sheet included in the Offering Circular except in
each case for changes, increases or decreases which the Offering
Circular discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included in the Offering Circular to the specified date
referred to in Clause (E) there were any decreases in consolidated
operating revenues or operating income or the total or per share
amounts of consolidated net income or other items specified by the
Purchaser, or any increases in any items specified by the
Purchaser, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding
length specified by the Purchaser, except in each case for
decreases or increases which the Offering Circular discloses have
occurred or may occur or which are described in such letter; and
(v) In addition to the examination referred to in their report(s)
included in the Offering Circular and the limited procedures, inspection
of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally
accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Purchaser, which
are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Offering Circular, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
2
<PAGE>
EXHIBIT A
[FORM OF REGISTRATION RIGHTS AGREEMENT]
1
<PAGE>
EXHIBIT B
[FORM OF LOCK-UP AGREEMENT]
, 1996
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Ladies and Gentlemen:
The undersigned have been informed that CYRIX CORPORATION ("Cyrix" or
the "Company"), proposes to issue $110,000,000 of its __% Convertible
Subordinated Notes due June 1, 2001 (the "Notes"). The undersigned have been
informed that Cyrix has prepared an Offering Circular regarding the Notes
(the "Offering Circular") and will enter into an underwriting agreement (the
"Purchase Agreement") with Goldman, Sachs & Co. (the "Purchaser").
To facilitate the sale of the Notes to be sold thereunder and in
consideration of the Purchaser's entering into the Purchase Agreement, the
undersigned hereby irrevocably confirms, covenants and agrees for the benefit
of Cyrix and the Purchaser that, except as set forth herein, it will not,
directly or indirectly, offer, sell, contract to sell or otherwise dispose of
any shares of any class of Cyrix's common stock registered in the name of, or
beneficially owned or controlled by the undersigned on the date hereof, or
any securities exchangeable or exercisable for or convertible into shares of
any class of common stock of the Company, or any substantially similar
securities (collectively, the "Exchangeable Securities"), for a period of 90
days after May 28, 1996, without the prior written consent of the Purchaser,
except that the undersigned may (i) convert shares of such common stock or
Exchangeable Securities into Cyrix common stock of another class or other
Exchangeable Securities and (ii) transfer any such securities to any of its
partners or affiliates if the transferee provides Cyrix and the Purchaser
with an executed and binding agreement of such entity to be bound by the
agreements set forth herein [and, in the case of Thomas B. Brightman only,
(iii) sell or otherwise dispose of up to 88,600 shares of common stock of
the Company].
<PAGE>
The undersigned further represents to you that as of the date hereof
the undersigned is not a party to (nor are any of the shares of any class of
Cyrix's common stock registered in the name of, beneficially owned or
controlled by the undersigned or any Exchangeable Securities owned by the
undersigned subject to), any option, warrant or other right to acquire such
common stock or Exchangeable Securities by any other person or entity.
The undersigned acknowledges and agrees that this agreement shall be
binding upon and inure to the benefit of the successors and assigns of the
undersigned and you.
Very truly yours,
<PAGE>
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
CYRIX CORPORATION
* * * * *
Cyrix Corporation, a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), does hereby certifies as follows:
1. The name of this corporation is Cyrix Corporation. The date of
filing of the Corporation's original Certificate of Incorporation with the
Secretary of State of Delaware was February 11, 1988 under the original name
of Advanced Processor Technology Corporation.
2. The Restated Certificate of Incorporation restates and integrates
and further amends the Restated Certificate of Incorporation of the
Corporation by amending the first paragraph of Article Fourth to read in its
entirety as follows:
FOURTH: The Corporation shall have the authority to issue two (2)
classes of shares to be designated, respectively, "Preferred Stock" and
"Common Stock." All of said shares shall be Four Tenths of One Cent
($.004) par value each. The total number of shares of capital stock of
all classes which the Corporation shall have authority to issue is Eighty
Million (80,000,000), which shall consist of Sixty Million (60,000,000)
shares of Common Stock and Twenty Million (20,000,000) shares of
Preferred Stock.
3. The text of the Restated Certificate of Incorporation as amended or
supplemented heretofore is further amended hereby to read as set forth in
full as follows:
RESTATED CERTIFICATE OF INCORPORATION
OF
CYRIX CORPORATION
FIRST: The name of this corporation is Cyrix Corporation (the "Corporation").
SECOND: The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle, Delaware 19801. The name of its registered agent at
such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be
organized under the Delaware General Corporation Law.
<PAGE>
FOURTH: The Corporation shall have the authority to issue two (2) classes of
shares to be designated, respectively, "Preferred Stock" and "Common Stock."
All of said shares shall be Four Tenths of One Cent ($.004) par value each.
The total number of shares of capital stock of all classes which the
Corporation shall have authority to issue is Eighty Million (80,000,000),
which shall consist of Sixty Million (60,000,000) shares of Common Stock and
Twenty Million (20,000,000) shares of Preferred Stock.
The Preferred Stock may be issued from time to time in one or more series
pursuant to a resolution or resolutions providing for such issue duly adopted
by the Board of Directors (authority to do so being hereby expressly vested
in the Board) and such resolution or resolutions shall also set forth the
voting powers, full or limited, or none, of each such series of Preferred
Stock and shall fix the designations, preferences and relative,
participating, optional or other special rights and qualifications,
limitations or restrictions of each such series of Preferred Stock. The
number of authorized shares of any class of stock may be increased or
decreased (but not below the number of shares then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, voting together as a single class.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors, by the act of a majority of the number of
directors authorized by the bylaws, is expressly authorized to make, alter,
amend or repeal the By-Laws of the Corporation.
SEVENTH: The number of directors which will constitute the whole Board of
Directors of the Corporation shall be as specified in the By-Laws of the
Corporation.
EIGHTH: The election of directors need not be by written ballot unless the
By-Laws of the Corporation so provide.
NINTH: Intentionally omitted.
TENTH: Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the statutes) outside the State
of Delaware at such place or places as may be designated from time to time by
the Board of Directors or in the By-Laws of the Corporation.
ELEVENTH: To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or as may hereafter be amended, a director
of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Neither any amendment nor repeal of this Article Eleventh nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article Eleventh shall eliminate or reduce the effect of this Article
Eleventh in respect of any matter occurring, or any cause of action,
2
<PAGE>
suit or claim that, but for this Article Eleventh would accrue or arise,
prior to such amendment, repeal or adoption of an inconsistent provision.
TWELFTH: Advance notice of new business and stockholder nominations for the
election of directors shall be given in the manner and to the extent provided
in the By-Laws of the Corporation.
THIRTEENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
4. This Restated Certificate of Incorporation is being filed pursuant
to Sections 242 and 245 of the Delaware General Corporation Law. The
Restated Certificate of Incorporation has been duly authorized in accordance
with Sections 242 and 245 of the Delaware General Corporation Law by the
Board of Directors of the Corporation, at a meeting held on January 26, 1996,
and by the Stockholders of the Corporation, at a meeting held on April 18,
1996. The vote required was a majority of the outstanding shares of Common
Stock of the Corporation.
IN WITNESS WHEREOF, Cyrix Corporation has caused this Restated
Certificate of Incorporation to be signed by Gerald D. Rogers, its President
and Chief Executive Officer, this 14th day of May, 1996.
CYRIX CORPORATION
By: /s/ Gerald D. Rogers
----------------------------------------
Gerald D. Rogers, President and
Chief Executive Officer
3
<PAGE>
EXHIBIT 3.5
CERTIFICATE OF AMENDMENT
OF BYLAWS OF
CYRIX CORPORATION
The undersigned, being the duly elected and acting Secretary of Cyrix
Corporation (the "Corporation"), hereby certifies that Section 3.2 of the
Bylaws of the Corporation has been amended, effective March 24, 1995, by the
Board of Directors to read as follows:
"3.2 NUMBER OF DIRECTORS
The number of directors of the Corporation shall be not less than
four nor more than ten. The exact number of directors shall be five until
changed, within the limit specified above, by a bylaw amending this
Section 3.2 duly adopted by the board of directors or by the stockholders.
The indefinite number of directors may be changed, or a definite number
fixed without provision for an indefinite number, by a duly adopted
amendment to the certificate of incorporation or by an amendment to this
bylaw duly adopted by the vote or written consent of the holders of a
majority of the stock issued and outstanding and entitled to vote or by
resolution by a majority of the board of directors.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office
expires."
Dated: May 14, 1996
/s/ Russell N. Fairbanks, Jr.
---------------------------------------
Russell N. Fairbanks, Jr., Secretary
<PAGE>
EXHIBIT 3.6
CERTIFICATE OF AMENDMENT
OF BYLAWS OF
CYRIX CORPORATION
The undersigned, being the duly elected and acting Secretary of Cyrix
Corporation (the "Corporation"), hereby certifies that Section 3.2 of the
Bylaws of the Corporation has been amended, effective January 26, 1996, by
the Board of Directors to read as follows:
"3.2 NUMBER OF DIRECTORS
The number of directors of the Corporation shall be not less than four
nor more than ten. The exact number of directors shall be four until
changed, within the limit specified above, by a bylaw amending this
Section 3.2 duly adopted by the board of directors or by the stockholders.
The indefinite number of directors may be changed, or a definite number
fixed without provision for an indefinite number, by a duly adopted
amendment to the certificate of incorporation or by an amendment to this
bylaw duly adopted by the vote or written consent of the holders of a
majority of the stock issued and outstanding and entitled to vote or by
resolution by a majority of the board of directors.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office
expires."
Dated: May 14, 1996
/s/ Russell N. Fairbanks, Jr.
