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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
JUNE 4, 1997
----------------------------------
Date of Report (Date of earliest event reported)
ATMEL CORPORATION
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(Exact name of Registrant as specified in its charter)
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California 0-19032 77-0051991
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(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
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2325 ORCHARD PARKWAY
SAN JOSE, CALIFORNIA 95131
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(Address of principal executive offices)
(408) 441-0311
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(Registrant's telephone number, including area code)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
Exhibit No. Description
- ---------------- -------------------------------------------------------------
4.1 Indenture, dated as of May 15, 1997, by and among Atmel S.A.,
Atmel Corporation and State Street Bank and Trust Company of
California, N.A., as trustee thereunder.
4.2 Registration Rights Agreement, dated as of May 15, 1997, by
and among Atmel Corporation and Deutsche Morgan Grenfell
Inc., Alex. Brown & Sons, Incorporated, BNP plc, Credit
Lyonnais Securities, Smith Barney Inc. and Societe Generale
Securities Corp.
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ITEM 9. SALES OF EQUITY SECURITIES PURSUANT TO REGULATION S.
On May 28, 1997, Atmel S.A. (the "Issuer"), a societe anonyme organized
under the laws of The Republic of France and an indirect wholly-owned subsidiary
of Atmel Corporation (the "Company"), sold U.S.$150,000,000 aggregate principal
amount of its 3.25% Convertible Subordinated Guaranteed Step-Up Notes due 2002
(the "Notes"). The Notes were sold by the Issuer and the Company to Deutsche
Morgan Grenfell Inc., Alex. Brown & Sons, Incorporated, BNP plc, Credit Lyonnais
Securities, Smith Barney Inc. and Societe Generale Securities Corp. (the
"Initial Purchasers"), pursuant to a Purchase Agreement, dated May 19, 1997 (the
"Purchase Agreement"), at a purchase price of 97.5% of the aggregate principal
amount thereof, plus accrued interest, if any, from May 28, 1997. The Initial
Purchasers' discount was 2.5% of the aggregate principal amount of the Notes,
for an aggregate discount of U.S.$3,750,000. Under the terms of the Purchase
Agreement, the Company and the Issuer have granted the Initial Purchasers an
option exercisable for 30 days to purchase up to an aggregate of U.S.$25,000,000
additional principal amount of Notes solely to cover over-allotments, if any.
The price to investors for the Notes sold in the offering was 100% of the
principal amount thereof, plus accrued interest, if any, from May 28, 1997, for
an aggregate offering price of U.S.$150,000,000.
The Notes were issued pursuant to the provisions of the Indenture,
dated as of May 15, 1997 (the "Indenture"), by and among the Issuer, the Company
and State Street Bank and Trust Company of California, N.A., as trustee
thereunder. The Notes will bear interest at the rate of 3.25% per annum to
June 1, 2000, and, thereafter, at the rate of 8.25% per annum. The Notes are
convertible into Common Stock, no par value, of the Company at any time prior
to the close of business on the maturity date, unless previously redeemed or
repurchased, at a conversion price of $35.50 per share (equivalent to a
conversion rate of approximately 28.17 shares per $1,000 principal amount of
Notes), subject to adjustment in certain circumstances. The Notes are
guaranteed on a subordinated basis by the Company, as to the payment of
principal, premium, if any, interest, any Additional Amounts (as defined in the
Indenture), and any other amounts payable on or in respect of the Notes in
accordance with the terms of the Indenture.
The Notes, the guarantee and the Common Stock issuable upon conversion
of the Notes have not been registered under the United States Securities Act of
1933, as amended (the "Securities Act"), in reliance on the exemptions afforded
by Rule 144A and Regulation S under the Securities Act. Accordingly, the
Notes, the guarantee and the Common Stock issuable upon conversion of the Notes
were offered and sold in the United States only to qualified institutional
buyers in reliance on Rule 144A under the Securities Act, and outside the
United States to non-United States investors pursuant to Regulation S under
the Securities Act.
The Company has agreed to file, within 90 days following the last
original issue date of the Notes, a shelf registration statement in respect of
the Common Stock issuable upon conversion of the Notes, pursuant to a
Registration Rights Agreement dated as of May 15, 1997, by and among the Company
and the Initial Purchasers.
The foregoing summary of the Notes, the Indenture and the Registration
Rights Agreement does not purport to be complete and is subject to, and
qualified in its entirety by reference to, all of the provisions of the Notes,
the Indenture and the Registration Rights Agreement, forms of which are filed as
Exhibits to this Current Report on Form 8-K (included in the Indenture in the
case of the form of Note).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ATMEL CORPORATION
Date: June 4, 1997 By: /s/ Mike Ross
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Mike Ross
Vice President and
General Counsel
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INDEX TO EXHIBITS FILED WITH
THE CURRENT REPORT ON FORM 8-K DATED JUNE 4, 1997
Exhibit No. Description
- -------------- ---------------------------------------------------------------
4.1 Indenture, dated as of May 15, 1997, by and among Atmel S.A.,
Atmel Corporation and State Street Bank and Trust Company of
California, N.A., as trustee thereunder.
4.2 Registration Rights Agreement, dated as of May 15, 1997, by and
among Atmel Corporation and Deutsche Morgan Grenfell Inc.,
Alex. Brown & Sons, Incorporated, BNP plc, Credit Lyonnais
Securities, Smith Barney Inc. and Societe Generale Securities
Corp.
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EXHIBIT 4.1
[Execution Copy]
- --------------------------------------------------------------------------------
ATMEL S.A.
ISSUER
ATMEL CORPORATION
GUARANTOR
TO
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.
TRUSTEE
----------------
INDENTURE
DATED AS OF MAY 15, 1997
----------------
U.S.$175,000,000
3.25% CONVERTIBLE SUBORDINATED GUARANTEED STEP-UP NOTES
DUE 2002
- --------------------------------------------------------------------------------
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TABLE OF CONTENTS
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RECITALS ................................................................................................1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION......................................................................................1
SECTION 1.1. Definitions............................................................................1
Accreted Value..................................................................................2
Act.............................................................................................3
Additional Amounts..............................................................................3
Affiliate.......................................................................................3
Agent Member....................................................................................3
Applicable Price................................................................................3
Authenticating Agent............................................................................3
Authorized Newspaper............................................................................3
Board of Directors or Board.....................................................................4
Board Resolution................................................................................4
Business Day....................................................................................4
Closing Price...................................................................................4
Code............................................................................................4
Commission......................................................................................4
Common Stock....................................................................................4
Constituent Person..............................................................................5
Conversion Agent................................................................................5
Conversion Price................................................................................5
Corporate Trust Office..........................................................................5
corporation.....................................................................................5
Defaulted Interest..............................................................................5
Depositary......................................................................................5
Dollar..........................................................................................5
U.S.$...........................................................................................5
DTC.............................................................................................5
Event of Default................................................................................5
Exchange Act....................................................................................5
Expiration Time.................................................................................5
Fundamental Change..............................................................................5
Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.
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Global Security.................................................................................6
Guarantee.......................................................................................6
Guarantor.......................................................................................6
Guarantor Board.................................................................................6
Guarantor Board Resolution......................................................................6
Guarantor Designated Senior Indebtedness........................................................6
Guarantor Payment Blockage Notice...............................................................6
Guarantor Request or Guarantor Order............................................................6
Holder..........................................................................................6
Indebtedness....................................................................................6
Indenture.......................................................................................7
Initial Purchasers..............................................................................7
Interest Payment Date...........................................................................7
Issuer..........................................................................................8
Issuer Designated Senior Indebtedness...........................................................8
Issuer Notice...................................................................................8
Issuer Payment Blockage Notice..................................................................8
Issuer Request..................................................................................8
Liquidated Damages..............................................................................8
Maturity........................................................................................8
Non-electing Share..............................................................................8
Officers' Certificate...........................................................................8
Opinion of Counsel..............................................................................8
Outstanding.....................................................................................8
Paying Agent....................................................................................9
Person..........................................................................................9
Place of Conversion.............................................................................9
Place of Payment...............................................................................10
Predecessor Security...........................................................................10
Purchase Agreement.............................................................................10
Purchased Shares...............................................................................10
Record Date....................................................................................10
Redemption Date................................................................................10
Redemption Price...............................................................................10
Reference Market Price.........................................................................10
Registration Rights Agreement..................................................................10
Regular Record Date............................................................................10
Regulation S...................................................................................10
Representative.................................................................................10
Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.
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Repurchase Date................................................................................11
Repurchase Price...............................................................................11
Responsible Officer............................................................................11
Restricted Global Security.....................................................................11
Restricted Securities..........................................................................11
Restricted Securities Legend...................................................................11
Rule 144A......................................................................................11
Rule 144A Information..........................................................................11
Securities.....................................................................................11
Securities Act.................................................................................11
Security Register and Security Registrar.......................................................11
Senior Indebtedness............................................................................11
Special Record Date............................................................................12
Stated Maturity................................................................................12
Subsidiary.....................................................................................12
Successor Security.............................................................................12
Tax Affected Security..........................................................................12
Taxing Jurisdiction............................................................................12
Tax Law Change.................................................................................12
Trading Day....................................................................................13
Transfer Agent.................................................................................13
Trust Indenture Act............................................................................13
Trustee ......................................................................................13
United States..................................................................................13
Western Europe.................................................................................13
SECTION 1.2. Compliance Certificates and Opinions..................................................13
SECTION 1.3. Form of Documents Delivered to the Trustee............................................14
SECTION 1.4. Acts of Holders of Securities.........................................................15
SECTION 1.5. Notices, Etc., to Trustee, Issuer and Guarantor.......................................17
SECTION 1.6. Notice to Holders of Securities; Waiver...............................................17
SECTION 1.7. Effect of Headings and Table of Contents..............................................18
SECTION 1.8. Successors and Assigns................................................................18
SECTION 1.9. Separability Clause...................................................................18
SECTION 1.10. Benefits of Indenture.................................................................18
SECTION 1.11. Governing Law.........................................................................19
SECTION 1.12. Legal Holidays........................................................................19
SECTION 1.13. Conflict with Trust Indenture Act.....................................................19
SECTION 1.14. Jurisdiction..........................................................................19
SECTION 1.15. Guarantor May Exercise Rights of Issuer...............................................20
Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.
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SECTION 1.16. Indenture and Securities Solely Corporate Obligations.................................21
SECTION 1.17. Luxembourg Obligations................................................................21
ARTICLE TWO - SECURITY FORMS.....................................................................................21
SECTION 2.1. Forms Generally.......................................................................21
SECTION 2.2. Form of Security......................................................................22
SECTION 2.3. Form of Certificate of Authentication.................................................39
SECTION 2.4. Form of Conversion Notice.............................................................40
ARTICLE THREE - THE SECURITIES...................................................................................41
SECTION 3.1. Title and Terms.......................................................................41
SECTION 3.2. Denominations.........................................................................42
SECTION 3.3. Execution, Authentication, Delivery and Dating........................................42
SECTION 3.4. Global Securities; Non-Global Securities..............................................43
SECTION 3.5. Registration, Registration of Transfer and Exchange;
Restrictions on Transfer........................................................44
SECTION 3.6. Mutilated, Destroyed, Lost or Stolen Securities.......................................47
SECTION 3.7. Payment of Interest; Interest Rights Preserved........................................48
SECTION 3.8. Persons Deemed Owners.................................................................49
SECTION 3.9. Cancellation..........................................................................49
SECTION 3.10. Computation of Interest...............................................................49
SECTION 3.11. CUSIP Numbers.........................................................................50
ARTICLE FOUR - SATISFACTION AND DISCHARGE........................................................................50
SECTION 4.1. Satisfaction and Discharge of Indenture...............................................50
SECTION 4.2. Application of Trust Money............................................................51
ARTICLE FIVE - REMEDIES..........................................................................................52
SECTION 5.1. Events of Default.....................................................................52
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment....................................53
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.......................54
SECTION 5.4. Trustee May File Proofs of Claim......................................................55
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities...........................56
SECTION 5.6. Application of Money Collected........................................................56
SECTION 5.7. Limitation on Suits...................................................................57
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....................................................58
SECTION 5.10. Rights and Remedies Cumulative........................................................58
Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.
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SECTION 5.11. Delay or Omission Not Waiver..........................................................58
SECTION 5.12. Control by Holders of Securities......................................................58
SECTION 5.13. Waiver of Past Defaults...............................................................59
SECTION 5.14. Undertaking for Costs.................................................................59
SECTION 5.15. Waiver of Stay, Extension and Usury Laws..............................................60
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.............................................................62
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities................................63
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........................................................64
SECTION 6.8. Corporate Trustee Required; Eligibility...............................................64
SECTION 6.9. Resignation and Removal; Appointment of Successor.....................................65
SECTION 6.10. Acceptance of Appointment by Successor................................................66
SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business...........................67
SECTION 6.12. Authenticating Agents.................................................................67
SECTION 6.13. Disqualification; Conflicting Interests...............................................68
SECTION 6.14. Preferential Collection of Claims Against Issuer......................................68
ARTICLE SEVEN - CONSOLIDATION, MERGER, TRANSFER OR LEASE.........................................................69
SECTION 7.1. Issuer or Guarantor May Consolidate, Etc., Only on
Certain Terms...................................................................69
SECTION 7.2. Successor Substituted.................................................................70
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES..........................................................................70
SECTION 8.1. Supplemental Indentures Without Consent of Holdersof Securities.......................70
SECTION 8.2. Supplemental Indentures with Consent of Holders of Securities.........................71
SECTION 8.3. Execution of Supplemental Indentures..................................................72
SECTION 8.4. Effect of Supplemental Indentures.....................................................73
SECTION 8.5. Reference in Securities to Supplemental Indentures....................................73
SECTION 8.6. Notice of Supplemental Indentures.....................................................73
ARTICLE NINE - MEETINGS OF HOLDERS OF SECURITIES.................................................................74
SECTION 9.1. Purposes for Which Meetings May Be Called.............................................74
SECTION 9.2. Call, Notice and Place of Meetings....................................................74
SECTION 9.3. Persons Entitled to Vote at Meetings..................................................74
Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.
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SECTION 9.4. Quorum; Action........................................................................75
SECTION 9.5. Determination of Voting Rights; Conduct and Adjournment of
Meetings..............................................................................75
SECTION 9.6. Counting Votes and Recording Action of Meetings.......................................76
ARTICLE TEN - COVENANTS..........................................................................................77
SECTION 10.1. Payment of Principal, Premium and Interest............................................77
SECTION 10.2. Maintenance of Offices or Agencies....................................................77
SECTION 10.3. Money for Security Payments To Be Held in Trust.......................................78
SECTION 10.4. Additional Amounts ...................................................................79
SECTION 10.6. Statement by Officers as to Default...................................................80
SECTION 10.7. Delivery of Certain Information.......................................................80
SECTION 10.8. Resale of Certain Securities; Reporting Issuer........................................81
ARTICLE ELEVEN - REDEMPTION OF SECURITIES........................................................................81
SECTION 11.1. Right of Redemption...................................................................81
SECTION 11.2. Applicability of Article..............................................................81
SECTION 11.3. Election to Redeem; Notice to Trustee.................................................82
SECTION 11.4. Selection by Trustee of Securities to Be Redeemed.....................................82
SECTION 11.5. Notice of Redemption..................................................................82
SECTION 11.6. Deposit of Redemption Price...........................................................84
SECTION 11.7. Securities Payable on Redemption Date.................................................84
SECTION 11.8. Securities Redeemed in Part...........................................................84
SECTION 11.9. Conversion Arrangement on Call for Redemption.........................................85
ARTICLE TWELVE - CONVERSION OF SECURITIES........................................................................86
SECTION 12.1. Conversion Privilege and Conversion Price.............................................86
SECTION 12.2. Exercise of Conversion Privilege......................................................86
SECTION 12.3. Fractions of Shares...................................................................88
SECTION 12.4. Adjustment of Conversion Price........................................................88
SECTION 12.5. Notice of Adjustments of Conversion Price.............................................96
SECTION 12.6. Notice of Certain Corporate Action....................................................96
SECTION 12.7. Issuer to Provide Common Stock........................................................98
SECTION 12.8. Taxes on Conversions..................................................................98
SECTION 12.9. Issuer Covenant as to Common Stock....................................................98
SECTION 12.10. Cancellation of Converted Securities............................................98
SECTION 12.11. Provision in Case of Consolidation, Merger, or Sale of Assets
of the Guarantor................................................................98
SECTION 12.12. Responsibility of Trustee for Conversion Provisions.............................99
Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.
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ARTICLE THIRTEEN - SUBORDINATION OF SECURITIES..................................................................100
SECTION 13.1. Agreement of Subordination...........................................................100
SECTION 13.2. Payments to Noteholders..............................................................101
SECTION 13.3. Subrogation of Securities............................................................104
SECTION 13.4. Authorization to Effect Subordination................................................105
SECTION 13.5. Notice to Trustee....................................................................105
SECTION 13.6. Trustee's Relation to Senior Indebtedness of the Issuer..............................106
SECTION 13.7. No Impairment of Subordination.......................................................106
SECTION 13.8. Article Applicable to Paying Agents..................................................107
ARTICLE FOURTEEN - SUBORDINATION OF GUARANTEE...................................................................107
SECTION 14.1. Agreement of Subordination...........................................................107
SECTION 14.2. Payments to Noteholders..............................................................108
SECTION 14.3. Subrogation of Securities............................................................111
SECTION 14.4. Authorization to Effect Subordination................................................112
SECTION 14.5. Notice to Trustee....................................................................112
SECTION 14.6. Trustee's Relation to Senior Indebtedness of the Guarantor...........................113
SECTION 14.7. No Impairment of Subordination.......................................................113
SECTION 14.8. Certain Conversions Deemed Payment...................................................114
SECTION 14.9. Article Applicable to Paying Agents..................................................114
ARTICLE FIFTEEN - REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A FUNDAMENTAL CHANGE......................................................................115
SECTION 15.1. Right to Require Repurchase..........................................................115
SECTION 15.2. Notices; Method of Exercising Repurchase Right, Etc..................................116
SECTION 15.3. Merger, Consolidation, etc...........................................................117
ARTICLE SIXTEEN - HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER...............................................118
SECTION 16.1. Issuer to Furnish Trustee Names and Addresses of Holders.............................118
SECTION 16.2. Preservation of Information..........................................................119
SECTION 16.3. Reports by Trustee...................................................................119
SECTION 16.4. Reports by Issuer and Guarantor......................................................119
ARTICLE SEVENTEEN - GUARANTEE...................................................................................120
SECTION 17.1. Guarantee............................................................................120
SECTION 17.2. Subordination of Payments under Guarantee............................................121
SECTION 17.3. Subrogation..........................................................................121
Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.
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INDENTURE, dated as of May 15, 1997, by and among Atmel S.A., a societe
anonyme organized under the laws of The Republic of France (herein called the
"Issuer"), Atmel Corporation, a California corporation (herein called the
"Guarantor"), and State Street Bank and Trust Company of California, N.A., a
national banking association organized under the laws of the United States of
America, as Trustee hereunder (herein called the "Trustee").
RECITALS
The Issuer has duly authorized the creation of an issue of its 3.25%
Convertible Subordinated Guaranteed Step-Up Notes due 2002 (herein called the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Issuer has duly authorized the execution and delivery of
this Indenture.
All things necessary to make the Securities, when the Securities are
executed by the Issuer and authenticated and delivered hereunder, the valid
obligations of the Issuer, and to make this Indenture a valid agreement of the
Issuer and the Guarantor, in accordance with their and its terms, have been
done.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Guarantee (as hereinafter defined) of the
Securities.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, the Issuer, the Guarantor and the Trustee
mutually covenant and agree, for the equal and pro portionate benefit of all
Holders of the Securities as follows:
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;
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(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, other than for the purpose of
the definition of Indebtedness and Senior Indebtedness set forth
herein; 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.
"Accreted Value" of each Security in the principal amount of U.S.$1,000
shall be determined so that, together with accrued interest from the immediately
preceding Interest Payment Date and after taking into account any interest paid
in respect of such Securities in all such preceding periods, the Accreted Value
shall represent for a Holder of a Security a yield-to-maturity identical to that
applicable in the case of a redemption of such Security at Maturity, being 5.1%
per annum and shall be calculated in accordance with the following formula,
rounded (if necessary) to two decimal places, with 0.005 being rounded upwards
(provided that if the Redemption Date is an Interest Payment Date, the Accreted
Value shall be as set out in the table below in respect of such Interest Payment
Date):
Accreted Value = (Previous Accreted Value x (1 + r/2) d/p) - AI/2
where:
A) "Previous Accreted Value" equals the Accreted Value on the
Interest Payment Date immediately preceding the Redemption
Date as set forth below (expressed as a percentage of the
principal amount):
Interest Payment Date Accreted Value
December 1, 1997 100.93%
June 1, 1998 101.87
December 1, 1998 102.84
June 1, 1999 103.84
December 1, 1999 104.86
June 1, 2000 105.91
December 1, 2000 104.49
June 1, 2001 103.02
December 1, 2001 101.52
June 1, 2002 100.00
B) "r" is equal to 5.1% (expressed as 51/1000);
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C) "d" is equal to the number of days from and including the
immediately preceding Interest Payment Date to, but excluding,
the Redemption Date, calculated on the basis of a 180 day
period consisting of six months of 30 days each, and, in the
case of an incomplete month, the number of days elapsed;
D) "p" is equal to 180; and
E) "AI" is accrued interest on the principal amount of the
Securities from and including the immediately preceding
Interest Payment Date to, but excluding, the Redemption Date,
calculated on the basis of a 360 day period consisting of 12
months of 30 days each and, in the case of an incomplete
month, the number of days elapsed.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 1.4.
"Additional Amounts" has the meaning specified in Section 2.2.
"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 Price" means (i) in the event of a Fundamental Change in
which the holders of the Guarantor's Common Stock receive only cash, the amount
of cash received by the holder of one share of Common Stock and (ii) in the
event of any other Fundamental Change, the arithmetic average of the Closing
Price for the Guarantor's Common Stock during the ten Trading Days prior to the
record date for the determination of the holders of Common Stock entitled to
receive cash, securities, property or other assets in connection with such
Fundamental Change, or, if there is no such record date, the date upon which the
holders of the Common Stock shall have the right to receive such cash,
securities, property or other assets in connection with the Fundamental Change.
"Authenticating Agent" means any Person authorized pursuant to Section
6.12 to act on behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or 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 the place in
connection with which the term is used or in the financial community of such
place. Where successive publications are required to be made in an Authorized
Newspaper, the
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successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any Monday,
Tuesday, Wednesday, Thursday and Friday.
"Board of Directors" or "Board" means either the board of directors of
the Issuer or any committee of that board empowered to act for it with respect
to this Indenture.
"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 Issuer 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, Los Angeles, California or Luxembourg are authorized or obligated by law
or executive order to close shall not be a Business Day for purposes of Section
10.1, 10.3, 11.6, 13.5 or Section 14.5.
"Closing Price" has the meaning specified in Section 12.4(8)(a).
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" includes any stock or shares of any class of the
Guarantor 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 Guarantor and which is not subject to redemption by the Guarantor;
provided, however, subject to the provisions of Section 12.11, shares issuable
on conversion of Securities shall include only shares of the class designated as
Common Stock of the Guarantor at the date of this instrument or shares of any
class or classes resulting from any reclassification or reclassifications
thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Guarantor and which are not subject to redemption by the
Guarantor; provided, further, however, that if at any time there shall be more
than one such resulting class, the shares of each such class then so issuable
shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
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"Constituent Person" has the meaning specified in Section 12.11.
"Conversion Agent" means any Person authorized by the Issuer to convert
Securities in accordance with Article Twelve. The Issuer has initially appointed
(i) the Trustee as its Conversion Agent, which in such capacity shall act
through its Affiliate, State Street Bank and Trust Company, N.A., in the Borough
of Manhattan, The City of New York, New York and (ii), so long as the Securities
are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg
Stock Exchange shall require that a Conversion Agent be maintained in
Luxembourg, State Street Bank Luxembourg, S.A., as its Conversion Agent in
Luxembourg.
"Conversion Price" 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 725 South
Figueroa Street, Los Angeles, California 90017).
"corporation" means a corporation, company, including, without
limitation, a limited liability company, association, joint-stock company or
business trust.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to any Securities issued in whole or
in part in the form of one or more Global Securities, the clearing agency that
is registered under the Exchange Act and designated to act as Depositary for
such Securities, as contemplated by Section 3.4(A), or any successor clearing
agency registered under the Exchange Act as contemplated by Section 3.4(A).
"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.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended from time to time.
"Expiration Time" has the meaning specified in Section 12.4(6).
"Fundamental Change" means the occurrence of any transaction or event
in connection with which all or substantially all the Common Stock shall be
exchanged for, converted into, acquired for or constitute solely the right to
receive consideration (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise) which is not all or substantially all common
stock or shares which are (or, upon
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<PAGE> 14
consummation of or immediately following such transaction or event, will be)
listed on a United States national securities exchange or approved for quotation
on the Nasdaq National Market or any similar United States system of automated
dissemination of quotations of securities prices.
"Global Security" means any Security issued in the form set forth in
Section 2.2 and registered in the Security Register in the name of a Depositary
or a nominee thereof.
"Guarantee" means the guarantee by the Guarantor set forth in Article
Seventeen hereof.
"Guarantor" means the Person named as the "Guarantor" 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
"Guarantor" shall mean such successor Person.
"Guarantor Board" means either the board of directors of the Guarantor
or any committee of that board empowered to act for it with respect to this
Indenture.
"Guarantor Board Resolution" means a resolution duly adopted by the
Guarantor Board, a copy of which, certified by the Secretary or an Assistant
Secretary of the Guarantor to have been duly adopted by the Guarantor Board and
to be in full force and effect on the date of such certification, shall have
been delivered to the Trustee.
