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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): March 5, 1998
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BRIGHTPOINT, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 0-23494 35-1778566
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
6402 Corporate Drive, Indianapolis, Indiana 46278
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (317) 297-6100
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Not Applicable
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Former name or former address, if changed since last report
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ITEM 5. OTHER EVENTS.
On March 5, 1998, Brightpoint, Inc. (the "Company") entered
into a Purchase Agreement (a copy of which is attached hereto as
Exhibit 1.1) with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated (the "Initial Purchaser") and a Pricing
Agreement (a copy of which is attached hereto as Exhibit 1.2) with
the Initial Purchaser, pursuant to which the Company agreed to issue
and sell and the Purchaser agreed, subject to certain conditions, to
purchase $335,000,000 aggregate principal amount at maturity of the
Company's Liquid Yield Option/TM/Notes due March 11, 2018 (Zero
Coupon -- Subordinated) (the "LYONs") at an initial offering price
of $452.89 per $1,000 face amount of LYONs (the "Offering Price")
less underwriting discounts and commissions. Pursuant to the
Purchase Agreement and Pricing Agreement, the Company also granted
the Initial Purchaser an option for 30 days from March 5, 1998 to
purchase all or any part of an additional $45,000,000 aggregate
principal amount at maturity of LYONs at the Offering Price less
underwriting discounts and commissions.
The issuance and sale of all $380,000,000 aggregate principal
amount at maturity of LYONs were completed on March 11, 1998. The
LYONs were issued pursuant to an Indenture dated as of March 11, 1998
between the Company and The Chase Manhattan Bank, as trustee (a copy of
which is attached hereto as Exhibit 4.1). The Initial Purchaser offered
the LYONs for resale to certain qualified purchasers in transactions not
requiring registration under the Securities Act of 1933, as amended,
including pursuant to Rule 144A thereunder.
The Company and the Initial Purchaser have also entered into a
Registration Rights Agreement ( a copy of which is attached hereto
as Exhibit 4.2) dated as of March 5, 1998, pursuant to which the
Company has agreed to file with the Commission, within 90 days after
March 11, 1998, and to use all reasonable efforts to cause to become
effective, a shelf registration statement with respect to the resale
of the LYONs and the Common Stock, par value $.01 per share, of the
Company issuable upon conversion of the LYONs and to keep such
registration statement effective until at the latest March 11, 2000.
The LYONs are subordinated in right of payment to the prior
payment in full of all existing and future Senior Indebtedness of
the Company (as defined in the Indenture). As of March 11, 1998,
the Company's Senior Indebtedness consisted of amounts outstanding
under its senior secured revolving credit facility ("Credit
Facility") with The First National Bank of Chicago and Bank One,
Indiana, NA, as co-agents for a group of banks (collectively, the
"Banks"). Prior to the offer and sale of the Company's LYONs, the
Company and the Banks entered into an amendment (a copy of which is
attached hereto as Exhibit 10.1) to the Credit Facility in respect
of the proposed issuance of the LYONs.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed with this report on Form 8-K:
Exhibit No. Description
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1.1 Purchase Agreement dated March 5, 1998 between
the Company and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
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1.2 Pricing Agreement dated March 5, 1998 between
the Company and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
4.1 Indenture dated as of March 11, 1998 between
the Company and The Chase Manhattan Bank, as trustee.
4.2 Registration Rights Agreement dated March 5,
1998 between the Company and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated.
10.1 Amendment No. 2 to Credit Agreement dated as of February
25, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
BRIGHTPOINT, INC.
By: /s/ Steven E. Fivel
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Steven E. Fivel,
Executive Vice President
Date: March 13, 1998
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EXHIBIT INDEX
Exhibit No. Description
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1.1 Purchase Agreement dated March 5, 1998 between
the Company and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
1.2 Pricing Agreement dated March 5, 1998 between
the Company and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
4.1 Indenture dated as of March 11, 1998 between
the Company and The Chase Manhattan Bank, as trustee.
4.2 Registration Rights Agreement dated March 5,
1998 between the Company and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated.
10.1 Amendment No. 2 to Credit Agreement dated as of February 25,
1998.
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BRIGHTPOINT, INC.
(a Delaware corporation)
$335,000,000
Liquid Yield Option(TM) Notes
Due 2018
(Zero Coupon -- Subordinated)
PURCHASE AGREEMENT
March 5, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
250 Vesey Street
New York, New York 10281-1209
Ladies and Gentlemen:
Brightpoint, Inc., a Delaware corporation (the "Company"), confirms its
agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Initial Purchaser"), with respect to the issue and sale by
the Company and the purchase by the Initial Purchaser of $335,000,000 aggregate
principal amount at maturity of the Company's Liquid Yield Option(TM) Notes Due
2018 (Zero Coupon -- Subordinated) (the "LYONs"), and with respect to the grant
by the Company to the Initial Purchaser of the option described in Section 2(b)
hereof to purchase all or any part of an additional $45,000,000 principal
amount at maturity of LYONs to cover overallotments, if any. The aforesaid
$335,000,000 principal amount at maturity of LYONs (the "Initial Securities")
to be purchased by the Initial Purchaser and all or any part of the $45,000,000
principal amount at maturity of LYONs subject to the option described in
Section 2(b) hereof (the "Option Securities") are hereinafter called,
collectively, the "Securities." The Securities are to be issued pursuant to an
Indenture (the "Indenture") between the Company and The Chase Manhattan Bank,
as trustee (the "Trustee"). Securities issued in book-entry form will be
issued to Cede & Co. as nominee of The Depository Trust Company ("DTC")
pursuant to a letter agreement, to be dated as of the Closing Date (as defined
in Section 3) (the "DTC Agreement"), among the Company, the Trustee and DTC.
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The Securities are convertible at the option of the holder at any time on
or prior to maturity, unless previously redeemed or otherwise purchased, into
shares of common stock, par value $.01 per share, of the Company (the "Common
Stock") at the initial conversion rate set forth in the Pricing Agreement,
subject to the Company's right to elect instead to pay such holder in cash the
market value of such shares of Common Stock, in accordance with the terms of
the Securities and the Indenture.
Prior to the purchase and resale of the Securities by the Initial
Purchaser, the Company and the Initial Purchaser shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company and the Initial Purchaser and
shall specify such applicable information as is indicated in Exhibit A hereto.
The offering of the Securities will be governed by this Agreement, as
supplemented by the Pricing Agreement. From and after the date of the
execution and delivery of the Pricing Agreement, this Agreement shall be deemed
to incorporate the Pricing Agreement.
The Company understands that the Initial Purchaser proposes to make an
offering of the Securities on the terms and in the manner set forth herein and
agrees that the Initial Purchaser may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers (the "Subsequent
Purchasers") at any time after the date of this Agreement. The Securities are
to be offered and resold by the Initial Purchaser without being registered
under the Securities Act of 1933, as amended (the "1933 Act"), in reliance upon
exemptions therefrom. Pursuant to the terms of the Securities and the
Indenture, Securities may be resold or otherwise transferred only if such
resale or transfer is hereafter registered under the 1933 Act or if an
exemption from the registration requirements of the 1933 Act is available
(including the exemption afforded by Rule 144A ("Rule 144A") or Regulation S
("Regulation S") of the rules and regulations promulgated under the 1933 Act
(the "1933 Act Regulations") by the Securities and Exchange Commission (the
"Commission")). Prior to the purchase of the Securities by the Initial
Purchaser, the Company will enter into with the Initial Purchaser an agreement
(the "Registration Rights Agreement") pursuant to which the Company is required
to file and use its best efforts to have declared effective a registration
statement under the 1933 Act to register resales of the LYONs and the shares of
Common Stock issuable upon conversion thereof.
The Company has prepared and delivered to the Initial Purchaser copies of
a preliminary offering memorandum dated February 25, 1998 (the "Preliminary
Offering Memorandum") and has prepared and will deliver to the Initial
Purchaser, on the date hereof or on the next succeeding business day, copies of
a final offering memorandum dated March 5, 1998 (the "Final Offering
Memorandum"), each to be used by the Initial Purchaser in connection with its
solicitation of purchases of the Securities. "Offering Memorandum" means, with
respect to any date or time referred to in this Agreement, the most recent
offering memorandum (whether the Preliminary Offering Memorandum or the Final
Offering Memorandum, or any amendment or supplement to either such document),
including exhibits thereto and any documents incorporated therein by reference,
which has been prepared and delivered by the Company to the Initial Purchaser
in connection with its solicitation of purchases of the Securities.
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All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the Offering
Memorandum (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is incorporated by reference in the Offering Memorandum; and all references in
this Agreement to amendments or supplements to the Offering Memorandum shall be
deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "1934 Act") which is incorporated by
reference in the Offering Memorandum.
SECTION 1. Representations and Warranties.
The Company represents and warrants to the Initial Purchaser as of the
date hereof, as of the date of the Pricing Agreement, as of the Closing Time
and as of each Date of Delivery (as defined in Section 2(b) of this Agreement
(each such latter date being hereinafter referred to as a "Representation
Date") as follows:
(a) Offering Memorandum. The Offering Memorandum does not, and at
the Closing Date, as defined in Section 3 of this Agreement (and, if any
Option Securities are purchased, at the Date of Delivery (as defined in
Section 2(b) of this Agreement)), will not, include 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 the light of the
circumstances under which they were made, not misleading; provided that
this representation, warranty and agreement shall not apply to statements
in or omissions from the Offering Memorandum made in reliance upon and in
conformity with information furnished to the Company in writing by the
Initial Purchaser expressly for use in the Offering Memorandum.
(b) Documents Incorporated By Reference. The Offering Memorandum as
delivered from time to time shall incorporate by reference the most
recent Annual Report of the Company on Form 10-K (as amended) filed with
the Commission and each Quarterly Report of the Company on Form 10-Q and
each Current Report of the Company on Form 8-K filed with the Commission
since the filing of the then most recent Annual Report of the Company on
Form 10-K (the "Incorporated Documents"). The documents incorporated or
deemed to be incorporated by reference in the Offering Memorandum at the
time they were or hereafter are filed with the Commission complied and
will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder (the "1934
Act Regulations"), and, when read together with the other information in
the Offering Memorandum, at the date of the Offering Memorandum and at
the Closing Date (and, if any Option Securities are purchased, at the
Date of Delivery), will not include 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 the light of the
circumstances under which they were made, not misleading.
(c) Independent Accountants. To the best of the Company's
knowledge, the accountants who certified the financial statements and
supporting schedules included or
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incorporated by reference in the Offering Memorandum are independent
public accountants within the meaning of the 1933 Act and the 1933 Act
Regulations.
(d) Financial Statements. The consolidated financial statements
included or incorporated by reference in the Offering Memorandum,
together with the related schedules and notes, present fairly the
financial position of the Company as consolidated with its subsidiaries
at the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
for the periods specified; said financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules included or incorporated by reference in the
Offering Memorandum present fairly in accordance with GAAP the
information required to be stated in the Incorporated Documents. The
selected financial data and the summary financial information included or
incorporated by reference in the Offering Memorandum present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included or incorporated by
reference in the Offering Memorandum.
(e) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Offering Memorandum, except
as otherwise stated therein, (i) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (ii) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered
as one enterprise, and (iii) there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(f) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Offering Memorandum and to enter into and perform its
obligations under this Agreement, the Pricing Agreement, the Registration
Rights Agreement and the Indenture; and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(g) Good Standing of Subsidiaries. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X)
(each a "Subsidiary" and, collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has
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corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Offering Memorandum and is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to be
in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Offering Memorandum, all of the issued and
outstanding capital stock of each such Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any security holder of
such Subsidiary. Except for Wireless L.L.C. of which the Company owns 33%
of the issued and outstanding membership interests, the only subsidiaries
of the Company are the subsidiaries listed on Exhibit 21.1 to the
Company's Form 10-K/A (filed with the Commission on March 5, 1998). Except
for Wireless L.L.C. of which the Company owns 33% of the issued and
outstanding membership interests or except as described in the Offering
Memorandum, the Company does not own or control, directly or indirectly,
any interest in any corporation, partnership, limited liability company,
association or other entity.
(h) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Offering Memorandum in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Offering Memorandum or pursuant to the exercise of convertible securities
or options referred to in the Offering Memorandum). The description of
the Company's stock option and other stock plans or arrangements, and the
options or other rights granted or exercised thereunder, as set forth in
the Offering Memorandum, accurately and fairly describes such plans,
arrangements, options and rights in all material respects. The shares of
issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; none
of the outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any security
holder of the Company.
(i) Authorization of Agreements. This Agreement, the Pricing
Agreement and the Registration Rights Agreement have been, duly
authorized, executed and delivered by the Company.
(j) Authorization and Description of Securities. The Securities
have been duly authorized and, when duly executed by the Company and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchaser in accordance with the
terms of each of this Agreement and the Pricing Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their terms
subject to the effect of (i) applicable bankruptcy, reorganization,
insolvency, moratorium and other similar laws of general
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application (including, without limitation, statutory or other laws
regarding fraudulent or preferential transfers) relating to, limiting or
affecting the enforcement of creditors' rights generally, (ii) general
principles of equity that may limit the enforceability of the remedies,
covenants or other provisions of the Securities and the availability of
injunctive relief or other equitable remedies and (iii) the application
of principles of equity (regardless of whether enforcement is considered
in proceedings at law or in equity) as such principles relate to, limit
or affect the enforcement of creditors' rights generally. The Securities
will conform in all material respects to the statements relating thereto
contained in the Offering Memorandum.