---------------------------------------
Russell N. Fairbanks, Jr., Secretary
<PAGE>
EXHIBIT 4.1
Execution Copy
----------------------------------------
CYRIX CORPORATION
ISSUER
TO
BANK OF MONTREAL TRUST COMPANY
TRUSTEE
----------------
INDENTURE
Dated as of May 28, 1996
----------------
U.S.$126,500,000
51/2% CONVERTIBLE SUBORDINATED NOTES
DUE JUNE 1, 2001
----------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------
Page
----
RECITALS OF THE COMPANY................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION......................... 2
SECTION 1.1. DEFINITIONS.............................................. 2
Act................................................................ 2
Affiliate.......................................................... 2
Agent Member....................................................... 2
Applicable Procedures.............................................. 2
Authenticating Agent............................................... 2
Authorized Newspaper............................................... 3
Board of Directors................................................. 3
Board Resolution................................................... 3
Business Day....................................................... 3
CEDEL.............................................................. 3
Change in Control.................................................. 3
Closing Price Per Share............................................ 3
Code............................................................... 3
Commission......................................................... 3
Common Stock....................................................... 4
common stock....................................................... 4
Company............................................................ 4
Company Notice..................................................... 4
Company Request" or "Company Order................................. 4
Constituent Person................................................. 4
Conversion Agent................................................... 4
Conversion Price................................................... 4
Conversion Rate.................................................... 4
Corporate Trust Office............................................. 4
corporation........................................................ 5
Defaulted Interest................................................. 5
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Depositary......................................................... 5
Dollar" or "U.S.$.................................................. 5
DTC................................................................ 5
Euroclear.......................................................... 5
Event of Default................................................... 5
Exchange Act....................................................... 5
Exchange Date...................................................... 5
Global Security.................................................... 5
Holder............................................................. 5
Indenture.......................................................... 5
Initial Purchaser.................................................. 5
Interest Payment Date.............................................. 5
Liquidated Damages................................................. 6
Maturity........................................................... 6
Non-electing Share................................................. 6
Notice of Default.................................................. 6
Officers' Certificate.............................................. 6
Opinion of Counsel................................................. 6
Outstanding........................................................ 6
Paying Agent....................................................... 7
Person............................................................. 7
Place of Conversion................................................ 7
Place of Payment................................................... 7
Predecessor Security............................................... 7
Purchase Agreement................................................. 7
Record Date........................................................ 7
Record Date Period................................................. 7
Redemption Date.................................................... 7
Redemption Price................................................... 8
Registered Security................................................ 8
Registrable Securities............................................. 8
Regular Record Date................................................ 8
Regulation D Securities............................................ 8
Regulation S....................................................... 8
Regulation S Certificate........................................... 8
Regulation S Global Security....................................... 8
Regulation S Legend................................................ 8
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE>
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Regulation S Securities............................................ 8
Repurchase Date.................................................... 8
Repurchase Price................................................... 8
Responsible Officer................................................ 8
Restricted Global Security......................................... 9
Restricted Period.................................................. 9
Restricted Securities.............................................. 9
Restricted Securities Certificate.................................. 9
Restricted Securities Legend....................................... 9
Rule 144A.......................................................... 9
Rule 144A Information.............................................. 9
Rule 144A Securities............................................... 9
Securities......................................................... 9
Securities Act..................................................... 9
Securities Act Legend.............................................. 9
Security Register" and "Security Registrar.............................. 9
Senior Indebtedness................................................ 10
Shelf Registration Statement....................................... 10
Special Record Date................................................ 10
Stated Maturity.................................................... 10
Subsidiary......................................................... 11
Successor Security...................................................... 11
Surrender Certificate.............................................. 11
Trading Days....................................................... 11
Trust Indenture Act................................................ 11
Trustee............................................................ 11
United States...................................................... 11
Unrestricted Securities Certificate................................ 11
Vice President..................................................... 12
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS..................... 12
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO THE TRUSTEE............... 12
SECTION 1.4. ACTS OF HOLDERS OF SECURITIES............................ 13
SECTION 1.5. NOTICES, ETC., TO TRUSTEE AND COMPANY.................... 15
SECTION 1.6. NOTICE TO HOLDERS OF SECURITIES; WAIVER.................. 16
SECTION 1.7. EFFECT OF HEADINGS AND TABLE OF CONTENTS................. 16
SECTION 1.8. SUCCESSORS AND ASSIGNS................................... 16
SECTION 1.9. SEPARABILITY CLAUSE...................................... 16
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 1.10. BENEFITS OF INDENTURE.................................... 17
SECTION 1.11. GOVERNING LAW............................................ 17
SECTION 1.12. LEGAL HOLIDAYS........................................... 17
SECTION 1.13. CONFLICT WITH TRUST INDENTURE ACT........................ 17
ARTICLE TWO
SECURITY FORMS.......................... 18
SECTION 2.1. FORM GENERALLY........................................... 18
SECTION 2.2. FORM .................................................... 19
SECTION 2.4. FORM OF CERTIFICATE OF AUTHENTICATION.................... 35
SECTION 2.5. FORM OF CONVERSION NOTICE................................ 35
ARTICLE THREE
THE SECURITIES.......................... 37
SECTION 3.1. TITLE AND TERMS.......................................... 37
SECTION 3.2. DENOMINATIONS............................................ 38
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING........... 38
SECTION 3.4. GLOBAL SECURITIES; NON-GLOBAL SECURITIES................. 38
SECTION 3.5. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE;
RESTRICTIONS ON TRANSFER................................. 40
SECTION 3.6. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.......... 45
SECTION 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED........... 46
SECTION 3.8. PERSONS DEEMED OWNERS.................................... 47
SECTION 3.9. CANCELLATION............................................. 47
SECTION 3.10. COMPUTATION OF INTEREST.................................. 47
SECTION 3.11. [RESERVED................................................ 47
SECTION 3.12. CUSIP NUMBERS............................................ 48
ARTICLE FOUR
SATISFACTION AND DISCHARGE....................... 49
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE.................. 49
SECTION 4.2. APPLICATION OF TRUST MONEY............................... 50
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE>
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----
ARTICLE FIVE
REMEDIES................................ 51
SECTION 5.1. EVENTS OF DEFAULT........................................ 51
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT....... 52
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE................................................. 53
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM......................... 54
SECTION 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES............................................ 55
SECTION 5.6. APPLICATION OF MONEY COLLECTED........................... 55
SECTION 5.7. LIMITATION ON SUITS...................................... 56
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST AND TO CONVERT ..................... 57
SECTION 5.9. RESTORATION OF RIGHTS AND REMEDIES....................... 57
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE........................... 57
SECTION 5.11. DELAY OR OMISSION NOT WAIVER............................. 57
SECTION 5.12. CONTROL BY HOLDERS OF SECURITIES......................... 58
SECTION 5.13. WAIVER OF PAST DEFAULTS.................................. 58
SECTION 5.14. UNDERTAKING FOR COSTS.................................... 58
SECTION 5.15. WAIVER OF STAY, USURY OR EXTENSION LAWS.................. 59
ARTICLE SIX
THE TRUSTEE............................ 60
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES...................... 60
SECTION 6.2. NOTICE OF DEFAULTS....................................... 61
SECTION 6.3. CERTAIN RIGHTS OF TRUSTEE................................ 61
SECTION 6.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES... 62
SECTION 6.5. MAY HOLD SECURITIES, ACT AS TRUSTEE UNDER OTHER
INDENTURES............................................... 63
SECTION 6.6. MONEY HELD IN TRUST...................................... 63
SECTION 6.7. COMPENSATION AND REIMBURSEMENT........................... 63
SECTION 6.8. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.................. 64
SECTION 6.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR........ 64
SECTION 6.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................... 65
SECTION 6.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS................................................. 66
SECTION 6.12. AUTHENTICATING AGENTS.................................... 66
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 6.13. DISQUALIFICATION; CONFLICTING INTERESTS.................. 68
SECTION 6.14. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY........ 68
ARTICLE SEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE............... 69
SECTION 7.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS..... 69
SECTION 7.2. SUCCESSOR SUBSTITUTED.................................... 69
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES.................... 71
SECTION 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS OF
SECURITIES............................................... 71
SECTION 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS OF
SECURITIES............................................... 72
SECTION 8.3. EXECUTION OF SUPPLEMENTAL INDENTURES..................... 73
SECTION 8.4. EFFECT OF SUPPLEMENTAL INDENTURES........................ 73
SECTION 8.5. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES....... 74
SECTION 8.6. NOTICE OF SUPPLEMENTAL INDENTURES........................ 74
ARTICLE NINE
MEETINGS OF HOLDERS OF SECURITIES................... 75
SECTION 9.1. PURPOSES FOR WHICH MEETINGS MAY BE CALLED................ 75
SECTION 9.2. CALL, NOTICE AND PLACE OF MEETINGS....................... 75
SECTION 9.3. PERSONS ENTITLED TO VOTE AT MEETINGS..................... 75
SECTION 9.4. QUORUM; ACTION........................................... 76
SECTION 9.5. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.............................................. 76
SECTION 9.6. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.......... 77
ARTICLE TEN
COVENANTS............................ 78
SECTION 10.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST............... 78
SECTION 10.2. MAINTENANCE OF OFFICES OR AGENCIES....................... 78
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE>
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SECTION 10.3. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.......... 79
SECTION 10.4. [RESERVED................................................ 80
SECTION 10.5. EXISTENCE................................................ 80
SECTION 10.6. MAINTENANCE OF PROPERTIES................................ 80
SECTION 10.7. PAYMENT OF TAXES AND OTHER CLAIMS........................ 80
SECTION 10.8. REGISTRATION AND LISTING................................. 81
SECTION 10.9. STATEMENT BY OFFICERS AS TO DEFAULT...................... 81
SECTION 10.10. DELIVERY OF CERTAIN INFORMATION.......................... 82
SECTION 10.11. RESALE OF CERTAIN SECURITIES; REPORTING ISSUER........... 82
SECTION 10.12. REGISTRATION RIGHTS...................................... 82
SECTION 10.13. WAIVER OF CERTAIN COVENANTS.............................. 84
ARTICLE ELEVEN
REDEMPTION OF SECURITIES........................ 85
SECTION 11.1. RIGHT OF REDEMPTION...................................... 85
SECTION 11.2. APPLICABILITY OF ARTICLE................................. 85
SECTION 11.3. ELECTION TO REDEEM; NOTICE TO TRUSTEE.................... 85
SECTION 11.4. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED........ 85
SECTION 11.5. NOTICE OF REDEMPTION..................................... 86
SECTION 11.6. DEPOSIT OF REDEMPTION PRICE.............................. 87
SECTION 11.7. SECURITIES PAYABLE ON REDEMPTION DATE.................... 87
SECTION 11.8. SECURITIES REDEEMED IN PART.............................. 87
ARTICLE TWELVE
CONVERSION OF SECURITIES........................ 89
SECTION 12.1. CONVERSION PRIVILEGE AND CONVERSION RATE................. 89
SECTION 12.2. EXERCISE OF CONVERSION PRIVILEGE......................... 89
SECTION 12.3. FRACTIONS OF SHARES...................................... 91
SECTION 12.4. ADJUSTMENT OF CONVERSION RATE............................ 91
SECTION 12.5. NOTICE OF ADJUSTMENTS OF CONVERSION RATE................. 96
SECTION 12.6. NOTICE OF CERTAIN CORPORATE ACTION....................... 96
SECTION 12.7. COMPANY TO RESERVE COMMON STOCK.......................... 97
SECTION 12.8. TAXES ON CONVERSIONS..................................... 98
SECTION 12.9. COVENANT AS TO COMMON STOCK.............................. 98
SECTION 12.10. CANCELLATION OF CONVERTED SECURITIES..................... 98
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE>
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SECTION 12.11. PROVISION IN CASE OF CONSOLIDATION, MERGER OR SALE OF
ASSETS.................................................. 98
SECTION 12.12. RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS..... 99
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES..................... 101
SECTION 13.1. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS........... 101
SECTION 13.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.......... 101
SECTION 13.3. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.......... 102
SECTION 13.4. PAYMENT PERMITTED IF NO DEFAULT......................... 103
SECTION 13.5. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS............................................ 103
SECTION 13.6. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS............. 103
SECTION 13.7. TRUSTEE TO EFFECTUATE SUBORDINATION..................... 104
SECTION 13.8. NO WAIVER OF SUBORDINATION PROVISIONS................... 104
SECTION 13.9. NOTICE TO TRUSTEE....................................... 104
SECTION 13.10. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT................................................... 105
SECTION 13.11. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS............................................ 106
SECTION 13.12. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS................................ 106
SECTION 13.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS........................ 106
SECTION 13.14. ARTICLE APPLICABLE TO PAYING AGENTS..................... 106
SECTION 13.15. CERTAIN CONVERSIONS AND REPURCHASES DEEMED PAYMENT...... 106
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE IN CONTROL................ 108
SECTION 14.1. RIGHT TO REQUIRE REPURCHASE............................. 108
SECTION 14.2. Conditions to the Company's Election to Pay the
REPURCHASE PRICE IN COMMON STOCK........................ 108
SECTION 14.3. NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT, ETC..... 109
SECTION 14.4. CERTAIN DEFINITIONS..................................... 112
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE FIFTEEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE.... 114
SECTION 15.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS................................................. 114
SECTION 15.2. PRESERVATION OF INFORMATION............................. 114
SECTION 15.3. NO RECOURSE AGAINST OTHERS.............................. 114
SECTION 15.4. REPORTS BY TRUSTEE...................................... 115
SECTION 15.5. REPORTS BY COMPANY...................................... 115
TESTIMONIUM................................................................ 149
SIGNATURES AND SEALS....................................................... 149
ACKNOWLEDGMENTS............................................................ 150
ANNEX A.................................................................... A-1
ANNEX B.................................................................... B-1
ANNEX C.................................................................... C-1
ANNEX D.................................................................... D-1
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-ix-
<PAGE>
INDENTURE, dated as of May 28, 1996, between Cyrix Corporation, a
corporation duly organized and existing under the laws of the State of Delaware,
having its principal office at 2703 North Central Expressway, Richardson, Texas
75080-2010 (herein called the "Company"), and Bank of Montreal Trust Company, a
New York banking corporation, as Trustee hereunder (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 51/2%
Convertible Subordinated Notes due June 1, 2001 (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:
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. 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.
"Authenticating Agent" means any Person authorized pursuant to Section
6.12 to act on behalf of the Trustee to authenticate Securities.
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"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.
"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 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; PROVIDED, FURTHER, that a day on
which banking institutions in 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 11.6.
"CEDEL" means Cedel Bank, S.A. (or any successor securities clearing
agency).
"Change in Control" has the meaning specified in Section 14.4(b).
"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.
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"Common Stock" means the Common Stock, par value $0.004 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 Twelve. The Company has initially
appointed the Trustee as its Conversion Agent in the Borough of Manhattan, The
City of New York.
"Conversion Price" has the meaning specified in Section 14.4(c).
"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 77 Water Street,
New York, New York 10005).
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"corporation" means a corporation, company, association, joint-stock
company or business trust.
"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).
"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 Purchaser" means Goldman, Sachs & Co. and Goldman Sachs
International, collectively.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
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"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 Fourteen 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 cancelled 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; and
(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;
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
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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 in the Borough of Manhattan, The City of New
York.
"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 May 22,
1996, between the Company and the Initial Purchaser, 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.