"Guarantor Designated Senior Indebtedness" means the Guarantor's
obligations under any particular Senior Indebtedness of the Guarantor in which
the instrument creating or evidencing the same or the assumption or guarantee
thereof (or related agreements or documents to which the Guarantor is a party)
expressly provides that such Senior Indebtedness shall be "Guarantor Designated
Senior Indebtedness" for purposes of the Indenture (provided that such
instrument, agreement or other document may place limitations and conditions on
the right of such Senior Indebtedness to exercise the rights of Guarantor
Designated Senior Indebtedness).
"Guarantor Payment Blockage Notice" has the meaning specified in
Section 14.2.
"Guarantor Request" or "Guarantor Order" means a written request or
order signed in the name of the Guarantor 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.
"Holder", when used with respect to any Security, means the Person in
whose name the Security is registered in the Security Register.
"Indebtedness" means, with respect to any Person, and without
duplication, (a) all indebtedness, obligations and other liabilities (contingent
or otherwise) of such Person for borrowed money (including obligations of such
Person in respect of overdrafts, foreign exchange contracts, currency exchange
agreements, interest rate protection agreements, and any loans or advances from
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banks, whether or not evidenced by notes or similar instruments) or evidenced by
bonds, debentures, notes or similar instruments (whether or not the recourse of
the lender is to the whole of the assets of such Person or to only a portion
thereof) (other than any account payable or other accrued current liability or
obligation incurred in the ordinary course of business in connection with the
obtaining of materials or services), (b) all reimbursement obligations and other
liabilities (contingent or otherwise) of such Person with respect to letters of
credit, bank guarantees or bankers' acceptances, (c) all obligations and
liabilities (contingent or otherwise) in respect of leases of such Person
required, in conformity with generally accepted accounting principles, to be
accounted for as capitalized lease obligations on the balance sheet of such
Person and all obligations and other liabilities (contingent or otherwise) under
any lease or related document (including a purchase agreement) in connection
with the lease of real property which provides that such Person is contractually
obligated to purchase or cause a third party to purchase the leased property and
thereby guarantee a minimum residual value of the leased property to the
landlord and the obligations of such Person under such lease or related document
to purchase or to cause a third party to purchase such leased property, (d) all
obligations of such Person (contingent or otherwise) with respect to an interest
rate or other swap, cap or collar agreement or other similar instrument or
agreement or foreign currency hedge, exchange, purchase or similar instrument or
agreement, (e) all direct or indirect guaranties or similar agreements by such
Person in respect of, and obligations or liabilities (contingent or otherwise)
of such Person to purchase or otherwise acquire or otherwise assure a creditor
against loss in respect of, indebtedness, obligations or liabilities of another
Person of the kind described in clauses (a) through (d), (f) any indebtedness or
other obligations described in clauses (a) through (d) secured by any mortgage,
pledge, lien or other encumbrance existing on property which is owned or held by
such Person, regardless of whether the indebtedness or other obligation secured
thereby shall have been assumed by such Person and (g) any and all deferrals,
renewals, extensions and refundings of, or amendments, modifications or
supplements to, any indebtedness, obligation or liability of the kind described
in clauses (a) through (f).
"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.
"Individual Security" has the meaning specified in Section 3.5(A)(b).
"Initial Purchasers" means Deutsche Morgan Grenfell Inc., Alex. Brown &
Sons Incorporated, BNP plc, Credit Lyonnais Securities, Smith Barney Inc. and
Societe Generale Securities Corp.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
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"Issuer" means the Person named as the "Issuer" 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 "Issuer" shall mean
such successor Person.
"Issuer Designated Senior Indebtedness" means the Issuer's obligations
under any particular Senior Indebtedness of the Issuer in which the instrument
creating or evidencing the same or the assumption or guarantee thereof (or
related agreements or documents to which the Issuer is a party) expressly
provides that such Senior Indebtedness shall be "Issuer Designated Senior
Indebtedness" for purposes of the Indenture (provided that such instrument,
agreement or other document may place limitations and conditions on the right of
such Senior Indebtedness to exercise the rights of the Issuer Designated Senior
Indebtedness).
"Issuer Notice" has the meaning specified in Section 15.2.
"Issuer Payment Blockage Notice" has the meaning specified in Section
13.2.
"Issuer Request" or "Issuer Order" means a written request or order
signed in the name of the Issuer by the President of the Issuer, and delivered
to the Trustee.
"Liquidated Damages" has the meaning specified in the Registration
Rights Agreement.
"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 Fifteen or otherwise.
"Non-electing Share" has the meaning specified in Section 12.11.
"Officers' Certificate" means a certificate signed (i) in the case of
the Issuer, by the President of the Issuer, and (ii) in the case of the
Guarantor, 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, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of independent counsel of
recognized standing who may be counsel for the Issuer or the Guarantor, as the
case may be, and who shall be reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
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<PAGE> 17
(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 Issuer or the Guarantor) or set
aside and segregated in trust by the Issuer (if the Issuer or the
Guarantor shall act as its own Paying Agent) for the Holders of such
Securities, provided that if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Issuer; and
(iv) Securities converted into Common Stock pursuant to
Article Twelve;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities are present at a meeting of Holders
of Securities for quorum purposes or have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Issuer or the Guarantor or any other obligor upon the Securities or any
Affiliate of the Issuer or the Guarantor 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 Issuer or the Guarantor or any other obligor upon the Securities or
any Affiliate of the Issuer or the Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or interest on any Securities on behalf of the Issuer and, except
as otherwise specifically set forth herein, such term shall include the Issuer
if it shall act as its own Paying Agent. The Issuer has initially appointed (i)
the Trustee as its Paying Agent, which in such capacity shall act through its
Affiliate State Street Bank and Trust Company, N.A., in the Borough of
Manhattan, The City of New York, New York and (ii), so long as the Securities
are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg
Stock Exchange shall require that a Paying Agent be maintained in Luxembourg,
State Street Bank Luxembourg, S.A., as its Paying Agent in Luxembourg.
"Person" means any individual, corporation, 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.
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"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 May 19, 1997,
between the Issuer, the Guarantor and the Initial Purchasers, as such agreement
may be amended from time to time.
"Purchased Shares" has the meaning specified in Section 12.4(6).
"Record Date" means any Regular Record Date or Special Record Date.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Market Price" means $16.67 and in the event of any
adjustment to the Conversion Price pursuant to Section 12.4, the Reference
Market Price shall also be adjusted so that the ratio of the Reference Market
Price to the Conversion Price after giving effect to any such adjustment shall
always be the same as the ratio of $16.67 to the initial Conversion Price
specified in Section 12.1 (without regard to any adjustment thereto).
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of May 15, 1997, between the Guarantor and the Initial
Purchasers, as such agreement may be amended from time to time.
"Regular Record Date" for interest payable in respect of any 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 S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Representative" means the (a) indenture trustee or other trustee,
agent or representative for any Senior Indebtedness or (b) with respect to any
Senior Indebtedness that does not have any such trustee, agent or other
representative, (i) in the case of such Senior Indebtedness issued pursuant to
an agreement providing for voting arrangements as among the holders or owners of
such Senior
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Indebtedness, any holder or owner of such Senior Indebtedness acting with the
consent of the required persons necessary to bind such holders or owners of such
Senior Indebtedness and (ii) in the case of all other such Senior Indebtedness,
the holder or owner of such Senior Indebtedness.
"Repurchase Date" has the meaning specified in Section 15.1.
"Repurchase Price" has the meaning specified in Section 15.1.
"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 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
3.5(b).
"Restricted Securities" means all Securities required pursuant to
Section 3.5(c) to bear the Restricted Securities Legend. Such term includes the
Restricted Global Security.
"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 10.7.
"Securities" has the meaning ascribed to it in the first paragraph
under the caption "Recitals".
"Securities Act" means the United States Securities Act of 1933, as
amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Indebtedness" means, with respect to any Person, the principal
of, premium, if any, interest (including all interest accruing subsequent to the
commencement of any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in such proceeding) and rent
payable on or in connection with, and all fees, costs, expenses and other
amounts accrued or due on or in connection with, Indebtedness of such Person,
whether outstanding
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on the date of this Indenture or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by such Person (including all deferrals,
renewals, extensions or refundings of, or amendments, modifications or
supplements to, the foregoing), unless in the case of any particular
Indebtedness the instrument creating or evidencing the same or the assumption or
guarantee thereof expressly provides that such Indebtedness shall not be senior
in right of payment to the Securities or the obligations under the Guarantee, as
applicable, or expressly provides that such Indebtedness is "pari passu" or
"junior" to the Securities or the obligations under the Guarantee, as
applicable. Notwithstanding the foregoing, the Senior Indebtedness shall not
include any Indebtedness of such Person to any Subsidiary of such Person a
majority of the voting stock of which is owned, directly or indirectly, by such
Person, and, in the case of the Issuer, Senior Indebtedness shall not include
any obligations of the Issuer required by applicable law to be subordinate to,
or pari passu with, the Notes.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Issuer pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means, with respect to any Person, a corporation more than
50% of the outstanding voting stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries, or by such Person 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.
"Tax Affected Security" means any Security that, if as a result of any
Tax Law Change, the Issuer has or will become obligated to pay Additional
Amounts in respect of such Security.
"Taxing Jurisdiction" has the meaning specified in Section 2.2, as such
definition may be modified from time to time in accordance with Article Seven.
"Tax Law Change" means any change in, or amendment to, the laws,
regulations, treaties or rulings prevailing in The Republic of France or the
United States of America or any political subdivision or taxing authority
thereof or therein, which change or amendment becomes effective on
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<PAGE> 21
or after May 19, 1997 or any application or judicial, legislative or
administrative interpretation of such laws, regulations, treaties or rulings.
"Trading Day" has the meaning specified in Section 12.4(8)(e).
"Transfer Agent" has the meaning specified in Section 2.2. The Issuer
has initially appointed (i) the Trustee as its Transfer Agent, which in such
capacity shall act through its Affiliate State Street Bank and Trust Company,
N.A., in the Borough of Manhattan, The City of New York, New York and (ii), so
long as the Securities are listed on the Luxembourg Stock Exchange and the
Luxembourg Stock Exchange shall require, State Street Bank Luxembourg, S.A., as
its Transfer Agent in Luxembourg.
"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).
"Western Europe" means Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Norway, Portugal,
Spain, Sweden, Switzerland and the United Kingdom.
SECTION 1.2. Compliance Certificates and Opinions.
Upon any application or request by the Issuer or the Guarantor to the
Trustee or any Paying Agent to take any action under any provision of this
Indenture, the Issuer or the Guarantor, as the case may be, shall furnish to the
Trustee or the Paying Agent, as the case may be, 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.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (excluding certificates
provided for in Section 10.6) 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 or
she has made such examination or investigation as is necessary to
enable him or her, as the case may be, 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 Issuer or the Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Issuer or the
Guarantor, as the case may be, stating that the information with respect to such
factual matters is in the possession of the Issuer or the Guarantor, as the case
may be, 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.
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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
Issuer and the Guarantor, as the case may be. The Trustee shall promptly deliver
to the Issuer and the Guarantor 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, the Issuer and the Guarantor 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 acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The principal amount and serial number of any Security held by any
Person, and the date of his holding the same, shall be proved by the Security
Register.
(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 or the Paying Agent deems sufficient; and the
Trustee or any Paying Agent may in any instance require further proof with
respect to any of the matters referred to in this Section 1.4.
(e) The Issuer 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 Issuer shall notify the Trustee, each Paying Agent and the Holders of
such record date. If not set by the Issuer 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
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Section 16.1) 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 Issuer 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 Issuer, (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 Issuer, or (iii) any direction referred to
in Section 5.12, if the Trustee shall not have taken the action specified in
such direction, then a record date shall automatically and without any action by
the Issuer or the Trustee be set for determining the Holders entitled to join in
such notice, 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
notice, declaration or direction. Promptly after such receipt by the Trustee,
and as soon as practicable thereafter, the Trustee shall notify the Issuer and
the Holders of any such record date so fixed. The Holders on such record date
(or their duly appointed agents or proxies), and only such Persons, shall be
entitled to join in such notice, declaration or direction, whether or not such
Holders remain Holders after such record date; provided that, unless such
notice, declaration or direction shall have become effective by virtue of
Holders of the requisite principal amount of Securities on such record date (or
their duly appointed agents or proxies) having joined therein on or prior to the
90th day after such record date, such notice, declaration or direction shall
automatically and without any action by any Person be canceled and of no further
effect. Nothing in this paragraph shall be construed to prevent a Holder (or a
duly appointed agent or proxy thereof) from giving, before or after the
expiration of such 90-day period, a notice, declaration or direction contrary to
or different from, or, after the expiration of such period, identical to, the
notice, declaration or direction to which such record date relates, in which
event a new record date in respect thereof shall be set pursuant to this
paragraph. In addition, nothing in this paragraph shall be construed to render
ineffective any notice, declaration or direction of the type referred to in this
paragraph given at any time to the Trustee and the Issuer 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) 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 Issuer 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.
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SECTION 1.5. Notices, Etc., to Trustee, Issuer and Guarantor.
Any request, demand, authorization, direction, notice, consent,
election, waiver or 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 or the Paying Agent in New York, New York or
the Paying Agent in Luxembourg by any Holder of Securities or by the
Issuer or the Guarantor 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
Services -Atmel (facsimile number (213) 362-7357), or to or with the
Paying Agent in New York, New York and received at State Street Bank
and Trust Company, N.A., 61 Broadway, Concourse Level, Corporate Trust
Window, New York, New York 10006, Attention: Atmel, or to or with the
Paying Agent in Luxembourg and received at 47 Boulevard Royal,
Luxembourg L-2449, Attention: Atmel (facsimile number: (011) 352 46 36
31), or
(2) the Issuer or the Guarantor by the Trustee or any Paying
Agent 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 Issuer and the Guarantor at, in the
care of the Issuer, Zone Industrielle, 13106 Rousset, France and at, in
the care of the Guarantor, Atmel Corporation, 2325 Orchard Parkway, San
Jose, California 95131 (facsimile number: (408) 436-4380), Attention:
General Counsel, or at any other address previously furnished in
writing to the Trustee by the Issuer or the Guarantor.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
SECTION 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 of Securities 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. Such notice shall be deemed to have been given when
such notice is mailed.
In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities given as provided above.
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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 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.
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, stipulations, promises and agreements in this Indenture
by the Issuer or the Guarantor shall bind such party's respective 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 unenforce able, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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 of
the Issuer. The provisions of Article Fourteen are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior
Indebtedness of the Guarantor.
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SECTION 1.11. Governing Law.
THIS INDENTURE, THE GUARANTEE 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, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
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 interest or principal and premium, if any, 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 the Trust Indenture 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 Issuer, the Guarantor 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.
SECTION 1.14. Jurisdiction.
(a) Each of the Issuer and the Guarantor hereby irrevocably and
unconditionally submits to the non-exclusive jurisdiction of any New York State
or United States Federal court sitting in New York City over any suit, action or
proceeding arising out of or relating to this Indenture or any
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<PAGE> 28
Security. Each of the Issuer and the Guarantor irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum. To
the extent that the Issuer or the Guarantor has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process with respect
to itself or its property, the Issuer and the Guarantor, as the case may be,
irrevocably waives such immunity in respect of its obligations under the
Indenture, the Guarantee or any Security. Each of the Issuer and the Guarantor
agrees that final judgment in any such suit, action or proceeding brought in
such a court shall be conclusive and binding upon the Issuer or the Guarantor,
as the case may be, and, to the extent permitted by applicable law, may be
enforced in any court to the jurisdiction of which the Issuer or the Guarantor,
as the case may be, is subject by a suit upon such judgment or in any manner
provided by law; provided that service of process is effected upon the Issuer or
the Guarantor, as the case may be, in the manner specified in the following
subsection or as otherwise permitted by law.
(b) As long as any of the Securities remain outstanding, the Issuer and
the Guarantor will at all times have an authorized agent in New York City, upon
whom process may be served in any legal action or proceeding arising out of or
relating to this Indenture or any Security. Service of process upon such agent
and written notice of such service mailed or delivered to the Issuer or the
Guarantor shall to the fullest extent permitted by law be deemed in every
respect effective service of process upon the Issuer or the Guarantor, as the
case may be, in any such legal action or proceeding. Each of the Issuer and the
Guarantor hereby irrevocably appoints the CT Corporation System, 1633 Broadway,
New York, New York 10019 as its agent for such purpose, and covenants and agrees
that service of process in any suit, action or proceeding may be made upon it at
such office of such agent. Notwithstanding the foregoing, each of the Issuer and
the Guarantor may, with prior written notice to the Trustee, terminate the
appointment of such agent and appoint another agent for the above purposes so
that the Issuer and the Guarantor, as the case may be, shall at all times have
an agent for the above purposes in New York City.
SECTION 1.15. Guarantor May Exercise Rights of Issuer.
The Guarantor shall be entitled to exercise in place of, or direct the
Issuer in the exercise of, any and all rights, privileges and discretions of the
Issuer hereunder or under the Securities, and may give in its own name any
notice, request or direction required or permitted to be given by the Issuer
hereunder or under the Securities, in which case references to the Issuer in the
relevant provisions herein shall be deemed to be to the Guarantor. In the event
of any conflict or apparent conflict in any notices or instructions received by
the Trustee from the Issuer and the Guarantor, the Trustee shall be entitled to
rely and shall be fully protected in relying on the notice or instruction from
the Guarantor.
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SECTION 1.16. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on any Security and no recourse under or upon any obligation, covenant
or agreement of the Issuer or the Guarantor under the Guarantee in this
Indenture or in any supplemental indenture or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer, or director or subsidiary,
as such, past, present or future, of the Issuer and the Guarantor or of any
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby waived and released as a
condition of, and as a consideration for, the execution of this Indenture, the
Guarantee and the issue of the Securities.
SECTION 1.17. Luxembourg Obligations.
Any and all obligations of the Issuer or the Guarantor under this
Indenture (i) to maintain a Conversion Agent, Paying Agent or Transfer Agent in
Luxembourg, (ii) to maintain an office for payment and conversion of the
Securities in Luxembourg pursuant to Section 10.2, (iii) to publish notice of
the occurrence of certain events under this Indenture in Luxembourg or (iv) to
take any other action under this Indenture that is specifically required to be
taken in Luxembourg (the "Luxembourg Obligations") shall cease to exist, and any
of the provisions in this Indenture regarding such Luxembourg Obligations shall
no longer have any force or effect, if at any time the Securities are either no
longer listed on the Luxembourg Stock Exchange or such obligation is no longer
required by the Luxembourg Stock Exchange.
ARTICLE TWO
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities shall be in substantially the forms 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 law of The Republic of France, the Code, and the
treasury regulations under the Code, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
The Trustee's certificates of authentication shall be in substantially
the form set forth in Section 2.3.
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Conversion notices shall be in substantially the form set forth in
Section 2.4.
The Securities may be printed, lithographed, typewritten, mimeographed
or otherwise produced, as determined by the officers of the Issuer executing
such Security, as evidenced by their execution thereof.
SECTION 2.2. Form of Security.
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED
SECURITY OTHER THAN ANY RESTRICTED GLOBAL 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, THE GUARANTEE AND
ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHER WISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLI CABLE 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 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 ATMEL S.A. (THE
"ISSUER") AND ATMEL CORPORATION (THE "GUARANTOR") THAT (A) THIS SECURITY, THE
GUARANTEE AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY 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 903
OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (III) TO AN INSTITUTION THAT IS
AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A) UNDER THE SECURITIES
ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS THEREOF, (IV)
PURSUANT TO THE 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
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EACH SUBSEQUENT HOLDER OF THIS SECURITY, THE GUARANTEE OR ANY COMMON STOCK
ISSUABLE UPON CONVERSION OF THIS SECURITY IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THIS SECURITY, THE GUARANTEE OR COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE.
THIS SECURITY, THE GUARANTEE AND ANY COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY 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, THE GUARANTEE 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, THE GUARANTEE AND ANY SUCH
SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY, THE GUARANTEE 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, THE GUARANTEE AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF
SUCH SECURITIES MAY NOT BE RESOLD, PLEDGED 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 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 ATMEL S.A. (THE "ISSUER") AND ATMEL CORPORATION (THE
"GUARANTOR") THAT (A) ANY BENEFICIAL INTEREST IN THE SECURITIES,
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THE GUARANTEE AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THE SECURITIES
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
903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (III) TO AN INSTITUTION
THAT IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A) UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
THEREOF, (IV) PURSUANT TO THE 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 AN INTEREST IN ANY OF THE
SECURITIES EVIDENCED BY THIS GLOBAL SECURITY, THE GUARANTEE OR ANY COMMON STOCK
ISSUABLE UPON CONVERSION OF THIS GLOBAL SECURITY IS REQUIRED TO, NOTIFY ANY
PURCHASER OF ANY BENEFICIAL INTEREST IN THE SECURITIES, THE GUARANTEE OR SUCH
COMMON STOCK ISSUABLE UPON CONVERSION OF THE SECURITIES FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE.
THIS SECURITY, THE GUARANTEE AND ANY COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY 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, THE GUARANTEE 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, THE GUARANTEE AND ANY SUCH
SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY AND THE BENEFICIAL
INTERESTS THEREIN AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR
SUPPLEMENT.]
[THE FOLLOWING LEGENDS 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
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THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE
ISSUER, THE GUARANTOR, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF
THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR 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.]
HOLDERS MAY CONTACT THE TAX MANAGER OF ATMEL CORPORATION, THE
REPRESENTATIVE OF THE ISSUER FOR THIS PURPOSE, AT 2325 ORCHARD PARKWAY, SAN
JOSE, CALIFORNIA 95131 FOR UNITED STATES TAX INFORMATION CONCERNING THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY OF THE
SECURITY.
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ATMEL S.A.
3.25% CONVERTIBLE SUBORDINATED GUARANTEED STEP-UP NOTE
DUE 2002
GUARANTEED BY ATMEL CORPORATION
No. _____________ U.S.$_____
CUSIP NO. __________
ATMEL S.A., a societe anonyme organized under the laws of The Republic
of France (herein called the "Issuer", 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.$_____) [(which amount may from
time to time be increased or decreased to such other principal amounts (which,
taken together with the principal amounts of all other Outstanding Securities,
shall not exceed $175,000,000 in the aggregate at any time) by adjustments made
on the records of the Trustee, as custodian of the Depositary, in accordance
with the rules and procedures of the Depositary)](1) on June 1, 2002 and to pay
interest thereon, from May 28, 1997, 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, 1997, at the rate of 3.25% per
annum from May 28, 1997 to June 1, 2000 and thereafter at the rate of 8.25% per
annum (together with any Additional Amounts and Liquidated Damages that the
Issuer may be required to pay), until the principal hereof is due, and at the
rate of 3.25% per annum from May 28, 1997 to June 1, 2000 and thereafter at the
rate of 8.25% 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 ("Defaulted Interest") 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
Issuer, notice whereof shall be given to Holders of 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
princi pal shall be made upon the surrender of this Security, at the office of
the Trustee (acting through its
- --------
(1) This language shall appear on each Global Security.
26
<PAGE> 35
Affiliate, State Street Bank and Trust Company, N.A.) in the Borough of
Manhattan, The City of New York or, subject to the right of the Issuer to
terminate such appointment, the Paying Agent in Luxembourg, or at such other
office or agency of the Issuer as may be designated by it for such purpose in
the Borough of Manhattan, The City of New York or Luxembourg 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 Issuer may designate, by United States Dollar check
drawn on a bank in the United States, or transfer to a United States Dollar
account (such a transfer to be made only to a Holder of an aggregate principal
amount of 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 Holder with a bank in the
United States. Payment of interest on this Security may be made by United States
Dollar check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register, or, upon written application by
the Holder to the Security Registrar setting forth wire instructions not later
than the relevant Record Date, by transfer to a United States Dollar account
(such a transfer to be made only to a Holder of an aggregate principal amount of
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 Holder with a bank in the
United States.
The Issuer will pay to the Holder of this Security such additional
amounts ("Additional Amounts") as may be necessary in order that every net
payment of the principal of, premium, if any, and interest on this Security
(including payment on redemption or repurchase), after deduction or withholding
for or on account of any present or future tax, assessment or governmental
charge imposed upon or as a result of such payment by The Republic of France or
the United States of America or any political subdivision or taxing authority
thereof or therein (each, a "Taxing Jurisdiction"), will not be less than the
amount provided for in this Security to be then due and payable; provided,
however, that the Issuer shall not be obligated to pay any Additional Amounts in
respect of payments becoming due on the Securities more than 15 days after the
Redemption Date with respect to any redemption of the Tax Affected Securities
pursuant to the third paragraph of the reverse of this Security to the extent
that the Issuer's obligation to pay such Additional Amounts arises from the Tax
Law Change that resulted in such redemption; and provided, further, that the
foregoing obligation to pay Additional Amounts will not apply to:
(a) any tax, assessment or other governmental charge which
would not have been so imposed but for (i) the existence of any present
or former connection between such Holder (or between a fiduciary,
settlor, beneficiary, member, shareholder of or possessor of a power
over such Holder, if such Holder is an estate, a trust, a partnership
or a corporation) and the Taxing Jurisdiction or any political
subdivision or taxing authority thereof or therein, including, without
limitation, such Holder (or such fiduciary, settlor, beneficiary,
member, shareholder or possessor) being or having been a citizen,
domiciliary or resident of The Republic of France or the United States
of America or treated as a resident thereof, or being or having been
engaged in trade or business or present therein, or having or having
had a permanent establishment therein or (ii) such Holder's present or
former status as a personal
27
<PAGE> 36
holding company, a foreign personal holding company with respect to the
United States, or a foreign private foundation or foreign tax exempt
entity for United States federal tax purposes, or a corporation which
accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental charge which
would not have been so imposed but for the presentation by the Holder
of this Security for payment on a date more than 15 days after the date
on which such payment became due and payable or the date on which
payment thereof is duly provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which
would not have been imposed but for the failure of such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or possessor) of
such Security to comply with a request by the Issuer addressed to such
Holder (or such fiduciary, settlor, beneficiary, member, shareholder or
possessor) (A) to provide information concerning the nationality,
residence or identity of such Holder (or such fiduciary, settlor,
beneficiary, member, shareholder or possessor) or (B) to make any
declaration or other similar claim or satisfy any information or
reporting requirement, which, in the case of (A) or (B), is required or
imposed by a statute, treaty, regulation or administrative practice of
the Taxing Jurisdiction as a precondition to exemption from all or part
of such tax, assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which is
payable otherwise than by deduction or withholding from payments of
principal of, premium, if any, or interest on such Security:
(f) any tax, assessment or other governmental charge imposed
on a Holder that is a partnership or a fiduciary or other than the sole
beneficial owner of such payment, but only to the extent that any
beneficial owner or member of the partnership or beneficiary or settlor
with respect to the fiduciary would not have been entitled to the
payment of Additional Amounts had the beneficial owner, member,
beneficiary or settlor directly been the Holder of this Security; or
(g) any combination of items (a), (b), (c), (d), (e), and (f).