(k) Authorization and Description of Common Stock. The Common Stock
conforms in all material respects to all statements relating thereto
contained or incorporated by reference in the Offering Memorandum and
such description conforms in all material respects to the rights set
forth in the instruments defining the same. Upon issuance and delivery
of the Securities in accordance with this Agreement and the Indenture,
the Securities will be convertible at the option of the holder thereof
into shares of Common Stock, subject to the Company's right to elect
instead to pay such holder in cash the market value of such shares of
Common Stock, in accordance with the terms of the Securities and the
Indenture; the shares of Common Stock issuable upon conversion of the
Securities have been duly authorized and reserved for issuance upon such
conversion by all necessary corporate action and such shares, when issued
upon such conversion, will be validly issued and will be fully paid and
non-assessable; the shares of Common Stock issuable at the Company's
option upon purchase of the Securities at the option of the holder
thereof will have been, prior to the issuance thereof, duly authorized by
all necessary corporate action, and such shares if and when issued, in
accordance with the terms of the Securities and the Indenture, will be
validly issued, fully paid and non-assessable; no holder of any such
shares will be subject to personal liability by reason of being such a
holder; and the issuance of such shares upon such conversion or purchase
will not be subject to the preemptive or other similar rights of any
securityholder of the Company.
(l) Authorization and Description of Indenture. The Indenture has
been duly authorized, and when executed and delivered by the Company and,
assuming the due authorization, execution and delivery of the Indenture
by the Trustee, will be a valid and binding agreement of the Company,
enforceable in accordance with its terms subject to the effect of (i)
applicable bankruptcy, reorganization, insolvency, moratorium and other
similar laws of general application (including, without limitation,
statutory or other laws regarding fraudulent or preferential transfers)
relating to, limiting or affecting the enforcement of creditors' rights
generally, (ii) general principles of equity that may limit the
enforceability of the remedies, covenants or other provisions of the
Indenture and the availability of injunctive relief or other equitable
remedies and (iii) the application of principles of equity (regardless of
whether enforcement is considered in proceedings at law or in equity) as
such principles relate to, limit or affect the enforcement of creditors'
rights generally. The Indenture will conform in all material respects to
the statements relating thereto in the Offering Memorandum.
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(m) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults that
would not result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement, the Pricing Agreement, the Registration
Rights Agreement, the Indenture and the Securities (including the
issuance of the shares of Common Stock issuable upon conversion of the
Securities) and the consummation of the transactions contemplated
hereunder (including the issuance and sale of the Securities and the use
of the proceeds from the sale of the Securities as described in the
Offering Memorandum under the caption "Use of Proceeds") and compliance by
the Company with its obligations under this Agreement, the Pricing
Agreement, the Registration Rights Agreement, the Indenture and the
Securities have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any subsidiary
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(n) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and, to the best of the knowledge of the senior
management of the Company (including heads of divisions), there is not
any existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to result
in a Material Adverse Effect.
(o) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Incorporated
Documents (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect, or to materially and
adversely affect the consummation of the
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transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder or under the Pricing Agreement, the
Registration Rights Agreement, the Indenture or the Securities (including
the issuance of the shares of Common Stock issuable upon conversion of the
Securities); the aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of which
any of their respective property or assets is the subject which are not
described in the Offering Memorandum, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(p) Accuracy of Exhibits. All of the descriptions of contracts or
other documents contained or incorporated by reference in the Offering
Memorandum are accurate and complete descriptions of such contracts or
other documents. There are no contracts or documents which are required
to be described in the Incorporated Documents or to be filed as exhibits
thereto which have not been so described therein and filed as required.
(q) Absence of Price Stabilization. Neither the Company nor any of
its officers or directors has taken or will take, directly or indirectly,
any action designed or intended to stabilize or manipulate the price of
any security of the Company, or which caused or resulted in, or which
might in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the Company,
nor has the Company become aware that any of its affiliates has taken,
directly or indirectly, any action designed or intended to stabilize or
manipulate the price of any security of the Company, or which caused or
resulted in, or which might in the future reasonably be expected to cause
or result in stabilization or manipulation of the price of any security of
the Company.
(r) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), the
trademark "Brightlink" (which is owned by the Company and is subject to
final approval of its pending application in the U.S. Patent and
Trademark Office), the service mark "Brightpoint" and the Brightpoint
logo (which is owned by the Company and is subject to final approval of
its pending application in the U.S. Patent and Trademark Office), trade
names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice
or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect. The Company's business as now conducted and as proposed
to be conducted does not and, to the best of the Company's knowledge,
will not infringe or conflict with in any material respect patents,
trademarks, service marks, trade names, copyrights, trade secrets,
licenses or other intellectual property
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or franchise right of any person. To the best of the Company's knowledge,
no claim has been made against the Company alleging the infringement by
the Company of any patent, trademark, service mark, trade name, copyright,
trade secret, license in or other intellectual property right or franchise
right of any person.
(s) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder or under the Pricing Agreement, the Registration
Rights Agreement or the Indenture, in connection with the offering,
issuance or sale of the Securities under this Agreement or the
consummation of the transactions contemplated by this Agreement, the
Pricing Agreement, the Registration Rights Agreement or the Indenture
except such (i) as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the
Securities, (ii) as may be required under the 1933 Act or the 1933 Act
Regulations in connection with the transactions contemplated by the
Registration Rights Agreement or (iii) as may be required with the
National Association of Securities Dealers Inc.
(t) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses; all of the Governmental
Licenses are valid and in full force and effect; and neither the Company
nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses; except, in each case, where the lack of possession, failure to
comply, invalidity, revocation or modification, as applicable, would not,
singly or in the aggregate, result in a Material Adverse Effect.
(u) Title to Property. Neither the Company nor any of its
subsidiaries owns any real property. The Company and its subsidiaries
have good and marketable title to all properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (i) are described in the Offering Memorandum or (ii) do not, singly or
in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Offering Memorandum, are
in full force and effect, and neither the Company nor any subsidiary has
any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any
of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company
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<PAGE> 10
or such subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(v) Taxes. The Company has filed all necessary federal, state,
local and foreign income, payroll, franchise and other tax returns (after
giving effect to extensions) and has paid all taxes shown as due thereon
or with respect to any of its properties, and there is no tax deficiency
that has been, or to the knowledge of the Company is likely to be,
asserted against the Company or any of its properties or assets that
would result in a Material Adverse Effect.
(w) Maintenance of Adequate Insurance. The Company is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as is reasonably prudent in the business in
which it is engaged; and the Company does not have any reason to believe
that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not result in a Material Adverse Effect.
(x) Maintenance of Sufficient Internal Controls. The Company
maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with GAAP and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(y) Compliance with Laws. To the best of the Company's knowledge,
neither the Company nor any employee or agent of the Company has made any
payment of funds of the Company or received or retained any funds in
violation of any law, rule or regulation, including, without limitation,
the Foreign Corrupt Practices Act.
(z) Imports/Exports. To the best of the Company's knowledge, the
Company has paid all material tariff, custom, import, export and other
duties required to be paid by it (if any) in connection with the
exportation of products from the country of manufacture, the importation
of products into the United States, the exportation of products from the
United States and the importation of products into another country and
has provided all appropriate authorities with the requisite information,
all of which, to the best of the Company's knowledge, is true and correct
and necessary for the proper determination of the foregoing.
(aa) Compliance with Cuba Act. The Company has complied with, and
is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as
Section 517.075 of the Florida statutes, and the rules and regulations
thereunder (collectively, the "Cuba Act") or is exempt therefrom.
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<PAGE> 11
(bb) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Offering
Memorandum will not be, an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(cc) Environmental Laws. Except as described in the Offering
Memorandum and except as would not, singly or in the aggregate, result in
a Material Adverse Effect, (i) to the best of the Company's knowledge,
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (ii) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(iii) there are no pending or, to the best of the Company's knowledge,
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (iv) to the best of
the Company's knowledge, there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(dd) Registration Rights. Except as described in the Offering
Memorandum, there are no persons with registration rights or other
similar rights to have any securities registered under the 1933 Act.
(ee) Similar Offerings; PORTAL. Neither the Company nor any of its
subsidiaries, nor, to the best of the Company's knowledge, any of its
other Affiliates (as defined in Rule 501(b) of Regulation D under the
1933 Act ("Regulation D")), nor any person acting on its or their behalf
(other than the Initial Purchaser as to which the Company makes no
representation or warranty) has, (i) directly or indirectly solicited any
offer to buy, sold or offered to sell or otherwise negotiated in respect
of, or will solicit any offer to buy or offer to sell or otherwise
negotiate in respect of, in the United States or to any United States
citizen or resident, any security which is or would be integrated with
the sale of the Securities in a manner that would require the Securities
to be registered under the 1933 Act or (ii) engaged, or will engage, in
any form of general solicitation or general advertising
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<PAGE> 12
(within the meaning of Regulation D) in connection with any offer or sale
of the Securities in the United States. The Securities satisfy the
eligibility requirements of Rule 144A(d) (3) under the 1933 Act. Neither
(i) the Company or any of its subsidiaries nor (ii) to the best of the
Company's knowledge, any of its other Affiliates or any person acting on
its or their behalf (other than the Initial Purchaser as to which the
Company makes no representation or warranty) has engaged, and neither the
Company nor any of its subsidiaries will engage, in any directed selling
efforts with respect to the Securities, and each of them has complied with
the offering restrictions requirement of Regulation S ("Regulation S")
under the 1933 Act. Terms used in the preceding sentence have the
meanings given to them by Regulation S. The Company has been advised by
the National Association of Securities Dealers, Inc. PORTAL Market that
the Securities have been designated PORTAL eligible securities in
accordance with the rules and regulations of the National Association of
Securities Dealers, Inc. The Securities have been accepted for delivery
through DTC. The Company is subject to and in compliance with the
reporting requirements of Section 13 or Section 15(d) of the 1934 Act.
(ff) No Registration Required. Subject to compliance by the Initial
Purchaser with the representations and warranties set forth in Section 2
and the procedures set forth in Section 9 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the
Initial Purchaser and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register
the Securities under the 1993 Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
SECTION 2. Sale and Delivery to Initial Purchaser; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby agrees to sell to the Initial
Purchaser, and the Initial Purchaser agrees to purchase from the Company,
at the price per $1,000 principal amount at maturity set forth in the
Pricing Agreement, the Initial Securities.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms
and conditions herein set forth, the Company hereby grants an option to
the Initial Purchaser to purchase up to an additional $45,000,000
principal amount at maturity of Securities at the same price as is paid
by the Initial Purchaser for the Initial Securities (plus accrued
interest, if any, from the Closing Date to the Date of Delivery) on the
terms set forth in the Pricing Agreement. The option hereby granted will
expire 30 days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments
which may be made in connection with the subsequent resale of the Initial
Securities upon notice by the Initial Purchaser to the Company setting
forth the number of Option Securities as to which the Initial Purchaser
is then exercising the option and the time and date of payment and
delivery
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<PAGE> 13
for such Option Securities. Any such time and date of delivery (a "Date
of Delivery") shall be determined by the Initial Purchaser, but shall not
be later than seven full business days after the exercise of said option,
nor in any event prior to the Closing Time, as hereinafter defined.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois, or at
such other place as shall be agreed upon by the Initial Purchaser and the
Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day
following the date of the Pricing Agreement (unless postponed in
accordance with the provisions of Section 10), or such other time not
later than seven business days after such date as shall be agreed upon by
the Initial Purchaser and the Company (such time and date of payment and
delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities
are purchased by the Initial Purchaser, payment of the purchase price
for, and delivery of certificates for, such Option Securities shall be
made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Initial Purchaser and the Company, on each Date of
Delivery as specified in the notice from the Initial Purchaser to the
Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to bank accounts designated by the Company against
delivery to the Initial Purchaser of certificates for the Securities to
be purchased by them.
(d) Denominations; Registration. Certificates for the Securities
shall be in such denominations and registered in such names as the
Initial Purchaser may request in writing at least two full business days
before the Closing Time or the relevant Date of Delivery, as the case may
be. The certificates for the Securities will be made available for
examination and packaging by the Initial Purchaser in the City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
(e) Qualification of Initial Purchaser. The Initial Purchaser
hereby represents and warrants to, and agrees with, the Company that it
(i) is a "qualified institutional buyer" within the meaning of Rule 144A
under the 1933 Act (a "Qualified Institutional Buyer") and an
institutional "accredited investor" within the meaning of Regulation D
under the 1933 Act (an "Accredited Investor"); (ii) has not and will not
solicit offers for, or offer or sell, Securities by means of any general
solicitation or general advertising within the meaning of Rule 502 (c)
under Regulation D under the 1993 Act; and (iii) will otherwise act in
accordance with the terms and conditions set forth in this Agreement,
including Section 9 hereof, and in the Offering Memorandum in connection
with the placement of the Securities contemplated hereby.
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<PAGE> 14
(f) Sales in the United Kingdom. The Initial Purchaser hereby
represents and warrants that (a) it has not offered or sold and will not
offer or sell any Securities or shares of Common Stock issuable upon
conversion thereof to persons in the United Kingdom, prior to the
expiration of the period of six months from the original issue date
except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for
the purposes of their businesses or otherwise in circumstances that do
not constitute an offer to the public in the United Kingdom for purposes
of the Public Offers of Securities Regulations 1995, (b) it has complied
and will comply with all applicable provisions of the Financial Services
Act of 1986 of Great Britain with respect to anything done by it in
relation to Securities or shares of Common Stock issuable upon conversion
thereof in, from or otherwise involving the United Kingdom, and (c) it
has issued or passed on and will issue or pass on in the United Kingdom
any document received by it in connection with the issue of the
Securities or shares of Common Stock issuable upon conversion thereof
only to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order of 1995 of Great Britain or is a person to whom the document may
otherwise lawfully be issued or passed on.