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"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.
"Registrable Securities" has the meaning specified in Section 10.12.
"Registration Default" has the meaning specified in Section 10.12.
"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 May 15 or November 15
(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
Purchaser 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(c) to bear a Regulation S Legend. Such term includes the Regulation
S Global Security.
"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 including without
limitation any vice president, assistant vice president, assistant treasurer,
assistant secretary, corporate trust officer, assistant
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corporate trust officer or other employee of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers 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(c) 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
Purchaser from the Company pursuant to the Purchase Agreement and resold by the
Initial Purchaser, 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.
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"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 under
leases required to be capitalized on the balance sheet of the lessee under
generally accepted accounting principles and leases for capital equipment,
whether or not capitalized, including, without limitation, obligations of the
Company under the Master Lease Finance Agreement, dated March 31, 1992, between
the Company and BancBoston Leasing, Inc., (e) obligations of the Company under
interest rate and currency swaps, caps, floors, collars, hedge agreements,
forward contracts, or similar agreements or arrangements intended to protect the
Company against fluctuations in interest or currency exchange rates or commodity
prices, (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 or accrued liabilities 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) 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.
"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.
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"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.
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"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 1.2. 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 1.3. 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
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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 1.4. ACTS OF HOLDERS OF SECURITIES.
(a) 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 (1) 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 (2) 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 Nine. 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.
(b) 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 acknowledgements 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.
(c) 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.
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(d) 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.
(e) 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 cancelled
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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.
(f) 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.
(g) The provisions of this Section 1.4 are subject to the provisions
of Section 9.5.
SECTION 1.5. 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.
(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 2703 North
Central Expressway, Richardson, Texas 75080 telecopy no.: (214) 699-9857,
Attention: Vice President of Finance, 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.
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SECTION 1.6. 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 1.7. 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 1.8. 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 1.9. 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.
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SECTION 1.10. 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 Thirteen are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior
Indebtedness.
SECTION 1.11. 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 1.12. 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 1.13. 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.
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ARTICLE TWO
SECURITY FORMS
SECTION 2.1. 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, consistently 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 2.4.
Conversion notices shall be in substantially the form set forth in
Section 2.5.
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 on steel engraved borders if so
required by any securities exchange upon which the Securities may be listed, or
may be produced in any other manner permitted by the rules of any such
securities exchange, or, if the Securities are not listed on a securities
exchange, in any other manner approved by the Company 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
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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 2.2. FORM OF SECURITY
[FORM OF FACE]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED SECURITY OTHER
THAN ANY GLOBAL RESTRICTED SECURITY:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY AND ANY SHARES OF
COMMON STOCK ISSUABLE UPON ITS CONVERSION MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. THIS SECURITY MAY ONLY BE SOLD IN ACCORDANCE WITH THE INDENTURE,
COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF
THE TRUSTEE. EACH PURCHASER OF THIS SECURITY WHICH IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IS HEREBY NOTIFIED THAT
THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF CYRIX
CORPORATION (THE "COMPANY") THAT (A) THIS SECURITY AND ANY SHARES OF COMMON
STOCK ISSUABLE UPON ITS CONVERSION MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (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 904 OF REGULATION S UNDER THE
SECURITIES ACT, (III) IN THE CASE OF ANY PURCHASER, OTHER THAN A PURCHASER WHO
HAS OTHERWISE AGREED WITH THE COMPANY IN WRITING, 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, (IV) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE UNITED
STATES, AND THAT (B) THE HOLDER WILL, AND EACH
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SUBSEQUENT HOLDER OF THIS SECURITY OR ANY SHARES OF COMMON STOCK ISSUABLE
UPON ITS CONVERSION IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY AND
ANY COMMON STOCK ISSUABLE UPON ITS CONVERSION FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION
AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME
TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER TRANSFERS OF
THIS SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR
REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE
RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS
SECURITY AND ANY SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY
AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED 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
SUCH SECURITIES AND ANY SHARES OF COMMON STOCK ISSUABLE UPON THEIR CONVERSION
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. SUCH SECURITIES MAY ONLY BE SOLD IN
ACCORDANCE WITH THE INDENTURE, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT
THE CORPORATE TRUST OFFICE OF THE TRUSTEE. EACH PURCHASER OF ANY BENEFICIAL
INTEREST IN THE SECURITIES WHICH IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) IS HEREBY NOTIFIED THAT THE SELLER OF
SUCH BENEFICIAL INTEREST IN THE SECURITIES MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
EACH BENEFICIAL OWNER OF AN INTEREST IN ANY OF THE SECURITIES
EVIDENCED BY THIS GLOBAL SECURITY (INCLUDING ANY PARTICIPANT IN THE DEPOSITARY
HOLDING THE GLOBAL SECURITY THAT IS SHOWN AS HOLDING SUCH AN INTEREST ON THE
RECORDS OF SUCH DEPOSITARY AND EACH BENEFICIAL OWNER THAT HOLDS THROUGH ANY SUCH
PARTICIPANT) AGREES FOR THE BENEFIT OF CYRIX CORPORATION (THE "COMPANY") THAT
(A) ANY BENEFICIAL INTEREST IN THE SECURITIES AND ANY SHARES OF COMMON STOCK
ISSUABLE UPON THEIR CONVERSION MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY (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 904 OF REGULATION S UNDER THE
SECURITIES ACT, (III) IN THE CASE OF ANY PURCHASER, OTHER THAN A PURCHASER
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WHO HAS OTHERWISE AGREED WITH THE COMPANY IN WRITING, 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, (IV) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE
UNITED STATES, AND THAT (B) THE BENEFICIAL OWNER WILL, AND EACH SUBSEQUENT
BENEFICIAL OWNER OF THIS SECURITY OR ANY SHARES OF COMMON STOCK ISSUABLE UPON
ITS CONVERSION IS REQUIRED TO, NOTIFY ANY PURCHASER OF ANY BENEFICIAL
INTEREST IN THE SECURITIES AND ANY COMMON STOCK ISSUABLE UPON ITS CONVERSION
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS
CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM
TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND
OTHER TRANSFERS OF THIS SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN
APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES
RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE
HOLDER AND BENEFICIAL OWNERS OF AN INTEREST IN ANY OF THE SECURITIES
EVIDENCED BY THIS GLOBAL SECURITY AND ANY SUCH SHARES SHALL BE DEEMED BY THE
ACCEPTANCE OF THIS GLOBAL SECURITY AND THE BENEFICIAL INTERESTS THEREIN AND
ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.]
[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
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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.]
CYRIX CORPORATION
5-1/2% CONVERTIBLE SUBORDINATED NOTE
DUE JUNE 1, 2001
No. _____________ U.S.$_____
[IF RESTRICTED GLOBAL SECURITY - CUSIP NO. 232 815 AA8]
[IF REGULATION S GLOBAL SECURITY - CUSIP NO. U23 340 AA7]
[IF REGULATION D SECURITY - CUSIP NO. - 232 815 AB6]
CYRIX CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to _______________, or
registered assigns, the principal sum of _____________ United States Dollars
(U.S.$ _____) [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,
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<PAGE>
shall not exceed $126,500,000 in the aggregate at any time) by adjustments
made on the records of the Trustee hereinafter referred to in accordance with
the Indenture)] on June 1, 2001 and to pay interest thereon, from May 28,
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 1 and December 1 in each year (each, an "Interest Payment Date"),
commencing December 1, 1996, at the rate of 5 1/2% per annum, until the
principal hereof is due, and at the rate of 5 1/2% 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 May 15 or November 15
(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 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 may be 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) maintained by the payee with
a bank in the Borough of Manhattan, The City of New York. Payment of
interest on this Security may be made by United States Dollar check drawn on
a bank in the Borough of Manhattan, The City of New York 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) maintained by the payee with a bank in
the Borough of Manhattan, The City of New York.
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
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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.
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IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed under its corporate seal.
Dated: [Date of Authentication]
CYRIX CORPORATION
[Corporate Seal]
By:
-----------------------------
Name:
Title:
Attest:
- ------------------------
Name:
Title:
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<PAGE>
[FORM OF REVERSE]
This Security is one of a duly authorized issue of securities of the
Company designated as its "5 1/2% Convertible Subordinated Notes due June 1,
2001" (herein called the "Securities"), limited in aggregate principal amount
to U.S.$126,500,000, issued and to be issued under an Indenture, dated as of
May 28, 1996 (herein called the "Indenture"), between the Company and Bank of
Montreal 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
June 1, 1999, in whole or in part, upon not less than 30 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 June 1 of the following years:
Year Redemption Price
---- ----------------
1999 102.200
2000 101.100
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
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<PAGE>
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 30 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 June 1, 2001, 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
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 25.1572 (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 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), 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
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<PAGE>
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 and is surrendered for conversion during such period,
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 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
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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
issuable upon conversion hereof is entitled to the benefits of a Registration
Rights Agreement, dated as of May 28, 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 Registered Securities and the Common Stock issuable upon conversion
thereof, in each case, that are Registrable Securities, at the Company's
expense, (a) to file within 90 days after the first date of original issuance
of the Securities, a shelf registration statement (the "Shelf Registration
Statement") with the Commission with respect to resales of the Registrable
Securities, (b) thereafter to use reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the Commission within 180
days after the first date of original issuance of the Securities, and (c) to
use reasonable efforts to maintain such Shelf Registration Statement
continuously effective under the Securities Act until a period of the three
years from the last date of original issuance of the Securities or, if
earlier, until there are no outstanding Registrable Securities.
Section 2(d) of the Registration Rights Agreement provides that,
upon written notice to each Holder of a Registrable Security, the Company may
postpone having the Shelf Registration Statement declared effective as
required by Section 2(a) of the Registration Rights Agreement for a
reasonable time specified in the notice but not exceeding 90 days if the
Company is in possession of material non-public information the disclosure of
which would have a material adverse effect on the business, operations,
prospects, condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole. Notwithstanding any postponement pursuant to
Section 2(d) of the Registration Rights Agreement, if (i) on or prior to 90
days following the date of original issuance of the Registered Securities, a
Shelf Registration Statement has not been filed with the Commission, or (ii)
on or prior to the 180th day following the date of original issuance of the
Registered Securities, such Shelf Registration Statement is not declared
effective (each, a "Registration Default"), additional interest
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("Liquidated Damages") will accrue on this 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 Registered 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 (.25%) of
the principal amount of the Registered Securities to and including the 90th
day following such Registration Default and at a rate per annum equal to
one-half of one percent (.50%) thereof from and after the 91st day following
such Registration Default. In the event that the Shelf Registration
Statement ceases to be effective prior to the third annual anniversary of the
initial effective date of the Shelf Registration Statement or such earlier
date as is provided in the Registration Rights Agreement for a period in
excess of 60 days, whether or not consecutive, during any 12-month period,
then the interest rate borne by the Registered Securities shall increase by
an additional one-half of one percent (.50%) per annum from the 61st day of
the applicable 12-month period such Shelf Registration Statement ceases to be
effective to but excluding the day on which the Shelf Registration Statement
again becomes effective.
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 this Security pursuant to such paragraph,
and an 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.$5,000) 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
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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
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<PAGE>
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 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 hereon (including Liquidated Damages or
additional interest) 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 on (including Liquidated Damages and additional
interest) 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, 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
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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.
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.
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<PAGE>
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
-----------------------
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.$5,000):
----------------------
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.
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<PAGE>
SECTION 2.4. FORM OF CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
Bank of Montreal Trust Company
as Trustee
By:
--------------------------
Authorized Signature
SECTION 2.5. 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.$1,000 in excess thereof) below designated, into shares of
Common Stock in accordance with the terms of the Indenture referred to in this
Security, and directs that such shares, together with a check in payment for any
fractional share and any Securities representing any unconverted principal
amount hereof, be delivered to and be registered in the name of the undersigned
unless a different name has been indicated below. If shares of Common Stock or
Securities are to be registered in the name of a Person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid by the undersigned on account of
interest accompanies this Security.
Dated:
---------------------
--------------------
Signature
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<PAGE>
<TABLE>
<S> <C>
If shares or Registered Securities are to If only a portion of the Securities is to
be registered in the name of a Person be converted, please indicate:
other than the Holder, please print such
Person's name and address:
1. Principal amount to be converted:
- ------------------------- U.S.$
Name -----------
2. Principal amount and
denomination of Registered
Securities representing uncon-
- ------------------------- verted principal amount to be
Address issued:
Amount: U.S.$
---------
- -------------------------
Social Security or other Taxpayer Denominations:
Identification Number, if any U.S.$
-------
(any 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)
- --------------------------- [Signature Guaranteed]
</TABLE>
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<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 3.1. TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to U.S.$126,500,000,
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(f).