Except as specifically provided herein and in the Indenture, the Issuer
shall not be required to make any payment with respect to any tax, assessment or
other governmental charge imposed by any government or any political subdivision
or taxing authority thereof or therein. 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 Additional Amounts payable as described in the
second preceding paragraph to the extent
28
<PAGE> 37
that, in such context, Additional Amounts are, were or would be payable in
respect of such Security and express mention of the payment of Additional
Amounts (if applicable) in any provisions of this Security shall not be
construed as excluding Additional Amounts in those provisions of this Security
where such express mention is not made.
If the Issuer is consolidated or merged with or the Issuer's assets are
transferred substantially as an entirety or all of the Issuer's obligations
hereunder are transferred to a Person (the "Successor Issuer") that is not
organized and existing under the laws of The Republic of France or any political
subdivision thereof and resident for tax purposes therein, the term "Taxing
Jurisdiction" shall be modified to include any nation, or any political
subdivision or territory or possession thereof, under the laws of which the
Successor Issuer is organized or in which the Successor Issuer is resident for
tax purposes or under the laws of which withholding or deduction for or on
account of any present or future taxes or duties of whatever nature is otherwise
imposed or levied.
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. Capitalized terms used
herein, including on the reverse hereof, and not defined herein or on the
reverse hereof shall have the respective meanings given to such terms in the
Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof or an Authenticating Agent by the
manual signature of one of their respective authorized signatories, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Security to be duly
executed.
Dated:
ATMEL S.A.
By:____________________________________
Name:
Title:
Attest:
_________________________________
Name:
Title:
29
<PAGE> 38
[FORM OF REVERSE]
This Security is one of a duly authorized issue of securities of the
Issuer designated as its "3.25% Convertible Subordinated Guaranteed Step-Up
Notes due 2002" (herein called the "Securities"), limited in aggregate principal
amount to U.S.$175,000,000, issued and to be issued under an Indenture, dated as
of May 15, 1997 (herein called the "Indenture"), by and among the Issuer, Atmel
Corporation, a California corporation (the "Guarantor") and State Street Bank
and Trust Company of California, N.A., as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), 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 Issuer, the Guarantor, the Trustee, the holders of Senior
Indebtedness of the Issuer, the holders of Senior Indebtedness of the Guarantor
and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. The Securities are issuable in
the denomination of U.S.$1,000 and integral multiples of U.S.$1,000 in excess
thereof. As provided in the Indenture and subject to the limitations therein set
forth, the Securities are exchangeable (a) at the office of State Street Bank
and Trust Company, N.A., an Affiliate of the Trustee, or at such other office or
agency of the Company as may be designated by it for such purpose in The City of
New York or (b) so long as the Securities are listed on the Luxembourg Stock
Exchange and the rules of the Luxembourg Stock Exchange shall so require (and to
the right of the Company to terminate the appointment of any Transfer Agent (as
defined below)), the office of State Street Bank Luxembourg, S.A., 47 Boulevard
Royal, Luxembourg L-2449, or at such other offices or agencies outside the
United States as the Company may designate (each a "Transfer Agent").
No sinking fund is provided for the Securities. The Securities will not
be redeemable at the option of the Issuer or the Guarantor prior to June 2,
2000. At any time on or after June 2, 2000 and prior to maturity, the Securities
are subject to redemption at the option of the Issuer or the Guarantor at any
time, in whole or in part, upon not less than 20 nor more than 60 days' notice
to the Holders prior to the Redemption Date, at the following Redemption Prices
(expressed as percentages of the Accreted Value) if the Closing Price of the
Common Stock shall have exceeded the product of the Conversion Price then in
effect times 140% (rounded to the nearest cent) for a minimum of 20 Trading Days
within a period of 30 consecutive Trading Days ending within five Trading Days
prior to the notice of redemption.
If redeemed during the 12-month period beginning June 1 (beginning June
2, 2000 and ending on May 31, 2001, in the case of the first such period):
<TABLE>
<CAPTION>
Redemption
Year Price
---- ----------
<S> <C> <C>
2000 102%
2001 101
</TABLE>
30
<PAGE> 39
and thereafter at a Redemption Price equal to 100% of the principal amount,
together, in each case, with accrued interest to the Redemption Date, and
Securities that are Tax Affected Securities are also redeemable, in whole but
not in part, under the circumstances described in the next succeeding paragraph,
at a Redemption Price equal to 100% of the principal amount thereof plus
interest accrued to the Redemption Date; provided, however, that interest
installments on 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.
If the Guarantor or the Issuer determines that, principally as a result
of a Tax Law Change, the Issuer is or would become obligated to pay to the
Holder of any Security Additional Amounts, as described in the second paragraph
of the face of this Security, and such obligation cannot be avoided by the
Issuer taking reasonable measures available to it, then the Issuer may, at its
option, redeem the Tax Affected Securities in whole, but not in part, at any
time, on giving not less than 20 days' notice to the Holders prior to the
Redemption Date, at a Redemption Price equal to 100% of the principal amount
plus interest accrued to, but excluding, the Redemption Date, and any Additional
Amounts then payable; provided, that no such notice of redemption shall be given
earlier than 90 days prior to the earliest date on which the Issuer would be
obligated to pay any such Addi tional Amounts were a payment in respect of the
Tax Affected Securities then made. Prior to the publication of any notice of
redemption pursuant to this paragraph, the Issuer or the Guarantor, as the case
may be, shall deliver to the Trustee (a) an Officers' Certificate stating that
the Issuer is entitled to effect such redemption and setting forth a statement
of facts showing that the conditions precedent to the right of the Issuer so to
redeem have occurred and (b) an Opinion of Counsel of recognized standing
selected by the Issuer or the Guarantor, as the case may be, to the effect that
the circumstances referred to above in this paragraph exist. The Trustee shall
accept such opinion as sufficient evidence of the satisfaction of the conditions
precedent described above, in which event it shall be conclusive and binding on
the Holders. The Issuer's right to redeem the Tax Affected Securities shall
continue as long as the Issuer is obligated to pay such Additional Amounts,
notwithstanding that the Issuer shall have made payments of Additional Amounts
specified in such second paragraph.
In the event of a redemption of less than all of the Securities, the
Issuer will not be required (a) to register the transfer or exchange of
Securities for a period of 15 days immediately preceding the date notice is
given identifying the serial numbers of the Securities called for such
redemption or (b) to register the transfer or exchange of any Security, or
portion thereof, called for redemption.
In any case where the due date for the payment of the principal of,
premium, if any, or interest, including Additional Amounts and 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, or
interest, including Additional Amounts and Liquidated Damages, or delivery for
conversion of such Security need not be made on or by such date at such
31
<PAGE> 40
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 before
the close of business on June 1, 2002, or in case this Security or a portion
hereof is called for redemption or the Holder hereof has exercised his right to
require the Issuer to repurchase this Security or such portion hereof, then in
respect of this Security until and including, but (unless the Issuer defaults in
making the payment due upon redemption or repurchase, as the case may be) not
after, the close of business on the Business Day prior to the Redemption Date or
the Repurchase Date, as the case may be, to convert this Security (or any
portion of the principal amount hereof that is an integral multiple of
U.S.$1,000, provided that the unconverted portion of such principal amount is
U.S.$1,000 or any integral multiple of U.S.$1,000 in excess thereof) into fully
paid and nonassessable Common Stock of the Guarantor at an initial Conversion
Price of U.S.$35.50 for each share of Common Stock (or at the current adjusted
Conversion Price if an adjustment has been made as provided in the Indenture) by
surrender of this Security, duly endorsed or assigned to the Issuer or in blank
and, in case such surrender shall be made during 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 ("Interest Period")
(except Securities called for redemption on a Redemption Date or to be
repurchased on a Repurchase Date during, in each case, such Interest Period),
also accompanied by payment in New York Clearing House or other funds acceptable
to the Issuer 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 Issuer at the office of
the Trustee in the Borough of Manhattan, The City of New York or the Conversion
Agent in Luxembourg, or at such other office or agency of the Issuer, subject to
any laws or regulations applicable thereto and subject to the right of the
Issuer to terminate the appointment of any Conversion Agent (as defined below)
as may be designated by it for such purpose in the Borough of Manhattan, The
City of New York or Luxembourg, or at such other offices or agencies as the
Issuer 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
Interest Period and is surrendered for conversion during such Interest Period,
then the Holder of this Security who converts this Security or a portion hereof
during such Interest 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
aforesaid requirement for payment and, in the case of a conversion after the
Regular Record Date next preceding any Interest Payment Date and on or before
such Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest, no cash payment or adjustment is to be made on
conversion, if the date of conversion is not an Interest Payment Date, for
interest accrued hereon from the Interest Payment Date next preceding
32
<PAGE> 41
the date of conversion, or for dividends on the Common Stock issued on
conversion hereof. The Issuer (or, at the option of the Guarantor, the
Guarantor) 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 Issuer'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 Issuer shall pay a cash adjustment as provided in the
Indenture. The Conversion Price 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 Guarantor is a party (other than a
consolidation or merger which does not result in any reclassification,
conversion, exchange or cancellation of the Common Stock) or the transfer of all
or substantially all of the property and assets of the Guarantor, 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 or transfer by a holder of the number of shares of Common
Stock of the Guarantor into which this Security could have been converted
immediately prior to such consolidation, merger or transfer (assuming such
holder of Common Stock is not a Constituent Person and 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). No adjustment in the Conversion Price
will be made until such adjustment would require an increase or decrease of at
least one percent of such price, provided that any adjustment that would
otherwise be made will be carried forward and taken into account in the
computation of any subsequent adjustment.
Subject to certain limitations in the Indenture, at any time when
either the Guarantor or the Issuer 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 Common Stock issued upon
conversion thereof, the Guarantor or the Issuer, as the case may be, will
promptly furnish or cause to be furnished Rule 144A Information to such Holder
of Restricted Securities or such holder 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 in connection with the resale of any such security.
The Holder of this Security and the Common Stock issuable upon
conversion thereof is entitled to the benefits of a Registration Rights
Agreement (subject to the provisions thereof), dated as of May 15, 1997, between
the Guarantor and the Initial Purchasers.
If a Fundamental Change (as defined in the Indenture) occurs at any
time on or prior to June 1, 2002, each Holder shall have the right, at such
Holder's option, to require the Issuer to repurchase the Securities on the 45th
day after notice thereof. Such payment shall be made at the Repurchase Prices
(expressed as percentages of the Accreted Value) in the event of a Fundamental
Change occurring during the 12-month period beginning June 1:
33
<PAGE> 42
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C> <C>
1997 102%
1998 102
1999 102
2000 102
2001 101
</TABLE>
and 100% at June 1, 2002; provided in each case that if the Applicable Price (as
defined in the Indenture) is less than the Reference Market Price (as defined in
the Indenture), the Issuer shall repurchase such Securities at a price equal to
the foregoing Repurchase Price multiplied by the fraction obtained by dividing
the Applicable Price by the Reference Market Price. In each case, the Issuer
shall also pay accrued interest, if any, on such Securities to, but excluding
the Repurchase Date; provided that if such Repurchase Date is June 1 or December
1, then the interest payable on such date shall be paid to the Holder of record
of the Securities on the Regular Record 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 in those provisions of this Security when such express mention
is not made.
[The following paragraph shall appear in each Security that is not a
Global Security:
In the event of redemption, repurchase or conversion of this Security
in part only, a new Security or 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 rules and procedures of the Depositary.]
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 Issuer,
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.
34
<PAGE> 43
The Securities and the obligations of the Issuer under the Indenture
are unconditionally guaranteed by the Guarantor as evidenced by the guarantee
(the "Guarantee") set forth in the Indenture. The Guarantee is a direct,
unconditional, unsecured and subordinated obligation of the Guarantor. The
obligations of the Guarantor under the Guarantee are, 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 Guarantor, 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 overdue interest, to the extent permitted
by law, all of the Issuer's obligations in respect of the payment of the
principal of and interest on the Securities shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer, the Guarantor and the rights of the Holders of the Securities under the
Indenture at any time by the Issuer, the Guarantor and the Trustee with either
(a) the written consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding, or (b) by the adoption of a
resolution, at a meeting of Holders of the Outstanding Securities at which a
quorum is present, by the lesser of (a) the Holders of a majority in aggregate
principal amount of the Securities at the time Outstanding and (b) the Holders
of 66-2/3% in aggregate 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 aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Issuer and the
Guarantor 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 aggregate principal amount of the Securities Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity
and the Trustee shall not have received from the Holders of a majority
35
<PAGE> 44
in aggregate 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 any Additional Amounts and Liquidated
Damages) 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 Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on (including Additional Amounts and Liquidated Damages, as described
herein) 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 Securities is registrable on the Security Register
upon surrender of a Security for registration of transfer (a) at the Corporate
Trust Office of the Trustee or at such other office or agency of the Issuer as
may be designated by it for such purpose in the Borough of Manhattan, The City
of New York, or (b) subject to any laws or regulations applicable thereto and to
the right of the Issuer to terminate the appointment of any Transfer Agent, at
the offices of the Transfer Agents described herein or at such other offices or
agencies as the Issuer may designate, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing, and thereupon one or more new 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 Issuer may
require payment of a sum sufficient to recover any tax or other governmental
charge payable in connection therewith.
No recourse for the payment of the principal (and premium, if any) or
interest on this Security and no recourse under or upon any obligation, covenant
or agreement of the Issuer or the Guarantor in the Indenture or any indenture
supplemental thereto or in any Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, agent, officer or director or subsidiary, as such, past,
present or future, of the Issuer and the Guarantor or of any successor
corporation, either directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of consideration for the issue hereof,
expressly waived and released.
Prior to due presentation of a Security for registration of transfer,
the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the
Guarantor or the Trustee may treat the Person in whose name such Security is
registered, as the owner thereof for all purposes, whether or not such Security
be overdue, and neither the Issuer, the Guarantor, the Trustee nor any such
agent shall be affected by notice to the contrary.
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<PAGE> 45
THE INDENTURE, THE GUARANTEE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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<PAGE> 46
ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to Section 15.1 of the Indenture, the undersigned hereby
elects to have this Security repurchased by the Issuer.
2. The undersigned hereby directs the Trustee or the Issuer to pay it
or _______________ the Repurchase Price plus interest accrued to, but excluding,
the Repurchase Date, as provided in the Indenture.
Dated: _____________________ __________________________
__________________________
Signature(s)
__________________________
Signature Guaranteed
Principal amount to be repurchased: ____________________
Remaining principal amount following such repurchase: ______________
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> 47
SECTION 2.3. 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.
Dated: _______________
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By:__________________________________
Authorized Signatory
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<PAGE> 48
SECTION 2.4. Form of Conversion Notice.
CONVERSION NOTICE
The undersigned Holder of this Security hereby irrevocably exercises
the option to convert this Security, or any portion of the principal amount
hereof (which is an integral multiple of U.S.$1,000, provided that the
unconverted portion of such principal amount is U.S.$1,000 or any integral
multiple of U.S.$1,000 in excess thereof) below designated, into shares of
Common Stock of the Guarantor in accordance with the terms of the Indenture
referred to in this Security, and directs that such shares, together with a
check in payment for any fractional share and any Securities representing any
unconverted principal amount hereof, be delivered to and be registered in the
name of the undersigned unless a different name has been indicated below. If
shares of Common Stock or Securities are to be registered in the name of a
Person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto. Any amount required to be paid by the undersigned
on account of interest accompanies this Security.
<TABLE>
<S> <C>
__________________________
Dated: _____________________ __________________________
Signature(s)
If shares or Securities are to be registered If only a portion of the Securities is to be
in the name of a Person other than the converted, please indicate:
Holder, please print such Person's name
and address: 1. Principal amount to be converted:
U.S.$___________
___________________________ 2. Principal amount and denomination of
Name Securities
representing
unconverted
principal amount
to be issued:
___________________________ Amount: U.S.$________
Address
Denominations: U.S.$______
(any integral multiple of U.S.$1,000,
_________________________ provided that the unconverted portion
Social Security or other Taxpayer of such principal amount is U.S.$1,000
Identification Number, if any or any integral multiple of U.S.$1,000
in excess thereof)
_________________________ [Signature Guaranteed]
</TABLE>
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<PAGE> 49
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.$175,000,000, except for
Securities authenticated and delivered in exchange for, or in lieu of, other
Securities pursuant to Section 3.4, 3.5, 3.6, 8.5, 11.8, 12.2 or 15.2(e).
The Securities shall be known and designated as the "3.25% Convertible
Subordinated Guaranteed Step-Up Notes due 2002" of the Issuer. Their Stated
Maturity shall be June 1, 2002 and they shall bear interest on their principal
amount from May 28, 1997, payable semi-annually in arrears on June 1 and
December 1 in each year, commencing December 1, 1997, at the rate of 3.25% per
annum from May 28, 1997 to June 1, 2000 and thereafter at the rate of 8.25% per
annum (together with any Additional Amounts and Liquidated Damages the Issuer
may be required to pay) until the principal thereof is due, and at the rate of
3.25% per annum from May 28, 1997 to June 1, 2000 and thereafter at the rate of
8.25% of 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 Securities are entitled to the benefits of registration rights as
provided by the Registration Rights Agreement.
The principal of, premium, if any, and interest on the Securities shall
be payable as provided in the form of Security set forth in Section 2.2 and the
Repurchase Price shall be payable at such places as are identified in the Issuer
Notice given pursuant to Section 15.2 (any city in which any Paying Agent is
located being herein called a "Place of Payment").
The Securities shall be redeemable at the option of the Issuer or the
Guarantor, in whole or in part, and at the option of the Guarantor or the Issuer
or otherwise in the event of certain developments, including, in the case of the
Issuer, developments with respect to U.S. or French withholding taxes or
certification requirements, as provided in Article Eleven and in the form of
Security 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 Issuer as provided in Article Thirteen.
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<PAGE> 50
The obligations under the Guarantee shall be subordinated in right of
payment to Senior Indebtedness of the Guarantor as provided in Article Fourteen.
The Securities shall be subject to repurchase by the Issuer at the
option of the Holders as provided in Article Fifteen.
SECTION 3.2. Denominations.
The Securities shall be issuable 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 Issuer by the
President of the Issuer. Any such signature may be manual or facsimile.
Securities bearing the manual or facsimile signature of an individual
or individuals who were at any time the proper officer or officers of the Issuer
shall bind the Issuer, 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 Issuer may deliver Securities executed by the Issuer to the
Trustee or to its order for authentication (or to the Paying Agent), together
with a Issuer Order for the authentication and delivery of such Securities, and
the Trustee or an Authenticating Agent in accordance with such Issuer Order
shall authenticate and make available for delivery such Securities as in this
Indenture provided and not otherwise. In connection with any Issuer Order for
authentication, an Officers' Certificate and Opinion of Counsel pursuant to
Section 1.2 shall not be required.
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 or an Authenticating Agent 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.
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<PAGE> 51
SECTION 3.4. Global Securities; Non-Global Securities.
(A) Global Securities
(a) A Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated by the Issuer for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and 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 in
definitive form registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for
such Global Security or a nominee thereof unless (i) such Depositary (A) has
notified the Issuer 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. In such
event, if a successor Depositary for such Global Security is not appointed by
the Issuer within 90 days after the Issuer receives such notice or becomes aware
of such ineligibility, the Issuer will execute, and the Trustee, upon receipt of
an Officers' Certificate of the Issuer directing the authentication and delivery
of Securities in definitive, fully registered form without interest coupons, in
certificated form in denominations of U.S. $1,000 or any integral multiple
thereof, substantially in the form of Security set forth in Section 2.2 (each,
an "Individual Security"), and the Issuer will execute and deliver to the
Trustee Individual Securities in any authorized denominations in an aggregate
principal amount equal to the principal amount of such Global Securities in
exchange for such Global Securities.
(c) If any Global Security is to be exchanged for Individual
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. Upon any such surrender of a
Global Security, the Trustee shall, subject to this Article Three, authenticate
and deliver any Individual 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 section (b),
the Issuer shall promptly make available to the Trustee a reasonable supply of
Individual 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 procedures of the Depositary.
(d) 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 Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the procedures of the
Depositary. Accordingly, any such owner's beneficial interest in a Global
Security will be shown only on, and the transfer of such interest shall be
effected only through, records maintained
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<PAGE> 52
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) Securities in Definitive Form
(a) Pending the preparation of definitive Securities, the
Issuer may execute, and upon Issuer 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 Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
(b) If temporary Securities are issued, the Issuer 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 Issuer designated pursuant to Section
10.2, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Issuer 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 Issuer 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 Issuer designated pursuant to Section 10.2 (including
the office of State Street Bank and Trust Company, N.A., in the Borough of
Manhattan, The City of New York and the office of State Street Bank Luxembourg,
S.A., in Luxembourg) being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers and exchanges of
Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Issuer designated pursuant to Section 10.2 for such
purpose, the Issuer shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, and subject to the other provisions of
this Section 3.5, Securities may be exchanged for other Securities of any
authorized denomination and of a like aggregate
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<PAGE> 53
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 Issuer 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 Issuer or the Security Registrar) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Issuer 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 Issuer, 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.
Except as provided in Section 3.6, no service charge shall be made for
any registration of transfer or exchange of Securities, but the Issuer 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 15.2(e) (other than, in the case of Securities, where the 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 The Republic of France or any political subdivision thereof
or therein, which shall be paid by the Issuer.
In the event of a redemption of the Securities in part, neither the
Issuer nor the Security Registrar will be required (a) to register the transfer
of or exchange of 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) Restrictions on Transfer. Upon their original issuance,
the Securities shall be Restricted Securities, shall bear the Restricted
Securities Legend and shall be issued in the form of a Global Security
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 are collectively herein called the
"Restricted Global Security".
(c) Restricted Securities Legend. The Securities and their
respective Successor Securities shall bear, or be subject to the provisions of,
the applicable Restricted Securities Legend, subject to the following:
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<PAGE> 54
(i) Subject to the following clauses of this Section
3.5(c), a Security or any portion thereof which is exchanged in
accordance with Section 3.4(A)(b) for a Global Security or any portion
thereof shall bear the Restricted Securities Legend borne by such
Global Security while represented thereby.
(ii) Subject to the following clauses of this Section
3.5(c), a new Security which is not a Global Security that has been
issued as a result of events set forth in Section 3.4(A)(b) and is
issued in exchange for another Security (including a Global Security)
or any portion thereof, upon transfer or otherwise, shall bear the
Restricted Securities Legend, if any, borne by such other Security.
(iii) 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
(including, without limitation, pursuant to Rule 144(k) of the
Securities Act), a (i) new Security (other than a Global Security)
which does not bear a Restricted Securities Legend may be issued in
exchange for or in lieu of a Security or any portion thereof which
bears such a Restricted Securities Legend and 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 and (ii) in
the case of any beneficial interest in a Restricted Global Security,
such beneficial interest shall no longer be subject to the provisions
set forth in the Restricted Securities Legend.
(iv) A new Security which does not bear a Restricted
Securities Legend may be issued in exchange for or in lieu of a
Security or any portion thereof which bears such a Restricted
Securities Legend if, in the judgment of the Issuer and the Guarantor,
placing such a Restricted Securities 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 Issuer
and the Guarantor, shall authenticate and deliver such a new Security
as provided in this Article Three.
(v) Any Securities which are sold or otherwise
disposed of pursuant to an effective registration statement under the
Securities Act, together with their Successor Securities shall not bear
a Restricted Securities 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 prospectus 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.
(d) Neither the Trustee, any 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 set forth
herein.
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<PAGE> 55
SECTION 3.6. Mutilated, Destroyed, Lost or Stolen Securities
If any mutilated Security is surrendered to the Trustee or to a
Transfer Agent outside the United States, the Issuer shall execute, the Trustee
or an Authenticating Agent shall authenticate and the Trustee or Transfer Agent
shall 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 Issuer and either to the Trustee or to a
Transfer Agent outside the United States:
(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
Issuer and the Trustee and such Transfer Agent to save each of them and
any agent of either of them harmless,
then, in the absence of actual notice to the Issuer, the Trustee or the Transfer
Agent that such Security has been acquired by a bona fide purchaser, the Issuer
shall execute, the Trustee or an Authenticating Agent shall authenticate and the
Trustee or Transfer Agent shall deliver, in lieu of any such destroyed, lost or
stolen Security or in exchange for the 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 Issuer in its discretion, but
subject to any conversion rights, may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section 3.6, the
Issuer 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 of America or The Republic of France or any political
subdivision thereof or therein, which shall be paid by the Issuer) and any other
expenses (including the fees and expenses of the Trustee, any Paying Agent and
any Transfer Agent) 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 Issuer, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and such new Security shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section 3.6 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies of any Holder with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
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<PAGE> 56
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 Issuer, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Issuer 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 Issuer
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 Issuer 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. Thereupon, the Trustee
shall fix the Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Issuer of such Special Record
Date and, in the name and at the expense of the Issuer, 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 of Securities at such Holder's address as it appears in
the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Issuer 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 Issuer to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
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<PAGE> 57
Subject to the foregoing provisions of this Section, 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.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
SECTION 3.8. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Issuer, the Guarantor or the Trustee and any agent of the Issuer, the
Guarantor 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 Issuer, the Trustee nor any agent of the Issuer 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 destroy 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 shall be computed on the basis of a 360-day
year of twelve 30-day months.