SECTION 3. Covenants of the Company. The Company covenants with the
Initial Purchaser as follows:
(a) Delivery of Offering Memorandum. The Company will furnish to
the Initial Purchaser, without charge, such number of copies of the
Preliminary Offering Memorandum, the Final Offering Memorandum and any
supplements and amendments thereto and documents incorporated by
reference therein as the Initial Purchaser may reasonably request.
(b) Blue Sky Qualifications. The Company will use its best efforts
to cooperate with the Initial Purchaser, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Initial Purchaser may
designate and to maintain such qualifications in effect for a period of
not less than one year from the date of the Pricing Agreement; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period
of not less than one year from the date of the Offering Memorandum.
(c) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Offering Memorandum under "Use of Proceeds".
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<PAGE> 15
(d) Restriction on Sale of Securities. Except as described in the
Offering Memorandum, (i) prior to and including the Closing Date, the
Company will not, without the prior written consent of the Initial
Purchaser, directly or indirectly, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company having a maturity
greater than one year and (ii) for a period of 120 days from the date of
the Final Offering Memorandum, the Company will not, without the prior
written consent of the Initial Purchaser, (A) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of any
share of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock or file any registration statement under
the 1933 Act (other than a registration statement on Form S-8) with
respect to any of the foregoing or (B) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause
(A) or (B) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not
apply to (v) the sale of the Securities hereunder and any shares of
Common Stock issued by the Company upon conversion of the Securities ,
(w) any shares of Common Stock issued by the Company in connection with
acquisitions and joint ventures, (x) in the limited circumstances
previously described to the Initial Purchaser by the Company, up to 1.25
million shares of Common Stock issued by the Company, (y) any shares of
Common Stock issued by the Company upon the exercise of an option or
warrant outstanding on the date hereof and referred to in the
Incorporated Documents or (z) any shares of Common Stock issued or
options to purchase Common Stock granted pursuant to existing employee
benefit plans of the Company referred to in the Incorporated Documents;
provided that, in the case of issuances pursuant to clause (w) or (x) of
this paragraph (d), the shares issued shall constitute "restricted
shares" within the meaning of Rule 144 under the 1933 Act.
(e) Amendments. The Company will give the Initial Purchaser notice
of its intention to prepare any amendment to the Offering Memorandum and
will not use any such amendment or supplement to which the Initial
Purchaser or counsel for the Initial Purchaser shall object. Neither the
consent of the Initial Purchaser, nor the Initial Purchaser's delivery of
any such amendment or supplement, shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(f) Securities Filings; Amendments to Offering Memorandum. The
Company will immediately notify the Initial Purchaser, and confirm such
notice in writing, of (x) any filing made by the Company of information
relating to the offering of the Securities with any securities exchange
or any other regulatory body in the United States or any other
jurisdiction, and (y) prior to the completion of the placement of the
Securities by the Initial Purchaser as evidenced by a notice in writing
from the Initial Purchaser to the Company (which the Initial Purchaser
agrees to provide promptly, and in any event no later than two business
days after such completion), any material changes in or affecting the
earnings, business affairs or business prospects of the Company and its
subsidiaries that (i) make any
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<PAGE> 16
statement in the Offering Memorandum false or misleading or (ii) are not
disclosed in the Offering Memorandum. In such event or if during such
time any event shall occur or condition exist as a result of which it is
necessary, in the reasonable opinion of the Company, its counsel, the
Initial Purchaser or counsel for the Initial Purchaser, to amend or
supplement the Final Offering Memorandum in order that the Final Offering
Memorandum not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances then existing, the
Company will forthwith amend or supplement the Final Offering Memorandum
by preparing and furnishing to the Initial Purchaser an amendment or
amendments of, or a supplement or supplements to, the Final Offering
Memorandum (in form and substance satisfactory in the reasonable opinion
of counsel for the Initial Purchaser) so that, as so amended or
supplemented, the Final Offering Memorandum will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a Subsequent Purchaser, not
misleading or so that the Offering Memorandum, as amended or supplemented,
will comply with law.
(g) Certain Information. The Company agrees that, in order to
render the Securities eligible for resale pursuant to Rule 144A under the
1933 Act, while any of the Securities remain outstanding, to make
available, upon request, to any holder of Securities or prospective
purchasers of Securities the information specified in Rule 144A(d) (4),
unless the Company furnishes information to the Commission pursuant to
Section 13 or 15(d) of the 1934 Act.
(h) No Integration. The Company agrees that it will not make, and
will cause its affiliates not to make, any offer and sale of securities
of the Company of any class if, as a result of the doctrine of
"integration " referred to in Rule 502 under the 1933 Act, such offer and
sale would render invalid (as applicable to (i) the sale of the
Securities by the Company to the Initial Purchaser, (ii) the resale of
the Securities by the Initial Purchaser to Subsequent Purchasers or (iii)
the resale of the Securities by such Subsequent Purchasers to others, in
each case in accordance with the terms and conditions herein set forth)
the exemption from the registration requirements of the 1933 Act provided
by Section 4 (2) thereof or by Rule 144A or by Regulation S thereunder.
(i) Restriction on Repurchases. Until the expiration of two years
after the original issuance of the Securities, the Company will not, and
will cause its Affiliates not to, purchase or agree to purchase or
otherwise acquire any Securities which are "restricted securities" (as
such term is defined under Rule 144(a)(3) under the 1933 Act), whether as
beneficial owner or otherwise (except as agent acting as a securities
broker on behalf of and for the account of customers in the ordinary
course of business in unsolicited broker's transactions).
(j) Reasonable Inquiries; Information. In connection with the
original distribution of the Securities, the Company agrees that, prior
to any offer or resale of the
16
<PAGE> 17
Securities by the Initial Purchaser, the Initial Purchaser and counsel for
the Initial Purchaser shall have the right to make reasonable inquiries
into the business of the Company and its subsidiaries. The Company also
agrees to provide each prospective Subsequent Purchaser of Securities who
so requests information of the type specified in Rule 502 (b) (v) under
the 1933 Act.
(k) Registration Rights Agreement; Trust Indenture Act. The Company
agrees that it will comply with all the terms and conditions of the
Registration Rights Agreement and that prior to any registration of the
Securities pursuant to the Registration Rights Agreement, or at such
earlier time as may be required, that it will cause the Indenture to be
qualified under the Trust Indenture Act of 1939 (the "TIA").
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement,
including (i) the preparation and printing and delivery to the Initial
Purchaser of the Offering Memorandum and all amendments and supplements
thereto, (ii) the preparation, issuance and delivery of the certificates
for the Securities to the Initial Purchaser, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Initial Purchaser, (iii)
the fees and disbursements of the Company's counsel, accountants and
other advisors, (iv) the qualification of the Securities and the shares
of Common Stock issuable upon conversion or purchase of the Securities
under securities laws in accordance with the provisions of Section 3(b)
hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Initial Purchaser in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto and any Legal Investment Survey, in an amount not to exceed
$5,000, (vi) the preparation, printing and delivery to the Initial
Purchaser of copies of the Blue Sky Survey and any supplement thereto,
(vii) the fees and expenses of any transfer agent or registrar for the
Securities, (viii) the filing fees incident to any review by the
National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Securities, (ix) the application for quotation
of the Securities on the PORTAL Market and (x) the performance by the
Company of its obligations under the Registration Rights Agreement.
(b) Termination of Agreement. If this Agreement is terminated by
the Initial Purchaser in accordance with the provisions of Section 5 or
Section 10(a)(i) hereof, the Company shall reimburse the Initial
Purchaser for all of their out-of-pocket expenses to third parties,
including the reasonable fees and disbursements of counsel for the
Initial Purchaser .
SECTION 5. Conditions of the Initial Purchaser's Obligations. The
obligations of the Initial Purchaser hereunder are subject to the accuracy of
the representations and warranties of the Company contained in Section 1 hereof
or in certificates of any officer of the Company or any
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<PAGE> 18
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Opinion of Counsel for Company. At Closing Time, the Initial
Purchaser shall have received the favorable opinion, dated as of Closing
Time, of Tenzer Greenblatt LLP, counsel for the Company, in form and
substance satisfactory to counsel for the Initial Purchaser, to the
effect set forth in Exhibit B hereto and to such further effect as
counsel to the Initial Purchaser may reasonably request. Such counsel
may state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries, and certificates of public
officials.
(b) Opinion of Counsel for the Initial Purchaser . At Closing Time,
the Initial Purchaser shall have received the favorable opinion, dated as
of Closing Time, of Mayer, Brown & Platt, counsel for the Initial
Purchaser with respect to the matters set forth in clauses (iv), (v),
(vi), (viii), (ix), (xi), (xvi) (but only as to statements in the
Offering Memorandum under "Description of LYONs" and "Transfer
Restrictions") and the penultimate paragraph of Exhibit B hereto. In
giving such opinion such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of New York,
the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Initial Purchaser. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
subsidiaries, and certificates of public officials.
(c) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Offering Memorandum, (i) any downgrading,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate
the direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organizations," as such term is defined for purposes of Rule 436 (g) (2)
under the 1933 Act, and (ii) any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business, and the Initial Purchaser shall have received a certificate of
the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of Closing
Time, to the effect that (i) there has been no such downgrading notice or
material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time and (iii) the Company
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time.
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(d) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Initial Purchaser shall have received from Ernst &
Young LLP a letter dated such date, in form and substance satisfactory to
the Initial Purchaser, containing statements and information of the type
ordinarily included in accountants' "comfort letters" with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Offering Memorandum.
(e) Bring-down Comfort Letter. At Closing Time, the Initial
Purchaser shall have received from Ernst & Young LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (d) of this Section, except
that the specified date referred to shall be a date not more than three
business days prior to Closing Time.
(f) PORTAL Market. At Closing Time, the Securities and the Common
Stock issuable upon conversion of the Securities shall have been
designated PORTAL eligible securities in accordance with the rules and
regulations of the National Association of Securities Dealers, Inc.,
subject to official notice of issuance.
(g) Lock-up Agreements. At Closing Time, the Initial Purchaser
shall have received an agreement substantially in the form of Exhibit C
hereto signed by the persons listed on Schedule D hereto.
(h) Conditions to Purchase of Option Securities. In the event that
the Initial Purchaser exercises its option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any subsidiary
of the Company hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Initial Purchaser
shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(c) hereof remains true and correct as of such
Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
Tenzer Greenblatt, counsel for the Company, in form and substance
satisfactory to counsel for the Initial Purchaser, dated such Date
of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(a) hereof.
(iii) Opinion of Counsel for Initial Purchaser. The
favorable opinion of Mayer, Brown & Platt, counsel for the Initial
Purchaser, dated such Date of Delivery,
19
<PAGE> 20
relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required
by Section 5(b) hereof.
(iv) Bring-down Comfort Letter. A letter from Ernst & Young
LLP, in form and substance satisfactory to the Initial Purchaser
and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Initial Purchaser pursuant
to Section 5(e) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date not
more than three business days prior to such Date of Delivery.
(i) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Initial Purchaser shall have been furnished
with such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities as
herein contemplated shall be reasonably satisfactory in form and
substance to the Initial Purchaser and counsel for the Initial Purchaser.
(j) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the Initial Purchaser to purchase the
relevant Option Securities, may be terminated by the Initial Purchaser by
notice to the Company at any time at or prior to Closing Time or such
Date of Delivery, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in
Section 4 and except that Sections 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of the Initial Purchaser. The Company agrees to
indemnify and hold harmless the Initial Purchaser and each person, if
any, who controls the Initial Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act to the extent and in the
manner set forth in clauses (i), (ii) and (iii) below.
(i) against any and all loss, liability, claim, damage and
reasonable expense (including the reasonable fees and disbursements
of counsel) whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Offering Memorandum (or any amendment or supplement
thereto), including the information incorporated by reference
therein, or the omission or alleged omission therefrom of 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 or arising out of any untrue
statement
20
<PAGE> 21
or alleged untrue statement of a material fact included in any
Preliminary Offering Memorandum;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Initial Purchaser), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i)
or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchaser expressly for use in the Offering Memorandum (or any amendment
or supplement thereto) or any Preliminary Offering Memorandum; provided,
however, the foregoing indemnity with respect to any untrue statement contained
in or any omission from the Preliminary Offering Memorandum shall not inure to
the benefit of the Initial Purchaser (or any person controlling such Initial
Purchaser) from whom the person asserting any such loss, liability, claim,
damage or expense purchased any of the Securities that are the subject thereof
if the Company shall sustain the burden of proving that (i) the untrue statement
or omission contained in the Preliminary Offering Memorandum (excluding
documents incorporated by reference) was corrected; (ii) such person was not
sent or given a copy of the Final Offering Memorandum (excluding documents
incorporated by reference) which corrected the untrue statement or omission at
or prior to the written confirmation of the sale of such Securities to such
person if required by applicable law; and (iii) the Company satisfied its
obligation pursuant to Section 3(a) of this Agreement to provide a sufficient
number of copies of the Final Offering Memorandum to the Initial Purchaser.