The Securities shall be known and designated as the "5 1/2%
Convertible Subordinated Notes due June 1, 2001" of the Company. Their Stated
Maturity shall be June 1, 2001 and they shall bear interest on their principal
amount from May 28, 1996, payable semi-annually in arrears on June 1 and
December 1 in each year, commencing December 1, 1996, at the rate of 5 1/2% per
annum until the principal thereof is due and at the rate of 5 1/2% 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 Business Days
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 June 1, 1999, in whole or in part, as provided in Article
Eleven and in the form of Securities set forth in Section 2.2.
The Securities shall be convertible as provided in Article Twelve (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 Thirteen.
The Securities shall be subject to repurchase by the Company at the
option of the Holders as provided in Article Fourteen.
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<PAGE>
SECTION 3.2. 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 3.3. 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 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 3.4. GLOBAL SECURITIES; NON-GLOBAL SECURITIES.
(A) GLOBAL SECURITIES
(a) 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.
(b) Notwithstanding any other provision in this Indenture, 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
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<PAGE>
such Global Security or a nominee thereof unless (i) such Depositary (A) has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (B) 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 (ii) there shall have occurred and be
continuing an Event of Default with respect to such Global Security.
(c) 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 Three. If any Global Security is to be exchanged
for other Securities or cancelled 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 (i) such Global Security
shall be so surrendered for exchange or cancellation, as provided in this
Article Three, or (ii) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or
cancelled, 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(c) and as
otherwise provided in this Article Three, 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 Three if such order, direction or request is given
or made in accordance with the Applicable Procedures.
(d) 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 Three 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.
(e) 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
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<PAGE>
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.
(B) 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
Goldman, Sachs & Co. 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 3.5. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE; RESTRICTIONS
ON TRANSFER.
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company designated pursuant to Section 10.2 being
herein sometimes collectively 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
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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 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.
(b) 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(b) shall be made only in accordance with this Section
3.5(b).
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(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 (b)(i) and Clause (b)(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 (b)(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(A)(c).
(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 (b)(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(A)(c).
(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 (b)(iii) and
Clause (b)(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(a) and instructions satisfactory to the Trustee
directing that a beneficial interest in the Restricted
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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
(b)(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(a) 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(A)(c).
(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(c)). A Security that is not a Global Security may be
exchanged for a beneficial interest in a Global Security only if (A) such
exchange occurs in connection with a transfer effected in accordance with
Clause (b)(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 (b)(v) shall not prohibit any transfer
or exchange of such an interest in accordance with Clause (b)(ii) or (iv)
above.
(c) 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(c), 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;
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(ii) subject to the following Clauses of this Section 3.5(c), 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(b)(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 may 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 legended Security or his attorney duly authorized in
writing, and after such date and receipt of such certificate, the Trustee
shall authenticate and deliver such a new Security in exchange for or in
lieu of such other Security as provided in this Article Three;
(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
Three; and
(vi) notwithstanding the foregoing provisions of this Section
3.5(c), 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
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a new Security bearing a Restricted Securities Legend in exchange for such
Successor Security as provided in this Article Three.
(d) Neither the Trustee, the Paying Agent nor any of their agents
shall (1) have any duty to monitor compliance with or with respect to any
federal or state or other securities or tax laws or (2) have any duty to obtain
documentation on any transfers or exchanges other than as specifically required
hereunder.
SECTION 3.6. 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
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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 3.7. 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).
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(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 3.8. 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 3.9. 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 3.10. 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 3.11. [RESERVED].
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SECTION 3.12. 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.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.1. 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
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 and
(ii) 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
(B) all such Securities not theretofore delivered to the
Trustee or its agent for cancellation (other than Securities referred
to in clauses (i) and (ii) of clause (1)(A) above)
(i) have become due and payable, or
(ii) will have become due and payable at their Stated
Maturity within one year, or
(iii) 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 (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
(immediately available to the Holders in the case of clause (i)) 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
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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;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) 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)(B) 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 Twelve
shall survive. Funds held in trust pursuant to this Section are not subject to
the provisions of Article Thirteen.
SECTION 4.2. 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 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own 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.
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ARTICLE FIVE
REMEDIES
SECTION 5.1. 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 Thirteen 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 10% 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) a default 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 with a principal amount then outstanding in excess of
U.S.$10,000,000, whether such indebtedness now exists or shall hereafter be
created, which default shall have resulted in such indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have
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become due and payable, without such indebtedness having been discharged,
or such acceleration having been 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 10% 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 5.2. 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 Thirteen,
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
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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 Thirteen, 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 Five 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
(A) all overdue interest on all Securities,
(B) 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,
(C) to the extent permitted by applicable law, interest upon
overdue interest at a rate of 51/2% per annum, and
(D) 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 5.3. 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
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(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 Thirteen, 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 51/2%
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 5.4. 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
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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 5.5. 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 5.6. APPLICATION OF MONEY COLLECTED.
Subject to Article Thirteen, any money collected by the Trustee
pursuant to this Article Five 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;
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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 5.7. 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.
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SECTION 5.8. 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 Thirteen, 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 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 Twelve, 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 5.9. 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 5.10. 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 5.11. 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 Five 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.
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SECTION 5.12. 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 5.13. WAIVER OF PAST DEFAULTS.
The Holders, either (a) through the written consent of not less than a
majority in principal amount of the Outstanding Securities, 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 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 (1) in the payment of the principal of, premium,
if any, or interest on any Security, or (2) in respect of a covenant or
provision hereof which under Article Eight 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 5.14. 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
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may be) or for the enforcement of the right to convert any Security in
accordance with Article Twelve.
SECTION 5.15. 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.
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ARTICLE SIX
THE TRUSTEE
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) 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
(2) 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.
(b) 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.
(c) 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
(1) this paragraph (c) shall not be construed to limit the effect of
paragraph (a) of this Section;
(2) 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;
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(3) 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
(4) 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.
(d) 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 6.2. 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 determine 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 6.3. 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
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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 6.4. 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.
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SECTION 6.5. 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 6.6. 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 6.7. 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.
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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 6.8. 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.$10,000,000 in the case of
the initial Trustee hereunder and US$50,000,000 in the case of any successor
Trustee, subject to supervision or examination by federal or state authority, in
good standing and having 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 6.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) 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.
(b) 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.
(c) 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.
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(d) If at any time:
(1) 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
(2) 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.
(e) 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.
(f) 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 6.10. 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
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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 6.11. 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, 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 6.12. 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
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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.
Bank of Montreal Trust Company,
as Trustee
By [Authenticating Agent],
as Authenticating Agent
By
---------------------------
Authorized Signature
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SECTION 6.13. 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 6.14. 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).
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ARTICLE SEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1. 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, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease all or
substantially all of its properties and assets to the Company, 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,
payable pursuant to Section 10.12) 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 Twelve;
(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 7.2. 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
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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.
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ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1. 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
(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) to make any change in Article Thirteen 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
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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 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS OF SECURITIES.
With either (a) 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 (b) by the adoption of a
resolution, at a meeting of Holders of the Outstanding Securities at which a
quorum is present, by 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 or
the rate of interest payable thereon or any premium payable upon redemption
or mandatory repurchase thereof, or change the obligation of the Company to
pay Liquidated Damages pursuant to Section 10.12 in a manner adverse to the
Holders, or change the coin or currency in which any Security or the
interest or any premium thereon or any other amount in respect thereof is
payable, 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 Twelve, or modify the provisions of this
Indenture with respect to the subordination of the Securities in a manner
adverse to the Holders of Securities; 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
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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 Fourteen in a manner adverse to
the Holders; or
(6) modify any of the provisions of Section 10.10 or 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 8.3. 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 8.4. 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.
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SECTION 8.5. 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 8.6. 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.
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ARTICLE NINE
MEETINGS OF HOLDERS OF SECURITIES
SECTION 9.1. 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 9.2. CALL, NOTICE AND PLACE OF MEETINGS.
(a) 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.
(b) 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 made the first publication of 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 (a) of this Section.
SECTION 9.3. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities, a
Person shall be (a) a Holder of one or more Outstanding Securities, or (b) 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.
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SECTION 9.4. 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(a), 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 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 9.5. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) 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
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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.
(b) 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(b), 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.
(c) 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.
(d) 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 9.6. 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.
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ARTICLE TEN
COVENANTS
SECTION 10.1. 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 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 10.2. MAINTENANCE OF OFFICES OR AGENCIES.
The Company hereby appoints (a) the Corporate Trust Office of the
Trustee as its agent in the Borough of Manhattan, The City of New York, where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange, where Securities may be
surrendered for conversion, and where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served.
The Company 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.
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,
presentations and surrenders may be made and notices and demands may be served
on the Corporate Trust Office of the Trustee.
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SECTION 10.3. 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
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:
5 (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
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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 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 10.4. [RESERVED].
SECTION 10.5. EXISTENCE.
Subject to Article Seven, 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 Board of Directors 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 10.6. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct
of its business or the business of any 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 Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 10.7. 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, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, (2)
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 Subsidiary,
and
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(3) 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 (1) and (2), 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 10.8. 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 10.8 will limit the application of Section 10.12.
SECTION 10.9. 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.
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SECTION 10.10. 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 10.11. RESALE OF CERTAIN SECURITIES; REPORTING ISSUER.
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, the
Company will not, and will not permit any of its subsidiaries or other
"affiliates" (as defined under Rule 144 under the Securities Act or any
successor provision thereto) controlled by it to, resell (x) any Securities
which constitute "restricted securities" under Rule 144 or (y) 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 10.12. 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 May 28, 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 Registrable Securities, at the Company's expense, (i) to file within
90 days after the first date of original issuance of the Securities, a shelf
registration statement (the "Shelf Registration Statement") with the
Commission with respect to resales of the Registrable Securities, (ii)
thereafter use reasonable efforts to cause such Shelf Registration Statement
to be declared effective by the Commission within 180 days after the first
date of original issuance of the Securities, and (iii) to use reasonable
efforts to maintain such Shelf Registration Statement
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continuously effective under the Securities Act of 1933, as amended, until a
period of three years from the last date of original issuance of the
Securities or, if earlier, until there are no outstanding Registrable
Securities.
Section 2(d) of the Registration Rights Agreement provides that,
upon written notice to each Holder of a Registrable Security, the Company may
postpone having the Shelf Registration Statement declared effective as
required by Section 2(a) of the Registration Rights Agreement for a
reasonable time specified in the notice but not exceeding 90 days if the
Company is in possession of material non-public information the disclosure of
which would have a material adverse effect on the business, operations,
prospects, condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole. Notwithstanding any postponement pursuant to
Section 2(d) of the Registration Rights Agreement, if (i) on or prior to 90
days following the date of original issuance of the Registered Securities, a
Shelf Registration Statement has not been filed with the Commission, or (ii)
on or prior to the 180th day following the date of original issuance of the
Registered Securities, such Shelf Registration Statement is not declared
effective (each, a "Registration Default"), additional interest ("Liquidated
Damages") will accrue on the Registered 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 respect of the Registered 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 (.25%) of
the principal amount of the Registered Securities to and including the 90th
day following such Registration Default and at a rate per annum equal to
one-half of one percent (.50%) thereof from and after the 91st day following
such Registration Default. In the event that the Shelf Registration Statement
ceases to be effective prior to the third annual anniversary of the initial
effective date of the Shelf Registration Statement or such earlier date as is
provided in the Registration Rights Agreement for a period in excess of 60
days, whether or not consecutive, during any 12-month period, then the
interest rate borne by the Registered Securities shall increase by an
additional one-half of one percent (.50%) per annum on the 61st day of the
applicable 12-month period such Shelf Registration Statement ceases to be
effective to but excluding the day on which the Shelf Registration Statement
again becomes effective.
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 Registered 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.
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For the purposes of the Registration Rights Agreement, "Registrable
Securities" means all or any portion of the Registered Securities issued from
time to time under this Indenture and the shares of Common Stock issuable
upon conversion of such Securities PROVIDED, HOWEVER, that a Security or the
shares of Common Stock issuable upon conversion of a Security ceases to be a
Registrable Security when it (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 provisions thereto) or (iii) 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(b).
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 Global
Security or any beneficial interest in a global security representing shares
of Common Stock issuable upon conversion of a Security.
SECTION 10.13. 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 Eight 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.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.1. 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 11.2. 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 Eleven.