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<PAGE> 58
SECTION 3.11. CUSIP Numbers.
The Issuer in issuing Securities may use "CUSIP" numbers (if then
generally in use) in addition to serial numbers; if so, the Trustee shall use
such "CUSIP" numbers in addition to serial numbers in notices of redemption and
repurchase as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such CUSIP numbers
either as printed on the Securities or as contained in any notice of a
redemption or repurchase and that reliance may be placed only on the serial or
other identification numbers printed on the Securities, and any such redemption
or repurchase shall not be affected by any defect in or omission of such CUSIP
numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Issuer Request or Guarantor 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 Additional Amounts and
Liquidated Damages, if any, as provided in the form of Security set forth in
Section 2.2 and the Issuer's and Guarantor's obligations to the Trustee pursuant
to Section 6.7), and the Trustee, at the expense of the Issuer or the Guarantor,
as the case may be, 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 Issuer or the Guarantor
and thereafter repaid to the Issuer or the Guarantor 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 the Paying Agent 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
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<PAGE> 59
(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
Issuer or the Guarantor,
and the Issuer or the Guarantor, as the case may be, 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 interest (including any
applicable Additional Amounts and 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 Issuer or the Guarantor has paid or caused to be paid
all other sums payable hereunder by the Issuer and the Guarantor; and
(3) the Issuer or the Guarantor 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 Issuer and the Guarantor to the Trustee under Section 6.7,
the obligations of the Issuer and the Guarantor to any Authenticating Agent
under Section 6.12, the obligation of the Issuer and the Guarantor to pay
Additional Amounts and, 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 shall survive. Funds
held in trust pursuant to this Section are not subject to the provisions of
Article Thirteen or Article Fourteen.
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 Issuer or the Guarantor 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.
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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 Issuer upon an Issuer Request or the Guarantor upon a
Guarantor Request.
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 in the case of the
Issuer or Article Fourteen in the case of the Guarantor 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, whether or not such payment is
prohibited by the subordination provisions of Article Thirteen in the
case of the Issuer or Article Fourteen in the case of the Guarantor; or
(2) default in the payment of any interest (including any
Additional Amounts or Liquidated Damages, if any) upon any Security
when it becomes due and payable, and continuance of such default for a
period of 30 days, whether or not such payment is prohibited by the
subordination provisions of Article Thirteen in the case of the Issuer
or Article Fourteen in the case of the Guarantor; or
(3) the Guarantee shall cease to be in full force and effect,
or the Guarantor shall deny or disaffirm the Guarantor's obligations
under the Guarantee; or
(4) default in the performance, or breach, of any covenant or
warranty of the Issuer or the Guarantor 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 Issuer and the Guarantor
by the Trustee or to the Issuer and the Guarantor and the Trustee by
the Holders of at least 25% in aggregate 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; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Guarantor in an
involuntary case or proceeding under any applicable bankruptcy,
moratorium of payments, insolvency, reorganization or other similar
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law or (B) a decree or order adjudging the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Guarantor under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Guarantor 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 unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Guarantor of a voluntary case or
proceeding under any applicable bankruptcy, moratorium of payments
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent or to be granted
moratorium of payment, or the consent by it to the entry of a decree or
order for relief in respect of the Guarantor in an involuntary case or
proceeding under any applicable bankruptcy, moratorium of payment,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy, moratorium payment or insolvency proceedings against
it, or the filing by it of a petition or answer or consent seeking
reorganization or similar relief under any applicable 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 Guarantor 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 Guarantor 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(5) or (6)) occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Issuer and the Guarantor
(and to the Trustee if given by the Holders), and upon any such declaration such
principal and all accrued interest thereon shall become immediately due and
payable. If an Event of Default specified in Section 5.1(5) or (6) occurs, the
principal of, and accrued interest on, all the Securities shall ipso facto
become immediately due and payable without any declaration or other Act of the
Holders 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 aggregate principal amount of the Outstanding Securities, by written
notice to the Issuer, the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences if
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(1) the Issuer or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest (including any Additional
Amounts and Liquidated Damages) 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 that payment of such interest is
lawful, interest upon overdue interest at a rate of 3.25% per
annum from May 28, 1997 to June 1, 2000 and thereafter at a
rate of 8.25% 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 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 Issuer covenants that if
(1) default is made in the payment of any interest (including
any Additional Amounts and Liquidated Damages) on any Security when it
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of or
premium, if any, on any Security at the Maturity thereof,
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest (including any Additional Amounts and
Liquidated Damages) and interest on any overdue principal and premium, if any,
and on any overdue interest (including any Additional Amounts and Liquidated
Damages), to the extent permitted by law, at a rate of 3.25% per annum from May
28, 1997 to June 1, 2000 and thereafter at a rate of 8.25% per annum, and in
addition thereto, such further
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amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Issuer 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 Issuer 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 Issuer 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, moratorium of payments, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Issuer or the Guarantor
or any other obligor upon the Securities or the property of the Issuer or the
Guarantor 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 Issuer for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of
the Securities and take such other actions, including participating as
a member, voting or otherwise, of any official committee of creditors
appointed in such matter, and to file such other papers or documents,
in each of the foregoing cases, as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Securities
allowed in such judicial pro ceeding, 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
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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.
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;
SECOND: To the payment of the amounts then due and
unpaid for principal, 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
Issuer.
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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 aggregate 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 aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Convert.
Notwithstanding any other provision in this Indenture, 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.
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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 Issuer, the
Guarantor, 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.
SECTION 5.12. Control by Holders of Securities.
Subject to Section 6.3(6), the Holders of a majority in aggregate
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,
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(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction shall be presented by such Holders to the
Trustee in a timely manner.
SECTION 5.13. Waiver of Past Defaults.
The Holders, either (a) through the written consent of not less than a
majority in aggregate 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 the lessor of (x) not
less than a majority in aggregate principal amount of Outstanding Securities and
(y) at least 66-2/3% in aggregate 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 or her 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
Issuer, to any suit instituted by the Guarantor, 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 aggregate principal amount of the Outstanding
Securities, or to any suit instituted by any Holder of any Security for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Security on or after the respective Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption or repurchase, on or after the
Redemption Date or Repurchase Date, as the case may be) or for the enforcement
of the right to convert any Security in accordance with Article Twelve.
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SECTION 5.15. Waiver of Stay, Extension and Usury Laws.
Each of the Issuer and the Guarantor covenants (to the extent that each
of them 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,
extension law or usury law or other law that would prohibit or forgive the
Issuer or the Guarantor, as the case may be, from paying all or any portion of
its obligations on the Securities or the Guarantee as provided herein, wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and each of the Issuer and the Guarantor
(to the extent that each of them 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 the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 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 of which
a Responsible Officer of the Trustee has actual knowledge, 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
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(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; and
(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 aggregate principal amount of
the Outstanding Securities or such lesser percentage as provided in
this Indenture 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.
(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.
(e) 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.
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 30 days after the occurrence thereof.
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.
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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 Issuer mentioned herein
shall be sufficiently evidenced by a Issuer Request or Issuer Order,
and any resolution of the Board shall be sufficiently evidenced by a
Board Resolution;
(3) any request or direction of the Guarantor mentioned herein
shall be sufficiently evidenced by a Guarantor Request or Guarantor
Order, and any resolution by the Guarantor Board shall be sufficiently
evidenced by a Guarantor Board Resolution;
(4) 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;
(5) 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;
(6) 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;
(7) 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 Issuer, personally or by agent or attorney;
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(8) 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;
(9) the permissive right of the Trustee to take or refrain
from taking any actions enumerated in this Indenture shall not be
construed as a duty and the Trustee shall not be answerable in such
actions other than for its own negligence or willful misconduct; and
(10) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by the Indenture.
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 authen tication) shall be taken as the statements of
the Issuer and the Guarantor, 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 Issuer of Securities or the proceeds thereof.
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 Issuer, the Guarantor or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Issuer or the Guarantor with the same rights it
would have if it were not the 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 Issuer 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 Issuer.
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SECTION 6.7. Compensation and Reimbursement.
Each of the Issuer and the Guarantor, jointly and severally, agrees
(1) to pay to the Trustee from time to time such compensation
as the Issuer, the Guarantor 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 costs, expenses and
reasonable attorneys' fees of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.1(5) or Section 5.1(6), 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.
Any Paying Agent or Authenticating Agent appointed hereunder shall be
entitled to the benefits of Section 6.7(3) as if the indemnity set forth
therefor were specifically afforded to such Paying Agent or Authenticating
Agent.
The provisions of this Section shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee, any Paying Agent
or any Authenticating Agent, as the case may be.
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 (or
if the Trustee is a member of a bank holding company, its bank holding company
has) a combined capital and surplus of at least U.S.$50,000,000, subject to
supervision or examination by Federal or state authority, in good standing. If
such
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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 Issuer and the Guarantor. 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 aggregate principal amount of the Outstanding Securities, delivered
to the Trustee, the Issuer and the Guarantor. 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.
(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 Issuer
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 Issuer by a Board Resolution or the Guarantor by
a Guarantor 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
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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
Issuer, by a Board Resolution, or the Guarantor, by a Guarantor 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 aggregate principal amount of the Outstanding Securities delivered
to the Issuer 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 Issuer or the Guarantor. If no
successor Trustee shall have been so appointed by the Issuer or the Guarantor 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 Issuer 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 Issuer and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Issuer or the
Guarantor 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 Issuer and the Guarantor 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.
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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 written consent of the Issuer or the
Guarantor, appoint an additional Authenticating Agent or Agents acceptable to
the Issuer or the Guarantor 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 Issuer or the Guarantor and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof, the District of Columbia, or The Republic of France or Luxembourg
authorized under such laws to act as Authenticating Agent and subject to
supervision or examination by government or other fiscal authority. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.12, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.12.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.12, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Issuer and the Guarantor. 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 Issuer and the Guarantor.
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
Issuer and the Guarantor. 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 Issuer and the Guarantor agree 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.
Dated: STATE STREET BANK AND TRUST COMPANY
OF CALIFORNIA, N.A.,
as Trustee
By [Authenticating Agent],
as Authenticating Agent
By ___________________________
Authorized Signatory
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 Issuer.
If and when the Trustee shall be or become a creditor of the Issuer or
the Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust
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Indenture Act regarding the collection of claims against the Issuer or the
Guarantor (or any such other obligor).
ARTICLE SEVEN
CONSOLIDATION, MERGER, TRANSFER OR LEASE
SECTION 7.1. Issuer or Guarantor May Consolidate, Etc., Only on Certain Terms.
Neither the Issuer nor the Guarantor shall consolidate or merge into
any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, and the Issuer shall not transfer
and assign all its obligations of, and position as, the Issuer hereunder, except
(in the case of the Guarantor) for a consolidation or merger in which the
Guarantor is the surviving party, unless:
(a) the Person formed by such consolidation or into which the Issuer or
the Guarantor is merged or which acquires by conveyance or transfer the
properties and assets of the Issuer or the Guarantor substantially as an
entirety, or to which obligations of, and position as, the Issuer hereunder are
transferred and assigned (the "Successor") (i) shall be, in the case of the
Issuer, a corporation, limited liability company, partnership or trust, and, in
the case of the Guarantor, a corporation, limited liability company, partnership
or trust organized and existing under the laws of, and resident for tax purposes
in, the United States of America or any political subdivision thereof, and (ii)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, in the case of
the Issuer, due and punctual payment of the principal of and interest (including
Additional Amounts, if any, and Liquidated Damages, if any) on all of the
Securities and the performance of every covenant of this Indenture and in the
Securities on the part of the Issuer to be performed or observed and, in the
case of the Guarantor, the due and punctual performance of the Guarantee and the
performance of every covenant of this Indenture and in the Securities on the
part of the Guarantor to be performed or observed;
(b) immediately after giving effect to any such consolidation, merger,
conveyance or transfer, or such transfer and assignment, no default and no Event
of Default shall have occurred and be continuing;
(c) the Issuer or the Guarantor, as the case may be, has delivered to
the Trustee an Officer's Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance or transfer, or such transfer and
assignment, and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction have
been compiled with;
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(d) in the case of any consolidation, merger, conveyance or transfer or
such transfer and assignment involving the Issuer, the Issuer or the Successor
has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that immediately after giving effect thereto, the Issuer or
Successor is not any "investment company" under the United States Investment
Company act of 1940, as amended; and
(e) in the case of any such transfer and assignment, the Guarantor, by
supplemental indenture, shall reaffirm its obligations under the Guarantee.
SECTION 7.2. Successor Substituted.
Upon any consolidation, merger or any conveyance or transfer of the
properties and assets of the Issuer or the Guarantor, as the case may be,
substantially as an entirety, or upon transfer and assignment of all obligations
of, and position as, the Issuer hereunder, in accordance with Section 7.1, the
Successor shall succeed to and be substituted for, and may exercise every right
and power of, the Issuer or the Guarantor, as the case may be, under this
Indenture with the same effect as if such Successor had been named as the Issuer
or the Guarantor, as the case may be, herein, and thereafter, the predecessor
Person shall be relieved of all obligations and covenants under the Indenture
and the Securities.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without Consent of Holders of Securities
Without the consent of any Holders of Securities, the Issuer, when
authorized by a Board Resolution, the Guarantor, when authorized by a Guarantor
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 Issuer
or the Guarantor and the assumption by any such successor of the
covenants and obligations of the Issuer or the Guarantor herein and in
the Securities as permitted by this Indenture; or
(2) to add to the covenants of the Issuer or the Guarantor for
the benefit of the Holders of Securities, or to surrender any right or
power herein conferred upon the Issuer or the Guarantor; or
(3) to secure the Securities; or
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(4) to make provision with respect to the conversion rights of
Holders of Securities pursuant to Section 12.11 or the repurchase
rights of Holders of Securities pursuant to Section 15.3; or
(5) 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
(6) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein or which is otherwise defective, or to make any other provisions
with respect to matters or questions arising under this Indenture as
the Issuer, the Guarantor and the Trustee may deem necessary or
desirable, provided, such action pursuant to this clause (6) shall not
adversely affect the interests of the Holders of Securities in any
material respect.
Upon Issuer Request or Guarantor Request, accompanied by a Board
Resolution and a Guarantor 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
Issuer and the Guarantor 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 aggregate principal amount of the Outstanding Securities, by the Act
of said Holders delivered to the Issuer 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 the lesser of (x) not less than a
majority in aggregate principal amount of the Outstanding Securities and (y)
66-2/3% in aggregate principal amount of the Outstanding Securities represented
at such meeting, the Issuer, when authorized by a Board Resolution, the
Guarantor, when authorized by a Guarantor 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,
(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 Issuer or the Guarantor to pay Additional Amounts
pursuant to Section 10.4 in a
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manner adverse to the Holders, or change the Place of Payment or 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 aggregate principal amount of the
Outstanding Securities the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) provided for in
this Indenture, or
(3) modify or affect in any manner adverse to the interests of
the Holders the terms and conditions of the obligations of the
Guarantor hereunder in respect of the due and punctual payment of the
principal of the Securities and interest thereon, or
(4) modify any of the provisions of this Section or Section
5.13, 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 Fifteen in a manner
adverse to the Holders; or
(6) modify any of the provisions of Section 10.7 or 10.8.
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 Issuer and the
Guarantor and constitutes a valid and legally binding obligation of the Issuer
enforceable against the Issuer and the Guarantor in accordance with
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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
shall be bound thereby.
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 Issuer shall so determine,
new Securities so modified as to conform, in the opinion of the Issuer and the
Trustee, to any such supplemental indenture may be prepared and executed by the
Issuer 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 Issuer, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of Section 8.2,
the Issuer 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 Issuer to give such notice,
or any defect therein, shall not in any way impair or affect the validity of any
such supplemental indenture.
So long as the Securities are listed on the Luxembourg Stock Exchange
and the rules of the Luxembourg Stock Exchange shall require, notice of any
supplemental indenture pursuant to this Article Eight will be given by
publication in a Authorized Newspaper in Luxembourg, or, if not practicable in
Luxembourg, elsewhere in a Western European city. Any failure of the Issuer 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, or in Luxembourg, 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 Issuer, pursuant to a Board Resolution, or
the Guarantor, pursuant to a Guarantor Board Resolution, or the Holders of at
least 25% in aggregate 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 Issuer or the Guarantor 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, or, so
long as the Securities are listed on the Luxembourg Stock Exchange and the
Luxembourg Stock Exchange shall require, in Luxembourg, 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
Issuer and its counsel.
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SECTION 9.4. Quorum; Action.
The Persons entitled to vote a majority in aggregate 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 aggregate 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) shall be effectively passed and decided
if passed or decided by the lesser of (i) not less than a majority in aggregate
principal amount of the Outstanding Securities and (ii) Persons entitled to vote
not less than 66-2/3% in aggregate 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 Issuer, 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
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holding of Securities shall be proved in the manner specified in Section 1.4 and
the appointment of any proxy shall be proved in the manner specified in Section
1.4.
(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 Issuer or the Guarantor or by Holders of Securities as
provided in Section 9.2(b), in which case the Issuer or the Guarantor 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 aggregate 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 aggregate 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 Issuer 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 Issuer covenants and agrees that it will duly and punctually pay
the principal of and premium, if any, and interest (including Additional
Amounts, if any, or Liquidated Damages, if any) on the Securities in accordance
with the terms of the Securities and this Indenture. The Issuer will deposit or
cause to be deposited with the Trustee on or prior to the due date for any
installment of interest thereon or on the Stated Maturity of any Security all
payments so due, which payments shall be in immediately available funds on the
date of such due date or Stated Maturity, as the case may be.
SECTION 10.2. Maintenance of Offices or Agencies.
The Issuer hereby appoints (a) an office or agency of the Trustee 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 Issuer in respect of
the Securities and this Indenture may be served, and (b) (i), so long as the
Securities are listed on Luxembourg Stock Exchange and the Luxembourg Stock
Exchange shall require, the office of State Street Bank Luxembourg, S.A., 47
Boulevard Royal, Luxembourg L-2449, as its agent outside of the United States
where, subject to any applicable laws or regulations, Securities may be
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange and where Securities may be surrendered for conversion.
The Issuer 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 Issuer pursuant to the
provisions of Section 10.3, the Issuer will maintain (1) 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 Issuer in respect of the Securities and this Indenture
may be served, and (2), so long as the Securities are listed on the Luxembourg
Stock Exchange and the Luxembourg Stock Exchange shall require, subject to any
laws or regulations applicable thereto, in Luxembourg, an office or agency where
Securities may be presented and surrendered for payment, where Securities may be
presented for registration of transfer or exchange or conversion. The Issuer
will give prompt written notice to the Trustee, and notice to the Holders in
accordance with Section 1.6, of the appointment or
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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 Issuer 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 office or agency of the Trustee in the Borough of Manhattan, the City of
New York, or other Paying Agent or Conversion Agent outside the United States,
and the Issuer hereby appoints the Paying Agent in Luxembourg as its agent to
receive such respective presentations, surrenders, notices and demands. State
Street Bank and Trust Company, N.A., an Affiliate of the Trustee located at 61
Broadway, New York, New York 10006, shall be considered an office or agency of
the Trustee for the purposes of this Section 10.2.
SECTION 10.3. Money for Security Payments To Be Held in Trust.
If the Issuer 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 Issuer will promptly notify the Trustee of its
action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents, it will, on
or prior to 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 Issuer will promptly notify
the Trustee of any failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Issuer (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 Issuer or the Guarantor may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Issuer Order or Guarantor Order, as
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the case may be, direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or the Guarantor 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 Issuer or the Guarantor 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 Issuer, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for the earlier of ten days
prior to the time such money would escheat to the State or two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Issuer on Issuer Request, or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Issuer or the Guarantor for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer as trustee thereof,
shall thereupon cease.
SECTION 10.4. Additional Amounts
The Issuer will pay to the Holder of any Security Additional Amounts as
provided in the form of Security, as set forth in Section 2.2. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of,
premium, if any, or interest on, or in respect of, any Security, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
for in this Section to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of Additional Amounts (if applicable)
in any provisions hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made.
At least 10 days prior to December 1, 1997, or an earlier Redemption
Date or Repurchase Date (and at least 10 days prior to each date of payment of
principal, premium, if any, or interest after December 1, 1997, or such earlier
Redemption Date or Repurchase Date), the Issuer may, at its option, furnish the
Trustee and the Paying Agent in Luxembourg and the Paying Agent in the Borough
of Manhattan, The City of New York, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agents whether or not such
payment of principal of, premium, if any, or interest on the Securities shall be
made to the Holders of Securities subject to withholding or deduction. If any
withholding or deduction shall be required, and an Officers' Certificate is
delivered, then such Officers' Certificate shall specify the amount required to
be withheld or deducted with respect to such payments to such Holders of
Securities and the Issuer will pay to the Trustee or the applicable Paying Agent
the Additional Amounts, if any, required to be paid as set forth in the first
sentence of this Section 10.4. The Issuer covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this
Section, except to the extent such loss, liability or expense is attributable to
the Trustee's negligence or bad faith.
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SECTION 10.5. Existence.
Subject to Article Seven, the Issuer and the Guarantor will do or cause
to be done all things necessary to preserve and keep in full force and effect
its existence.
SECTION 10.6. Statement by Officers as to Default.
The Issuer and the Guarantor will each deliver to the Trustee within
120 days after the end of each fiscal year of the Guarantor an Officers'
Certificate stating that in the course of performance by the signers of their
duties as such officers of the Issuer or the Guarantor (as applicable) they
would normally obtain knowledge of whether any default exists in the performance
and observance of any of the terms, provisions and conditions of this Indenture
and whether the Issuer or the Guarantor (as applicable) has kept, observed,
performed and fulfilled its obligations under this Indenture. Such Certificate
shall further state, as to each such officer signing such Certificate, to the
best of the knowledge of such officer, as of the date of such Officers'
Certificate, (a) whether any such default exists, (b) whether the Issuer or the
Guarantor (as applicable) during the preceding fiscal year kept, observed,
performed and fulfilled each and every covenant and obligation of the Issuer or
the Guarantor (as applicable) under this Indenture and (c) whether there was any
default in the performance and observance of any of the terms, provisions or
conditions of this Indenture during such preceding fiscal year. If the officer
or officers signing the Certificate know of such a default, whether then
existing or occurring during such preceding fiscal year, the Officers'
Certificate shall describe such default and its status with particularity. The
Guarantor shall also promptly notify the Trustee if the Guarantor's fiscal year
is changed so that the end thereof is on any date other than the then current
fiscal year end date.
The Issuer and the Guarantor 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 Issuer or the Guarantor has
taken, is taking or proposes to take with respect thereto.
Any notice required to be given under this Section 10.6 shall be
delivered to the Trustee at its Corporate Trust Office.
SECTION 10.7. Delivery of Certain Information.
At any time when either the Issuer or the Guarantor 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 Common Stock issued upon conversion
thereof, either the Issuer or the Guarantor will promptly furnish or cause to be
furnished Rule 144A Information (as defined below) to such Holder of Restricted
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Securities or such holder 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 Issuer and the Guarantor shall not be
required to furnish such information in connection with any request made on or
after the date which is two years from the later of (i) the date such a security
(or any such predecessor security) was last acquired from the Issuer or (ii) the
date such a security (or any such predecessor security) was last acquired from
an "affiliate" of the Issuer 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 10.8. Resale of Certain Securities; Reporting Issuer.
During the period beginning on May 28, 1997 and ending on the date that
is two years from such date, the Issuer and the Guarantor will not, and will use
its reasonable efforts not to permit any of its "affiliates" (as defined under
Rule 144 under the Securities Act or any successor provision thereto) 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 Issuer's or the Guarantor's performance of its
agreement in the preceding sentence.
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 Security set forth in Section 2.2.
SECTION 11.2. Applicability of Article.
Redemption of Securities at the election of the Issuer or the Guarantor
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.
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SECTION 11.3. Election to Redeem; Notice to Trustee.
The election of the Issuer or the Guarantor to redeem any Securities
shall be evidenced by a Board Resolution or a Guarantor Board Resolution, as the
case may be. In case of any redemption at the election of the Issuer or the
Guarantor of any of the Securities, the Issuer or the Guarantor shall, at least
60 days prior to the Redemption Date fixed by the Issuer or the Guarantor
(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 Issuer or the Guarantor which is subject to a
condition specified in the form of Security set forth in Section 2.2, the Issuer
shall furnish the Trustee with an Officers' Certificate stating that the Issuer
is entitled to effect such redemption and setting forth a statement of facts
showing that the conditions precedent to the right of the Issuer 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 (other than pursuant
to the third paragraph on the reverse of the form of Security in Section 2.2),
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 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 Issuer and the Guarantor and each
Security Registrar in writing of the securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 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 20 nor more than
60 days prior to the Redemption Date, and such notice shall be irrevocable.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(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 Price, 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,
(6) the place or places where such Securities maturing after
the Redemption Date are to be surrendered for payment of the Redemption
Price and accrued interest, if any, and
(7) in the case of a notice of redemption pursuant to the
third paragraph on the reverse of the form of Security, a form of
written certification of each beneficial owner of a Security as to such
beneficial owner's entitlement to Additional Amounts.
In case of a partial redemption, the notice shall specify the serial
and CUSIP numbers (if any) and the portions thereof called for redemption and
that transfers and exchanges may occur on or prior to the Redemption Date.