(b) Indemnification of Company and Directors and Officers. The
Initial Purchaser agrees to indemnify and hold harmless the Company, its
directors, each of its officers, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Offering Memorandum (or any amendment or supplement thereto) or any
Preliminary Offering Memorandum (or any amendment or
21
<PAGE> 22
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Initial Purchaser expressly
for use in the Offering Memorandum (or any amendment or supplement
thereto) or such Preliminary Offering Memorandum (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Initial
Purchaser, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment
with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release
of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by Section 6(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient (other than by its
terms) to hold harmless an indemnified
22
<PAGE> 23
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Initial Purchaser on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) 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 Company on the one hand and of the
Initial Purchaser on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Initial Purchaser on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total purchase discount received by the Initial Purchaser,
in each case as set forth in the Offering Memorandum, bear to the aggregate
initial public offering price of the Securities.
The relative fault of the Company on the one hand and the Initial
Purchaser on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Initial Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Initial Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Initial Purchaser
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Securities sold by it exceeds the amount of any
damages which the Initial Purchaser has otherwise been required to pay by
reason of any 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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
23
<PAGE> 24
For purposes of this Section 7, each person, if any, who controls the
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Initial
Purchaser, and each director of the Company, each officer of the Company, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
in certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Initial Purchaser
or controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Initial Purchaser .
SECTION 9. Subsequent Offers and Resales of the Securities.
(a) Resale Procedures. Each of the Initial Purchaser and the
Company, as the case may be, hereby establish and agree to observe the
following procedures in connection with the offer and sale by the Initial
Purchaser of the Securities.
(i) Offers and sales of the Securities will be made by the
Initial Purchaser only to (A) institutional investors that are
reasonably believed by the Initial Purchaser to qualify as
Accredited Investors (each such institutional investor being
hereinafter referred to as an "Institutional Accredited Investor"),
or (B) in the case of Securities resold or otherwise transferred
pursuant to Rule 144A, to institutional investors that are
reasonably believed to qualify as Qualified Institutional Buyers or
(C) to non-U.S. persons in offshore transactions in reliance upon
Regulation S under the 1933 Act.
(ii) The Securities will be offered by the Initial Purchaser
only by approaching prospective Subsequent Purchasers on an
individual basis. No general solicitation or general advertising
(within the meaning of Rule 502(c) under the 1933 Act) will be used
in the United States in connection with the offering of the
Securities.
(iii) In the case of a non-bank Subsequent Purchaser of a
Security acting as a fiduciary for one or more third parties, in
connection with an offer and sale to such purchaser pursuant to
clause (i) above, each third party shall, in the judgment of the
Initial Purchaser, be an Institutional Accredited Investor or a
Qualified Institutional Buyer or a non-U.S. person outside the
United States.
(iv) No sale of the Securities to any one Subsequent Purchaser
will be for less than U.S. $100,000 principal amount and no
Security will be issued in a smaller principal amount. If the
Subsequent Purchaser is a non-bank fiduciary acting on
24
<PAGE> 25
behalf of others, each person for whom it is acting must purchase
at least U.S. $100,000 principal amount of the Securities.
(v) The transfer restrictions and the other provisions set
forth in Section 2.06 of the Indenture, including the legend
required thereby, shall apply to the Securities except as otherwise
agreed by the Company and the Initial Purchaser. Following the
sale of the Securities by the Initial Purchaser to Subsequent
Purchasers pursuant to the terms hereof, except as otherwise
provided in Section 7 hereof, the Initial Purchaser shall not be
liable or responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company, including any
losses, damages or liabilities under the 1933 Act, arising from or
relating to any resale or transfer of any Security.
(vi) The Initial Purchaser will deliver to each Subsequent
Purchaser, in connection with its original distribution of the
Securities, a copy of the Offering Memorandum, as amended and
supplemented at the date of such delivery.
(b) No Registration; Legend. The Initial Purchaser understands that
the Securities have not been and will not be registered under the 1933
Act and may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except pursuant to an effective
registration statement or in accordance with Regulation S under the 1933
Act or pursuant to an exemption from the registration requirements of the
1933 Act. The Initial Purchaser represents and agrees that, except as
permitted herein, it has offered and sold Securities and will offer and
sell Securities (i) as part of its distribution at any time and (ii)
otherwise until forty days after the later of the date upon which the
offering of the Securities commences and the Closing Date, only pursuant
to an effective registration statement or in accordance with Rule 903 of
Regulation S, Rule 144A under the 1933 Act or another available exemption
from registration under the 1933 Act. Accordingly, neither the Initial
Purchaser, its affiliates nor any persons acting on its behalf have
engaged or will engage in any directed selling efforts with respect to
Securities, and the Initial Purchaser, its affiliates and any person
acting on its behalf have complied and will comply with the offering
restriction requirements of Regulation S. The Initial Purchaser agrees
that, at or prior to confirmation of a sale of Securities (other than a
sale of Securities pursuant to Rule 144A), it will have sent to each
distributor, dealer or person, if any, receiving a selling concession,
fee or other remuneration that purchases Securities from it or through it
during the restricted period a confirmation or notice to substantially
the following effect:
"The Securities covered hereby have not been registered under the
United States Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to or for the
account or benefit of U.S. persons (i) as part of their
distribution at any time and (ii) otherwise until forty days after
the later of the date upon which the offering of the Securities
commenced and the date of closing, except in either case pursuant
to an effective registration statement or in accordance with
Regulation S, Rule 144A under the Securities Act or another
available exemption
25
<PAGE> 26
from registration under the 1933 Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by
Regulation S.
SECTION 10. Termination of Agreement.
(a) Termination; General. The Initial Purchaser may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the time of execution of this Agreement
or since the respective dates as of which information is given in the
Offering Memorandum, any Material Adverse Change or (ii) if there has
occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case
the effect of which is such as to make it, in the judgment of the Initial
Purchaser, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of
the Company has been suspended or materially limited by the Commission or
the Nasdaq National Market, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market
has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any
other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further
that Sections 6, 7 and 8 shall survive such termination and remain in
full force and effect.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if hand delivered,
mailed, delivered by a nationally recognized next-day air courier or
transmitted by any standard form of telecommunication. All such notices and
communications shall be deemed to have been duly given: when delivered by hand,
if personally delivered; one business day after being timely delivered to a
next-day air courier; five business days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied. Notices to the Initial Purchaser shall be
directed to the Initial Purchaser at North Tower, World Financial Center, New
York, New York 10281-1201, attention of Mike O'Grady; notices to the Company
shall be directed to it at 6402 Corporate Drive, Indianapolis, Indiana 46728,
attention of Steven E. Fivel.
26
<PAGE> 27
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchaser and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchaser and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Initial Purchaser and
the Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No party hereto may assign
its rights or obligations, under this Agreement to any other person without, in
the case of the Company, the prior written approval of the Initial Purchaser,
and, in the case of the Initial Purchaser, the prior written approval of the
Company. No purchaser of Securities from the Initial Purchaser shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
27
<PAGE> 28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Initial Purchaser and the Company in accordance with its
terms.
Very truly yours,
BRIGHTPOINT, INC.
By: /s/ Robert J. Laikin
--------------------------------
Title: Chairman of the Board
and Chief Executive
Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Michael G. O'Grady
-------------------------------
Authorized Signatory
Vice President
28
<PAGE> 1
BRIGHTPOINT, INC.
$335,000,000 LIQUID YIELD OPTION(TM) NOTES DUE 2018
(ZERO COUPON--SUBORDINATED)
PRICING AGREEMENT
March 5, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
250 Vesey Street
New York, N.Y. 10281-1209
Dear Sirs:
Reference is made to the Purchase Agreement dated March 5, 1998 (the
"Purchase Agreement") relating to the purchase by Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated (the "Initial Purchaser") of the
above Liquid Yield Option(TM) Notes due 2018 (Zero Coupon--Subordinated) (the
"Securities") of Brightpoint, Inc. (the "Company").
Pursuant to Section 2 of the Purchase Agreement, the Company agrees with
the Initial Purchaser as follows:
1. The initial offering price per $1,000 principal amount at maturity of
the Securities, determined as provided in such Section 2, shall be $452.89,
which represents a yield to maturity of 4% per annum (computed on a semi-annual
bond equivalent basis).
2. The initial conversion rate of the Securities shall be 19.109 shares of
the Company's Common Stock, par value $0.01 per share, per $1,000 principal
amount at maturity of the Securities.
3. Prior to March 11, 2003, the Securities will not be redeemable.
4. The purchase price per $1,000 principal amount at maturity of the
Securities to be paid by the Initial Purchaser shall be $439.31, being an
amount equal to the initial offering price set forth above, less $13.58 per
$1,000 principal amount at maturity of the Securities.
<PAGE> 2
5. The redemption prices to be supplied on page 48 of the Offering
Memorandum (and correspondingly in the Indenture) shall be:
<TABLE>
<CAPTION>
Accrued Original
Issue Discount
Redemption Date LYON Issue Price at 4% Redemption Price
- --------------- ---------------- ----------------- ---------------------
<S> <C> <C> <C>
March 11, 2003 .................... $452.89 $ 99.18 $ 552.07
March 11, 2004 .................... 452.89 121.48 574.37
March 11, 2005 .................... 452.89 144.69 597.58
March 11, 2006 .................... 452.89 168.83 621.72
March 11, 2007 .................... 452.89 193.95 646.84
March 11, 2008 .................... 452.89 220.08 672.97
March 11, 2009 .................... 452.89 247.27 700.16
March 11, 2010 .................... 452.89 275.56 728.45
March 11, 2011 .................... 452.89 304.98 757.87
March 11, 2012 .................... 452.89 335.60 788.49
March 11, 2013 .................... 452.89 367.46 820.35
March 11, 2014 .................... 452.89 400.60 853.49
March 11, 2015 .................... 452.89 435.08 887.97
March 11, 2016 .................... 452.89 470.96 923.85
March 11, 2017 .................... 452.89 508.28 964.17
At Maturity .................... 452.89 547.11 1,000.00
</TABLE>
6. The Purchase Dates and Purchase Prices to be inserted on the cover page
of the Offering Memorandum shall be:
<TABLE>
Purchase Date Purchase Price
- --------------- ----------------
<S> <C>
March 11, 2003 $552.07
March 11, 2008 672.97
March 11, 2013 820.35
</TABLE>
7. The prices referred to in paragraphs 5 and 6 above are subject to
adjustment upon the occurrence of a Tax Event and the subsequent conversion of
the Securities to semiannual coupon notes in the manner specified in the
Offering Memorandum.
The Company represents and warrants to the Initial Purchaser that the
representations and warranties of the Company set forth in Section 1 of the
Purchase Agreement are accurate as though expressly made at and as of the date
hereof.
<PAGE> 3
This Agreement shall be governed by the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Initial Purchaser and the Company in accordance with its
terms.
Very truly yours,
BRIGHTPOINT, INC.
By: /s/ Robert J. Laikin
-----------------------------
Name: Robert J. Laikin
---------------------------
Its: Chairman of the Board
----------------------------
and Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Michael G. O'Grady
----------------------
Vice President
<PAGE> 1
EXHIBIT 4.1
BRIGHTPOINT, INC.
LIQUID YIELD OPTION((TM)) NOTES DUE 2018
(ZERO COUPON--SUBORDINATED)
-----------------------
INDENTURE
Dated as of March 11, 1998
-----------------------
The Chase Manhattan Bank,
Trustee
- --------------------------------------------------------------------------------
((TM))Trademark of Merrill Lynch & Co., Inc.
<PAGE> 2
TABLE OF CONTENTS
NOTE: This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture.
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE VIII. DISCHARGE OF INDENTURE ........................................... 1
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE ...................................... 1
SECTION 1.01. DEFINITIONS ............................................. 8
SECTION 1.02. OTHER DEFINITIONS ....................................... 9
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT ....... 10
SECTION 1.04. RULES OF CONSTRUCTION .................................. 10
ARTICLE II
THE SECURITIES .................................................................. 10
SECTION 2.01. FORM AND DATING ......................................... 10
SECTION 2.02. EXECUTION AND AUTHENTICATION ............................ 12
SECTION 2.03. REGISTRAR, PAYING AGENT AND CONVERSION AGENT ............ 13
SECTION 2.04. PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST ...... 14
SECTION 2.05. SECURITYHOLDER LISTS .................................... 14
SECTION 2.06. TRANSFER AND EXCHANGE ................................... 14
SECTION 2.07. REPLACEMENT SECURITIES .................................. 16
SECTION 2.08. OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS'
ACTION ................................................................. 16
SECTION 2.09. TEMPORARY SECURITIES .................................... 17
SECTION 2.10. CANCELLATION ............................................ 18
SECTION 2.11. GLOBAL SECURITIES ....................................... 18
SECTION 2.12. CUSIP NUMBERS ........................................... 27
ARTICLE III
REDEMPTION AND PURCHASES ........................................................ 27
SECTION 3.01. RIGHT TO REDEEM; NOTICES TO TRUSTEE ..................... 27
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED .................. 27
SECTION 3.03. NOTICE OF REDEMPTION .................................... 28
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION .......................... 28
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE ............................. 29
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 3.06. SECURITIES REDEEMED IN PART ......................................... 29
SECTION 3.07. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION........................ 29
SECTION 3.08. PURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER .................. 30
SECTION 3.09. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE
IN CONTROL ......................................................................... 36
SECTION 3.10. EFFECT OF PURCHASE NOTICE OR CHANGE IN CONTROL PURCHASE NOTICE ...... 39
SECTION 3.11. DEPOSIT OF PURCHASE PRICE OR CHANGE IN CONTROL PURCHASE PRICE ....... 40
SECTION 3.12. SECURITIES PURCHASED IN PART ........................................ 41
SECTION 3.13. COVENANT TO COMPLY WITH SECURITIES LAWS UPON PURCHASE OF
SECURITIES ......................................................................... 41
SECTION 3.14. REPAYMENT TO THE COMPANY ............................................ 41
ARTICLE IV.