SECTION 11.3. 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 60 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. If the Securities are to be redeemed pursuant to an
election of the Company which is subject to a condition specified in the form
of Securities set forth in Section 2.2, the Company shall furnish the Trustee
with an Officers' Certificate stating that the Company is entitled to effect
such redemption and setting forth a statement of facts showing that the
conditions precedent to the right of the Company so to redeem have occurred.
SECTION 11.4. 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 two
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
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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 11.5. 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 30 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 first notice given shall
specify the last date on which exchanges or transfers of Securities may be
made pursuant to Section 3.5 and the second notice shall specify the serial
and CUSIP numbers (if any) and the portions thereof called for redemption.
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
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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 11.6. DEPOSIT OF REDEMPTION PRICE.
Not less than one Business Day prior to any 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 11.7. 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 5 1/2% per annum and such Security shall remain convertible until the
principal of such Security (or portion thereof, as the case may be) shall
have been paid or duly provided for.
SECTION 11.8. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at 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
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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.
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ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 12.1. 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 June 1, 2001, 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 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 25.1572
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 Twelve.
SECTION 12.2. 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 or
assigned to the Company or 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 2.5
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 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 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
period) 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
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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 Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date, which Security (or
portion thereof, if applicable) is surrendered for conversion during such
period, 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 period
from the close of business on any Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date, which
Security (or portion thereof, as the case may be) is surrendered for
conversion during such 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
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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 12.3. 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 12.4. 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 any class of capital stock of the Company 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
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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, the Conversion Rate shall be immediately readjusted, effective as of
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 such
determination date had not been fixed. 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.
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(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 and (iv)
any merger or consolidation to which Section 12.11 applies), 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
upon a merger or consolidation to which Section 12.11 applies or 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
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"combined cash and tender amount") exceeds 10% 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 10% 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
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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
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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.
SECTION 12.5. 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 12.6. NOTICE OF CERTAIN CORPORATE ACTION.
In case:
(a) 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
(b) the Company shall authorize the granting to the holders of its
Common
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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
(c) 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
(d) 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 (a) or (b) 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 (a)
through (d) 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 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 12.7. 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.
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SECTION 12.8. 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 12.9. 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 12.10. 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 12.11. 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
("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,
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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 Twelve. 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 12.12. 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
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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.
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ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 13.1. 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 Four), the indebtedness represented by the Securities and the payment
of the principal of (and premium, if any) and interest on, and any payment of
the Repurchase Price with respect to, each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness.
SECTION 13.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
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 marshalling 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
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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 Seven shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling 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 Seven.
SECTION 13.3. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on (including a default
under any redemption or repurchase obligation with respect to) any Senior
Indebtedness beyond any applicable grace period with respect thereto or in the
event that any other event of default with respect to any Senior Indebtedness
shall have occurred and be continuing which would then permit the holders of
such Senior Indebtedness to declare such Senior Indebtedness due and payable
prior to the date on which it would otherwise have become due and payable,
unless and until such event of default shall have been cured or waived or shall
have ceased to exist after written notice to the Company and the Trustee by any
holder of such Senior Indebtedness, or any trustee, agent or representative
therefor or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or event of default, then no payment
shall be made by the Company on account of principal of (or premium, if any) or
interest (including Liquidated Damages) on the Securities or on account of the
purchase, redemption or other acquisition of Securities.
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.
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The provisions of this Section shall not apply to any payment with
respect to which Section 13.2 would be applicable.
SECTION 13.4. 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
marshalling of assets and liabilities of the Company referred to in 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 13.5. 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 13.6. 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 (a) 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 (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other
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than the holders of Senior Indebtedness; or (c) 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 13.7. 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 13.8. 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 13.9. 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,
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unless and until the Trustee shall have received written notice thereof from
the Company or a holder of Senior Indebtedness or from any trustee, agent or
representative therefor; 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 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
two Business Days prior to such date.
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 holder of Senior Indebtedness (or a trustee,
agent or representative therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee, agent or
representative therefor). 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 13.10. 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.
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SECTION 13.11. 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 13.12. 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.
SECTION 13.13. 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 13.14. 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 13.15. CERTAIN CONVERSIONS AND REPURCHASES DEEMED PAYMENT.
For the purposes of this Article only, (1) the issuance and delivery
of junior securities upon conversion of Securities in accordance with Article
Twelve or upon the
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repurchase of Securities in accordance with Article Fourteen shall not be
deemed to constitute a payment or distribution on account of the principal of
or premium or interest on Securities or on account of the purchase or other
acquisition of Securities, and (2) the payment, issuance or delivery of cash,
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 any
cash, property or securities into which the Securities are convertible
pursuant to Article Twelve 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 Twelve or to exchange such Security for
Common Stock in accordance with Article Fourteen if the Company elects to
satisfy the obligations under Article Fourteen by the delivery of Common
Stock.
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ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE IN CONTROL
SECTION 14.1. 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.$5,000 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.$5,000 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 Four, 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 Thirteen such reference shall be deemed to include
reference to the Repurchase Price only to the extent the Repurchase Price is
payable in cash.
SECTION 14.2. 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:
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(a) 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;
(b) 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;
(c) 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
(d) 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 14.3. NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT, ETC.
(a) 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:
(1) the Repurchase Date,
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(2) the date by which the repurchase right must be exercised,
(3) the Repurchase Price, and whether the Repurchase Price shall be
paid by the Company in cash or by delivery of shares of Common Stock,
(4) 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,
(5) 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,
(6) 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
(7) the place or places that the certificate required by Section 2.2
shall be delivered, and the form of such certificate and the place or
places that the Surrender Certificate required by Section 14.3(i) 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 Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver to the
Trustee on or before the 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 Repurchase Date.
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(c) 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.
(d) 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 5 1/2% 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.
(e) 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.
(f) 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.
(g) 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
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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.
(h) 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.
(i) 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.
(j) 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 14.4. CERTAIN DEFINITIONS.
For purposes of this Article Fourteen,
(a) 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;
(b) a "Change in Control" shall be deemed to have occurred at the
time, after the original issuance of the Securities, of:
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(i) the acquisition by any person 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 or merger of the Company with or into, any
other person, any merger of another person with or into the
Company, or any conveyance, sale, transfer or lease of all or
substantially all of the assets of the Company to another person
(other than (a) any such transaction (x) which does not result in
any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock and (y) pursuant to which
holders of Common Stock immediately prior to such transaction
have the entitlement to exercise, directly or indirectly, 50% or
more of the total voting power of all shares of capital stock
entitled to vote generally in the election of directors of the
continuing or surviving person immediately after such transaction
and (b) any merger 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 the Closing Price Per Share on any five Trading Days within the
period of 10 consecutive Trading Days ending immediately after the later of
the date of the Change in Control or the date of the public announcement of
the Change in Control (in the case of a Change in Control under Clause (i)
above) or the period of 10 consecutive Trading Days ending immediately prior
to the date of the Change in Control (in the case of a Change in Control
under Clause (ii) above) shall equal or exceed 105% of the Conversion Price
of the Securities in effect on each such Trading Day;
(c) the term "Conversion Price" shall equal U.S.$1,000 divided by
the Conversion Rate; and
(d) for purposes of Section 14.4(b)(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.
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ARTICLE FIFTEEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE
SECTION 15.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) 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
(b) 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;
EXCLUDING from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
SECTION 15.2. PRESERVATION OF INFORMATION.
(a) 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 furnished to it as
provided in Section 15.1 upon receipt of a new list so furnished.
(b) 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.
(c) 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 15.3. NO RECOURSE AGAINST OTHERS.
An incorporator or any past, present or future director, officer,
employee or stockholder, as such, of the Company 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
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and release all such liability. Such waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 15.4. REPORTS BY TRUSTEE.
(a) 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.
(b) 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 15.5. 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.
---------------------
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.
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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.
CYRIX CORPORATION
By
-------------------------------
Name:
Title:
Attest:
- ------------------------------
Name:
Title:
BANK OF MONTREAL TRUST COMPANY, Trustee
By
------------------------------
Name:
Title:
Attest:
- -------------------------------
Name:
Title:
<PAGE>
STATE OF )
) : ss.:
COUNTY OF )
On the ___ day of May, 1996, before me personally came
, to me known, who, being by me duly sworn, did depose and say that
he is ________________ of Cyrix Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation; and that he signed his name thereto by like authority.
------------------------------
Notary Public
STATE OF NEW YORK )
) : ss.:
COUNTY OF NEW YORK )
On the ____ day of May, 1996, before me personally came Theresa
Gaballah, to me known, who, being by me duly sworn, did depose and say that
she is a Vice President of Bank of Montreal Trust Company one of the
corporations described in and which executed the foregoing instrument; that
she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed pursuant to the
bylaws of said corporation; and that she signed her name thereto by like
authority.
------------------------------------------
Notary Public
<PAGE>
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Section 3.5(b)(i), (iii) and (v)
of the Indenture)
Bank of Montreal Trust Company
as Trustee
77 Water Street, 4th Floor
New York, New York 10005
Re: 5-1/2% Convertible Subordinated Notes due
June 1, 2001 of Cyrix Corporation (the "Securities")
----------------------------------------------------
Reference is made to the Indenture, dated as of May 28, 1996 (the
"Indenture"), from Cyrix Corporation (the "Company") to Bank of Montreal
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:
A-1
<PAGE>
(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
A-2
<PAGE>
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 Purchaser.
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.)
A-3
<PAGE>
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 3.5(b)(ii), (iii), (iv) and (v)
of the Indenture)
Bank of Montreal Trust Company
as Trustee
77 Water Street, 4th Floor
New York, New York 10005
Re: 5-1/2% Convertible Subordinated Notes due
June 1, 2001 of Cyrix Corporation (the "Securities")
----------------------------------------------------
Reference is made to the Indenture, dated as of May 28, 1996 (the
"Indenture"), from Cyrix Corporation (the "Company") to Bank of Montreal
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
B-1
<PAGE>
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.
B-2
<PAGE>
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchaser.
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.)
B-3
<PAGE>
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section 3.5(c))
Bank of Montreal Trust Company
as Trustee
77 Water Street, 4th Floor
New York, New York 10005
Re: 5-1/2% Convertible Subordinated Notes due
June 1, 2001 of Cyrix Corporation (the "Securities")
----------------------------------------------------
Reference is made to the Indenture, dated as of May 28, 1996 (the
"Indenture"), from Cyrix Corporation (the "Company") to Bank of Montreal
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(c) 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
C-1
<PAGE>
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 Purchaser.
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.)
C-2
<PAGE>
ANNEX D -- Form of
Surrender Certificate
In connection with the certification contemplated by Section 12.2 or
14.3(i) 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
CYRIX CORPORATION
5-1/2% CONVERTIBLE NOTES DUE JUNE 1, 2001
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
D-1
<PAGE>
EXHIBIT 4.2
Execution Copy
- ----------------------------------------------------------------
REGISTRATION RIGHTS
AGREEMENT
Dated as of May 28, 1996
By and Between
CYRIX CORPORATION
and
GOLDMAN, SACHS & CO.
- ----------------------------------------------------------------
<PAGE>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of May 28, 1996, by and between
Cyrix Corporation, a Delaware corporation (the "Company"), and Goldman, Sachs
& Co. ("GS" or the "Purchasers").
RECITALS
WHEREAS, the Company and GS have entered into an Purchase Agreement,
dated May 22, 1996 (the "Purchase Agreement"), providing for, among other
things, the sale by the Company and the purchase by the Purchasers of an
aggregate of U.S.$110,000,000 principal amount, and, at the election of the
Purchasers, up to an aggregate of U.S.$16,500,000 additional principal
amount, of the Company's 5 1/2% Convertible Subordinated Notes due June 1,
2001, convertible into shares of Common Stock (as defined herein) of the
Company as provided in the Indenture (as defined herein); and
WHEREAS, this Agreement is being entered into pursuant to the Purchase
Agreement as a condition to the closing of the sale of the Securities (as
defined herein) pursuant thereto;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "CLOSING DATE" shall mean the First Time of Delivery as defined in
the Purchase Agreement.
(b) "COMMISSION" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(c) "COMMON STOCK" means the Common Stock, par value $.004 per share,
of the Company, and any securities of the Company or any successor which may
be issuable upon
<PAGE>
conversion of the Securities pursuant to Article Twelve of the Indenture.
(d) "EFFECTIVE TIME" shall mean the date on which the Commission
declares the Registration Statement effective or on which the Registration
Statement otherwise becomes effective.