Notice of redemption of Securities to be redeemed at the election of
the Issuer or the Guarantor shall be given by the Issuer or the Guarantor or, at
the Issuer's or the Guarantor's written request, by the Trustee in the name of
and at the expense of the Issuer or the Guarantor. Notice of redemption of
Securities to be redeemed at the election of the Issuer or the Guarantor
received by the Trustee shall be given by the Trustee to each Paying Agent in
the name of and at the expense of the Issuer or the Guarantor.
So long as the Securities are listed on the Luxembourg Stock
Exchange and the rules of the Luxembourg Stock Exchange shall require, notice of
redemption will be given by publication in a Authorized Newspaper in Luxembourg,
or, if not practicable in Luxembourg, elsewhere in a Western European city.
Notice to the Holders shall be given once not less than 20 nor more than 60 days
prior to the Redemption Date, and such notice shall be irrevocable.
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SECTION 11.6. Deposit of Redemption Price.
By noon Eastern Standard Time on any Redemption Date of the Securities,
the Issuer shall deposit with the Trustee or with the Paying Agent so directed
by the Trustee (or, if the Issuer 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 with a Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security, if a Security, or any Predecessor Security to receive interest as
provided in the last paragraph of Section 3.7) be paid to the Issuer on Issuer
Request as soon as administratively practicable after the Trustee receives such
Issuer Request or, if then held by the Issuer, 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
Issuer 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 Issuer 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 3.25% per
annum from May 28, 1997 to June 1, 2000 and thereafter at the rate of 8.25% per
annum and such 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.
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 Issuer designated for that purpose pursuant to
Section 10.2 (with, if the Issuer or the Trustee
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so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Issuer 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, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
SECTION 11.9. Conversion Arrangement on Call for Redemption.
In connection with any redemption of Securities, the Issuer and the
Guarantor may arrange for the purchase and conversion of any Securities by an
agreement with one or more investment bankers or other purchasers (the
"Purchasers") to purchase such securities by paying to the Trustee in trust for
the Holders, on or before the Redemption Date, an amount not less than the
applicable Redemption Price, together with interest accrued to the Redemption
Date, of such Securities. Notwithstanding anything to the contrary contained in
this Article Eleven, the obligation of the Issuer to pay the Redemption Price,
together with interest accrued to the Redemption Date, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
Purchasers. If such an agreement is entered into (a copy of which shall be filed
with the Trustee prior to the close of business on the Business Day immediately
prior to the Redemption Date), any Securities called for redemption that are not
duly surrendered for conversion by the Holders thereof may, at the option of the
Issuer, be deemed, to the fullest extent permitted by law, and consistent with
any agreement or agreements with such Purchasers, to be acquired by such
Purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article Twelve) surrendered by such Purchasers for conversion, all
as of immediately prior to the close of business on the Redemption Date (and the
right to convert any such Securities shall be extended though such time),
subject to payment of the above amount as aforesaid. At the direction of the
Issuer and the Guarantor, the Trustee shall hold and dispose of any such amount
paid to it to the Holders in the same manner as it would monies deposited with
it by the Issuer for the redemption of Securities. Without the Trustee's prior
written consent, no arrangement between the Issuer, the Guarantor and such
Purchasers for the purchase and conversion of any Securities shall increase or
otherwise affect any of the powers, duties, responsibilities or obligations of
the Trustee as set forth in this Indenture, and the Issuer and the Guarantor
each agrees, jointly and severally, to indemnify the Trustee from, and hold it
harmless against, any loss, liability or expense arising out of or in connection
with any such arrangement for the purchase and conversion of any Securities
between the Issuer, the Guarantor and such Purchasers, including the costs and
expenses, including reasonable legal fees, incurred by the Trustee in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
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ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 12.1. Conversion Privilege and Conversion Price.
Subject to and upon compliance with the provisions of this Article
Twelve, 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 Guarantor at the Conversion
Price, determined as hereinafter provided, in effect at the time of conversion.
Such conversion right shall expire at the close of business on June 1, 2002
subject, in the case of the conversion of any Global Security, to any applicable
book-entry procedures of the Depositary therefor and the following sentence. In
case a Security or portion thereof is called for redemption or is delivered for
repurchase, such conversion right in respect of the Security or portion so
called shall expire at the close of business on the Business Day prior to the
Redemption Date or the Repurchase Date (as defined in Article Fifteen), as the
case may be, unless the Issuer defaults in making the payment due upon
redemption or repurchase, as the case may be.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") shall be initially U.S.$35.50
per share of Common Stock. The Conversion Price shall be adjusted in certain
instances as provided in this Article Twelve.
SECTION 12.2. Exercise of Conversion Privilege.
Beneficial owners of interests in a Global Security may exercise their
right of conversion by delivering to the Depositary the appropriate instruction
form for conversion pursuant to the Depositary's conversion program and, in the
case of conversions through Euroclear or Cedel, in accordance with Euroclear's
or Cedel's normal operating procedures. To convert an Individual Security into
shares of Common Stock, a Holder must (i) complete and manually sign the
conversion notice in the form set forth in Section 2.4 on the back of the
Individual Security (or complete and manually sign a facsimile thereof) and
deliver such notice to the Trustee at the office of State Street Bank and Trust
Company, N.A., in New York, New York or the Conversion Agent in Luxembourg, (ii)
surrender the Individual Security to the Trustee at the office of State Street
Bank and Trust Company, N.A., in New York, New York or to the Conversion Agent
in Luxembourg, (iii) if required, furnish appropriate endorsements and transfer
documents, (iv) if required, pay all transfer or similar taxes, and (v) if
required, pay funds equal to interest payable on the next interest payment date.
The date on which all of the foregoing requirements have been satisfied is the
date of surrender for conversion. Such notice of conversion can be obtained from
the Trustee at the Corporate Trust Office or the office of any Conversion Agent.
Each Security surrendered for conversion will be converted into Common Stock in
registered form. Each Security surrendered for conversion (in whole or in part)
during the period from the close of business on any Regular Record Date to the
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opening of business on the next succeeding Interest Payment Date (except Notes
called for redemption on a Redemption Date or to be repurchased on a Repurchase
Date during, in each case, such period) shall be accompanied by payment in New
York Clearing House funds or other funds acceptable to the Issuer of an amount
equal to the interest payable on such Interest Payment Date on the principal
amount of such Security (or part thereof, as the case may be) being surrendered
for conversion. The interest so payable on such Interest Payment Date with
respect to any Security (or portion thereof, if applicable) which has been
called for redemption on a Redemption Date, or is repurchasable on a Repurchase
Date, occurring, in either case, during the 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, 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, if the date of conversion is not an Interest
Payment Date, 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 shares
of Common Stock issued upon conversion. The Issuer's delivery (or, at the option
of the Guarantor, the Guarantor'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 Issuer'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 shares of 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
Issuer 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.
Subject to Section 3.5(d), 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
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be set forth on the Restricted Securities pursuant to Section 3.5(c) 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 shares of Common Stock; provided, however, that the Trustee or
Conversion Agent shall have provided, to the Issuer or to the Transfer Agent for
such shares of Common Stock, prior to or concurrently with a request to the
Issuer to deliver such shares of 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 Issuer shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Issuer, a new 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.
SECTION 12.3. Fractions of Shares.
No fractional shares of Common Stock shall be issued upon conversion of
any 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 Securities (or specified portions
thereof), the Issuer 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 Current Market Price per share of Common Stock
(calculated in accordance with Section 12.4(8) below) at the close of business
on the day of conversion.
SECTION 12.4. Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustments from time to time
as follows:
(1) In case the Guarantor shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Price in effect at the opening of business on the date
following the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the 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 reduction to become effective immediately after the opening
of business on the day following the date fixed for such determination. If any
dividend or distribution of the type
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described in this Section 12.4(1) is declared but not so paid or made, the
Conversion Price shall again be adjusted to the Conversion Price which would
then be in effect if such dividend or distribution had not been declared.
(2) In case the Guarantor shall issue rights or warrants to all holders
of its outstanding Common Stock entitling them (for a period expiring within 45
days after the date fixed for determination of shareholders entitled to receive
such rights or warrants) to subscribe for or purchase Common Stock at a price
per share less than the Current Market Price (as defined below) on the date
fixed for determination of shareholders entitled to receive such rights or
warrants, the Conversion Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to the date fixed for determination of shareholders entitled to receive
such rights or warrants 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 determination of shareholders entitled to receive such rights and warrants
plus the number of shares which the aggregate offering price of the total number
of shares so offered would purchase at such Current Market Price, and of which
the denominator shall be the number of shares of Common Stock outstanding on the
date fixed for determination of shareholders entitled to receive such rights and
warrants plus the total number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall be successively made whenever
any such rights and warrants are issued, and shall become effective immediately
after the opening of business on the day following the date fixed for
determination of shareholders entitled to receive such rights or warrants. To
the extent that shares of Common Stock are not delivered after the expiration of
such rights or warrants, the Conversion Price shall be readjusted to the
Conversion Price which would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made on the basis of delivery of only
the number of shares of Common Stock actually delivered. In the event that such
rights or warrants are not so issued, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if such date
fixed for the determination of shareholders entitled to receive such rights or
warrants had not been fixed. In determining whether any rights or warrants
entitle the holders to subscribe for or purchase Common Stock at less than such
Current Market Price, and in determining the aggregate offering price of such
Common Stock, there shall be taken into account any consideration received by
the Guarantor for such rights or warrants, the value of such consideration, if
other than cash, to be determined by the Guarantor Board.
(3) In case outstanding Common Stock shall be subdivided into a greater
number of shares of Common Stock, the Conversion Price in effect at the opening
of business on the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and conversely, in case outstanding
shares of Common Stock shall be combined into a smaller number of shares of
Common Stock, the Conversion Price in effect at the opening of business on the
day following the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
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(4) In case the Guarantor shall, by dividend or otherwise, distribute
to all holders of its Common Stock shares of any class of capital stock of the
Guarantor (other than any dividends or distributions to which Section 12.4(1)
applies) or evidences of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in Section 12.4(2), and excluding
any dividend or distribution (x) paid exclusively in cash or (y) referred to in
Section 12.4(1) (any of the foregoing hereinafter in this Section 12.4(4) called
the "Distribution Securities")), then, in each such case, the Conversion Price
shall be reduced so that the same shall be equal to the price determined by
multiplying the Conversion Price in effect on the Distribution Record Date with
respect to such distribution by a fraction of which the numerator shall be the
Current Market Price per share of Common Stock on such Distribution Record Date
less the fair market value (as determined by the Guarantor Board whose
determination shall be conclusive, and described in a resolution of the
Guarantor Board) on the Distribution Record Date of the portion of the
Distribution Securities so distributed applicable to one share of Common Stock
and the denominator shall be the Current Market Price per share of Common Stock,
such reduction to become effective immediately prior to the opening of business
on the day following such Distribution Record Date; provided, however, that in
the event the then fair market value (as so determined) of the portion of the
Distribution Securities so distributed applicable to one share of Common Stock
is equal to or greater than the Current Market Price of the Common Stock on the
Distribution Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive upon
conversion the amount of Distribution Securities such Holder would have received
had such Holder converted each Security on the Distribution Record Date. In the
event that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such dividend or distribution had not been declared. If the Guarantor
Board determines the fair market value of any distribution for purposes of this
Section 12.4(4) by reference to the actual or when issued trading market for any
securities, it must in doing so consider the prices in such market over the same
period used in computing the Current Market Price of the Common Stock.
Rights or warrants distributed by the Guarantor to all holders of
Common Stock entitling the holders thereof to subscribe for or purchase shares
of the Guarantor's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"): (i) are deemed to be transferred with such
shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in
respect of future issuances of shares of Common Stock, shall be deemed not to
have been distributed for purposes of this Section 12.4 (and no adjustment to
the Conversion Price under this Section 12.4 will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights and warrants
shall be deemed to have been distributed and an appropriate adjustment (if any
is required) to the Conversion Price shall be made under this Section 12.4(4).
If any such right or warrant, including any such existing rights or warrants
distributed prior to the date of this Indenture, are subject to events, upon the
occurrence of which such rights or warrants become exercisable to purchase
different securities, evidences of indebtedness or other assets, then the date
of the occurrence of any and each such event shall be deemed to be the date of
distribution and record date with respect to new rights or warrants with such
rights (and a termination or expiration of the existing rights or warrants
without exercise by any of the holders
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thereof). In addition, in the event of any distribution (or deemed distribution)
of rights or warrants, or any Trigger Event or other event (of the type
described in the preceding sentence) with respect thereto that was counted for
purposes of calculating a distribution amount for which an adjustment to the
Conversion Price under this Section 12.4 was made, (1) in the case of any such
rights or warrants which shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Price shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder or holders
of shares of Common Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all holders of shares of
Common Stock as of the date of such redemption or repurchase, and (2) in the
case of such rights or warrants which shall have expired or been terminated
without exercise by any holders thereof, the Conversion Price shall be
readjusted as if such rights and warrants had not been issued.
For purposes of this Section 12.4(4) and Sections 12.4(1) and (2), any
dividend or distribution to which this Section 12.4(4) is applicable that also
includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets or shares of
capital stock other than such shares of Common Stock or rights or warrants (and
any Conversion Price reduction required by this Section 12.4(4) with respect to
such dividend or distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Common Stock or such rights or
warrants (and any further Conversion Price reduction required by Sections
12.4(1) and (2) with respect to such dividend or distribution shall then be
made), except (A) the Distribution Record Date of such dividend or distribution
shall be substituted as "the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution" and "the date fixed for
such determination" within the meaning of Sections 12.4(1) and (2) and (B) any
shares of Common Stock included in such dividend or distribution shall not be
deemed "outstanding at the close of business on the date fixed for such
determination" within the meaning of Section 12.4(1).
(5) In case the Guarantor shall, by dividend or otherwise, distribute
to all holders of its Common Stock cash (excluding (x) any quarterly cash
dividend on the Common Stock to the extent the aggregate cash dividend per share
of Common Stock in any quarterly period does not exceed the greater of (A) the
amount per share of Common Stock of the next preceding quarterly cash dividend
on the Common Stock to the extent that such preceding quarterly dividend did not
require any adjustment of the Conversion Price pursuant to this Section 12.4(5)
(as adjusted to reflect subdivisions or combinations of the Common Stock), and
(B) 3.75% of the arithmetic average of the Closing Prices (determined as set
forth in Section 12.4(8)) during the ten Trading Days immediately prior to the
date of declaration of such dividend, and (y) any dividend or distribution in
connection with the liquidation, dissolution or winding up of the Guarantor,
whether voluntary or involuntary), then, in such case, the Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the close of
business on such Distribution Record Date by a fraction of which the numerator
shall be the Current Market Price of the Common Stock on the Distribution Record
Date less the amount of cash so distributed
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(and not excluded as provided above) applicable to one share of Common Stock and
the denominator shall be such Current Market Price of the Common Stock, such
reduction to be effective immediately prior to the opening of business on the
day following the Distribution Record Date; provided, however, that in the event
the portion of the cash so distributed applicable to one share of Common Stock
is equal to or greater than the Current Market Price of the Common Stock on the
Distribution Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive upon
conversion the amount of cash such Holder would have received had such Holder
converted each Security on the Distribution Record Date. In the event that such
dividend or distribution is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
such dividend or distribution had not been declared. If any adjustment is
required to be made as set forth in this Section 12.4(5) as a result of a
distribution that is a quarterly dividend, such adjustment shall be based upon
the amount by which such distribution exceeds the amount of the semiannual cash
dividend permitted to be excluded pursuant hereto. If an adjustment is required
to be made as set forth in this Section 12.4(5) above as a result of a
distribution that is not a quarterly dividend, such adjustment shall be based
upon the full amount of the distribution.
(6) In case a tender or exchange offer made by the Guarantor or any
subsidiary of the Guarantor for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to shareholders of consideration per share of
Common Stock having a fair market value (as determined by the Guarantor Board,
whose determination shall be conclusive and described in a resolution of the
Guarantor Board) that as of the last time (the "Expiration Time") tenders or
exchanges may be made pursuant to such tender or exchange offer (as it may be
amended) that exceeds the Current Market Price of the Common Stock on the
Trading Day next succeeding the Expiration Time, the Conversion Price shall be
reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the Expiration Time by a
fraction of which the numerator shall be the number of Common Stock outstanding
(including any tendered or exchanged shares) on the Expiration Time multiplied
by the Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time and the denominator shall be the sum of (x) the
fair market value (determined as aforesaid) of the aggregate consideration
payable to shareholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased Shares")
and (y) the product of the number of Common Stock outstanding (less any
Purchased Shares) on the Expiration Time and the Current Market Price of the
Common Stock on the Trading Day next succeeding the Expiration Time, such
reduction to become effective immediately prior to the opening of business on
the day following the Expiration Time. In the event that the Guarantor is
obligated to purchase shares pursuant to any such tender or exchange offer, but
the Guarantor is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Price shall again
be adjusted to be the Conversion Price which would then be in effect if such
tender or exchange offer had not been made.
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(7) In case of a tender or exchange offer made by a Person other than
the Guarantor or any subsidiary of the Guarantor for an amount which increases
the offeror's ownership of Common Stock to more than 25% of the Common Stock
outstanding and shall involve the payment by such Person of consideration per
Common Share having a fair market value (as determined by the Guarantor Board,
whose determination shall be conclusive, and described in a resolution of the
Guarantor Board) at the last time (the "Expiration Time") tenders or exchanges
may be made pursuant to such tender or exchange offer (as it shall have been
amended) that exceeds the Current Market Price of the Common Stock on the
Trading Day next succeeding the Expiration Time, and in which, as of the
Expiration Time the Board is not recommending rejection of the offer, the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the Expiration Time by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding (including any tendered or exchanged shares)
on the Expiration Time multiplied by the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration Time and the denominator
shall be the sum of (x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to shareholders based on the acceptance (up to
any maximum specified in the terms of the tender or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of Common Stock
outstanding (less any Purchased Shares) on the Expiration Time and the Current
Market Price of the Common Stock on the Trading Day next succeeding the
Expiration Time, such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time. In the event that
such person is obligated to purchase shares pursuant to any such tender or
exchange offer, but such person is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such tender or exchange offer had not been made. Notwithstanding the
foregoing, the adjustment described in this Section 12.4(7) shall not be made
if, as of the Expiration Time, the offering documents with respect to such offer
disclose a plan or intention to cause the Guarantor to engage in any transaction
described in Sections 7.1 or 7.2
(8) For purposes of this Section 12.4, the following terms shall have
the meaning indicated:
(a) "Closing Price" with respect to any securities on any day
shall mean the closing sale price regular way on such day or, in case
no such sale takes place on such day, the average of the reported
closing bid and asked prices, regular way, in each case on the New York
Stock Exchange, or, if such security is not listed or admitted to
trading on such Exchange, on the principal security exchange or
quotation system in the United States on which such security is quoted
or listed or admitted to trading, or, the average of the closing bid
and asked prices of such security on the over-the-counter market on the
day in question as reported by the Nasdaq National Market or a similar
generally accepted reporting service, or if not so available, in such
manner as furnished by any New York Stock Exchange member firm selected
from time to time by the Board for that purpose, or a price determined
in good
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faith by the Board or, to the extent permitted by applicable law, a
duly authorized committee thereof, whose determination shall be
conclusive.
(b) "Current Market Price" shall mean the average of the daily
Closing Prices per share of Common Stock for the ten consecutive
Trading Days immediately prior to the date in question; provided,
however, that (1) if the "ex" date (as hereinafter defined) for any
event (other than the issuance or distribution or Fundamental Change
requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 12.4(1), (2), (3), (4), (5), (6)
or (7) occurs during such ten consecutive Trading Days, the Closing
Price for each Trading Day prior to the "ex" date for such other event
shall be adjusted by multiplying such Closing Price by the same
fraction by which the Conversion Price is so required to be adjusted as
a result of such other event, (2) if the "ex" date for any event (other
than the issuance, distribution or Fundamental Change requiring such
computation) that requires an adjustment to the Conversion Price
pursuant to Section 12.4(1), (2), (3), (4), (5), (6) or (7) occurs on
or after the "ex" date for the issuance or distribution requiring such
computation and prior to the day in question, the Closing Price for
each Trading Day on and after the "ex" date for such other event shall
be adjusted by multiplying such Closing Price by the reciprocal of the
fraction by which the Conversion Price is so required to be adjusted as
a result of such other event, and (3) if the "ex" date for the
issuance, distribution or Fundamental Change requiring such computation
is prior to the day in question, after taking into account any
adjustment required pursuant to clause (1) or (2) of this proviso, the
Closing Price for each Trading Day on or after such "ex" date shall be
adjusted by adding thereto the amount of any cash and the fair market
value (as determined by the Guarantor Board in a manner consistent with
any determination of such value for purposes of Section 12.4(4), (6) or
(7) whose determination shall be conclusive and described in a
resolution of the Guarantor Board) of the evidences of indebtedness,
shares of capital stock or assets being distributed applicable to one
Common Share as of the close of business on the day before such "ex"
date. For purposes of any computation under Section 12.4(6) or (7), the
Current Market Price of the Common Stock on any date shall be deemed to
be the average of the daily Closing Prices per Common Share for such
day and the next two succeeding Trading Days; provided, however, that
if the "ex" date for any event (other than the tender or exchange offer
requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 12.4(1), (2), (3), (4), (5), (6)
or (7) occurs on or after the Expiration Time for the tender or
exchange offer requiring such computation and prior to the day in
question, the Closing Price for each Trading Day on and after the "ex"
date for such other event shall be adjusted by multiplying such Closing
Price by the reciprocal of the fraction by which the Conversion Price
is so required to be adjusted as a result of such other event. For
purposes of this paragraph, the term "ex" date, (1) when used with
respect to any issuance or distribution, means the first date on which
the Common Stock trades regular way on the relevant exchange or in the
relevant market from which the Closing Price was obtained without the
right to receive such issuance or distribution, (2) when used with
respect to any subdivision or combination of shares of Common Stock,
means the first date on which the Common Stock trades regular way on
such exchange or in such market after the time at which such
subdivision or combination becomes
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effective, and (3) when used with respect to any tender or exchange
offer means the first date on which the Common Stock trades regular way
on such exchange or in such market after the Expiration Time of such
offer.
(c) "fair market value" shall mean the amount which a willing
buyer would pay a willing seller in an arm's length transaction.
(d) "Distribution Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to receive any cash, securities
or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash,
securi ties or other property, the date fixed for determination of
shareholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Guarantor Board or by
statute, contract or otherwise).
(e) "Trading Day" shall mean (x) if the applicable security is
listed or admitted for trading on the New York Stock Exchange or
another national security exchange, a day on which the New York Stock
Exchange or another national security exchange is open for business or
(y) if the applicable security is quoted on the Nasdaq National Market,
a day on which trades may be made on thereon or (z) if the applicable
security is not so listed, admitted for trading or quoted, any day
other than a Saturday or Sunday or a day on which banking institutions
in the State of New York are authorized or obligated by law or
executive order to close.
(9) No adjustment in the Conversion Price 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
price; 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 Issuer may, at its option, make such reductions in the
Conversion Price as the Board or Guarantor Board deems advisable, in addition to
those required by paragraphs (1), (2), (3), (4), (5), (6) or (7) of this Section
12.4 in order to avoid or diminish any income tax to any holders of Common Stock
or rights to purchase Common Stock resulting from any dividend or distribution
on Common Stock (or rights to acquire such shares) or from any event treated as
such for income tax purposes, resulting from any dividend or distribution of
shares or issuance of rights or warrants to purchase or subscribe for shares or
from any event treated as such for income tax purposes.
To the extent permitted by applicable law, the Issuer from time to time
may reduce the Conversion Price by any amount for any period of time if the
period is (i) at least twenty (20) days, (ii) the reduction is irrevocable
during the period and (iii) the Board or the Guarantor Board shall have made a
determination that such reduction would be in the best interests of the Issuer
or the
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Guarantor, which determination shall be conclusive. Whenever the Conversion
Price is reduced pursuant to the preceding sentence, the Issuer shall give
notice of the reduction to the Holders of Securities in the manner provided in
Section 1.6 at least fifteen (15) days prior to the date the reduced Conversion
Price takes effect, and such notice shall state the reduced Conversion Price and
the period during which it will be in effect.
(11) No adjustment of the Conversion Price will result in zero or a
negative number.
SECTION 12.5. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(1) the Issuer shall compute the adjusted Conversion Price in
accordance with Section 12.4 and shall prepare a certificate signed by
the President, Treasurer, Chief Financial Officer or Vice President of
Finance of the Issuer setting forth the adjusted Conversion Price 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) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall promptly
be prepared and as soon as practicable thereafter, such notice shall be
provided by the Issuer 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.
So long as the Securities are listed on the Luxembourg Stock Exchange
and the rules of the Luxembourg Stock Exchange shall require, notice of any
adjustment of the Conversion Price pursuant to this Article Twelve will be given
by publication in a Authorized Newspaper in Luxembourg, or, if not practicable
in Luxembourg, elsewhere in a Western European city. Any failure of the Issuer
to give such notice, or any defect therein, shall not in any way impair or
affect the validity of any such Conversion Price adjustment.
SECTION 12.6. Notice of Certain Corporate Action.