COVENANTS ................................................................................... 41
SECTION 4.01. PAYMENT OF SECURITIES ............................................... 41
SECTION 4.02. SEC REPORTS ......................................................... 42
SECTION 4.03. STATEMENTS BY OFFICERS AS TO DEFAULT ................................ 42
SECTION 4.04. CALCULATION OF ORIGINAL ISSUE DISCOUNT .............................. 43
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY ..................................... 43
SECTION 4.06. TAXES ............................................................... 43
SECTION 4.07. CONTINUED EXISTENCE ................................................. 43
ARTICLE V
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE ............................... 43
SECTION 5.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS ................ 43
SECTION 5.02. SUCCESSOR SUBSTITUTED ............................................... 44
ARTICLE VI.
DEFAULTS AND REMEDIES ....................................................................... 44
SECTION 6.01. EVENTS OF DEFAULT ................................................... 44
SECTION 6.02. ACCELERATION ........................................................ 46
SECTION 6.03. OTHER REMEDIES ...................................................... 47
SECTION 6.04. WAIVER OF PAST DEFAULTS ............................................. 47
SECTION 6.05. CONTROL BY MAJORITY.................................................. 47
SECTION 6.06. LIMITATION ON SUITS ................................................. 47
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT................................. 48
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 6.08. COLLECTION SUIT BY TRUSTEE ................................ 48
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM .......................... 48
SECTION 6.10. PRIORITIES ................................................ 49
SECTION 6.11. UNDERTAKING FOR COSTS ..................................... 49
SECTION 6.12. NOTICE OF DEFAULTS ........................................ 50
SECTION 6.13. WAIVER OF STAY, EXTENSION OR USURY LAWS ................... 50
ARTICLE VII.
THE TRUSTEE ....................................................................... 50
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES ....................... 50
SECTION 7.02. NOTICE OF DEFAULTS ........................................ 51
SECTION 7.03. CERTAIN RIGHTS OF TRUSTEE ................................. 51
SECTION 7.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES .... 53
SECTION 7.05. MAY HOLD SECURITIES ....................................... 53
SECTION 7.06. MONEY HELD IN TRUST ....................................... 53
SECTION 7.07. COMPENSATION AND REIMBURSEMENT ............................ 53
SECTION 7.08. DISQUALIFICATION; CONFLICTING INTERESTS ................... 54
SECTION 7.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY ................... 54
SECTION 7.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR ......... 54
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR .................... 56
SECTION 7.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS 56
SECTION 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY ......... 56
SECTION 7.14. APPOINTMENT OF AUTHENTICATING AGENT ....................... 57
SECTION 7.15. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY ... 58
SECTION 7.16. REPORTS BY TRUSTEE ........................................ 58
ARTICLE VIII.
DISCHARGE OF INDENTURE ............................................................ 59
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES ...................... 59
SECTION 8.02. REPAYMENT TO THE COMPANY .................................. 59
ARTICLE IX.
AMENDMENTS ........................................................................ 59
SECTION 9.01. WITHOUT CONSENT OF HOLDERS ................................ 59
SECTION 9.02. WITH CONSENT OF HOLDERS ................................... 60
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT ....................... 61
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS .... 61
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES ..................... 61
SECTION 9.06. TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES ................... 62
SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES ......................... 62
ARTICLE X.
SUBORDINATION
................................................................................... 62
SECTION 10.01. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS ............ 62
SECTION 10.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC ........... 62
SECTION 10.03. ACCELERATION OF SECURITIES ............................... 64
SECTION 10.04. DEFAULT ON SENIOR INDEBTEDNESS ........................... 64
SECTION 10.05. PAYMENT PERMITTED IF NO DEFAULT .......................... 66
SECTION 10.06. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS .. 66
SECTION 10.07. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS .............. 66
SECTION 10.08. TRUSTEE TO EFFECTUATE SUBORDINATION ...................... 67
SECTION 10.09. NO WAIVER OF SUBORDINATION PROVISIONS .................... 67
SECTION 10.10. NOTICE TO TRUSTEE ........................................ 67
SECTION 10.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT .................................................... 68
SECTION 10.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS . 68
SECTION 10.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS ......................... 69
SECTION 10.14. ARTICLE X APPLICABLE TO PAYING AGENTS .................... 69
ARTICLE XI.
CONVERSION
................................................................................... 70
SECTION 11.01. CONVERSION PRIVILEGE ..................................... 70
SECTION 11.02. CONVERSION PROCEDURE ..................................... 71
SECTION 11.03. FRACTIONAL SHARES ........................................ 73
SECTION 11.04. TAXES ON CONVERSION ...................................... 73
SECTION 11.05. COMPANY TO PROVIDE STOCK ................................. 73
SECTION 11.06. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK ................... 73
SECTION 11.07. ADJUSTMENT FOR RIGHTS ISSUE .............................. 74
SECTION 11.08. ADJUSTMENT FOR OTHER DISTRIBUTIONS ....................... 75
SECTION 11.09. WHEN ADJUSTMENT MAY BE DEFERRED .......................... 77
iv
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 11.10. WHEN NO ADJUSTMENT REQUIRED............................... 78
SECTION 11.11. NOTICE OF ADJUSTMENT ..................................... 78
SECTION 11.12. VOLUNTARY INCREASE ....................................... 78
SECTION 11.13. NOTICE OF CERTAIN TRANSACTIONS ........................... 79
SECTION 11.14. REORGANIZATION OF COMPANY; SPECIAL DISTRIBUTIONS ......... 79
SECTION 11.15. COMPANY DETERMINATION FINAL .............................. 80
SECTION 11.16. TRUSTEE'S ADJUSTMENT DISCLAIMER .......................... 80
SECTION 11.17. SIMULTANEOUS ADJUSTMENTS ................................. 80
SECTION 11.18. SUCCESSIVE ADJUSTMENTS ................................... 80
SECTION 11.19. RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED UPON
CONVERSION ............................................. 80
ARTICLE XII.
SPECIAL TAX EVENT CONVERSION
................................................................................... 81
SECTION 12.01. OPTIONAL CONVERSION TO SEMIANNUAL COUPON NOTE UPON TAX
EVENT .................................................. 81
SECTION 12.02. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED ........... 82
ARTICLE XIII.
MISCELLANEOUS ..................................................................... 83
SECTION 13.01. TRUST INDENTURE ACT CONTROLS ............................. 83
SECTION 13.02. NOTICES .................................................. 83
SECTION 13.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS .............. 84
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT ....... 84
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION ............ 84
SECTION 13.06. SEPARABILITY CLAUSE ...................................... 84
SECTION 13.07. RULES BY TRUSTEE, PAYING AGENT, CONVERSION AGENT AND
REGISTRAR .............................................. 84
SECTION 13.08. LEGAL HOLIDAY ............................................ 85
SECTION 13.09. GOVERNING LAW ............................................ 85
SECTION 13.10. NO RECOURSE AGAINST OTHERS ............................... 85
SECTION 13.11. SUCCESSORS ............................................... 85
SECTION 13.12. MULTIPLE ORIGINALS ....................................... 85
</TABLE>
v
<PAGE> 7
INDENTURE, dated as of March 11, 1998, between BRIGHTPOINT, INC., a
Delaware corporation ("Company"), and THE CHASE MANHATTAN BANK, a New York
banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's Liquid Yield
Option/(TM)/ Notes due 2018 (Zero Coupon--Subordinated) (the "Securities"):
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A Global Security" means a permanent Global Security in the form of
the Security attached hereto as Exhibit A-1, and that is deposited with and
registered in the name of the Depository, representing Securities sold in
reliance on Rule 144A under the Securities Act.
"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 or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or exchange
of beneficial ownership interests in a Global Security, the rules and procedures
of the DTC, Euroclear and Cedel that are applicable to such transfer or
exchange.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 7.14 to act on behalf of the Trustee to authenticate
securities.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
- ---------------------
/(TM)/Trademark of Merrill Lynch & Co., Inc.
1
<PAGE> 8
"Bankruptcy Law" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors.
"Board of Directors" or "Board" means, with respect to any matter,
either the board of directors of the Company or any committee of such board duly
authorized, with respect to such matter, to exercise the powers of such board.
"Business Day" means each day of the year on which banking institutions
in The City of New York are not required or authorized to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) capital stock issued by that
corporation.
"Cash" or "cash" means such coin or currency of The United States of
America as at any time of payment is legal tender for the payment of public and
private debts.
"Cedel" means Centrale de Livraison de Valeurs Mobilieres, S.A., or
its successor.
"Certificated Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit A-2.
"close of business" means 5:00 p.m. local time in The City of New York.
"Common Stock" means any series of Common Stock, par value $.01 per
share, of the Company as it exists on the date of this Indenture or any other
shares of capital stock of the Company into which such common stock shall be
reclassified or changed.
"Company" means the party named as the "Company" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by either of its Chairman or Vice Chairman of
the Board, its President, any Vice President, its Treasurer, or any Assistant
Treasurer, and by its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Net Assets" means the total amount of assets of the
Company and its Subsidiaries (less applicable depreciation, amortization and
other valuation reserves), after deducting therefrom all current liabilities of
the Company and its Subsidiaries (other than intercompany liabilities and the
current portion of long-term debt and capitalized lease obligations), all as set
forth on the latest consolidated balance sheet of the Company at the end of each
calendar quarter prepared in accordance with GAAP.
2
<PAGE> 9
"Conversion Payment" means the Sale Price of a share of Common Stock on
the Trading Day immediately prior to the related Conversion Date multiplied by
the Conversion Rate in effect on such Trading Day.
"Corporate Trust Office" means the office of the Trustee in the Borough
of Manhattan, The City of New York, at which at any particular time its
corporate trust business shall be principally administered; which office at the
date of initial execution of this Indenture is 450 West 33rd Street, New York,
New York 10001, except that with respect to the presentation of Securities for
payment or for registration of transfer or exchange, such term shall mean the
office or agency of the Trustee in said Borough at which at any particular time
its corporate agency business shall be conducted, which office at the date of
execution of initial of this Indenture is 55 Water Street, Room 234, New York,
New York 10041.
"Credit Facility" means that certain Multicurrency Credit Agreement,
dated as of June 24, 1997, among the Company, Brightpoint International Ltd.,
certain of their respective Subsidiaries, the financial institutions from time
to time parties thereto as lenders, The First National Bank of Chicago, in its
capacity as Administrative Agent, and Bank One, Indiana, National Association,
in its capacity as Syndication Agent (as the same may from time to time be
amended, modified, supplemented and/or restated).
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"Executive Officer" means any of the Chief Executive Officer, Chief
Operating Officer, President, Executive Vice President or Chief Financial
Officer of the Company.
"GAAP" means generally accepted accounting principles in the United
States as in effect on the date hereof.
"Global Securities" means, individually and collectively, the 144A
Global Security, the Institutional Accredited Investor Global Security and the
Regulation S Global Security.
"Hedging Agreement" means an agreement, device or arrangement providing
for payments which are related to fluctuations of interest rates, exchange rates
or forward rates, including, but not limited to, U.S. dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate swap, cap or collar protection agreements, forward
rate currency or interest rate options, puts and warrants or similar agreements,
devices or arrangements of the Company.
3
<PAGE> 10
"Holder" or "Securityholder" means a person in whose name a Security is
registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time
to time in accordance with the terms hereof.
"Institutional Accredited Investor Global Security" means a Global
Security in the form of the Security attached hereto as Exhibit A-1, and that is
deposited with and registered in the name of the Depository, representing
Securities sold to institutional "accredited investors" (as defined in Rule
501(a)(1) (2), (3) and (7) under the Securities Act).
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Issue Price" of any Security means, in connection with the original
issuance of such Security, the initial issue price at which the Security is sold
as set forth on the face of the Security.
"Nasdaq" means the National Association of Securities Dealers
Automated Quotation System.
"Officer" means either the Chairman or Vice Chairman of the Board, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 13.04 and 13.05, (i) signed in the name of the
Company by either its Chairman of the Board, Vice Chairman of the Board,
President, any Vice President, Treasurer, any Assistant Treasurer, Controller,
or any Assistant Controller, and (ii) attested to by its Secretary or any
Assistant Secretary, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 13.04 and 13.05, if applicable, rendered by legal counsel,
who may, in the case of legal counsel to the Company, be (i) an employee of, or
counsel to, the Company or (ii) other counsel designated by the Company and
reasonably acceptable to the Trustee.
"Original Issue Discount" of any Security means the difference between
the Issue Price and the Principal Amount of the Security as set forth on the
face of the Security.
"Permitted Junior Securities" means securities of the Company or any
other corporation that are equity securities or are subordinated in right of
payment to all Senior Indebtedness that may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in Article X; provided that at any time that
there shall be Senior Indebtedness described in clause (i) or (iii)(c)(1) of the
definition herein of "Senior
4
<PAGE> 11
Indebtedness" outstanding (or in connection with which any commitment for such
Senior Indebtedness is outstanding), such securities shall also be securities
issued either (i) in accordance with the terms of a plan of reorganization that
is authorized by a court decree or order and approved by the percentage of the
holders of such Senior Indebtedness which is the lesser of (a) the percentage of
such holders required by the Credit Facility, Refinancing Agreement, Hedging
Agreement or other agreement or instrument governing the rights of such holders
and (b) 80% of such holders of such Senior Indebtedness (the "Requisite
Percentage"), each voting as a separate class or (ii) with the approval of the
Requisite Percentage of the holders of such Senior Indebtedness, each voting as
a separate class.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Principal" or "Principal Amount" of a Security means, subject to the
terms of Section 12.01 hereof, the principal amount due at the Stated Maturity
of the Security as set forth on the face of the Security.