(e) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
(f) The term "HOLDER" shall mean any person that is the record owner
of Registrable Securities or any person that has a beneficial interest in a
global security representing Registerable Securities.
(g) "INDENTURE" shall mean the Indenture, dated as of May 28, 1996,
between the Company and Bank of Montreal Trust Company, as Trustee, as
amended and supplemented from time to time in accordance with its terms.
(h) The term "MANAGING UNDERWRITER OR UNDERWRITERS" shall mean the
person or persons selected pursuant to Section 7(a) of this Agreement to
manage an underwritten offering of Registrable Securities.
(i) The term "PERSON" shall have the meaning specified in the
Indenture.
(j) "PROSPECTUS" shall mean the prospectus (including any preliminary
prospectus and any final prospectus) included in any Registration Statement,
as amended or supplemented by any prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by
the Registration Statement and by all other amendments and supplements to
such prospectus, including all material incorporated by reference in such
prospectus and all documents filed after the date of such prospectus by the
Company under the Exchange Act and incorporated by reference therein.
(k) "REGISTRABLE SECURITIES" shall mean all or any portion of the
Securities issued under the Indenture in registered form and the shares of
Common Stock issuable upon conversion of such Securities; PROVIDED, HOWEVER,
that a security ceases to be a Registrable Security when it is no longer a
Restricted Security.
(l) "REGISTRATION EXPENSES" shall have the meaning assigned thereto in
Section 4 of this Agreement.
-2-
<PAGE>
(m) "REGISTRATION STATEMENT" shall mean a "shelf" registration
statement filed under the Securities Act providing for the registration of,
and the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities pursuant to Rule 415 under the Securities Act and/or
any similar rule that may be adopted by the Commission, filed by the Company
pursuant to the provisions of Section 2 of this Agreement, including the
Prospectus contained therein, any amendments and supplements to such
registration statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such registration statement.
(n) "RESTRICTED SECURITY" shall mean any Security or share of Common
Stock issuable upon conversion thereof unless or until (i) it has been
effectively registered under the Securities Act and sold in a manner
contemplated by the Registration Statement, (ii) it has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or (iii) it has otherwise 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(b) of the Indenture.
(o) "RULES AND REGULATIONS" shall mean the published rules and
regulations of the Commission promulgated under the Securities Act or the
Exchange Act, as in effect at any relevant time.
(p) "SECURITIES" shall mean the Company's 5 1/2% Convertible
Subordinated Notes due June 1, 2001, to be issued pursuant to the Indenture
and sold pursuant to the Purchase Agreement and any securities issued in
exchange therefor or in lieu thereof pursuant to the Indenture.
(q) "SECURITIES ACT" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
(r) "TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939,
or any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
(s) The term "UNDERWRITER" shall hereinafter mean any underwriter of
an underwritten offering of Registrable Securities.
(t) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of the
-3-
<PAGE>
Registrable Securities or to a percentage of Registrable Securities, Common
Stock shall be treated as representing the principal amount of Securities
which was surrendered for conversion in order to receive such number of
shares of Common Stock.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) The Company shall, at its expense, within 90 calendar days
following the Closing Date, file with the Commission a Registration Statement
with respect to the Registrable Securities and thereafter shall use its
reasonable efforts to cause such Registration Statement to be declared
effective by the Commission under the Securities Act within 180 calendar days
after the Closing Date.
(b) The Company shall use its best efforts, and will file such
supplements or amendments to the Registration Statement as may be necessary
or appropriate, to keep the Registration Statement continuously effective
under the Securities Act and usable by holders for resales of Registrable
Securities for a period of three years from the Effective Time or, if
earlier, until there are no outstanding Registrable Securities.
(c) The Company shall use its reasonable efforts to prevent the
happening of any event within the Company's control that would cause the
Registration Statement to contain a material misstatement or omission or to
be not effective and usable for resale of Registrable Securities during the
period that such Registration Statement is required to be effective and
usable.
(d) Upon written notice to each holder of a Registrable Security, the
Company may postpone having the Registration Statement declared effective as
required by Section 2(a) above for a reasonable time specified in the notice
but not exceeding 90 days, if the Company is in possession of material
non-public information the disclosure of which would have a material adverse
effect on the business, operations, prospects, condition (financial or
otherwise) of the Company and its subsidiaries, taken as a whole.
3. REGISTRATION PROCEDURES.
(a) Prior to or at the Effective Time the Company shall use its
reasonable efforts to qualify the Indenture under the Trust Indenture Act; in
connection with such qualification, the Company shall cooperate with the
trustee
-4-
<PAGE>
under the Indenture and the Holders (as defined in the Indenture) to the
effect such changes to the Indenture may be required for such Indenture to be
so qualified in accordance with the terms of the Trust Indenture Act; and the
Company shall execute, and use all reasonable efforts to cause the trustee
under the Indenture to execute, all documents that may be required to effect
such changes and other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner.
(b) In the event that any such amendment or modification referred to in
Section 3(a) hereof involves the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
Registration Statement, the Company shall use its reasonable efforts to
effect or cause the Registration Statement to permit the sale of the
Registrable Securities by the holders thereof in accordance with the intended
method or methods of distribution thereof described in the Registration
Statement. In connection therewith, the Company shall, as promptly as
possible:
(i) before filing a Registration Statement or
Prospectus or any amendments or supplements thereto
(other than documents filed with the Commission under
the Exchange Act), including without limitation any
amendment or supplement which addresses any comments by
the "Blue Sky" or securities commissioner or regulator
of any state with respect to the Registration
Statement, the Prospectus or any prospectus supplement,
furnish to the holders of the Registrable Securities
covered by such Registration Statement and the managing
underwriter or underwriters, if any, of Registrable
Securities being sold in an underwritten offering
copies of all such documents proposed to be filed,
together with copies of documents previously filed with
the Commission and proposed to be incorporated by
reference in the Registration Statement, which
documents will be subject to the review of such holders
and managing underwriter or underwriters, and, after
the effectiveness of the Registration Statement, the
Company will not file amendment thereto or any
Prospectus or any supplement thereto (other than
documents filed with the Commission under the Exchange
Act after the initial filing of the Registration
Statement and incorporated by reference in the
Registration Statement, provided that the Company shall
-5-
<PAGE>
furnish copies of such documents as promptly as
practicable after the filing thereof with the
Commission to such holders of Registrable Securities
covered by such Registration Statement and such
managing underwriter or underwriters, if any, which
documents will be subject to review of such holders and
managing underwriter or underwriters) to which GS or,
if GS is not a selling holder, the holders of at least
20% in aggregate principal amount of the Registrable
Securities covered by such Registration Statement or
the managing underwriter or underwriters, if any, shall
reasonably object; PROVIDED, that the Company may
assume, for the purposes of this subparagraph (i), that
objections to the inclusion of information specifically
requested to be included in the Registration Statement
or other documents by the staff of the Commission, or
in the opinion of counsel to the Company required to be
in the Registration Statement or other documents, or
specifically required by the Securities Act or the
Rules and Regulations, shall not be deemed to be
reasonable;
(ii) for a reasonable period prior to the filing
of the Registration Statement and throughout the period
specified in Section 2(b) hereof, make available for
inspection by a representative or representatives of GS
or, if GS is not then a holder, the holders of not less
than 20% of the principal amount of the Registrable
Securities, any underwriter participating in any
disposition pursuant to a Registration Statement, and
any attorney or accountant retained by GS or such
selling holders or underwriter, all financial and other
records, pertinent corporate documents and properties
of the Company, and cause the Company's officers,
directors, employees and agents, including independent
public accounts and counsel, to supply all information
reasonably requested by any such representative,
underwriter, attorney or accountant in connection with
such Registration Statement; provided that any records,
information or documents that are designated by the
Company in writing as confidential shall be kept
confidential by such persons unless disclosure of such
records, information or documents is required by court
or administrative order;
(iii) prepare and file with the Commission such
amendments and post-effective amendments to the
Registration Statement, and such supplements to the
Prospectus, as may be required by the Rules and
Regulations or the instructions applicable to the
registration form utilized by the Company or by the
-6-
<PAGE>
Securities Act or otherwise necessary to keep the
Registration Statement effective for the period
specified in Section 2(b) and cause the Prospectus as
so supplemented to be filed pursuant to Rule 424 under
the Securities Act; and comply with the provisions of
the Securities Act with respect to the disposition of
all Registrable Securities covered by such Registration
Statement during the period specified in Section 2(b)
in accordance with the intended methods of disposition
by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iv) notify the selling holders of Registrable
Securities and the managing underwriter or underwriters,
if any, promptly, and confirm such advice in writing,
(A) when the Registration Statement,
any pre-effective amendment thereto, the
Prospectus or any prospectus supplement or
post-effective amendment to the Registration
Statement has been filed, and, with respect to
the Registration Statement or any post-effective
amendment, when the same has become effective,
(B) of any comments by the Commission
with respect to the Registration Statement, the
Prospectus or any prospectus supplement or any
request by the Commission for amendments or
supplements to the Registration Statement, the
Prospectus or any prospectus supplement or for
additional information,
(C) of the issuance by the Commission
of any stop order suspending the effectiveness
of the Registration Statement or the initiation
or threatening of any proceedings for that
purpose,
(D) if at any time the representations
and warranties of the Company contemplated by
subparagraph (xiv) below or Section 5 hereof
cease to be true and correct,
(E) of the receipt by the Company of
any notification with respect to the suspension
of the qualification of the Registrable
Securities for sale under the securities or
"Blue Sky" laws of any jurisdiction or the
-7-
<PAGE>
initiation or threatening of any proceeding for such purpose, and
(F) of the existence of any fact known to th e Company which
results in the Registration Statement, any amendment or
post-effective amendment thereto, the Prospectus, any prospectus
supplement, or any document incorporated therein by reference
containing an untrue statement of material fact or omitting to
state a material fact required to be stated therein or necessary to
make the statements there in not misleading;
(v) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(vi) if requested by any managing underwriter or underwriters or
any holder of Registrable Securities being sold pursuant to an
underwritten offering, as soon as practicable incorporate in a
prospectus supplement or post-effective amendment to the Registration
Statement such information as is required by the applicable Rules and
Regulations and as the managing underwriter or underwriters or such
holder reasonably specifies should be included therein relating to the
terms of the sale of the Registrable Securities, including without
limitation, information with respect to the principal amount or number
of shares of Registrable Securities being sold by such holder to any
underwriter or underwriters, the name and description of such holder or
underwriter, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriter or
underwriters and with respect to any other terms of the underwritten
offering (including whether such underwriting commitment is on a firm
commitment or best efforts basis) of the Registrable Securities to be
sold in such offering; and make all required fillings of such prospectus
supplement or post-effective amendment promptly after being notified of
the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(vii) furnish to each selling holder of Registrable Securities and
each managing underwriter, if any, without charge, an executed copy of
the Registration Statement, each amendment and supplement thereto (in
each case including all exhibits thereto and documents
-8-
<PAGE>
incorporated by reference therein) and such number of copies of the
Registration Statement (including exhibits thereto and documents
incorporated by reference therein) as such persons may reasonably
request in order to facilitate the offering and disposition of the
Registrable Securities;
(viii) deliver to each selling holder of Registrable Securities
and each managing underwriter, if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto, and such other documents, as such persons may
reasonably request in order to facilitate the offering and disposition
of the Registrable Securities and to permit any of such persons to
satisfy the prospectus delivery requirements of the Securities Act; the
Company hereby consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable
Securities and by each underwriter thereof, if any, in connection with
the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto; and as promptly as
practicable after the filing with the Commission of any document which
is incorporated by reference in the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto) deliver
a copy of such document to each holder of Registerable Securities
covered by the Registration Statement who requests such documents;
(ix) prior to any public offering of Registrable Securities, use
reasonable efforts to (A) register or qualify the Registrable Securities
covered by the Registration Statement for offer and sale under the
securities or "Blue Sky" laws of such jurisdictions of the United
States, its territories, its possessions and other areas subject to its
jurisdiction as any selling holder or underwriter reasonably shall
request, (B) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers, sales
and dealings therein in such jurisdictions for so long as may be
necessary (but not to exceed three years from the Effective Time) to
enable any such holder or underwriter to complete its distribution of
Registrable Securities pursuant to the Registration Statement and (C)
take any and all other actions as may be reasonably necessary or
advisable to enable the disposition in such jurisdictions of such
Registrable Securities; PROVIDED, HOWEVER, that the Company shall not be
required for any such purpose to
-9-
<PAGE>
qualify as a foreign corporation in any jurisdiction wherein it would
not otherwise be required to qualify but for the requirements of this
Section 3(c)(ix) or consent to general service of process in any such
jurisdiction;
(x) cooperate with the selling holders of Registrable Securities
and the managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any restrictive
legends and which, if so required by any securities exchange upon which
any Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel
engraved borders; and enable such Registrable Securities to be in such
denominations and registered in such names as the selling holder or the
managing underwriter or underwriters, if any, may request at least two
business days prior to any delivery of Registrable Securities;
(xi) use reasonable efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved
by such other governmental agencies or authorities located within the
United States (federal, state and local) as may be necessary to enable
the seller or sellers thereof or the underwriter or underwriters, if
any, to consummate the disposition of such Registrable Securities;
(xii) if any fact contemplated by subparagraph (iv)(F) above shall
exist, prepare a post-effective amendment or supplement to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that the Prospectus, as thereafter delivered to the purchasers of the
Registrable Securities, will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(xiii) use reasonable efforts to cause the shares of Common Stock
constituting Registrable Securities covered by the Registration
Statement to qualify for quotation on the Nasdaq National Market or, if
the Common Stock is not then quoted on the Nasdaq National Market, to
list such shares on each securities exchange
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on which outstanding Common Stock of the Company is then listed, if any;
(xiv) enter into such customary agreements (including, if
requested by holders of at least 20% in aggregate principal amount of
the Registrable Securities being registered, a customary underwriting
agreement with the underwriter or underwriters, if any) and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of any Registrable Securities as may be
reasonably requested and, in such connection, if an underwriting
agreement is entered into:
(A) make such representations and warranties to the holders
of such Registrable Securities and the underwriter or underwriters
in form, substance and scope as are customarily made in connection
with primary underwritten offerings of equity or convertible debt
securities;
(B) cause to be delivered to the sellers of Registrable
Securities and the underwriter or underwriters, if so specified in
such underwriting agreement, opinions of counsel to the Company,
dated the effective date of the Registration Statement and the date
of delivery of any Registrable Securities sold pursuant thereto
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriter or underwriters
and the appointed representative of or counsel to the holders of at
least 50% in aggregate principal amount of the Registrable
Securities being registered or, in the case of an underwritten
offering, sold), addressed to each selling holder and each
underwriter covering the matters customarily covered in opinions
requested in primary underwritten offerings of equity and
convertible debt securities and such other matters as may be
reasonably requested by the appointed representative of or counsel
to holders of at least 50% in aggregate principal amount of the
Registrable Securities being sold or th e underwriter or
underwriters;
(C) cause to be delivered on the date of the Prospectus and,
if later, the effective date of the most recent post-effective
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amendment to the Registration Statement, and at the time of the
signing of the underwriting or purchase agreement and at the time
of delivery of any Registrable Securities sold pursuant thereto, in
each case if so specified in such underwriting agreement, letters
from the Company's independent certified public accountants
addressed to each selling holder and each underwriter stating that
such accountants are independent public accountants within the
meaning of the Securities Act and the applicable published Rules
and Regulations thereunder, and otherwise in customary form and
covering such financial and accounting matters as are customarily
covered by letters of independent certified public accountants
delivered in connection with primary underwritten public offerings
of equity or conve rtible debt securities;
(D) cause the same to set forth in full the indemnification
provisions and procedures of Section 6 hereof (or such other
provisions and procedures satisfactory to the managing underwriter
or underwriters) with respect to all parties to be indemnified
pursuant to said Section; and
(E) deliver such documents and certificates as may be
reasonably requested by any holder of Registrable Securities being
sold or the managing underwriter or underwriters, if any, to
evidence the accuracy of the representations contemplated by clause
(A) above and compliance with any customary conditions contained in
the underwriting agreement or other agreement entered into by the
Company in connection with such offering.