In case:
(a) the Guarantor shall declare a dividend (or any other
distribution) on all or substantially all of its Common Stock payable
(i) otherwise than exclusively in
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cash or (ii) exclusively in cash in an amount that would require any
adjustment pursuant to Section 12.4; or
(b) the Guarantor shall authorize the granting to the holders
of its Common Stock of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other
rights that would require any adjustment pursuant to Section 12.4; or
(c) of any reclassification of the Common Stock of the
Guarantor (other than a subdivision or combination of its outstanding
Common Stock), or of any consolidation or merger to which the Guarantor
is a party and for which approval of any shareholders of the Guarantor
is required, or of the sale or transfer of all or substantially all of
the assets of the Guarantor; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Guarantor; or
(e) the Guarantor or any subsidiary of the Guarantor shall
commence a tender offer for all or a portion of the Guarantor's
outstanding Common Stock (or shall amend any such tender offer);
then the Issuer 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, expiration 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, (y) the date on which the right to make tenders under such tender
offer expires or (z) the date on which such reclassification, consolidation,
merger, share exchange, transfer, sale, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of shares 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, share exchange, conveyance,
transfer, sale, lease, dissolution, liquidation or winding up. If at the time
the Trustee shall not be the Conversion Agent, a copy of such notice and any
notice referred to in the following paragraph shall also forthwith be filed by
the Issuer with the Trustee.
The preceding paragraph to the contrary notwithstanding, the Issuer
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 Guarantor or any subsidiary of the Guarantor 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
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generally (such notice to be sent to all Holders within five days after receipt
of such notice by the Trustee or Conversion Agent from the Issuer).
SECTION 12.7. Issuer to Provide Common Stock.
The Issuer shall ensure that either (x) the Issuer has, or (y) the
Guarantor shall at all times keep available, free from preemptive rights, out of
its authorized but unissued Common Stock, the full number of shares of Common
Stock for the purpose of effecting the conversion of Securities.
SECTION 12.8. Taxes on Conversions.
The Issuer and the Guarantor will pay any and all taxes and duties that
may be payable in respect of the issue or delivery of Common Stock on conversion
of Securities pursuant hereto. The Issuer and the Guarantor 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 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 Issuer or the Guarantor the amount of any such tax or
duty, or has established to the satisfaction of the Issuer or the Guarantor that
such tax or duty has been paid.
SECTION 12.9. Issuer Covenant as to Common Stock.
The Issuer covenants that all 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 Issuer 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 the Paying Agent in Luxembourg 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
of the Guarantor.
In case of any consolidation of the Guarantor with, or merger of the
Guarantor into, any other Person, or any merger of another Person into the
Guarantor (other than a merger which does not
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result in any reclassification, conversion, exchange or cancellation of
outstanding Common Stock of the Guarantor) or any sale or transfer of all or
substantially all of the assets of the Guarantor, the Issuer and the Person
formed by such consolidation or resulting from such merger or which acquires
such assets 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,
sale or transfer by a holder of the number of shares of Common Stock of the
Guarantor into which such Security might have been converted immediately prior
to such consolidation, merger, sale or transfer, assuming such holder of Common
Stock of the Guarantor (i) is not a Person with which the Guarantor consolidated
or into which the Guarantor merged or which merged into the Guarantor or to
which such sale or transfer was made, as the case may be (a "Constituent
Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise
his rights of election, if any, as to the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer
(provided that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer is not the same for
each share of Common Stock of the Guarantor held immediately prior to such
consolidation, merger, sale or transfer 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 purposes of this
Section 12.11 the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer 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). 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, sales or transfers. Notice of the execution of such a
supplemental indenture shall be given by the Issuer to the Holder of each
Security as provided in Section 1.6 promptly upon such execution.
Neither the Trustee, any Paying Agent 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 Issuer 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 Price, or with respect to the nature
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or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same, or whether a supplemental indenture need be entered into.
Neither the Trustee, subject to the provisions of Section 6.1, nor any
Conversion Agent shall be accountable with respect to the validity or value (or
the kind or amount) of any Common Stock, or of any other securities or property
or cash, which may at any time be issued or delivered upon the conversion of any
Security; and it or they do not make any representation with respect thereto.
Neither the Trustee, subject to the provisions of Section 6.1, nor any
Conversion Agent shall be responsible for any failure of the Issuer to make or
calculate any cash payment or to issue, transfer or deliver any 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 Issuer to comply with any of the covenants of the Issuer
contained in this Article.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 13.1. Agreement of Subordination.
The Issuer covenants and agrees, and each Holder of Securities issued
hereunder by his acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article Thirteen;
and each Person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and interest on all
Securities (including, but not limited to, the Redemption Price with respect to
the Securities called for redemption in accordance with Article Eleven, or the
Repurchase Price with respect to Securities submitted for repurchase in
accordance with Article Fifteen, as the case may be, as provided in this
Indenture and Additional Amounts, if any, and Liquidated Damages, if any) issued
hereunder shall, to the extent and in the manner hereinafter set forth, be
subordinated and subject in right of payment to the prior payment in full of all
Senior Indebtedness of the Issuer, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article Thirteen shall prevent the occurrence of
any default or Event of Default hereunder.
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SECTION 13.2. Payments to Noteholders.
No payment shall be made with respect to the principal of, or premium,
if any, or interest on the Securities by the Issuer (including, but not limited
to, the Redemption Price with respect to the Securities to be called for
redemption in accordance with Article Eleven or the Repurchase Price with
respect to Securities submitted for repurchase in accordance with Article
Fifteen, as the case may be, as provided in this Indenture and Additional
Amounts, if any, and Liquidated Damages, if any), except payments and
distributions made by the Trustee as permitted by the first or second paragraph
of Section 13.5, if:
(i) a default in the payment of principal, premium, interest,
rent or other obligations due on any Senior Indebtedness of the Issuer has
occurred and is continuing (or, in the case of Senior Indebtedness of the Issuer
for which there is a period of grace, in the event of such a default that
continues beyond the period of grace, if any, specified in the instrument or
lease evidencing such Senior Indebtedness of the Issuer), unless and until such
default shall have been cured or waived or shall have ceased to exist; or
(ii) a default, other than a payment default, on Issuer
Designated Senior Indebtedness occurs and is continuing that then permits
holders of such Issuer Designated Senior Indebtedness to accelerate its maturity
and the Trustee receives a notice of the default (a "Issuer Payment Blockage
Notice") from a Representative of Issuer Designated Senior Indebtedness or the
Issuer.
If the Trustee receives any Issuer Payment Blockage Notice pursuant to
clause (ii) above, no subsequent Issuer Payment Blockage Notice shall be
effective for purposes of this Section unless and until (A) at least 365 days
shall have elapsed since the initial effectiveness of the immediately prior
Issuer Payment Blockage Notice, and (B) all scheduled payments of principal,
premium, if any, and interest on the Securities that have come due have been
paid in full in cash. No nonpayment default that existed or was continuing on
the date of delivery of any Issuer Payment Blockage Notice to the Trustee
(unless such default was waived, cured or otherwise ceased to exist and
thereafter subsequently reoccurred) shall be, or be made, the basis for a
subsequent Issuer Payment Blockage Notice.
The Issuer may and shall resume payments on and distributions in
respect of the Securities upon the earlier of:
(1) in the case of a payment default, the date upon which the default
is cured or waived or ceases to exist, or
(2) in the case of a default referred to in clause (ii) above, the
earlier of the date on which such default is cured or waived or ceases to exist
or 179 days after the date on which the applicable Issuer Payment Blockage
Notice is received if the maturity of such Issuer Designated Senior Indebtedness
has not been accelerated,
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unless this Article Thirteen otherwise prohibits the payment or distribution at
the time of such payment or distribution (including without limitation, in the
case of default referred to in clause (ii) above, as a result of a payment
default with respect to the applicable Senior Indebtedness as a consequence of
the acceleration of the maturity thereof or otherwise).
Upon any payment by the Issuer, or distribution of assets of the Issuer
of any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the
Issuer, whether voluntary or involuntary or in bankruptcy, moratorium of
payments, insolvency, receivership or other proceedings, all amounts due or to
become due upon all Senior Indebtedness of the Issuer shall first be paid in
full in cash or other payment satisfactory to the holders of such Senior
Indebtedness of the Issuer, or payment thereof in accordance with its terms
provided for in cash or other payment satisfactory to the holders of such Senior
Indebtedness of the Issuer before any payment is made on account of the
principal of, premium, if any, or interest on the Securities by the Issuer
(except payments by the Issuer made pursuant to Article Four from monies
deposited with the Trustee pursuant thereto prior to commencement of proceedings
for such dissolution, winding-up, liquidation or reorganization); and upon any
such dissolution or winding-up or liquidation or reorganization of the Issuer or
bankruptcy, insolvency, receivership or other proceeding, any payment by the
Issuer, or distribution of assets of the Issuer of any kind or character,
whether in cash, property or securities, to which the Holders or the Trustee
would be entitled, except for the provision of this Article Thirteen, shall
(except as aforesaid) be paid by the Issuer or by any receiver, trustee in
bankruptcy, moratorium of payments, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders or by the Trustee under
this Indenture if received by them or it, directly to the holders of Senior
Indebtedness of the Issuer (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness of the Issuer held by such holders, or
as otherwise required by law or a court order) or their Representative or
Representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness of the Issuer may have
been issued, as their respective interests may appear, to the extent necessary
to pay all Senior Indebtedness of the Issuer in full, in cash or other payment
satisfactory to the holders of such Senior Indebtedness of the Issuer, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness of the Issuer, before any payment or distribution is made to
the Holders or to the Trustee.
For purposes of this Article Thirteen, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Issuer as
reorganized or readjusted, or securities of the Issuer or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article Thirteen with
respect to the Securities to the payment of all Senior Indebtedness of the
Issuer which may at the time be outstanding; provided that (i) the Senior
Indebtedness of the Issuer is assumed by the new corporation, if any, resulting
from any reorganization or readjustment, and (ii) the rights of the holders of
Senior Indebtedness of the Issuer (other than leases which are not assumed by
the Issuer or the new corporation, as the case may be) are not, without the
consent of such holders, altered by such reorganization or readjustment. The
merger of the Issuer into another corporation or the
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liquidation or dissolution of the Issuer following the conveyance or transfer of
its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article Seven shall
not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 13.2 if such other corporation shall, as a part of such
merger, conveyance or transfer, comply with the conditions stated in Article
Seven.
In the event of the acceleration of the Securities because of an Event
of Default, no payment or distribution shall be made to the Trustee or any
Holder of Securities in respect of the principal of, premium, if any, or
interest on the Securities by the Issuer (including, but not limited to, the
Redemption Price with respect to the Securities called for redemption in
accordance with Article Eleven or the Repurchase Price with respect to
Securities submitted for repurchase in accordance with Article Fifteen as the
case may be, as provided in this Indenture and Additional Amounts, if any, and
Liquidated Damages, if any), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 13.5, until all
Senior Indebtedness of the Issuer has been paid in full in cash or other payment
satisfactory to the holders of Senior Indebtedness of the Issuer or such
acceleration is rescinded in accordance with the terms of this Indenture. If
payment of the Securities is accelerated because of an Event of Default, the
Issuer shall promptly notify holders of Senior Indebtedness of the Issuer of the
acceleration.
In the event that, notwithstanding the foregoing provisions, any
payment or distribution of assets of the Issuer of any kind or character,
whether in cash, property or securities (including, without limitation, by way
of setoff or otherwise), prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Securities before all Senior Indebtedness of the
Issuer is paid in full in cash or other payment satisfactory to the holders of
such Senior Indebtedness of the Issuer, or provision is made for such payment
thereof in accordance with its terms in cash or other payment satisfactory to
the holders of such Senior Indebtedness of the Issuer, such payment or
distribution shall be held in trust for the benefit of and shall be paid over or
delivered to the holders of Senior Indebtedness of the Issuer or their
Representative or Representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
of the Issuer may have been issued, as their respective interests may appear, as
calculated by the Issuer, for application to the payment of all Senior
Indebtedness of the Issuer remaining unpaid to the extent necessary to pay all
Senior Indebtedness of the Issuer in full in cash or other payment satisfactory
to the holders of such Senior Indebtedness of the Issuer, after giving effect to
any concurrent payment or distribution, or provision therefor, to or for the
holders of such Senior Indebtedness of the Issuer.
Nothing in this Article Thirteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7. This Section 13.2 shall be
subject to the further provisions of Section 13.5 and Section 17.2.
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SECTION 13.3. Subrogation of Securities.
Subject to the payment in full of all Senior Indebtedness of the
Issuer, the Holders of the Securities shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Indebtedness of the
Issuer pursuant to the provisions of this Article Thirteen (equally and ratably
with the holders of all indebtedness of the Issuer which by its express terms is
subordinated to other indebtedness of the Issuer to substantially the same
extent as the Securities are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness of the Issuer
to receive payments or distributions of cash, property or securities of the
Issuer applicable to the Senior Indebtedness of the Issuer until the principal,
premium, if any, and interest on the Securities shall be paid in full; and, for
the purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of the Issuer 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 Thirteen, and no payment over pursuant to the
provisions of this Article Thirteen, to or for the benefit of the holders of
Senior Indebtedness of the Issuer by Holders of the Securities or the Trustee,
shall, as between the Issuer, its creditors other than holders of Senior
Indebtedness of the Issuer, and the Holders of the Securities, be deemed to be a
payment by the Issuer to or on account of the Senior Indebtedness of the Issuer;
and no payments or distributions of cash, property or securities to or for the
benefit of the Holders of the Securities pursuant to the subrogation provisions
of this Article Thirteen, which would otherwise have been paid to the holders of
Senior Indebtedness of the Issuer shall be deemed to be a payment by the Issuer
to or for the account of the Securities. It is understood that the provisions of
this Article Thirteen are and are intended solely for the purposes of defining
the relative rights of the Holders of the Securities, on the one hand, and the
holders of the Senior Indebtedness of the Issuer, on the other hand.
Nothing contained in this Article Thirteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Issuer, its creditors other than the holders of Senior Indebtedness of the
Issuer, and the Holders of the Securities, the obligation of the Issuer, 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 is
intended to or shall affect the relative rights of the Holders of the Securities
and creditors of the Issuer other than the holders of the Senior Indebtedness of
the Issuer, nor shall anything herein or therein 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 Thirteen of the holders of Senior Indebtedness of the Issuer
in respect of cash, property or securities of the Issuer received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Issuer referred to in
this Article Thirteen, 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 made by any court of competent jurisdiction in which such bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities, for the
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purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness of the Issuer and other
indebtedness of the Issuer, the amount thereof or payable thereon and all other
facts pertinent thereto or to this Article Thirteen.
SECTION 13.4. Authorization to Effect Subordination.
Each Holder of a Security by the Holder's acceptance thereof authorizes
and directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article Thirteen and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 5.4 hereof at least 30 days before the expiration of the
time to file such claim, the holders of any Senior Indebtedness of the Issuer or
their Representatives are hereby authorized to file an appropriate claim for and
on behalf of the Holders of the Securities.
SECTION 13.5. Notice to Trustee.
The Issuer shall give prompt written notice in the form of an Officers'
Certificate to a Responsible Officer of the Trustee and to any Paying Agent of
any fact known to the Issuer which would prohibit the making of any payment of
monies deposited by the Issuer to or by the Trustee or any Paying Agent in
respect of the Securities pursuant to the provisions of this Article Thirteen.
Notwithstanding the provisions of this Article Thirteen 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 of monies
deposited by the Issuer to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Thirteen, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof at
the Corporate Trust Office from the Issuer (in the form of an Officers'
Certificate) or a Representative or a holder or holders of Senior Indebtedness
of the Issuer or from any trustee thereof; and before 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 that if on
a date not fewer than two Business Days prior to the date upon which by the
terms hereof any such monies may become payable for any purpose (including,
without limitation, the payment of the principal of, or premium, if any, or
interest on any Security) the Trustee shall not have received, with respect to
such monies, the notice provided for in this Section 13.5, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies deposited by the Issuer and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such prior date.
Notwithstanding anything in this Article Thirteen to the contrary,
nothing shall prevent any payment by the Trustee to the Holders of monies
deposited with it pursuant to Section 4.1, and any such payment shall not be
subject to the provisions of Section 13.1 or 13.2.
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The Trustee, subject to the provisions of Section 6.1, shall be
entitled to rely on the delivery to it of a written notice by a Representative
or a person representing himself to be a holder of Senior Indebtedness of the
Issuer (or a trustee on behalf of such holder) to establish that such notice has
been given by a Representative or a holder of Senior Indebtedness of the Issuer
or a trustee on behalf of any such holder or holders. 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 of the Issuer to
participate in any payment or distribution pursuant to this Article Thirteen,
the Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of the
Issuer 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 Thirteen, 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 13.6. Trustee's Relation to Senior Indebtedness of the Issuer.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Thirteen in respect of any Senior Indebtedness
of the Issuer at any time held by it, to the same extent as any other holder of
Senior Indebtedness of the Issuer, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Issuer, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Thirteen, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Issuer shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Issuer and, subject to the provisions of
Section 6.1, the Trustee shall not be liable to any holder of Senior
Indebtedness of the Issuer if it shall pay over or deliver to Holders of
Securities, the Issuer or any other person money or assets to which any holder
of Senior Indebtedness of the Issuer shall be entitled by virtue of this Article
Thirteen or otherwise.
SECTION 13.7. No Impairment of Subordination.
No right of any present or future holder of any Senior Indebtedness of
the Issuer 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
Issuer or by any act or failure to act, in good faith, by any such holder, or by
any noncompliance by the Issuer with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
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SECTION 13.8. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall have been
appointed by the Issuer and be then acting hereunder, the term "Trustee" as used
in this Article shall (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 the first
paragraph of Section 13.5 shall not apply to the Issuer or any Affiliate of the
Issuer if it or such Affiliate acts as Paying Agent.
SECTION 13.9. Senior Indebtedness of the Issuer Entitled to Rely.
The holders of Senior Indebtedness of the Issuer (including, without
limitation, Issuer Designated Senior Indebtedness) shall have the right to rely
upon this Article Thirteen, and no amendment or modification of the provisions
contained herein shall diminish the rights of such holders unless such holders
shall have agreed in writing thereto.
ARTICLE FOURTEEN
SUBORDINATION OF GUARANTEE
SECTION 14.1. Agreement of Subordination.
The Guarantor covenants and agrees, and each Holder of Securities
issued hereunder and by his acceptance thereof likewise covenants and agrees,
that all payments by the Guarantor in respect of the Guarantee shall be issued
subject to the provisions of this Article Fourteen; and each Person holding any
Security, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees to be bound by such provisions.
The payment of the principal of, premium, if any, and interest on all
Securities pursuant to the Guarantee (including, but not limited to, the
Redemption Price with respect to the Securities called for redemption in
accordance with Article Eleven, or the Repurchase Price with respect to
Securities submitted for repurchase in accordance with Article Fifteen, as the
case may be, as provided in this Indenture and Additional Amounts, if any, and
Liquidated Damages, if any) shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to the prior payment
in full of all Senior Indebtedness of the Guarantor, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the occurrence of
any default or Event of Default hereunder.
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SECTION 14.2. Payments to Noteholders.
No payment shall be made with respect to the principal of, or premium,
if any, or interest on the Securities pursuant to the Guarantee (including, but
not limited to, the Redemption Price with respect to the Securities to be called
for redemption in accordance with Article Eleven or the Repurchase Price with
respect to Securities submitted for repurchase in accordance with Article
Fifteen, as the case may be, as provided in this Indenture and Additional
Amounts, if any, and Liquidated Damages, if any), except payments and
distributions made by the Trustee as permitted by the first or second paragraph
of Section 14.5, if:
(i) a default in the payment of principal, premium, interest,
rent or other obligations due on any Senior Indebtedness of the Guarantor has
occurred and is continuing (or, in the case of Senior Indebtedness of the
Guarantor for which there is a period of grace, in the event of such a default
that continues beyond the period of grace, if any, specified in the instrument
or lease evidencing such Senior Indebtedness of the Guarantor), unless and until
such default shall have been cured or waived or shall have ceased to exist; or
(ii) a default, other than a payment default, on Guarantor
Designated Senior Indebtedness occurs and is continuing that then permits
holders of such Guarantor Designated Senior Indebtedness to accelerate its
maturity and the Trustee receives a notice of the default (a "Guarantor Payment
Blockage Notice") from a Representative of Guarantor Designated Senior
Indebtedness or the Guarantor.
If the Trustee receives any Guarantor Payment Blockage Notice pursuant
to clause (ii) above, no subsequent Guarantor Payment Blockage Notice shall be
effective for purposes of this Section unless and until (A) at least 365 days
shall have elapsed since the initial effectiveness of the immediately prior
Guarantor Payment Blockage Notice, and (B) all scheduled payments of principal,
premium, if any, and interest on the Securities that have come due have been
paid in full in cash. No nonpayment default that existed or was continuing on
the date of delivery of any Guarantor Payment Blockage Notice to the Trustee
(unless such default was waived, cured or otherwise ceased to exist and
thereafter subsequently reoccurred) shall be, or be made, the basis for a
subsequent Guarantor Payment Blockage Notice.
The Guarantor may and shall resume payments on and distributions in
respect of the Securities pursuant to the Guarantee upon the earlier of:
(1) in the case of a payment default, the date upon which the default
is cured or waived or ceases to exist, or
(2) in the case of a default referred to in clause (ii) above, the
earlier of the date on which such default is cured or waived or ceases to exist
or 179 days after the date on which the applicable Guarantor Payment Blockage
Notice is received if the maturity of such Guarantor Designated Senior
Indebtedness has not been accelerated,
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unless this Article Fourteen otherwise prohibits the payment or distribution at
the time of such payment or distribution (including, without limitation, in the
case of a default referred to in clause (ii) above, as a result of a payment
default with respect to the applicable Senior Indebtedness as a consequence of
the acceleration of the maturity thereof or otherwise).
Upon any payment by the Guarantor, or distribution of assets of the
Guarantor of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Guarantor, whether voluntary or involuntary or in bankruptcy, moratorium of
payments, insolvency, receivership or other proceedings, all amounts due or to
become due upon all Senior Indebtedness of the Guarantor shall first be paid in
full in cash or other payment satisfactory to the holders of such Senior
Indebtedness of the Guarantor, or payment thereof in accordance with its terms
provided for in cash or other payment satisfactory to the holders of such Senior
Indebtedness of the Guarantor before any payment is made on account of the
principal of, premium, if any, or interest on the securities pursuant to the
Guarantee (except payments made pursuant to Article Four from monies deposited
with the Trustee pursuant thereto prior to commencement of proceedings for such
dissolution, winding-up, liquidation or reorganization); and upon any such
dissolution or winding-up or liquidation or reorganization of the Guarantor or
bankruptcy, insolvency, receivership or other proceeding, any payment by the
Guarantor, or distribution of assets of the Guarantor of any kind or character,
whether in cash, property or securities, to which the Holders or the Trustee
would be entitled, except for the provision of this Article Fourteen, shall
(except as aforesaid) be paid by the Guarantor or by any receiver, trustee in
bankruptcy, moratorium of payments, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders or by the Trustee under
this Indenture if received by them or it, directly to the holders of Senior
Indebtedness of the Guarantor (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness of the Guarantor held by such holders,
or as otherwise required by law or a court order) or their Representative or
Representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness of the Guarantor may
have been issued, as their respective interests may appear, to the extent
necessary to pay all Senior Indebtedness of the Guarantor in full, in cash or
other payment satisfactory to the holders of such Senior Indebtedness of the
Guarantor, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness of the Guarantor, before any payment or
distribution is made to the Holders or to the Trustee.
For purposes of this Article Fourteen, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Guarantor as
reorganized or readjusted, or securities of the Guarantor or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article
Fourteen with respect to the Guarantee to the payment of all Senior Indebtedness
of the Guarantor which may at the time be outstanding; provided that (i) the
Senior Indebtedness of the Guarantor is assumed by the new corporation, if any,
resulting from any reorganization or readjustment, and (ii) the rights of the
holders of Senior Indebtedness of the Guarantor (other than leases which are not
assumed by the Guarantor or the new corporation, as the case may be) are not,
without the consent of such holders, altered by such reorganization or
readjustment. The merger of the Guarantor into another
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corporation, or the liquidation or dissolution of the Guarantor following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in
Article Seven shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 14.2 if such other corporation
shall, as a part of such merger, conveyance or transfer, comply with the
conditions stated in Article Seven.
In the event of the acceleration of the Securities because of an Event
of Default, no payment or distribution shall be made to the Trustee or any
Holder of Securities in respect of the principal of, premium, if any, or
interest on the Securities pursuant to the Guarantee (including, but not limited
to, the Redemption Price with respect to the Securities called for redemption in
accordance with Article Eleven or the Repurchase Price with respect to
Securities submitted for repurchase in accordance with Article Fifteen, as the
case may be, as provided in this Indenture and Additional Amounts, if any, and
Liquidated Damages, if any), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 14.5, until all
Senior Indebtedness of the Guarantor has been paid in full in cash or other
payment satisfactory to the holders of Senior Indebtedness of the Guarantor or
such acceleration is rescinded in accordance with the terms of this Indenture.
If payment of the Securities is accelerated because of an Event of Default, the
Guarantor shall promptly notify holders of Senior Indebtedness of the Guarantor
of the acceleration.
In the event that, notwithstanding the foregoing provisions, any
payment or distribution of assets of the Guarantor of any kind or character,
whether in cash, property or securities (including, without limitation, by way
of setoff or otherwise), prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Securities before all Senior Indebtedness of the
Guarantor is paid in full in cash or other payment satisfactory to the holders
of such Senior Indebtedness of the Guarantor, or provision is made for such
payment thereof in accordance with its terms in cash or other payment
satisfactory to the holders of such Senior Indebtedness of the Guarantor, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of Senior Indebtedness of the Guarantor or
their Representative or Representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
of the Guarantor may have been issued, as their respective interests may appear,
as calculated by the Guarantor, for application to the payment of all Senior
Indebtedness of the Guarantor remaining unpaid to the extent necessary to pay
all Senior Indebtedness of Guarantor in full in cash or other payment
satisfactory to the holders of such Senior Indebtedness of Guarantor, after
giving effect to any concurrent payment or distribution, or provision therefor,
to or for the holders of such Senior Indebtedness of Guarantor.