"Redemption Date" or "redemption date" shall mean the date specified
for redemption of any of the Securities in accordance with the terms of the
Securities and this Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
forth in paragraph 5 of the Securities.
"Refinancing Agreement" means an agreement providing for the refunding
or refinancing of Secured Obligations.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Security" means a Global Security in the form of
the Security attached hereto as Exhibit A-1, and that is deposited with and
registered in the name of the Depositary, representing the Securities sold in
reliance on Regulation S.
"Requisite Percentage" shall have the meaning ascribed to such term in
the definition of "Permitted Junior Securities," above.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Office of the Trustee (including any vice
president (whether or not designated by a number or a word or words added before
or after the title "vice president"), any assistant secretary, and assistant
treasurer, any senior trust officer, trust officer or assistant trust officer,
or any 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 such officer's knowledge and familiarity with the
particular subject.
5
<PAGE> 12
"Restricted Global Securities" means, individually and collectively,
the 144A Global Security and the Institutional Accredited Investor Global
Security.
"Sale Price" on any Trading Day means the closing per share sale price
for the Common Stock (or if no closing sale price is reported, the average of
the bid and ask prices or, if more than one in either case the average of the
average bid and the average ask prices) on such Trading Day as reported in
composite transactions for the principal United States securities exchange on
which the Common Stock is traded or, if the Common Stock is not listed on a
United States national or regional stock exchange, as reported by the National
Association of Securities Dealers Automated Quotation System.
"SEC" means the Securities and Exchange Commission.
"Secured Obligations" shall have the meaning ascribed to such term in
the Credit Facility.
"Securities" means any of the Company's Liquid Yield Option Notes due
2018 (Zero Coupon--Subordinated), as amended or supplemented from time to time
in accordance with the terms hereof, issued under this Indenture.
"Securityholder" or "Holder" means a person in whose name a Security is
registered on the Registrar's books.
"Senior Indebtedness" means, without duplication, (i) all Secured
Obligations, including without limitation, the principal, premium (if any),
unpaid interest and fees, on all present and future (a) obligations incurred by
the Company (whether as borrower or guarantor) under and pursuant to the Credit
Facility or any Refinancing Agreement, including without limitation, the
principal balance of all loans made thereunder and interest and fees accruing
with respect to such loans and (b) all other obligations, liabilities, and
indebtedness, including, without limitation, reimbursement obligations under
letters of credit issued pursuant to the Credit Facility or a Refinancing
Agreement (and all fees, commissions and charges incurred in connection with the
issuances and maintenance of such letters of credit) or obligations with respect
to acceptances issued or overdrafts extended pursuant to the Credit Facility or
a Refinancing Agreement; (ii) all present and future obligations under any
Hedging Agreement, including all obligations of the Company, whether absolute or
contingent under any and all cancellations, buy backs, reversals, terminations
or assignments of any Hedging Agreement; (iii) the principal, premium (if any)
and unpaid interest on all present and future (a) indebtedness of the Company
for borrowed money (other than the Securities), (b) obligations of the Company
evidenced by bonds, debentures, notes or similar instruments (other than the
Securities), (c) (1) repurchase obligations or liabilities of the Company with
respect to accounts or notes receivable sold by the Company or otherwise
financed by the Company in a securitization or structured receivables financing
transaction, (2) liabilities under any sale and leaseback transactions which do
not create a liability on the consolidated balance sheet of the Company, (3)
liabilities under any financing lease or so-called "synthetic" lease transaction
entered into by the Company, and (4) obligations
6
<PAGE> 13
arising with respect to any other transaction which is the functional equivalent
of or takes the place of borrowing but which does not constitute a liability on
the consolidated balance sheet of the Company, (d) indebtedness incurred,
assumed or guaranteed by the Company in connection with the acquisition by it or
a Subsidiary of any business, properties or assets (except purchase-money
indebtedness classified as accounts payable under generally accepted accounting
principles), (e) obligations of the Company as lessee under leases required to
be capitalized on the balance sheet of the lessee under generally accepted
accounting principles, (f) reimbursement obligations of the Company in respect
of letters of credit relating to indebtedness or other obligations of the
Company that qualify as indebtedness or obligations of the kind referred to in
clauses (iii) (a) through (e) above, and (iv) obligations of the Company under
direct or indirect guaranties in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (iii) above; in each case (I) whether now
existing or hereafter arising (and, in the case of indebtedness or obligations
described in clauses (i) or (iii)(c)(1) above, whether such indebtedness or
obligations arise or accrue before or after the commencement of any bankruptcy,
insolvency or receivership proceedings) directly between the Company and any
holder of such indebtedness or obligation, or acquired outright, conditionally
or as collateral security from another by any such holder, including, without
limitation, in the case of indebtedness or obligations described in clauses (i)
or (iii)(c)(1) above, interest and fees accruing pre-petition or post-petition
at the rate or rates prescribed in the Credit Facility or a Refinancing
Agreement or the other document, instrument or agreement evidencing such Senior
Indebtedness and costs, expenses, and attorneys' and paralegals' fees and
disbursements, whenever incurred (and, in the case of indebtedness or
obligations described in clauses (i) or (iii)(c)(1) above, whether or not such
claims, interest, costs, expenses, fees or disbursements are allowed or
allowable in any such proceeding); and (II) unless the document, instrument or
agreement creating or evidencing the indebtedness or obligation or pursuant to
which the same is outstanding provides (y) that such indebtedness or obligation
is not superior in right of payment to the Securities or (z) that such
indebtedness or obligation shall be subordinated to any other such indebtedness
or obligation of the Company, unless such indebtedness or obligation expressly
provides that it shall be senior in right of payment to the Securities.
"Senior Indebtedness Default" means the happening of an event of
default with respect to any Senior Indebtedness, as defined therein or in the
instrument under which the same is outstanding which, if occurring prior to the
stated maturity of such Senior Indebtedness, permits any holder thereof
thereupon to accelerate the maturity thereof.
"Stated Maturity," when used with respect to any Security, means the
date specified in such Security as the fixed date on which the Principal of such
Security is due and payable.
"Subsidiary" means (i) a corporation, a majority of whose Capital Stock
with voting power, under ordinary circumstances, to elect directors is, at the
date of determination, directly or indirectly owned by the Company, by one or
more subsidiaries of the Company or by the Company and one or more subsidiaries
of the Company, (ii) a partnership in which the Company
7
<PAGE> 14
or a subsidiary of the Company holds a majority interest in the equity capital
or profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a subsidiary of the Company or the Company
and one or more subsidiaries of the Company, directly or indirectly, at the date
of determination, has (x) at least a majority ownership interest or (y) the
power to elect or direct the election of a majority of the directors or other
governing body of such person.
"Tax Event" means that the Company shall have received an opinion from
independent tax counsel experienced in such matters to the effect that, on or
after the date of this Indenture, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or (b) any amendment to, or change in, an
interpretation or application of such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, in each case which
amendment or change is enacted, promulgated, issued or announced or which
interpretation is issued or announced or which action is taken, on or after the
date of this Indenture, there is more than an insubstantial risk that interest
(including Original Issue Discount) payable on the Securities either (i) would
not be deductible on a current accrual basis or (ii) would not be deductible
under any other method, in either case in whole or in part, by the Company (by
reason of deferral, disallowance, or otherwise) for United States Federal income
tax purposes.
"TIA" means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, and as in effect on the date of this Indenture,
except as provided in Section 9.03.
"Trading Day" means each day on which the securities exchange or
quotation system which is used to determine the Sale Price is open for trading
or quotation.
"Trustee" means the party named as the "Trustee" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
SECTION 1.02. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Defined in
Term Section
<S> <C>
"Agent Members" ........................................................ 2.01(c)
"Associate" ............................................................ 3.09(a)
"Average Sale Price" ................................................... 11.01
"beneficial owner" ..................................................... 3.09(a)
"Change in Control" .................................................... 3.09(a)
"Change in Control Purchase Date" ...................................... 3.09(a)
"Change in Control Purchase Notice" .................................... 3.09(c)
"Change in Control Purchase Price" ..................................... 3.09(a)
"Company Notice" ....................................................... 3.08(e)
</TABLE>
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<TABLE>
<S> <C>
"Company Notice Date" .................................................. 3.08(e)
"Conversion Agent" ..................................................... 2.03
"Conversion Date" ...................................................... 11.02
"Conversion Rate" ...................................................... 11.01
"Custodian" ............................................................ 6.01
"Defaulted Interest" .................................................. 12.02(b)
"Depositary" ........................................................... 2.01(a)
"Event of Default" ..................................................... 6.01
"Exchange Act" ......................................................... 3.08(d)
"Ex-Dividend Time" ..................................................... 11.01
"Extraordinary Cash Dividend" .......................................... 11.08
"Institutional Accredited Investors" ................................... 2.01(b)
"Interest Payment Date" ................................................ 12.01
"Legal Holiday" ........................................................ 13.08
"Legend" ............................................................... 2.06(f)
"Market Price".......................................................... 3.08(d)
"Notice of Default" .................................................... 6.01
"Option" ............................................................... 2.02
"Paying Agent" ......................................................... 2.03
"Principal Property" ................................................... 6.01
"Purchase Date" ........................................................ 3.08(a)
"Purchase Notice" ...................................................... 3.08(a)
"Purchase Price" ....................................................... 3.08(a)
"QIB" .................................................................. 2.01(a)
"Registrar" ............................................................ 2.03
"Regular Record Date" .................................................. 12.01
"Restated Principal Amount" ............................................ 12.01
"Rights" ............................................................... 11.19
"Rights Agreement" ..................................................... 11.19
"Securities Act" ....................................................... 3.08(d)
"Tax Event Date" ....................................................... 12.01
"Time of Determination" ................................................ 11.01
"Transfer Restricted Security" ......................................... 2.11(d)
</TABLE>
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
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<PAGE> 16
"INDENTURE SECURITY HOLDER" means a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA
or defined by TIA reference to another statute or regulation have the meanings
assigned to them by such definitions.
SECTION 1.04 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally
accepted accounting principles as in effect from time
to time in The United States of America;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the
plural include the singular.
ARTICLE II.
THE SECURITIES
SECTION 2.01. FORM AND DATING . The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A-1
and A-2, which are a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage (provided
that any such notation, legend or endorsement required by usage is in a form
acceptable to the Company and the Trustee and is provided to the Trustee in
writing by the Company). Each Security shall be dated the date of its
authentication.
The Securities are being offered and sold by the Company pursuant to a
Purchase Agreement, dated March 5, 1998, between the Company and Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Purchase
Agreement").
(a) 144A Global Securities. Securities offered and sold within the
United States to qualified institutional investors as defined in Rule 144A
("QIBs") in reliance on Rule 144A
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<PAGE> 17
under the Securities Act shall be issued, initially in the form of a 144A Global
Security, which shall be deposited with the Trustee at its corporate trust
offices, as custodian for the Depositary and registered in the name of The
Depository Trust Company ("DTC") or the nominee thereof (such depositary, or any
successor thereto, and any such nominee being hereinafter referred to as the
"Depositary"), duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the 144A Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary as hereinafter provided.
(b) Institutional Accredited Investor Global Securities. Securities
offered and sold within the United States to institutional accredited investors
as defined Rule 501(a)(1), (2) (3) and (7) under the Securities Act
("Institutional Accredited Investors") shall be issued, initially in the form of
an Institutional Accredited Investor Global Security, which shall be deposited
with the Trustee at its corporate trust offices, as custodian for the Depository
and registered in the name of DTC or the nominee thereof, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Institutional Accredited Investor Global Securities may
from time to time be increased or decreased by adjustments made on the records
of the Trustee and the Depositary as hereinafter provided.
(c) Regulation S Global Securities. Securities offered and sold in
reliance on Regulation S shall be issued initially in the form of the Regulation
S Global Security, which shall be deposited with the Trustee, at its corporate
trust offices, as custodian for the Depositary and registered in the name of the
Depositary or the nominee thereof, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The "40-day restricted
period" (as defined in Regulation S) shall be terminated upon the receipt by the
Trustee of (i) a written certificate from the Depositary certifying that it has
received certification of non-United States beneficial ownership of 100% of the
aggregate principal amount of the Regulation S Global Security (except to the
extent of any beneficial owners thereof who acquired an interest therein
pursuant to another exemption from registration under the Securities Act and who
will take delivery of a beneficial ownership interest in a Restricted Global
Security, all as contemplated by Section 2.11(a)(ii) hereof), and (ii) an
Officers' Certificate from the Company. The aggregate principal amount of the
Regulation S Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Depositary, as the
case may be, in connection with transfers of interest as hereinafter provided.
(d) Global Securities in General. Each Global Security shall represent
such of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any adjustment of the
aggregate principal amount of a Global Security to reflect the amount of any
increase or decrease in the amount of outstanding Securities represented thereby
shall be made by the Trustee in accordance with instructions given by the Holder
thereof as required by Section 2.11 hereof and shall be made on the records of
the Trustee and the Depositary.
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<PAGE> 18
(e) Book-Entry Provisions. This Section 2.01(e) shall apply only to
Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(e), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary, (b) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY
OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF."
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or under the Global Security, and the Depositary
may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall (A) prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or (B) impair, as between the Depositary and its Agent Members,
the operation of customary practices governing the exercise of the rights of a
holder of any Security.
(f) Certificated Securities. Securities not issued as interests in the
Global Securities will be issued in certificated form substantially in the form
of Exhibit A-2 attached hereto.