(xv) otherwise use its best efforts to comply with all applicable
Rules and Regulations, and make generally available to its security
holders earnings statements satisfying the provisions of Section 11(a)
of the Securities Act no later than 45 days after the end of any
12-month period (or 90 days, if such period is a fiscal year) (A)
commencing at the end of any fiscal quarter in which the Registrable
Securities are sold in an underwritten offering, or, if not sold in such
an offering, (B) commencing with the first month of the Company's first
fiscal quarter commencing after
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the effective date of the Registration Statement, which statements shall
cover said 12-month periods;
(xvi) notify in writing each holder of Registrable Securities of
any proposal by the Company to amend or waive any provision of this
Agreement pursuant to Section 9(h) hereof and of any amendment or waiver
effected pursuant thereto, each of which notices shall contain the text
of the amendment or waiver proposed or effected, as the case may be; and
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall be an "Affiliate" (as defined in Schedule E to the
By-Laws of the National Association of Securities Dealers, Inc.
("NASD")) of the Company or has a "Conflict of Interest" (as defined in
such Schedule) and such broker-dealer shall underwrite, participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of such Schedule) of any Registrable
Securities, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Schedule, including, without limitation, by (A)
engaging a "qualified independent underwriter" (as defined in such
Schedule) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and to recommend the
public offering price of such Registrable Securities, (B) indemnifying
such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof, and (C)
providing such information within the possession of the Company to such
broker-dealer as may be reasonably required in order for such
broker-dealer to comply with the requirements of the Rules of Fair
Practice of the NASD.
(d) Each seller of Registrable Securities as to which any
registration is being effected shall use reasonable efforts to cooperate with
the Company. The Company may require each selling holder of Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding such holder, the Registrable Securities
held by such holder, the distribution of such Registrable Securities as the
Company may from time to time reasonably request. If a holder refuses to
supply the Company with any of such information
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on the grounds that it is not necessary to include such information in the
Registration Statement or for any other reason, the Company may exclude such
holder's Registrable Securities from the Registration Statement if the
Company provides such holder with a written opinion of counsel satisfactory
to such holder to the effect that such information must be included in the
Registration Statement and such holder thereafter continues to withhold such
information. The deletion of such holder's Registrable Securities from a
registration shall not affect the registration of the other Registrable
Securities to be included in the Registration Statement. Each seller of
Registrable Securities will furnish to the Company information concerning
sales made pursuant to the Registration Statement. Each such holder agrees,
by the acquisition of Registrable Securities, and agrees to confirm such
agreement in writing upon request of the Company, to notify the Company as
promptly as practicable of any inaccuracy or change in information previously
furnished by such holder to the Company or of the occurrence of any event in
either case as a result of which any Prospectus relating to such registration
contains or would contain an untrue statement of a material fact regarding
such holder or such holder's intended method of distribution of such
Registrable Securities or omits to state any material fact regarding such
holder or such holder's intended method of distribution of such Registrable
Securities necessary to make the statements therein, in light of the
circumstances then existing, not misleading and promptly to furnish to the
Company any additional information required to correct and update any
previously furnished information or required so that such Prospectus shall
not contain, with respect to such holder or the distribution of such
Registrable Securities, an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of
the circumstances then existing, not misleading.
(e) Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3(c)(iv)(F)
hereof, such holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement until such holder's receipt
of the copies of the supplemented or amended Prospectus contemplated by
Section 3(c)(xii) hereof, or until it is advised in writing by the Company
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus, and, if so directed by the Company, such holder will deliver to
the Company (at the Company's expense) all
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copies, other than permanent file copies, then in such holder's possession
of the Prospectus covering such Registrable Securities at the time of receipt
of such notice.
4. REGISTRATION EXPENSES.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's
performance of or compliance with this Agreement, including, without
limitation, (a) all Commission and any NASD registration and filing fees and
expenses, (b) all fees and expenses in connection with the registration or
qualification of the Registrable Securities for offering and sale under the
State securities and blue sky laws referred to in Section 3(c)(ix) hereof as
the managing underwriter or underwriters, if any, or the holders of such
Registrable Securities may designate, including reasonable fees and
disbursements, if any, of counsel for the selling holders or underwriters in
connection with such registrations or qualifications, (c) all expenses
relating to the preparation, printing, distribution and reproduction of the
Registration Statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment
or supplement to the foregoing, the expenses of preparing the Registrable
Securities for delivery and the expenses of printing or producing any
underwriting agreement(s), agreement(s) among underwriters and "Blue Sky"
memoranda, any selling agreements and all other documents in connection with
the offering, sale or delivery of Registrable Securities to be disposed of,
(d) messenger, telephone and delivery expenses of the Company, (e) fees and
expenses of any Trustee under the Indenture, any Transfer Agent and Registrar
with respect to the Registrable Securities and any escrow agent or custodian,
(f) internal expenses of the Company (including, without limitation, all
salaries and expenses of the Company's officers and employees performing
legal or accounting duties), (g) fees, disbursements and expenses of counsel
and independent certified public accountants of the Company (including the
expenses of any opinions or "cold comfort" letters required by or incident to
such performance and compliance), (h) fees, disbursements and expenses of one
counsel for the holders of Registrable Securities retained in connection with
such registration, as selected by the holders of at least 50% in aggregate
principal amount of the outstanding Registrable Securities being registered
(which counsel shall be reasonably satisfactory to the Company), (i) fees,
expenses and disbursements of any other persons, including
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special experts, retained by the Company in connection with such
registration, (j) fees and disbursements of any managing underwriter or
underwriters in connection with the offering and sale of Registrable
Securities under the Registration Statement (excluding commissions or fees of
underwriters, selling brokers, dealer managers or similar securities industry
professionals) and (k) all fees and expenses incurred in connection with the
qualification of the shares of Common Stock constituting Registrable
Securities for quotation on the Nasdaq National Market, or the listing of
such shares on any securities exchange, pursuant to Section 3(c)(xiii)
(collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of
Registrable Securities or any underwriter thereof, the Company shall
reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities
being registered shall pay all agency fees and commissions and underwriting
discounts and commissions attributable to the sale of such Registrable
Securities and the fees and disbursements of any counsel or other advisors or
experts retained by such holders (severally or jointly), other than the
counsel and experts specifically referred to above.
5. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to, and agrees with, the Purchasers
and each of the holders from time to time of Registrable Securities that:
(a) Each Registration Statement and each Prospectus contained therein
or furnished pursuant to Sections 3(c)(vii) and 3(c)(viii) hereof and any
further amendments or supplements to any such Registration Statement or
Prospectus, when it becomes effective or is filed with the Commission, as the
case may be, and, in the case of an underwritten offering of Registrable
Securities, at the time of the closing under the underwriting agreement
relating thereto, will conform in all material respects to the requirements
of the Securities Act and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and at all times
subsequent to the Effective Time when a prospectus would be required to be
delivered under the Securities Act, other than from (i) such time as a notice
has been given to holders of Registrable Securities pursuant to
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Section 3(c)(iv)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(c)(xii) hereof, the
Registration Statement, a nd the Prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(c)(vii) or
3(c)(viii) hereof, as then amended or supplemented, will conform in all
material respects to the requirements of the Securities Act and will not
contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
then existing, not misleading; PROVIDED, HOWEVER, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing t o the Company
by a holder of Registrable Securities or an underwriter expressly for use
therein.
(b) Any documents incorporated by reference in any Prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or conformed
in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents will contain or
contained an untrue statement of a material fact or will omit or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any subsidiary thereof is a party or by which the Company or any
subsidiary thereof is bound or to which any of the property or assets of the
Company or any subsidiary thereof is subject, nor will such action result in
any violation of the provisions of the Certificate of Incorporation, as
amended and restated, or the By-Laws, as amended, of the Company or any
statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any subsidiary thereof or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required to be obtained or made by the Company for the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Securities Act of the
Registrable Securities and such consents, approvals, authorizations,
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registrations or qualifications as may be required under State securities or
"Blue Sky" laws or foreign laws in connection w ith the offering and
distribution of the Registrable Securities.
(d) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding obligation of the
Company enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles and, in the case of Section 6 hereof, public policy.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, and in consideration of
the agreements of the Purchasers contained herein and in the Purchase
Agreement, and as an inducement to the Purchasers to enter into such
Agreements, the Company shall, and it hereby agrees to, indemnify and hold
harmless each of the holders of Registrable Securities to be included in
such registration, each underwriter, selling agent or placement agent with
respect to the Registrable Securities and each of their respective officers,
directors, employees and agents and each person who controls such holder or
underwriter, selling agent or placement agent within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act (each such person
being sometimes referred to as an "Indemnified Person") against any losses,
claims, damages or liabilities, joint or several, to which such Indemnified
Person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based up on an untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under
which such Registrable Securities were registered under the Securities Act,
or any Prospectus contained th erein or furnished by the Company to any
Indemnified Person, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company shall, and it hereby
agrees to, reimburse such Indemnified Person for any reasonable legal or
other expenses reasonably incurred by them in connection with investigating
or defending any such action
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or claim, it being understood that the Purchaser shall not, in connection
with any one such action or separate but substantially similar related
actions arising out of the same general allegations or circumstances, be
liable for the fees and exp enses of more than one separate firm or
attorneys (other than local counsel) for all Indemnified Persons; PROVIDED,
HOWEVER, that the Company shall not be liable to any such Indemnified Person
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement
or Prospectus, or amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Indemnified Person expressly for use therein.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS.