Nothing in this Article Fourteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7. This Section 14.2 shall be
subject to the further provisions of Section 14.5 and Section 17.2.
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SECTION 14.3. Subrogation of Securities.
Subject to the payment in full of all Senior Indebtedness of the
Guarantor, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness of
the Guarantor pursuant to the provisions of this Article Fourteen (equally and
ratably with the holders of all indebtedness of the Guarantor which by its
express terms is subordinated to other indebtedness of the Guarantor to
substantially the same extent as the Guarantee is subordinated and is entitled
to like rights of subrogation) to the rights of the holders of Senior
Indebtedness of the Guarantor to receive payments or distributions of cash,
property or securities of the Guarantor applicable to the Senior Indebtedness of
the Guarantor until the principal, premium, if any, and interest on the
Securities pursuant to the Guarantee shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of the Guarantor 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 Fourteen, and no payment over pursuant to the
provisions of this Article Fourteen, to or for the benefit of the holders of
Senior Indebtedness of the Guarantor by Holders of the Securities or the
Trustee, shall, as between the Guarantor, its creditors other than holders of
Senior Indebtedness of the Guarantor, and the Holders of the Securities, be
deemed to be a payment by the Guarantor to or on account of the Senior
Indebtedness; and no payments or distributions of cash, property or securities
to or for the benefit of the Holders of the Securities pursuant to the
subrogation provisions of this Article Fourteen, which would otherwise have been
paid to the holders of Senior Indebtedness of the Guarantor shall be deemed to
be a payment by the Guarantor to or for the account of the Securities. It is
understood that the provisions of this Article Fourteen are and are intended
solely for the purposes of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness of the
Guarantor, on the other hand.
Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Guarantor, its creditors other than the holders of Senior Indebtedness of the
Guarantor, and the Holders of the Securities, the obligation of the Guarantor,
which is absolute and unconditional, to pay to the Holders of the Securities
amounts due on the Guarantee pursuant to the Guarantee as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders of the Securities and
creditors of the Guarantor other than the holders of the Senior Indebtedness of
the Guarantor, nor shall anything herein or therein 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 Fourteen of the holders of Senior Indebtedness of the
Guarantor in respect of cash, property or securities of the Guarantor received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Guarantor referred to
in this Article Fourteen, 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 made by any court of competent jurisdiction in which such bankruptcy,
dissolution, winding-up, liquidation or reorganization
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proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities, for
the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness of the Guarantor and other
indebtedness of the Guarantor, the amount thereof or payable thereon and all
other facts pertinent thereto or to this Article Fourteen.
SECTION 14.4. Authorization to Effect Subordination.
Each Holder of a Security by the Holder's acceptance thereof authorizes
and directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article Fourteen and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 5.4 hereof at least 30 days before the expiration of the
time to file such claim, the holders of any Senior Indebtedness of the Guarantor
or their Representatives are hereby authorized to file an appropriate claim for
and on behalf of the Holders of the Securities.
SECTION 14.5. Notice to Trustee.
The Guarantor shall give prompt written notice in the form of an
Officers' Certificate to a Responsible Officer of the Trustee and to any Paying
Agent of any fact known to the Guarantor which would prohibit the making of any
payment of monies deposited by the Guarantor to or by the Trustee or any Paying
Agent in respect of the Guarantee pursuant to the provisions of this Article
Fourteen. Notwithstanding the provisions of this Article Fourteen 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 of
monies deposited by the Guarantor to or by the Trustee in respect of the
Guarantee pursuant to the provisions of this Article Fourteen, unless and until
a Responsible Officer of the Trustee shall have received written notice thereof
at the Corporate Trust Office from the Guarantor (in the form of an Officers'
Certificate) or a Representative or a holder or holders of Senior Indebtedness
of the Guarantor or from any trustee thereof; and before 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 that if on
a date not fewer than two Business Days prior to the date upon which by the
terms hereof any such monies may become payable for any purpose (including,
without limitation, the payment of the principal of, or premium, if any, or
interest on any Security pursuant to the Guarantee) the Trustee shall not have
received, with respect to such monies, the notice provided for in this Section
14.5, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such prior
date.
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Notwithstanding anything in this Article Fourteen to the contrary,
nothing shall prevent any payment by the Trustee to the Holders of monies
deposited with it pursuant to Section 4.1, and any such payment shall not be
subject to the provisions of Section 14.1 or 14.2.
The Trustee, subject to the provisions of Section 6.1, shall be
entitled to rely on the delivery to it of a written notice by a Representative
or a person representing himself to be a holder of Senior Indebtedness of the
Guarantor (or a trustee on behalf of such holder) to establish that such notice
has been given by a Representative or a holder of Senior Indebtedness of the
Guarantor or a trustee on behalf of any such holder or holders. 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 of the
Guarantor to participate in any payment or distribution pursuant to this Article
Fourteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
of the Guarantor 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 Fourteen, 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 14.6. Trustee's Relation to Senior Indebtedness of the Guarantor.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Fourteen in respect of any Senior Indebtedness
of the Guarantor at any time held by it, to the same extent as any other holder
of Senior Indebtedness of the Guarantor, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Guarantor,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Fourteen, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Guarantor shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Guarantor and, subject to the provisions
of Section 6.1, the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall pay over or deliver to Holders of Securities, the
Guarantor or any other person money or assets to which any holder of Senior
Indebtedness of the Guarantor shall be entitled by virtue of this Article
Fourteen or otherwise.
SECTION 14.7. No Impairment of Subordination.
No right of any present or future holder of any Senior Indebtedness of
the Guarantor 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 Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Guarantor with the terms, provisions and
covenants
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of this Indenture, regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
SECTION 14.8. Certain Conversions Deemed Payment.
For the purposes of this Article Fourteen only, (1) the issuance and
delivery of junior securities upon conversion of Securities in accordance with
Article Twelve shall not be deemed to constitute a payment or distribution on
account of the principal of (or premium, if any) or interest on Securities or on
account of the purchase or other acquisition of Securities pursuant to the
Guarantee, and (2) the payment, issuance or delivery of cash (except in
satisfaction of fractional shares pursuant to Section 12.2), 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
pursuant to the Guarantee. For the purposes of this Section 14.8, the term
"junior securities" means (a) shares of any stock of any class of the Guarantor
(including, without limitation, the Common Stock of the Guarantor), or (b)
securities of the Guarantor which are subordinated in right of payment to all
Senior Indebtedness of the Guarantor 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 subor dinated as provided in
this Article. Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Guarantor, its creditors other than holders of Senior Indebtedness of the
Guarantor and the Holders, the right, which is absolute and unconditional, of
the Holder of any Security to convert such Security in accordance with Article
Twelve.
SECTION 14.9. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall have been
appointed by the Guarantor and be then acting hereunder, the term "Trustee" as
used in this Article shall (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 the first
paragraph of Section 14.5 shall not apply to the Guarantor or any Affiliate of
the Guarantor if it or such Affiliate acts as Paying Agent.
SECTION 14.10. Senior Indebtedness of the Guarantor Entitled to Rely.
The holders of Senior Indebtedness of the Guarantor (including, without
limitation, Guarantor, Designated Senior Indebtedness) shall have the right to
rely upon this Article Thirteen, and no amendment or modification of the
provisions contained herein shall diminish the rights of such holders unless
such holders shall have agreed in writing thereto.
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ARTICLE FIFTEEN
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A FUNDAMENTAL CHANGE
SECTION 15.1. Right to Require Repurchase.
In the event that a Fundamental Change (as hereinafter defined) shall
occur, then each Holder shall have the right, at the Holder's option, to require
the Issuer to repurchase, and upon the exercise of such right the Issuer shall
repurchase, all of such Holder's Securities, or any portion of the principal
amount thereof that is equal to U.S.$1,000 or any integral multiple of
U.S.$1,000 in excess thereof (provided that no single Security may be
repurchased in part unless the portion of the principal amount of such Security
to be Outstanding after such repurchase is equal to U.S.$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 Issuer Notice (as defined in Section 15.2)
at the following prices (expressed as percentages of the Accreted Value) (the
"Repurchase Price") in the event of a Fundamental Change occurring during the
12-month period beginning June 1 (plus interest accrued to, but excluding, the
Repurchase Date):
<TABLE>
<CAPTION>
Year Percentage Year Percentage
- ---- ---------- ---- ----------
<S> <C> <C> <C>
1997.......................... 102% 2000........................... 102%
1998.......................... 102 2001........................... 101
1999.......................... 102
</TABLE>
and 100% at June 1, 2002; provided that if the Applicable Price with respect to
the Fundamental Change is less than the Reference Market Price, the Issuer shall
repurchase such Notes at a price equal to the foregoing Repurchase Price
multiplied by the fraction obtained by dividing the Applicable Price by the
Reference Market Price; and provided, further, 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 Regular 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 Issuer from its
obligations with respect to the Securities in accordance with Article Four,
unless a Fundamental Change shall have occurred prior to such discharge.
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.
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SECTION 15.2. Notices; Method of Exercising Repurchase Right, Etc.
(a) Unless the Issuer shall have theretofore called for redemption all
of the Outstanding Securities, on or before the 30th day after the occurrence of
a Fundamental Change, the Issuer or, at the request and expense of the Issuer,
the Trustee, shall give to all Holders of Securities, in the manner provided in
Section 1.6, notice (the "Issuer Notice") of the occurrence of the Fundamental
Change and of the repurchase right set forth herein arising as a result thereof.
The Issuer 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,
(2) the date by which the repurchase right must be exercised,
(3) the Repurchase Price,
(4) a description of the procedure which a Holder must follow
to exercise a repurchase right, and the place or places where such
Securities maturing after the Repurchase Date, 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, and
(6) the Conversion Price 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.
So long as the Securities are listed on the Luxembourg Stock Exchange
and the Luxembourg Stock Exchange shall require, on or before the 30th day after
the occurrence of a Fundamental Change, the Issuer or, at the request of the
Issuer, the Paying Agent in Luxembourg, will provide notice of such Fundamental
Change by publishing such notice in a Authorized Newspaper in Luxembourg, or, if
not practicable in Luxembourg, elsewhere in a Western European city. No failure
of the Issuer 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
are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver to the
Trustee or any Paying Agent on or before the 30th day after the date of the
Issuer 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
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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 (ii) the
Securities with respect to which the repurchase right is being exercised. Such
written notice shall be irrevocable, except that the right of the Holder to
convert the Securities with respect to which the repurchase right is being
exercised shall continue until the close of business on the Business Day prior
to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Issuer shall pay or cause to be paid to the Trustee
or the Paying Agent the Repurchase Price in cash, as provided above, for payment
to the Holder on the Repurchase Date together with accrued and unpaid interest
to the Repurchase Date payable with respect to the Securities as to which their
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, in the case of Securities, 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 3.25% per annum from May 28, 1997 to June 1, 2000 and thereafter at
a rate of 8.25% 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 Issuer or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Issuer 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) All securities delivered for repurchase shall be delivered to the
Trustee, the Paying Agent or any other agents (as shall be set forth in the
Issuer Notice) to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 3.9.
SECTION 15.3. Merger, Consolidation, etc.
In the case of any merger, consolidation, sale or transfer of all or
substantially all of the assets of the Guarantor to which Section 12.11 applies,
in which the Common Stock of the Guarantor is
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changed or exchanged as a result into the right to receive shares of stock and
other securities or property or assets (including cash) which includes Common
Stock of the Guarantor or common stock of another Person that are, or upon
issuance will be, traded on a United States national securities exchange or
approved for trading on an established automated over-the-counter trading market
in the United States and such shares constitute at the time such change or
exchange becomes effective in excess of 50% of the aggregate fair market value
of such shares of stock and other securities, property and assets (including
cash) (as determined by the Guarantor, which determination shall be conclusive
and binding), then the Issuer and the Person resulting from such merger or
consolidation or which acquires the properties or assets (including cash) of the
Guarantor, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture) modifying the
provisions of this Indenture relating to the right of Holders to cause the
Issuer to repurchase the Securities following a Fundamental Change, including
without limitation the applicable provisions of this Article Fifteen and the
definitions of the Common Stock and Fundamental Change, as appropriate, and such
other related definitions set forth herein as determined in good faith by the
Issuer and the Guarantor (which determination shall be conclusive and binding),
to make such provisions apply in the event of a subsequent Fundamental Change to
the common stock and the issuer thereof if different from the Guarantor and the
Common Stock of the Guarantor.
ARTICLE SIXTEEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 16.1. Issuer to Furnish Trustee Names and Addresses of Holders.
The Issuer 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 Issuer of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
provided, however, that no such list need be furnished so long as the Trustee is
acting as Security Registrar.
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SECTION 16.2. 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 16.1, if any, 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 pursuant to Section
16.1 upon receipt of a new list so furnished.
(b) If and when this Indenture has become 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 Issuer and the Trustee that neither the Issuer 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 16.3. Reports by Trustee.
(a) If and when this Indenture becomes 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) If and when this Indenture becomes 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 Issuer and
Guarantor. The Issuer or the Guarantor will notify the Trustee when the
Securities are listed on any stock exchange.
SECTION 16.4. Reports by Issuer and Guarantor.
If and when this Indenture becomes qualified under the Trust Indenture
Act, the Issuer and the Guarantor 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.
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ARTICLE SEVENTEEN
GUARANTEE
SECTION 17.1. Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder and to
the Trustee on behalf of each Holder (i) the due and punctual payment of the
principal of and interest on and all other amounts payable under each Security
provided for pursuant to this Indenture and the terms of such Security when and
as the same shall become due and payable, whether at the Stated Maturity, upon
acceleration, by repurchase, by call for redemption or otherwise, in accordance
with the terms of such Security and of this Indenture and (ii) the performance
by the Issuer of all other obligations of the Issuer hereunder and under the
Securities. The Guarantee will not be discharged with respect to any Security
except by payment in full of the principal thereof and interest thereon and the
performance of all such obligations. In case of the failure of the Issuer
punctually to pay any such principal or interest the Guarantor hereby agrees to
cause any such payment to be made punctually when and as the same shall become
due and payable, whether at the Stated Maturity, by acceleration, by repurchase,
by call for redemption or otherwise, and as if such payment were made by the
Issuer.
For purposes of this Article Seventeen, each reference to the payment
of principal of any Security, whether at the Stated Maturity, by acceleration,
by repurchase, by redemption, upon exchange or otherwise, shall include the
delivery of Common Stock as and to the extent provided by the terms of such
Security and of this Indenture.
The Guarantor hereby agrees that is obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and unaffected by, any invalidity, irregularity
or unenforceability of any Security or this Indenture, any failure to enforce
the provisions of any Security or this Indenture, any waiver, modification or
indulgence granted to the Issuer with respect thereto by the Holders or the
Trustee, or any other circumstance which may otherwise constitute a legal or
equitable discharge of a surety or guarantor; provided that, notwithstanding the
foregoing, no such waiver, modification, indulgence or circumstance shall
without the written consent of the Guarantor increase the principal amount of a
Security or the interest rate thereon or change the currency of payment with
respect to any Security, or alter the Stated Maturity thereof. The Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of merger or bankruptcy of the Issuer (including, for the
avoidance of doubt, any right which the Guarantor may have to require the
seizure and sale of the assets of the Issuer to satisfy the outstanding
principal of, interest on, or any other amounts payable under, each Security
prior to recourse against the Guarantor or its assets), protest or notice with
respect to any Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged with
respect to any Security except by payment in full of the principal thereof and
interest thereon. If at any time any payment of principal of or interest or
other amount on such Security is rescinded or must be otherwise restored or
returned upon
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the insolvency, bankruptcy or reorganization of the Issuer, the Guarantor's
obligations hereunder with respect to such payment shall be reinstated as of the
date of such rescission, restoration or return as though such payment had become
due but had not been made at such time.
SECTION 17.2. Subordination of Payments under Guarantee.
Any payments made by or on behalf of the Guarantor, including without
limitation, any distribution of cash, property or securities of the Guarantor
pursuant to this Article Seventeen, shall be subject to the provisions of
Article Fourteen and shall not be subject to the provisions of Article Thirteen.
SECTION 17.3. Subrogation.
The Guarantor shall be subrogated to all rights of each Holder against
the Issuer in respect of any amounts paid to such Holder by the Guarantor
pursuant to the provisions of this Guarantee.
---------------------
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 all as of the day and year first above written.
ATMEL S.A.
By /s/ Donald Colvin
--------------------------------------------------
Name: Donald Colvin
Title: President
ATMEL CORPORATION
By /s/ Kris Chellam
--------------------------------------------------
Name: Kris Chellam
Title: Vice President, Finance Administration
and Chief Financial Officer
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
Trustee
By /s/ Jeanie Mar
--------------------------------------------------
Name: Jeanie Mar
Title: Assistant Vice President
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<PAGE> 1
EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of May 15, 1997, by and among Atmel Corporation, a California
corporation (the "Company"), and Deutsche Morgan Grenfell Inc., Alex. Brown &
Sons, Incorporated, BNP plc, Credit Lyonnais Securities, Smith Barney Inc. and
Societe Generale Securities Corp. (the "Initial Purchasers") pursuant to the
Purchase Agreement, dated May 19, 1997 (the "Purchase Agreement"), among the
Company, Atmel S.A., a societe anonyme organized under the laws of The Republic
of France and an indirect wholly owned subsidiary of the Company (the "Issuer"),
and The Initial Purchasers. In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Company and the Issuer have agreed to provide
the registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit
as Initial Purchasers and (ii) for the benefit of the holders from time to time
of the Notes (including the Initial Purchasers) and the holders from time to
time of the Common Stock issued upon conversion of the Notes (each of the
foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any specified
person, (i) any other person directly or indirectly controlling or controlled
by, or under direct or indirect common control with, such specified person or
(ii) any executive officer or director of such other person. For purposes of
this definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a person means the
possession, direct or indirect, of the power (whether or not exercised) to
direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract, or otherwise.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
or Los Angeles, California are authorized or obligated by law or executive order
to close.
Common Stock: The shares of common stock, no par value per
share, of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, in each case, as issuable or
issued upon conversion of the Notes.
Damages Accrual Period: See Section 2(c) hereof.
Damages Payment Date: Each of the semi-annual interest payment
dates provided in the Indenture.
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Deferral Period: See Section 2(d) hereof.
Effectiveness Period: The period commencing with the date
hereof and ending on the earlier of the date that is two years after the latest
date of original issuance of the Notes and the date that all Registrable
Securities have ceased to be Registrable Securities.
Event: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the Rules and Regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of May 15, 1997, among the
Issuer, the Company and State Street Bank and Trust Company of California,
N.A.., as trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms hereof.
Initial Purchasers: See the first paragraph of this Agreement.
Initial Shelf Registration: See Section 2(a) hereof.
Liquidated Damages: See Section 2(e) hereof.
Losses: See Section 6 hereof.
Manager: As such term is defined in the Purchase Agreement.
Managing Underwriters: The investment banking firm or firms
that shall manage or co-manage an Underwritten Offering.
Notes: The 3.25% Convertible Subordinated Guaranteed Step-Up
Notes due 2002 of the Company being issued and sold pursuant to the Purchase
Agreement and the Indenture.
Notice Holder: See Section 2(d)(i) hereof.
Purchase Agreement: See the first paragraph of this Agreement.
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Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Record Holder: (i) with respect to any Damages Payment Date
relating to any Note as to which any such Liquidated Damages have accrued, the
registered holder of such Note on the record date with respect to the interest
payment date under the Indenture on which such Damages Payment Date shall occur
and (ii) with respect to any Damages Payment Date relating to any Common Stock
as to which any such Liquidated Damages have accrued, the registered holder of
such Common Stock 15 days prior to the next succeeding Damages Payment Date.
Registrable Securities: The Common Stock into which the Notes
are convertible or converted, whether or not such Notes have been converted (and
associated rights), and at all times subsequent thereto, and any Common Stock
issued with respect thereto upon any stock dividend, split or similar event
until, in the case of any such Common Stock, (i) it is effectively registered
under the Securities Act and disposed of in accordance with the Registration
Statement covering it, (ii) it is saleable by the holder thereof pursuant to
Rule 144(k) or (iii) it is sold to the public pursuant to Rule 144, and, as a
result of the event or circumstance described in any of the foregoing clauses
(i) through (iii), the legends with respect to transfer restrictions required
under the Indenture (other than any such legends required solely as the
consequence of the fact that the Registrable Securities (or the Notes, upon the
conversion of which, such Registrable Securities were issued or are issuable)
are owned by, or were previously owned by, the Company, the Issuer, or an
Affiliate of the Company or the Issuer) are removed or removable in accordance
with the terms of the Indenture.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: 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 SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
Selling Period: See Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Venture Law Group, A Professional
Corporation, or such other successor counsel as shall be specified by the
holders of a majority of the Registerable Securities, the fees and expenses of
which will be paid by the Company pursuant to Section 5 hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public, provided, that the Managing Underwriters of an
Underwritten Offering shall be approved by the Company, which approval shall not
be unreasonably withheld.
2. Shelf Registration.
(a) Shelf Registration. The Company shall prepare and file
with the SEC, as soon as practicable but in any event on or prior to the date
ninety (90) days following the latest date of original issuance of the Notes
(the "Filing Date"), a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration") registering the resale from time to time by Holders thereof of
all of the Registrable Securities upon and following conversion of the Notes
(the "Initial Shelf Registration"). The Initial Shelf Registration shall be on
Form S-3 or another appropriate form permitting registration of such Registrable
Securities for resale by such Holders in the manner or manners designated by
them (including, without limitation, one or more Underwritten Offerings). The
Company shall use its reasonable efforts to cause the Initial Shelf Registration
to be declared effective under the Securities Act as soon as practicable and, in
any event, within one hundred and eighty (180 )days following the latest date of
original issuance of the Notes and to keep the Initial Shelf Registration
effective under the Securities Act until the earlier of the expiration of the
Effectiveness Period or the date a Subsequent Shelf Registration, as defined
below, covering all of the Registrable Securities has been declared effective
under the Securities Act.
(b) If the Initial Shelf Registration or any Subsequent Shelf
Registration, as defined below, ceases to be effective for any reason as a
result of the issuance of a stop order by
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the SEC at any time during the Effectiveness Period, the Company shall use its
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration covering all of the
Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Company shall use its reasonable efforts to
cause the Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Registration Statement
continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf
Registration if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by the Initial
Purchasers or by the Trustee on behalf of a majority of the Holders of the
Registrable Securities covered by such Registration Statement or by any Managing
Underwriter of such Registrable Securities in the event of an Underwritten
Offering of the Registrable Securities.
(d) Each Holder of Registrable Securities agrees that if
Holder wishes to sell its Registrable Securities pursuant to a Shelf
Registration and related Prospectus, it will do so only in accordance with this
Section 2(d). Each Holder of Registrable Securities agrees to give written
notice to the Company at least three Business Days prior to any intended
distribution of Registrable Securities under the Shelf Registration, which
notice shall specify the date on which such Holder intends to begin such
distribution and any information with respect to such Holder and the intended
distribution of Registrable Securities by such Holder as may be required to
amend the Registration Statement or supplement the related Prospectus with
respect to such intended distribution of Registrable Securities by such Holder
(the "Requisite Information"). In the event the Holder fails to provide the
Requisite Information in its initial notice of its intention to distribute the
Registrable Securities pursuant to the Registration Statement, the Company will
promptly request such Holder to provide such Requisite Information. As soon as
practicable after the date such notice is provided, and in any event within two
Business Days after such date, the Company shall either:
(i) (A) If necessary, prepare and file with the
Commission a post-effective amendment to the Shelf Registration or a supplement
to the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document so that
such Registration Statement 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 so that, as thereafter
delivered to purchasers of the Registrable Securities being sold thereunder,
such Prospectus 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, in light of the circumstances under which they were made,
not misleading; (B) provide the Notice Holders (as defined below) copies of any
documents filed pursuant to Section 2(d)(i)(A); and (C) inform the Notice
Holders that the
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Company has complied with its obligations in Section 2(d)(i)(A) (or that, if the
Company has filed a post-effective amendment to the Shelf Registration which has
not yet been declared effective, the Company will notify the Notice Holders to
that effect, will use its reasonable efforts to secure the effectiveness of such
post-effective amendment and will immediately notify the Notice Holders when the
amendment has become effective); each Holder who has given notice of intention
to distribute such Holder's Registrable Securities in accordance with Section
2(d) hereof (a "Notice Holder") will sell all or any of such Registrable
Securities pursuant to the Shelf Registration and related Prospectus only during
the 45-day period commencing with the date on which the Company gives notice,
pursuant to Section 2(d)(i)(C), that the Registration Statement and Prospectus
may be used for such purpose (such 45-day period is referred to as a "Selling
Period"). The Notice Holders will not sell any Registrable Securities pursuant
to such Registration Statement or Prospectus after such Selling Period without
giving a new notice of intention to sell pursuant to Section 2(d) hereof and
receiving a further notice from the Company pursuant to Section 2(d)(i)(C)
hereof.