SECTION 2.02 EXECUTION AND AUTHENTICATION . The Securities shall be
executed by the Company by either of its Chairman or Vice Chairman of the Board,
its President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities and the corporate seal on
the Securities may be manual or facsimile.
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<PAGE> 19
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the Issue Date of such Securities.
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 duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver Securities for original
issue in an aggregate Principal Amount of up to $335,000,000 upon a Company
Order without any further action by the Company; provided, however, that in the
event that the Company sells any Securities pursuant to the option (the
"Option") granted pursuant to Section 2 of the Purchase Agreement, dated March
5, 1998, between the Company and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, then the Trustee shall authenticate and deliver
Securities for original issue in an aggregate Principal Amount of up to
$335,000,000 plus up to $45,000,000 aggregate Principal Amount of Securities
sold pursuant to the Option upon a Company Order. The aggregate Principal Amount
of Securities outstanding at any time may not exceed the amount set forth in the
foregoing sentence, subject to the proviso set forth therein, except as provided
in Section 2.07.
SECTION 2.03. REGISTRAR, PAYING AGENT AND CONVERSION AGENT . The
Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for purchase or payment ("Paying Agent") and
an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more additional
paying agents and one or more additional conversion agents. The term Paying
Agent includes any additional paying agent. The term Conversion Agent includes
any additional conversion agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or Conversion Agent if other than the Trustee. The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee and the Holders of the name and
address of any such agent and of any change in the office or agency referred to
in Section 4.05. If the Company fails to maintain a Registrar, Paying Agent or
Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar
or Conversion Agent.
The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Securities.
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<PAGE> 20
SECTION 2.04. PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST . In
accordance with Section 4.05 and except as otherwise provided herein, prior to
or on each due date of payments in respect of any Security, the Company shall
deposit with the Paying Agent a sum of money or, if permitted by the terms
hereof, Common Stock sufficient to make such payments when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money and Common Stock held by the Paying
Agent for the making of payments in respect of the Securities and shall notify
the Trustee of any default by the Company in making any such payment. At any
time during the continuance of any default by the Company in making any payments
in respect of the Securities, the Paying Agent shall, upon the written request
of the Trustee, forthwith pay to the Trustee all money and Common Stock so held
in trust. If the Company, a Subsidiary or an Affiliate of either of them acts as
Paying Agent, it shall segregate the money and Common Stock held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to pay all money and Common Stock held by it to the Trustee and
to account for any money and Common Stock disbursed by it. Upon doing so, the
Paying Agent shall have no further liability for the money and Common Stock.
SECTION 2.05. SECURITYHOLDER LISTS . The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of the Holders. If the Trustee is not the Registrar,
the Company shall furnish or cause to be furnished to the Trustee (i) at least
semiannually on March 15 and September 15 a list of the names and addresses of
the Holders dated within 15 days of the date on which the list is furnished and
(ii) at such other times as the Trustee may request in writing a list, in such
form and as of such date as the Trustee may reasonably require, of the names and
addresses of the Holders.
SECTION 2.06. TRANSFER AND EXCHANGE . Subject to Section 2.11 hereof,
(a) Upon surrender for registration of transfer of any Security, together with a
written instrument of transfer satisfactory to the Trustee duly executed by the
Securityholder or such Securityholder's attorney duly authorized in writing, at
the office or agency of the Company designated as Registrar pursuant to Section
2.03 or at the office or agency referred to in Section 4.05, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations, of a like aggregate Principal Amount.
The Company shall not charge a service charge for any registration of transfer
or exchange, but the Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges that may be imposed in
connection with the transfer or exchange of the Securities from the
Securityholder requesting such transfer or exchange (other than any exchange of
a temporary Security for a definitive Security not involving any change in
ownership).
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
Principal Amount, upon surrender of the Securities to be exchanged, together
with a written instrument of transfer
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<PAGE> 21
satisfactory to the Registrar duly executed by the Securityholder or such
Securityholder's attorney duly authorized in writing, at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of (i) Securities selected for redemption
(except, in the case of Securities to be redeemed in part, the portion thereof
not to be redeemed), (ii) any Securities in respect of which a Purchase Notice
or a Change in Control Purchase Notice has been given and not withdrawn by the
Holder thereof in accordance with the terms of this Indenture (except, in the
case of Securities to be purchased in part, the portion thereof not to be
purchased) or (iii) any Securities for a period of 15 days before a selection of
Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.11 and this Section 2.06(b). Transfers of a
Global Security shall be limited to transfers of such Global Security in whole,
or in part, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(e) No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) If Securities are issued upon the transfer, exchange or replacement
of Securities subject to restrictions on transfer and bearing the legends set
forth on the form of Security attached hereto as Exhibit A-1 setting forth such
restrictions (collectively, the "Legend"), or if a request is made to remove the
Legend on a Security, the Securities so issued shall bear the Legend, or the
Legend shall not be removed, as the case may be, unless (i) there is delivered
to the Company and the Registrar such satisfactory evidence, which shall include
an Opinion of Counsel, as may be reasonably required by the Company and the
Registrar, that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions
of Rule 144A, Rule 144 or Regulation S under the Securities Act or that such
Securities are not "restricted" within the meaning of Rule 144 under the
Securities Act. Upon (i) provision of such satisfactory evidence, or (ii)
notification by the Company to the Trustee and Registrar of effectiveness of a
registration statement with respect to
15
<PAGE> 22
the Securities, the Trustee, at the written direction of the Company, shall
authenticate and deliver a Security that does not bear the Legend. If a Legend
is removed from the face of a Security and the Security is subsequently held by
an Affiliate of the Company, the Legend shall be reinstated.
SECTION 2.07. REPLACEMENT SECURITIES . If (a) any mutilated Security is
surrendered to the Company or the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute, and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and Principal Amount, 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, or is about to be purchased by the
Company pursuant to Article III hereof, the Company in its discretion may,
instead of issuing a new Security, pay or purchase such Security, as the case
may be.
Upon the issuance of any new Securities under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08. OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS'
ACTION. Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, mutilated, destroyed, lost or stolen Securities for which the
Trustee has authenticated and delivered a new Security in lieu therefor
pursuant to Section 2.07, those paid pursuant to Section 2.07 and those
described in this Section 2.08 as not outstanding. A Security does not cease to
be outstanding because the Company or an Affiliate thereof holds the Security;
provided, however, that in determining whether the Holders of the requisite
Principal Amount of Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
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<PAGE> 23
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
has received an Officers' Certificate stating that such securities are so owned
shall be so disregarded. Subject to the foregoing, only Securities outstanding
at the time of such determination shall be considered in any such determination
(including, without limitation, determinations pursuant to Articles VI and IX).
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date or a Change in
Control Purchase Date, or on Stated Maturity, money or, if permitted by the
terms hereof including, without limitation, Section 3.08, Common Stock
sufficient to pay the Securities payable on that date, then immediately after
that date such Securities shall cease to be outstanding and Original Issue
Discount and interest, if any, on such Securities shall cease to accrue and all
other rights of the Holder shall terminate (other than the right to receive the
applicable Redemption Price, Purchase Price or Change in Control Purchase Price,
as the case may be, upon delivery of the Security in accordance with the terms
of this Indenture); 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.
If a Security is converted in accordance with Article XI, then
immediately after the Conversion Date such Security shall cease to be
outstanding and Original Issue Discount and interest, if any, shall cease to
accrue on such Security.
SECTION 2.09. TEMPORARY SECURITIES . Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, 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 conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03 or
4.05, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
17
<PAGE> 24
authenticate and deliver 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 2.10. CANCELLATION . All Securities surrendered for payment,
redemption or purchase by the Company pursuant to Article III, conversion
pursuant to Article XI, registration of transfer or exchange shall, if
surrendered to any person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. The Company
may not issue new Securities to replace Securities it has paid or delivered to
the Trustee for cancellation or that any Holder has converted pursuant to
Article XI. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of by the Trustee in accordance with its standard procedures, and
the Trustee shall deliver a certificate of destruction to the Company.
SECTION 2.11. GLOBAL SECURITIES.
(a) Transfer and Exchange of Global Securities. A Global Security
deposited with the Depositary pursuant to Section 2.01 shall be transferred to
the beneficial owners thereof only if such transfer complies with Section
2.06(b) or 2.06(f) of this Indenture and (i) the Depositary notifies the Company
that it is unwilling or unable to continue as depositary for such Global
Security or if at any time ceases to be a "clearing agency" registered under the
Exchange Act and a successor depositary is not appointed by the Company within
90 days of such notice, or (ii) an Event of Default has occurred and is
continuing with respect to the Securities. In either case, the Company will
promptly make available to the Trustee a reasonable supply of Certificated
Securities in definitive, fully registered form without interest coupons in
accordance with the provisions of Section 2.09.
Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.11 shall be surrendered by the Depositary to
the Trustee located in the Borough of Manhattan, The City of New York, to be so
transferred, in whole or from time to time in part, without charge, and the
Trustee shall authenticate and deliver, upon such transfer of each portion of
such Global Security, an equal aggregate Principal Amount of Securities of
authorized denominations. Any portion of a Global Security transferred pursuant
to Section 2.11 shall be executed, authenticated and delivered only in the
denominations specified in the form of Security attached as Exhibit A-2 hereto
and registered in such names as the Depositary shall direct. Any Security
delivered in exchange for an interest in a Restricted Global Security shall bear
the legend regarding transfer restrictions applicable to the Restricted Global
Security set forth on the form of Security attached as Exhibit A-1 hereto.
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<PAGE> 25
Subject to the provisions of this Section 2.11(a), the Holder may grant
proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
(i) Restricted Global Security to Regulation S Global
Security. If, at any time, an owner of a beneficial interest
in a Restricted Global Security deposited with the Depositary
wishes to transfer its interest in such Restricted Global
Security to a person who is required or permitted to take
delivery thereof in the form of a beneficial interest in a
Regulation S Global Security, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a Regulation
S Global Security as provided in this Section 2.11(a)(i). Upon
receipt by the Trustee, as Registrar, at the Corporate Trust
Office of (1) instructions given in accordance with the
Applicable Procedures from an Agent Member directing the
Trustee to credit or cause to be credited a beneficial
interest in the Regulation S Global Security in an amount
equal to the beneficial interest in the Restricted Global
Security to be exchanged, (2) a written order given in
accordance with the Applicable Procedures containing
information regarding the participant account of the
Depositary to be credited with such increase and the
participant account of the Depositary to be debited for, such
beneficial interest, (3) a certificate in the form of Exhibit
B-1 hereto given by the Holder of such beneficial interest
stating that the transfer of such interest has been made in
compliance with the transfer restrictions applicable to the
Global Securities and pursuant to and in accordance with Rule
903 or Rule 904 of Regulation S, then the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to
be reduced the aggregate Principal Amount of the applicable
Restricted Global Security and to increase or cause to be
increased the aggregate Principal Amount of the applicable
Regulation S Global Security by the Principal Amount of the
beneficial interest in the Restricted Global Security to be
exchanged, to credit or cause to be credited to the account of
the person specified in such instructions (which shall be the
agent member for Euroclear or Cedel or both, as the case may
be) a beneficial interest in the Regulation S Global Security
equal to the reduction in the aggregate Principal Amount of
the Restricted Global Security, and to debit, or cause to be
debited, from the account of the person making such exchange
or transfer the beneficial interest in the Restricted Global
Security that is being exchanged or transferred.
(ii) Regulation S Global Security to Restricted Global
Security. If, at any time, an owner of a beneficial interest
in a Regulation S Global Security deposited with the
Depositary wishes to transfer its interest in such Regulation
S Global Security to a person who is required or permitted to
take delivery thereof in the form of an interest in a
Restricted Global Security, such owner shall, subject to the
Applicable Procedures and only in accordance with this Section
2.11(a)(ii),
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exchange or cause the exchange of such interest
for an equivalent beneficial interest in a Restricted Global
Security. Upon receipt by the Trustee, as Registrar, at the
Corporate Trust Office of (1) instructions given in accordance
with the Applicable Procedures from an Agent Member directing
the Trustee, as Registrar, to credit or cause to be credited a
beneficial interest in the Restricted Global Security equal to
the beneficial interest in the Regulation S Global Security to
be exchanged, such instructions to contain information
regarding the participant account with the Depositary to be
credited with such increase, (2) a written order given in
accordance with the Applicable Procedures containing
information regarding the participant account of the
Depositary (or, if such account is held for Euroclear or
Cedel, the Euroclear or Cedel account, as the case may be) to
be credited with, and the account of the Depositary to be
debited with, such beneficial interest and (3) a certificate
in the form of Exhibit B-2 attached hereto given by the owner
of such beneficial interest stating (A) if the transfer is
pursuant to Rule 144A or to an Institutional Accredited
Investor, that the person transferring such interest in a
Regulation S Global Security reasonably believes that the
person acquiring such interest in a Restricted Global Security
is a QIB or an Institutional Accredited Investor, as the case
may be, and is obtaining such beneficial interest (y) in a
transaction meeting the requirements of Rule 144A or in a
transaction exempt from the registration requirements of the
Securities Act and (z) in a transaction meeting the
requirements of any applicable blue sky or securities laws of
any state of the United States, (B) that the transfer (y)
complies with the requirements of Rule 144 under the
Securities Act or is exempt from the registration requirements
of the Securities Act and (z) complies with or is exempt from
any applicable blue sky or securities laws of any state of the
United States or (C) if the transfer is pursuant to any other
exemption from the registration requirements of the Securities
Act, that the transfer of such interest has been made in
compliance with the transfer restrictions applicable to the
Global Securities and pursuant to and in accordance with the
requirements of the exemption claimed, such statement to be
supported by an Opinion of Counsel from the transferee or the
transferor in form reasonably acceptable to the Company and to
the Registrar, then the Trustee, as Registrar, shall instruct
the Depositary to reduce or cause to be reduced the aggregate
Principal Amount of such Regulation S Global Security and to
increase or cause to be increased the aggregate Principal
Amount of the applicable Restricted Global Security by the
Principal Amount of the beneficial interest in the Regulation
S Global Security to be exchanged, and the Trustee, as
Registrar, shall instruct the Depositary, concurrently with
such reduction, to credit or cause to be credited to the
account of the person specified in such instructions a
beneficial interest in the applicable Restricted Global
Security equal to the reduction in the aggregate Principal
Amount of such Regulation S Global Security and to debit or
cause to be debited from the account of the person making such
transfer the beneficial interest in the Regulation S Global
Security that is being transferred.