The Company may require, as a condition to including any Registrable
Securities in any Registration Statement filed pursuant to this Agreement and
to entering into any underwriting agreement with respect thereto, that the
Company shall have received an undertaking reasonably satisfactory to it from
the holder of such Registrable Securities and from each underwriter named in
any such underwriting agreement, severally and not jointly, to (i) indemnify
and hold harmless the Company, its directors, officers who sign any
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act, against any losses, claims, damages or liabilities to
which the Company or such other persons may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue st atement or alleged untrue statement of a material fact contained in
such Registration Statement, or any Prospectus contained therein or furnished
by the Company to any such holder or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished in writing to the Company by or
on behalf of such holder or underwriter expressly for use therein, and (ii)
reimburse the Company for any legal or other expens es reasonably incurred by
the Company in connection with investigating or defending any such action or
claim, it being understood that the Purchasers shall not,
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in connection with any one such action or separate but substantially similar
related actions arising out of the same general allegations or circumstances,
be liable for the fees and exp enses of more than one separate firm or
attorneys (other than local counsel) for the Company;
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement
of any action, such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party pursuant to the indemnification
provisions of or contemplated by this Section 6, notify such indemnifying
party in writing of the commencement of such action; but the omission so to
notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party other than under the indemnification
provisions of or contemplated by Section 6(a) or 6(b) hereof. In case any
such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) CONTRIBUTION. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in
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respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied
by such indemnifying party or by such indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 6(d)
were determined by pro rata allocation (even if the holders or any agents or
underwriters or all of them were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the percentage
of principal amount of Registrable Securities registered or underwritten, as
the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 6, in no event
will any (i) holder be required to undertake liability to any person under
this Section 6 for any amounts in excess of the dollar amount of the proceeds
to be received by such holder from the sale of such holder's Registrable
Securities (after deducting any fees, discounts and commissi ons applicable
thereto) pursuant to such registration and (ii) underwriter be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to
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such underwriter with respect to the Registrable Securities underwritten by
it and distributed to the public pursuant to any such underwriting agreement.
(f) The obligations of an indemnifying party under this Section 6 shall
be in addition to any liability which such indemnifying party may otherwise
have to any Indemnified Person, including any liability of the Company to the
Purchasers pursuant to Section 8 of the Purchase Agreement.
In the event that any provision of an indemnification clause in an
underwriting agreement executed by or on behalf of a holder of Registrable
Securities differs from a provision in this Section 6, such provision in the
underwriting agreement shall determine such holder's rights in respect thereof.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by the Registration Statement are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof shall
be designated by the holders of at least 50% in aggregate principal amount of
the outstanding Registrable Securities to be included in such offering,
provided that such designated managing underwriter or underwriters is or are
reasonably acceptable to the Company.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate
in any underwritten offering hereunder unless such holder (i) agrees to sell
such holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
8. RULE 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange
Act or the Securities Act (including, but not
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limited to, the reports under Sections 13 and 15(d) of the Exchange Act
referred to in subparagraph (c)(1) of Rule 144 under the Securities Act) and
the Rules and Regulations, and shall take such further action as any holder
of Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitations of the
exemption provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company shall deliver to such holder a written statement as
to whether it has complied with such requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not on or after
the date of this Agreement grant registration rights with respect to
Registrable Securities or any other securities, or enter into any agreement
with respect to its securities, which is inconsistent with the rights granted
to the holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The Company is not currently a party
to any agreement with respect to any of its equity or debt securities
granting any registration rights to any person.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there
may be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any
such failure, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement, in
any court of the United States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be given in the manner provided for in the
Indenture.
(d) PARTIES IN INTEREST. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the parties hereto.
In the event that any transferee of any holder of Registrable Securities
shall acquire Registrable Securities, in any
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manner, whether by gift, bequest, purchase, operation of law or otherwise,
such transferee shall, without any further writing or action of any kind, be
deemed a party hereto for all purposes and such Registrable Securities shall
be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such transferee shall be entitled to
receive the benefits of and be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement. If the
Company shall so request, any such successor, assign or transferee shall
agree in writing to acquire and hold the Registrable Securities subject to
all of the terms hereof.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf
of any holder of Registrable Securities, any director, officer or partner of
such holder, any agent or underwriter or any director, officer or partner
thereof, or any controlling person of any of the foregoing, and shall survive
delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable
Securities by such holder.
(f) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(h) AMENDMENTS AND WAIVERS. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only by a
written instrument duly executed by the Company and the holders of at least a
majority of the principal amount of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 9(h), whether or not any notice, writing or marking
indicating such amendment or waiver appears on such Registrable Securities
or is delivered to such holder.
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<PAGE>
(i) INSPECTION. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders
of Registrable Securities shall be made available for inspection and copying
on any business day by any holder of Registrable Securities at the offices of
the Company at the address set forth in the Indenture.
(j) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-25-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first written above.
CYRIX CORPORATION
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
-------------------------------------
(Goldman, Sachs & Co.)
<PAGE>
[Vinson & Elkins L.L.P. Letterhead]
August 22, 1996
Cyrix Corporation
2703 North Central Expressway
Richardson, Texas 75080
Ladies and Gentlemen:
We have acted as counsel for Cyrix Corporation, a Delaware corporation
(the "COMPANY"), in connection with the registration under the Securities Act
of 1933 (the "SECURITIES ACT") on a Registration Statement on Form S-3 (the
"REGISTRATION STATEMENT") of holders' resales of $126,500,000 aggregate
principal amount of the Company's 5 1/2% Convertible Subordinated Notes due
June 1, 2001 (the "NOTES") and such indeterminate number of shares of Common
Stock, par value $0.004 per share, of the Company (the "COMMON STOCK") as
shall be issuable upon conversion of the Notes in accordance with their terms.
In reaching the opinions set forth in this letter, we have reviewed
originals or copies of the Registration Statement, the Notes and such other
agreements, certificates of public officials, certificates of officers of the
Company, certificates of other persons, records, documents and matters of law
as we deemed relevant.
Based on and subject to the foregoing and subject further to the
assumptions, exceptions and qualifications hereinafter stated, we are of the
opinion that:
1. The Notes have been duly authorized, executed, issued and delivered
by the Company and constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, dated as of May 28,
1996 (the "Indenture"), between the Company and Bank of Montreal Trust
Company, as trustee (the "Trustee");
2. The Indenture is a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent conveyance,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and
3. The shares of Common Stock issuable upon conversion of the Notes in
accordance with their terms, when so issued, will be validly issued, fully
paid and non-assessable.
The opinions expressed above are subject to the following assumptions,
exceptions and qualifications:
<PAGE>
a. We have assumed that (i) all information contained in all documents
reviewed by us is true and correct, (ii) all signatures on all documents
reviewed by us are genuine, (iii) all documents submitted to us as originals
are true and complete, (iv) all documents submitted to us as copies are true
and complete copies of the originals thereof, (v) each natural person signing
any document reviewed by us had the legal capacity to do so, (vi) each
natural person signing in a representative capacity any document reviewed by
us had authority to sign in such capacity and, (vii) the Indenture is a valid
and binding agreement of the Trustee.
b. The opinions expressed in this letter are limited to the Delaware
General Corporation Law, the federal laws of the United States of America and
the laws of the State of New York. We express no opinion about the effect of
the laws of any other jurisdiction.
This opinion may be filed as an exhibit to the Registration Statement.
Consent is also given to the reference to this firm under the caption "Legal
Matters" in the Prospectus included in the Registration Statement as having
passed on certain legal matters in connection with the Notes and the Common
Stock. In giving this consent we do not admit that we come within the
category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
This opinion speaks as of the date hereof, and we disclaim any duty to
advise you regarding any changes subsequent to the date hereof in, or to
otherwise communicate with you with respect to, the matters addressed herein.
Very truly yours,
/s/ VINSON & ELKINS L.L.P.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Cyrix Corporation
for the sale of $126,500,000 of 5 1/2% Convertible Subordinated Notes due June
1, 2001 and to the incorporation by reference therein of our report dated
January 18, 1996, with respect to the consolidated financial statements and
schedule of Cyrix Corporation included in its Annual Report (Form 10-K) for the
year ended December 31, 1995, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
August 22, 1996
<PAGE>
EXHIBIT 25.1
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
_________________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a trustee Pursuant to Section 305(b) ____
BANK OF MONTREAL TRUST COMPANY
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
New York 13-4941093
(JURISDICTION OF INCORPORATION OR ORGANIZATION (I.R.S. EMPLOYER
IF NOT A US NATIONAL BANK) IDENTIFICATION NO.)
77 Water Street
New York, New York 10005
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Mark F. McLaughlin
Bank of Montreal Trust Company
77 Water Street, New York, NY 10005
(212) 701-7602
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
____________________________________
CYRIX CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
Delaware 75-2218250
(STATE OR OTHER JURISDICTION OF (I.R.S.
EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2703 North Central Expressway
Richardson, Texas 75080-2010
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
______________________________________
5-1/2% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 1, 2001
(TITLE OF THE INDENTURE SECURITIES)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
- 2 -
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Reserve Bank of New York
33 Liberty Street, New York NY 10045
State of New York Banking Department
2 Rector Street, New York, NY 10006
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of eligibility.
1. Copy of Organization Certificate of Bank of Montreal Trust Company
to transact business and exercise corporate trust powers;
incorporated herein by reference as Exhibit "A" filed with Form T-1
Statement, Registration No. 33-46118.
2. Copy of the existing By-Laws of Bank of Montreal Trust Company;
incorporated herein by reference as Exhibit "B" filed with
Form T-1 Statement, Registration No. 33-80928.
3. The consent of the Trustee required by Section 321(b) of the Act;
incorporated herein by reference as Exhibit "C" with Form T-1
Statement, Registration No. 33-46118.
4. A copy of the latest report of condition of Bank of Montreal Trust
Company published pursuant to law or the requirements of its
supervising or examining authority, attached hereto as Exhibit "D".
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939
the Trustee, Bank of Montreal Trust Company, a corporation organized
and existing under the laws of the State of New York, has duly caused
this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York,
and State of New York, on the 6th day of August, 1996.
BANK OF MONTREAL TRUST COMPANY
By /s/ Therese Gaballah
-----------------------
Therese Gaballah
Vice President
<PAGE>
EXHIBIT "D"
STATEMENT OF CONDITION
BANK OF MONTREAL TRUST COMPANY
NEW YORK
_________________________________
ASSETS
Due From Banks $ 1,570,159
-----------
Investment Securities:
State & Municipal 17,025,354
Other 100
-----------
TOTAL SECURITIES 17,025,454
-----------
Loans and Advances
Federal Funds Sold 12,000,000
Overdrafts (336,057)
-----------
TOTAL LOANS AND ADVANCES 11,663,943
-----------
Investment in Harris Trust, NY 6,656,129
Premises and Equipment 509,422
Other Assets 2,494,863
-----------
TOTAL ASSETS $39,919,970
-----------
-----------
LIABILITIES
Trust Deposits $ 9,859,384
Other Liabilities 9,239,409
-----------
TOTAL LIABILITIES 19,098,793
-----------
CAPITAL ACCOUNTS
Capital Stock, Authorized, Issued and
Fully Paid - 10,000 Shares of $100 Each 1,000,000
Surplus 4,222,188
Retained Earnings 15,510,844
Equity - Municipal Gain/Loss 88,145
-----------
TOTAL CAPITAL ACCOUNTS 20,821,177
-----------
TOTAL LIABILITIES
AND CAPITAL ACCOUNTS $39,919,970
-----------
-----------
I, Mark F. McLaughlin, Vice President, of the above-named bank do
hereby declare that this Report of Condition is true and correct to the best
of my knowledge and belief.
Mark F. McLaughlin
December 31, 1995
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declared that it has been
examined by us, and to the best of our knowledge and belief has been prepared
in
<PAGE>
conformance with the instructions and is true and correct.
Sanjiv Tandon
Kevin O. Healey
Steven R. Rothbloom