(ii) in the event (A) of the happening of any
event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or
3(c)(vi) hereof or (B) that, in the judgment of the Company, it is advisable to
suspend use of the Prospectus for a discrete period of time due to pending
material corporate developments or similar material events that have not yet
been publicly disclosed and as to which the Company believes public disclosure
will be prejudicial to the Company, the Company shall deliver a certificate in
writing, signed by an authorized executive officer of the Company, to the Notice
Holders, the Special Counsel and the Managing Underwriters, if any, to the
effect of the foregoing and, upon receipt of such certificate, each such Notice
Holder's Selling Period will not commence until such Notice Holder's receipt of
copies of the supplemented or amended Prospectus provided for in Section
2(d)(i)(A) hereof, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The Company will use its reasonable efforts to ensure that
the use of the Prospectus may be resumed, and the Selling Period will commence,
as soon as practicable and, in the case of a pending development or event
referred to in Section 2(d)(ii)(B) hereof, as soon as the earlier of (x) public
disclosure of such pending material corporate development or similar material
event or (y) in the judgment of the Company, public disclosure of such material
corporate development or similar material event would not be prejudicial to the
Company. Notwithstanding the foregoing, (A) the Company shall not under any
circumstances be entitled to exercise its right under this Section 2(d)(ii) to
defer the commencement of a Selling Period more than one (1) time in any three
(3) month period or two (2) times in any twelve (12) month period, and the
period in which a Selling Period is suspended shall not exceed fifteen (15) days
unless the Company shall deliver to such Notice Holders a second notice to the
effect set forth above, which shall have the effect of extending the period
during which such Selling Period is deferred by up to an additional fifteen (15)
days, or such shorter period of time as is specified in such second notice, and
(B) in no event shall the Company be permitted to extend the period during which
such Selling Period is deferred from and after the date a Notice Holder provides
notice to the Company in accordance with this Section 2(d) of its intention to
distribute Registrable
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Securities (a "Deferral Period") beyond such thirty (30) day period, provided,
that the Company may suspend the use of such Prospectus for longer periods so
long as the Company complies with its obligations, if any, to pay Liquidated
Damages in accordance with Section 2(e) hereof.
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
has not been filed on or prior to the Filing Date, (ii) prior to the end of the
Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Shelf Registration or proceedings have been initiated with
respect to the Shelf Registration under Section 8(d) or 8(e) of the Securities
Act, (iii) the aggregate number of days in any one Deferral Period exceeds the
periods permitted pursuant to Section 2(d)(ii) hereof or (iv) the number of
Deferral Periods exceeds the number permitted pursuant to Section 2(d)(ii)
hereof (each of the events of a type described in any of the foregoing clauses
(i) through (iv) are individually referred to herein as an "Event," and the
Filing Date in the case of clause (i), the date on which the effectiveness of
the Shelf Registration has been suspended or proceedings with respect to the
Shelf Registration under Section 8(d) or 8(e) of the Securities Act have been
commenced in the case of clause (ii), the date on which the duration of a
Deferral Period exceeds the periods permitted by Section 2(d)(ii) hereof in the
case of clause (iii), and the date of the commencement of a Deferral Period that
causes the limit on the number of Deferral Periods under Section 2(d)(ii) hereof
to be exceeded in the case of clause (iv), being referred to herein as an "Event
Date"). Events shall be deemed to continue until the date of the termination of
such Event, which shall be the following dates with respect to the respective
types of Events: the date the Initial Registration Statement is filed in the
case of an Event of the type described in clause (i), the date that all stop
orders suspending effectiveness of the Shelf Registration have been removed and
the proceedings initiated with respect to the Shelf Registration under Section
8(d) or 8(e) of the Securities Act have terminated, as the case may be, in the
case of Events of the types described in clause (ii), termination of the
Deferral Period which caused the aggregate number of days in any one Deferral
Period to exceed the number permitted by Section 2(d)(ii) to be exceeded in the
case of Events of the type described in clause (iii), and termination of the
Deferral Period the commencement of which caused the number of Deferral Periods
permitted by Section 2(d)(ii) to be exceeded in the case of Events of the type
described in clause (iv).
Accordingly, upon the occurrence of any Event and until such time as
there are no Events which have occurred and are continuing (a "Damages Accrual
Period"), commencing on the Event Date on which such Damages Accrual Period
began, the Company agrees to pay (or cause the Issuer to pay), as liquidated
damages, and not as a penalty, an additional amount (the "Liquidated Damages"):
(A)(i) to each holder of a Note that is a Notice Holder, accruing at a rate
equal to one-quarter of one percent per annum (25 basis points) on the aggregate
principal amount of Notes held by such Notice Holder and (ii) to each holder of
Common Stock that is a Notice Holder, accruing at a rate equal to one-quarter of
one percent per annum (25 basis points) calculated on an amount equal to the
product of (x) the then-applicable Conversion Price (as defined in the
Indenture), times (y) the number of shares of Common
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Stock held by such holder; and (B) if the Damages Accrual Period continues for a
period in excess of thirty (30) days from the Event Date, from and after the end
of such thirty (30) days until such time as there are no Events which have
occurred and are continuing, (i) to each holder of a Note (whether or not a
Notice Holder), accruing at a rate equal to one-quarter of one percent per annum
(25 basis points) on the aggregate principal amount of Notes held by such holder
and (ii) to each holder of Common Stock (whether or not a Notice Holder),
accruing at a rate equal to one-quarter of one percent per annum (25 basis
points) calculated on an amount equal to the product of (x) the then-applicable
Conversion Price (as defined in the Indenture), times (y) the number of shares
of Common Stock held by such holder. Notwithstanding the foregoing, no
Liquidated Damages shall accrue under clause (A) for the preceding sentence
during any period for which Liquidated Damages accrue under clause (B) of the
preceding sentence or as to any Registrable Securities from and after the
earlier of (x) the date such securities are no longer Registrable Securities,
and (y) the expiration of the Effectiveness Period. The rate of accrual of the
Liquidated Damages with respect to any period shall not exceed the rate provided
for in this paragraph notwithstanding the occurrence of multiple concurrent
Events.
The Company shall pay (or cause the Issuer to pay) the Liquidated
Damages due on any Notes or Common Stock by depositing with the Trustee under
the Indenture, in trust, for the benefit of the holders of Notes or Common Stock
or Notice Holder, as the case may be, entitled thereto, on or prior to the
applicable Damages Payment Date, sums sufficient to pay the Liquidated Damages
accrued or accruing since the last preceding Damages Payment Date through such
Damages Payment Date. The Liquidated Damages shall be paid by the Company (or
the Issuer, as the case may be) to the Record Holders on each Damages Payment
Date by wire transfer of immediately available funds to the accounts specified
by them or by mailing checks to their registered addresses as they appear in the
Note register (as defined in the Indenture), in the case of the Notes, and in
the register of the Company for the Common Stock, in the case of the Common
Stock, if no such accounts have been specified on or before the Damage Payment
Date; provided, however, that any Liquidated Damages accrued with respect to any
Note or portion thereof called for redemption on a redemption date, redeemed or
repurchased in connection with a Fundamental Change (as defined in the
Indenture) on a repurchase date, or converted into Common Stock on a conversion
date prior to the Damages Payment Date, shall, in any such event, be paid
instead to the holder who submitted such Note or portion thereof for redemption,
repurchase or conversion on the applicable redemption date, repurchase date or
conversion date, as the case may be, on such date (or promptly following the
conversion date, in the case of conversion of a Note). The Trustee shall be
entitled, on behalf of the holders of Notes, Common Stock and Notice Holder, to
seek any available remedy for the enforcement of this Agreement, including for
the payment of such Liquidated Damages. Notwithstanding the foregoing, the
parties agree that the sole damages payable for a violation of the terms of this
Agreement with respect to which Liquidated Damages are expressly provided shall
be such Liquidated Damages. Nothing shall preclude a Notice Holder or holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
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All of the Company's obligations set forth in this Section 2(e) which
are outstanding with respect to any Registrable Securities at the time such
security ceases to be a Registrable Security shall survive until such time as
all such obligations with respect to such security have been satisfied in full
(notwithstanding termination of the Agreement pursuant to Section 8(o)).
The parties hereto agree that the Liquidated Damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by holders of Registrable Securities (other than the Initial
Purchasers) by reason of the failure of the Shelf Registration to be filed or
declared effective or unavailable (absolutely or as a practical matter) for
effecting resales of Registrable Securities, as the case may be, in accordance
with the provisions hereof.
3. Registration Procedures. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall effect such
registrations to permit the sale of the Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders thereof in
accordance with the intended method or methods of distribution thereof, and use
its reasonable efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, that before filing
any such Registration Statement or Prospectus or any amendments or supplements
thereto (other than documents that would be incorporated or deemed to be
incorporated therein by reference and that the Company is required by applicable
securities laws or stock exchange requirements to file) the Company shall
furnish to the Manager, the Special Counsel and the Managing Underwriters of
such offering, if any, copies of all such documents proposed to be filed, which
documents will be subject to the review of the Manager, the Special Counsel and
such Managing Underwriters, and the Company shall not file any such Registration
Statement or amendment thereto or any Prospectus or any supplement thereto
(other than such documents which, upon filing, would be incorporated or deemed
to be incorporated by reference therein and that the Company is required by
applicable securities laws or stock exchange requirements to file) to which the
Holders of a majority of the Registrable Securities covered by such Registration
Statement, the Initial Purchasers or the Special Counsel shall reasonably object
in writing within two full Business Days.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.
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<PAGE> 10
(c) Notify the Notice Holders, the Manager, the Special
Counsel and the Managing Underwriters, if any, promptly, and (if requested by
any such person) confirm such notice in writing, (i) when a Prospectus, any
Prospectus supplement, a Registration Statement or a post-effective amendment to
a Registration Statement has been filed with the SEC, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or related Prospectus or for additional information, (iii) of the issuance by
the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the existence of any fact or happening of any event which makes
any statement of a material fact in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or which would require the making of any changes in the
Registration Statement or Prospectus in order that, in the case of the
Registration Statement, it will not contain any 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, and that in the case of
the Prospectus, it will not contain any 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, in the light of the circumstances under which they
were made, not misleading, and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement, or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, at the earliest
possible moment.
(e) If reasonably requested by the Manager or the Managing
Underwriters, if any, or the Holders of a majority of the Registrable Securities
being sold, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment to a Registration Statement such information as the
Manager, the Special Counsel, the Managing Underwriters, if any, or such
Holders, in connection with any offering of Registrable Securities, agree should
be included therein as required by applicable law, and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, that the Company shall not be required to take any actions under this
Section 3(e) that are not, in the reasonable opinion of counsel for the Company,
in compliance with applicable law.
(f) Furnish to each selling Holder (if so requested), the
Special Counsel and the Manager, and each Managing Underwriter, if any, without
charge, at least one conformed
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<PAGE> 11
copy of the Registration Statement or Statements and any amendment thereto,
including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
(unless requested in writing by such selling Holder, counsel, the Manager or
underwriter).
(g) Deliver to each selling Holder, the Special Counsel and
the Manager and each Managing Underwriter, if any, in connection with any
offering of Registrable Securities, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
persons may reasonably request; and the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by each of the selling
Holders of Registrable Securities and the Underwriters, if any, in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders, the Managing
Underwriters, if any, and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder or Managing Underwriter reasonably requests in writing; keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
applicable Registration Statement; provided, that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified or (ii) take any action that would subject it to general
service of process in suits or to taxation in any such jurisdiction where it is
not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of such selling Holder, in which
case the Company will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals, as may be
necessary to enable the selling Holder or Holders thereof or the Managing
Underwriters, if any, to consummate the disposition of such Registrable
Securities.
(j) During any Selling Period (other than during a Deferral
Period), immediately upon the existence of any fact or the occurrence of any
event as a result of which a Registration Statement shall contain any 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, or a
Prospectus shall contain any 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, in the light of the circumstances under which they were
made, not misleading,
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<PAGE> 12
promptly prepare and file a post-effective amendment to each Registration
Statement or a supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document (such as a Current
Report on Form 8-K) that would be incorporated by reference into the
Registration Statement so that the Registration Statement shall not contain any
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,
and so that the Prospectus will not contain any untrue statement of a material
fact or omit to state any material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to a Registration
Statement, use its reasonable efforts to cause it to become effective as soon as
practicable.
(k) In the event of an Underwritten Offering, enter into such
agreements and take all such other actions in connection therewith (including
those reasonably requested by the Managing Underwriters, if any, or the Holders
of a majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into, and if the
registration is an underwritten registration, (i) make such representations and
warranties, subject to the Company's ability to do so, to the Holders of such
Registrable Securities and the underwriters with respect to the business of the
Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested; (ii) use its reasonable efforts to obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing Underwriters, if
any, Special Counsel and the Holders of a majority of the Registrable Securities
being sold) addressed to each of the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such Special Counsel and
Managing Underwriters; (iii) use its reasonable efforts to obtain "cold comfort"
letters and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other certified public accountants of any
subsidiary of the Company or any business acquired or to be acquired by the
Company for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each of the
Managing Underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with Underwritten Offerings; and (iv) deliver such documents and certificates as
may be reasonably requested by the Holders of a majority of the Registrable
Securities being sold, the Special Counsel and the Managing Underwriters, if
any, to evidence the continued validity of the representations and warranties of
the Company and its subsidiaries made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company. The above shall be
done at each closing under such underwriting or similar agreement as and to the
extent required thereunder.
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<PAGE> 13
(l) If requested in connection with a disposition of
Registrable Securities pursuant to a Registration Statement, make available for
inspection by a representative of the Holders of Registrable Securities being
sold, any Managing Underwriter participating in any disposition of Registrable
Securities, if any, and any attorney or accountant retained by such selling
holders or underwriter, financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and cause the
executive officers, directors and employees of the Company and its subsidiaries
to supply all information reasonably requested by any such representative,
Managing Underwriter, attorney or accountant in connection with such
disposition; subject to reasonable assurances by each such person that such
information will only be used in connection with matters relating to such
Registration Statement, provided, however, that such persons shall first agree
in writing with the Company that any information that is reasonably and in good
faith designated by the Company in writing as confidential at the time of
delivery of such information shall be kept confidential by such persons, unless
(i) disclosure of such information is required by court or administrative order
or is necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any disclosure
requirements pursuant to Federal securities laws in connection with the filing
of any Registration Statement or the use of any prospectus referred to in this
Agreement), (iii) such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard by any such
person or (iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a confidentiality
agreement.
(m) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earning statements
(which need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(n) Cooperate with the selling holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such denominations and
registered in such names as the holders may request.
(o) Provide the transfer agent for the Common Stock with
printed certificates for the Registrable Securities which are in a form eligible
for deposit with The Depository Trust Company.
(p) Cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange or quotation
system on which the Company's Common
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<PAGE> 14
Stock is then listed no later than the date the Registration Statement is
declared effective and, in connection therewith, to the extent applicable, to
make such filings under the Exchange Act (e.g., the filing of a Registration
Statement on Form 8-A) and to have such filings declared effective thereunder.
(q) Cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc.
(r) Notwithstanding any provision of this Agreement to the
contrary, the Company shall not be required to amend or supplement the Shelf
Registration pursuant to the Agreement if (i) such amendment or supplement would
require the Company to disclose a material financing, acquisition or corporate
transaction and the Company shall have determined that such disclosure is not in
the best interests of the Company and the holders of its outstanding Common
Stock or (ii) the Company shall have determined in good faith that there is a
valid business purpose or reason for suspending the use of the Prospectus
included in such Shelf Registration in accordance herewith instead of making
such amendment or supplement; provided, that in each such case the Company
complies with its obligations, if any, to pay Liquidated Damages.
4. Holder's Obligations. Each Holder agrees, by acquisition of the
Notes and Registrable Securities, that no Holder of Registrable Securities shall
be entitled to sell any of such Registrable Securities pursuant to a
Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with the notice required pursuant to Section
2(d) hereof and such other information regarding such Holder and the
distribution of such Registrable Securities as may be required to be included in
the Registration Statement or the Prospectus or as the Company may from time to
time reasonably request. The Company may exclude from such registration the
Registrable Securities of any Holder who does not furnish such information
provided above for so long as such information is not so furnished. Each Holder
of Registrable Securities as to which any Registration Statement is being
effected agrees promptly to furnish to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not misleading. Any sale of any Registrable Securities by
any Holder shall constitute a representation and warranty by such Holder that
the information relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to such Holder or its plan of
distribution and that such Prospectus does not as of the time of such sale omit
to state any material fact relating to such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in light of the
circumstances under which they were made, not misleading.
5. Registration Expenses. All fees and expenses incident to the
Company's performance of or compliance with this Agreement shall be borne by the
Company whether or not any of the Registration Statements become effective. Such
fees and expenses shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and
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<PAGE> 15
expenses (x) with respect to filings required to be made with the National
Association of Securities Dealers, Inc. and (y) of compliance with federal
securities or Blue Sky laws (including, without limitation, fees and
disbursements of Special Counsel in connection with Blue Sky qualifications of
the Registrable Securities in such jurisdictions as the Managing Underwriters,
if any, or Holders of a majority of the Registrable Securities being sold may
designate)), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing prospectuses if the printing
of prospectuses is requested by the Special Counsel or the holders of a majority
of the Registrable Securities included in any Registration Statement), (iii)
messenger, telephone and delivery expenses, (iv) reasonable fees and
disbursements of counsel for the Company and the Special Counsel (not to exceed
$5,000) in connection with the Shelf Registration (provided that the Company
shall not be liable for the fees and expenses of more than one separate firm for
all parties participating in any transaction hereunder), (v) fees and
disbursements of all independent certified public accountants referred to in
Section 3(k)(iii) hereof (including the expenses of any special audit and "cold
comfort" letters required by or incident to such performance) and (vi)
Securities Act liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities to
be registered on any securities exchange on which similar securities issued by
the Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company. Notwithstanding the provisions of this
Section 5, each seller of Registrable Securities shall pay all selling expenses
and all registration expenses to the extent that the Company is prohibited by
applicable Blue Sky laws from paying for or on behalf of such seller of
Registrable Securities, and the Managing Underwriters shall pay the fees of
their counsel in connection with any Underwritten Offering (other than Blue Sky
qualifications).
6. Indemnification.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless each Initial Purchaser, each Holder and each person,
if any, who controls the Initial Purchasers or any Holder (within the meaning of
either Section 15 of the Securities Act or Section 20(a) of the Exchange Act)
from and against all losses, liabilities, damages and expenses (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
(collectively, "Losses"), caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading,
except insofar as such Losses are caused by the information relating to the
Initial Purchasers or any Holder furnished to the Company in writing by the
Initial Purchasers or such Holder expressly for use therein; provided, that the
Company shall not be liable to any Holder of Registrable Securities (or any
person
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<PAGE> 16
controlling such Holder) to the extent that any such Losses are caused by an
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus if either (A)(i) such Holder failed to send
or deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Holder to the person asserting the claims from
which such Losses result and (ii) the Prospectus would have corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission, or (B)(x) such untrue statement or alleged untrue statement, omission
or alleged omission is corrected in an amendment or supplement to the Prospectus
and (y) having previously been furnished by or on behalf of the Company with
copies of the Prospectus as so amended or supplemented, such holder thereafter
fails to deliver such Prospectus as so amended or supplemented, with or prior to
the delivery of written confirmation of the sale of a Registrable Security to
the person asserting the claim from which such Losses result. The Company shall
also indemnify each underwriter and each person who controls such person (within
the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) to the same extent and with the same limitations as provided above with
respect to the indemnification of the Initial Purchasers or the holders of
Registrable Securities.
(b) Indemnification by Holder of Registrable Securities. Each
Holder agrees, and such agreement shall be evidenced by the Holder delivering
the notice described in Section 2(d) hereof, severally and not jointly to
indemnify and hold harmless the Initial Purchasers, the other selling Holders,
the Company, its directors, its officers who sign a Registration Statement, and
each person, if any, who controls the Company, the Initial Purchasers and any
other selling Holder (within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act), from and against all losses arising out
of or based upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or arising out of
or based upon any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or omission is contained in any
information relating to such Holder so furnished in writing by such Holder to
the Company expressly for use in such Registration Statement or Prospectus. In
no event shall the liability of any selling holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the proceeds received
by such holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such
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<PAGE> 17
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Initial Purchasers and all persons, if
any, who control the Initial Purchasers within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, (b) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Holders and all persons, if any, who control any Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
and (c) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who sign a
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. In such case involving the
Initial Purchasers and persons who control the Initial Purchasers, such firm
shall be designated in writing by Deutsche Morgan Grenfell Inc. In such case
involving the Holders and such persons who control Holders, such firm shall be
designated in writing by the holders of the majority of Registrable Securities
sold pursuant to the Registration Statement. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than forty-five (45) days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this
Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b)
hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or
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<PAGE> 18
payable by such indemnified party as a result of such Losses, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the initial placement (before
deducting expenses) of the Notes pursuant to the Purchase Agreement. Benefits
received by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions received by it pursuant to the Purchase
Agreement, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Notes registered under the Securities Act.
Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. The relative fault of the Holders on the one hand and the Company on the
other hand 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 Holders
or by the Company and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Holders' respective obligations to contribute pursuant to this paragraph are
several in proportion to the respective number of Registrable Securities they
have sold pursuant to a Registration Statement, and not joint.
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 or by any other method or allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any reasonable legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding this
Section 6(d), an indemnifying party that is a selling Holder of Registrable
Securities shall not be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities sold by such
indemnifying party and distributed to the public were offered to the public
exceeds the amount of any damages which such indemnifying party 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
(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 indemnity, contribution and expense reimbursement obligations of
the Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder,
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<PAGE> 19
under the Purchase Agreement or otherwise. The provisions of this Section 6
shall survive so long as Registrable Securities remain outstanding,
notwithstanding any transfer of the Registrable Securities by any holder or any
termination of this Agreement.
The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, any Holder or any person controlling any Holder, or the
Company, its officers or directors or any person controlling the Company and
(iii) the sale of any Registrable Securities by any Holder.
7. Information Requirements.
(a) The Company shall file the reports required to be filed by
it under the Securities Act and the Exchange Act, and if at any time the Company
is not required to file such reports, it will, upon the request of any holder of
Registrable Securities, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act. The Company further covenants that it will cooperate with any
holder of Registrable Securities and take such further reasonable action as any
holder of Registrable Securities may reasonably request (including, without
limitation making such reasonable representations as any such holder 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 limitation of the exemptions provided by Rule 144 and Rule 144A
under the Securities Act. 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 filing requirements. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities under any section of the Exchange Act.
(b) The Company shall file the reports required to be filed by
it under the Exchange Act and shall comply with all other requirements set forth
in the instructions to Form S-3 in order to allow the Company to be eligible to
file registration statements on Form S-3.
8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement, provided that the sole damages payable for a violation of
the terms of this Agreement for which Liquidated Damages are expressly provided
pursuant to Section 2(e) hereof shall be such Liquidated Damages. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
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(b) No Conflicting Agreements. The Company has not, as of the
date hereof and shall not, on or after the date of this Agreement, enter into
any agreement with respect to its securities which conflicts with the rights
granted to the holders of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the holders of Registrable
Securities hereunder do not in any way conflict with the rights granted to the
holders of the Company's securities under any other agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of holders
of a majority of the then outstanding Common Stock constituting Registrable
Securities (with holders of Notes deemed to be the holders, for purposes of this
Section, of the number of outstanding shares of Common Stock into which such
Notes are convertible). Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other holders of Registrable Securities may
be given by holders of at least a majority of the Registrable Securities being
sold by such holders; provided, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing and shall be deemed given (i)
when made, if made by hand delivery, (ii) upon confirmation, if made by
telecopier or (iii) one business day after being deposited with a reputable
next-day courier, postage prepaid, to the parties as follows:
(w) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with
the provisions of Section 8(e);
(x) if to the Company, to:
Atmel Corporation
2325 Orchard Parkway
San Jose, California 95131
Attention: General Counsel
Telecopy No.: (408) 436-4380
with a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Mark A. Bertelsen, Esq.
Telecopy No.: (415) 493-6811
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<PAGE> 21
(y) if to the Special Counsel to:
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, CA 94025
Attention: Don Keller, Esq.
Telecopy No.: (415) 854-1121
and
(z) if to the Manager to:
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, NY 10019
Attention: Thomas Curtis, Esq.
Telecopy No.: (212) 469-8560
or to such other address as such person may have furnished to the other persons
identified in this Section 8(d) in writing in accordance herewith.
(e) Owner of Registrable Securities. The Company will
maintain, or will cause its registrar and transfer agent to maintain, a register
with respect to the Registrable Securities in which all transfers of Registrable
Securities of which the Company has received notice will be recorded. The
Company may deem and treat the person in whose name Registrable Securities are
registered in such register of the Company as the owner thereof for all
purposes, including, without limitation, the giving of notices under this
Agreement.
(f) Approval of Holders. Whenever the consent or approval of
holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as such
term is defined in Rule 405 under the Securities Act) (other than the Initial
Purchasers or subsequent holders of Registrable Securities if such subsequent
holders are deemed to be such affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the holders of such required percentage.
(g) Successors and Assigns. Any person who purchases any
Registerable Securities from an Initial Purchaser shall be deemed, for purposes
of this Agreement, to be an assignee of such Initial Purchaser. The Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties and shall inure to the benefit of and be binding upon each
holder of any Registrable Securities.
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<PAGE> 22
(h) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby, and the parties hereto
shall use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, illegal void or unenforceable.
(l) Entire Agreement This Agreement is intended by the parties
as a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Common Stock of the Company into
which Notes are convertible sold pursuant to the Purchase Agreement. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Common Stock of the Company to which the Notes are convertible. This
Agreement supersedes all prior agreements and understandings among the parties
with respect to such registration rights.
(m) Attorneys' Fees. In any action or proceeding brought to
enforce provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, shall
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(n) Further Assurances. Each of the parties hereto shall use
all reasonable efforts to take, or cause to be taken, all appropriate action, do
or cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement
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<PAGE> 23
and the other documents contemplated hereby and consummate and make effective
the transactions contemplated hereby.
(o) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Sections 4, 5 or 6 hereof and
the obligations to make payments of and provide for Liquidated Damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each which shall remain in effect in accordance with their
terms.
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<PAGE> 24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ATMEL CORPORATION
By: /s/ Kris Chellam
------------------------------
Name: Kris Chellam
Title: Vice President, Finance and
Administration and
Chief Financial Officer
Accepted as of the date first above written:
By: DEUTSCHE MORGAN GRENFELL INC.
Acting severally on behalf of itself and the
several Initial Purchasers named in the first
paragraph of the Agreement
By: /s/ John Hodge
-------------------------------------
Name: John Hodge
Title: Managing Director