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(iii) 144A Global Security to Institutional Accredited
Investor Global Security. If, at any time, an owner of a
beneficial interest in a 144A Global Security deposited with
the Depositary wishes to transfer its interest in such 144A
Global Security to a person who is required or permitted to
take delivery thereof in the form of an interest in an
Institutional Accredited Investor Global Security, such owner
shall, subject to the Applicable Procedures and only in
accordance with this Section 2.11(a)(iii), exchange or cause
the exchange of such interest for an equivalent beneficial
interest in an Institutional Accredited Investor Global
Security. Upon receipt by the Trustee, as Registrar, at the
Corporate Trust Office, of (1) instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Trustee, as Registrar, to credit or cause to be
credited a beneficial interest in the Institutional Accredited
Investor Global Security equal to the beneficial interest in
the 144A Global Security to be exchanged, such instructions to
contain information regarding the participant account with the
Depositary to be credited with such increase, (2) a written
order given in accordance with the Applicable Procedures
containing information regarding the participant account of
the Depositary to be credited with, and the account of the
Depositary to be debited with, such beneficial interest and
(3) a certificate in the form of Exhibit B-3 attached hereto
given by the owner of such beneficial interest stating (A) if
the transfer is pursuant to Rule 144A, that the person
transferring such interest in a Rule 144A Global Security
reasonably believes that the person acquiring such interest in
a Restricted Global Security is a QIB and is obtaining such
beneficial interest in a transaction meeting the requirements
of Rule 144A and any applicable blue sky or securities laws of
any state of the United States, (B) that the transfer complies
with the requirements of Rule 144 under the Securities Act and
any applicable blue sky or securities laws of any state of the
United States or (C) if the transfer is pursuant to any other
exemption from the registration requirements of the Securities
Act, that the transfer of such interest has been made in
compliance with the transfer restrictions applicable to the
Global Securities and pursuant to and in accordance with the
requirements of the exemption claimed, such statement to be
supported by an Opinion of Counsel from the transferee or the
transferor in form reasonably acceptable to the Company and to
the Registrar, then the Trustee, as Registrar, shall instruct
the Depositary to reduce or cause to be reduced the aggregate
Principal Amount of such 144A Global Security and to increase
or cause to be increased the aggregate Principal Amount of the
applicable Institutional Accredited Investor Global Security
by the Principal Amount of the beneficial interest in the 144A
Global Security to be exchanged, and the Trustee, as
Registrar, shall instruct the Depositary, concurrently with
such reduction, to credit or cause to be credited to the
account of the person specified in such instructions a
beneficial interest in the Institutional Accredited Investor
Global Security equal to the reduction in the aggregate
Principal Amount of such 144A Global Security and to debit or
cause to be debited from the account of the person making such
transfer the beneficial interest in the 144A Global Security
that is being transferred.
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(iv) Institutional Accredited Investor Global Security to 144A
Global Security. If, at any time, an owner of a beneficial
interest in an Institutional Accredited Investor Global
Security deposited with the Depositary wishes to transfer its
interest in such Institutional Accredited Investor Global
Security to a person who is required or permitted to take
delivery thereof in the form of an interest in a 144A Global
Security, such owner shall, subject to the Applicable
Procedures and only in accordance with this Section
2.11(a)(iii), exchange or cause the exchange of such interest
for an equivalent beneficial interest in a 144A Global
Security. Upon receipt by the Trustee, as Registrar, at the
Corporate Trust Office, of (1) instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Trustee, as Registrar, to credit or cause to be
credited a beneficial interest in the 144A Global Security
equal to the beneficial interest in the Institutional
Accredited Investor Global Security to be exchanged, such
instructions to contain information regarding the participant
account with the Depositary to be credited with such increase,
(2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant
account of the Depositary to be credited with, and the account
of the Depositary to be debited with, such beneficial interest
and (3) a certificate in the form of Exhibit B-4 attached
hereto given by the owner of such beneficial interest stating
(A) if the transfer is pursuant to Rule 144A, that the person
transferring such interest in a Rule 144A Global Security
reasonably believes that the person acquiring such interest in
a Restricted Global Security is a QIB and is obtaining such
beneficial interest in a transaction meeting the requirements
of Rule 144A and any applicable blue sky or securities laws of
any state of the United States, (B) that the transfer complies
with the requirements of Rule 144 under the Securities Act and
any applicable blue sky or securities laws of any state of the
United States or (C) if the transfer is pursuant to any other
exemption from the registration requirements of the Securities
Act, that the transfer of such interest has been made in
compliance with the transfer restrictions applicable to the
Global Securities and pursuant to and in accordance with the
requirements of the exemption claimed, such statement to be
supported by an Opinion of Counsel from the transferee or the
transferor in form reasonably acceptable to the Company and to
the Registrar, then the Trustee, as Registrar, shall instruct
the Depositary to reduce or cause to be reduced the aggregate
Principal Amount of such Institutional Accredited Investor
Global Security and to increase or cause to be increased the
aggregate Principal Amount of the applicable 144A Global
Security by the Principal Amount of the beneficial interest in
the Institutional Accredited Investor Global Security to be
exchanged, and the Trustee, as Registrar, shall instruct the
Depositary, concurrently with such reduction, to credit or
cause to be credited to the account of the person specified in
such instructions a beneficial interest in the 144A Global
Security equal to the reduction in the aggregate Principal
Amount of such Institutional Accredited Investor Global
Security and to debit or cause to be debited from the account
of the person
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making such transfer the beneficial interest in the
Institutional Accredited Investor Global Security that is
being transferred.
(b) Transfer and Exchange of Certificated Securities. Holders of
Certificated Securities may offer, resell, pledge or otherwise transfer such
Securities only pursuant to an effective registration statement under the
Securities Act, inside the United States to a QIB in a transaction meeting the
requirements of Rule 144A, in a transaction meeting the requirements of Rule 144
under the Securities Act, outside the United States in a transaction meeting the
requirements of Rule 904 under the Securities Act or to the Company, in each
case in compliance with any applicable securities laws of any state of the
United States or any other applicable jurisdiction.
When Certificated Securities are presented by a Holder to the Registrar
with a request (x) to register the transfer of the Certificated Securities or
(y) to exchange such Certificated Securities for an equal Principal Amount of
Certificated Securities of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its requirements for
such transactions are met; provided, however, that the Certificated Securities
presented or surrendered for register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his or
her attorney, duly authorized in writing, which
instructions, if applicable, shall direct the Trustee
to cancel any Certificated Security being exchanged
for another Certificated Security in accordance with
Section 2.10 hereof; and
(ii) such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Certificated Security is being
delivered to the Registrar by a Holder for
registration in the name of such Holder,
without transfer, a certification to that
effect from such Holder (in substantially
the form of Exhibit B-5 hereto); or
(B) if such Certificated Security is being
transferred to a QIB in accordance with Rule
144A, pursuant to Rule 144 under the
Securities Act or pursuant to an exemption
from registration in accordance with Rule
904 under the Securities Act or pursuant to
an effective registration statement under
the Securities Act, a certification to that
effect from such Holder (in substantially
the form of Exhibit B-5 hereto).
(c) Authentication of Certificated Securities in Absence of Depositary.
If at any time:
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(i) the Depositary notifies the Company that the
Depositary is unwilling or unable to continue as the
depositary for the Global Securities and a successor
Depositary for the Global Securities is not appointed
by the Company within 90 days after delivery of such
notice; or
(ii) the Company delivers to the Trustee an Officers'
Certificate or an order signed by two Officers of the
Company notifying the Trustee that it elects to cause
the issuance of Certificated Securities under this
Indenture, then the Company shall execute, and the
Trustee shall, upon receipt of a Company Order in
accordance with Section 2.02 hereof, authenticate and
deliver, Certificated Securities in an aggregate
principal amount equal to the principal amount of the
Global Securities in exchange for such Global
Securities.
(d) Legends.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Global Security and Certificated
Security (and all Securities issued in exchange
therefor or substitution thereof) shall bear a legend
in substantially the following form (each a "Transfer
Restricted Security"):
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE
UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF
COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR
THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. UNLESS THE SHARES OF COMMON
STOCK HAVE BEEN REGISTERED UNDER THE SECURITIES ACT,
A HOLDER OF THIS SECURITY WILL BE ABLE TO EXERCISE
THE CONVERSION RIGHT ONLY IF THE HOLDER CERTIFIES
THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" OR AN
INSTITUTIONAL "ACCREDITED INVESTOR" AS DEFINED BELOW.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS
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AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF ANY SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (A)(1), (2),(3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, (D) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (E) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE DELIVERY TO THE TRUSTEE
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO THE COMPANY AND THE
TRUSTEE, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Security) pursuant to Rule
144 under the Securities Act or pursuant to an
effective registration statement under the Securities
Act:
(A) in the case of any Transfer Restricted
Security that is a Certificated Security,
the Registrar shall permit the Holder thereof
to exchange such Transfer Restricted Security
for a Certificated
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Security that does not bear the legend set
forth in (i) above and rescind any
restriction on the transfer of such Transfer
Restricted Security upon receipt of a
certification from the transferring Holder
substantially in the form of Exhibit B-4
hereto; and
(B) in the case of any Transfer Restricted
Security represented by a Global Security,
such Transfer Restricted Security shall not
be required to bear the legend set forth in
(i) above, but shall continue to be subject
to the provisions of Section 2.11(a) and (b)
hereof; provided, however, that with respect
to any request for an exchange of a Transfer
Restricted Security that is represented by a
Global Security for a Certificated Security
that does not bear the legend set forth in
(i) above, which request is made in reliance
upon Rule 144, the Holder thereof shall
certify in writing to the Registrar that such
request is being made pursuant to Rule 144
(such certification to be substantially in
the form of Exhibit B-4 hereto).
(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Security) in reliance on any
exemption from the registration requirements of the
Securities Act (other than exemptions pursuant to
Rule 144A or Rule 144 under the Securities Act) in
which the Holder or the transferee provides an
Opinion of Counsel to the Company and the Registrar
in form and substance reasonably acceptable to the
Company and the Registrar (which Opinion of Counsel
shall also state that the transfer restrictions
contained in the legend are no longer applicable):
(A) in the case of any Transfer Restricted
Security that is a Certificated Security, the
Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security
for a Certificated Security that does not
bear the legend set forth in (i) above and
rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted
Security represented by a Global Security,
such Transfer Restricted Security shall not
be required to bear the legend set forth in
(i) above, but shall continue to be subject
to the provisions of Section 2.11(a) and (b)
hereof.
Notwithstanding anything to the contrary contained herein, the Trustee
shall not have any duty whatsoever to monitor compliance with securities laws
other than to collect documentation required by this Indenture.
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SECTION 2.12. CUSIP NUMBERS. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the CUSIP
numbers.
ARTICLE III.
REDEMPTION AND PURCHASES
SECTION 3.01. RIGHT TO REDEEM; NOTICES TO TRUSTEE. The Company, at
its option, may redeem the Securities for cash in accordance with the
provisions set forth in paragraphs 5 and 7 of the Securities. If the Company
elects to redeem Securities pursuant to paragraph 5 of the Securities, it shall
notify the Trustee in writing of the Redemption Date, the Principal Amount of
Securities to be redeemed and the Redemption Price.
The Company shall give the written notice to the Trustee provided for
in this Section 3.01 at least 45 days but not more than 60 days before the
Redemption Date.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If less than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by any other method the Trustee considers
fair and appropriate (so long as, in the determination of the Company, such
method is not prohibited by the rules of any stock exchange on which the
Securities are then listed). The Trustee shall make the selection at least 30
but not more than 60 days before the Redemption Date from outstanding
Securities not previously called for redemption. The Trustee may select for
redemption portions of the Principal Amount of Securities that have
denominations larger than $1,000. Securities and portions of them the Trustee
selects shall be in Principal Amounts of $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
If any Security selected for partial redemption is thereafter
surrendered for conversion 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), solely for purposes of
determining the aggregate Principal Amount of Securities to be redeemed by the
Company, to be the portion selected for redemption. Securities that 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. Nothing in this
Section 3.02 shall affect the right of any Holder to convert any Security
pursuant to Article XI before the termination of the conversion right with
respect thereto.
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SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more
than 60 days before a Redemption Date, the Company shall mail a notice of
redemption by first-class mail to each Holder of Securities to be redeemed in
the manner provided in Section 13.02.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date (upon which the Redemption Price
shall be paid);
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and
Conversion Agent and of the office or agency referred
to in Section 4.05;
(5) that Securities called for redemption may be
converted at any time before the close of business on
the Redemption Date;
(6) that Holders who want to convert Securities must
satisfy the requirements set forth in paragraph 9 of
the Securities;
(7) that Securities called for redemption must be
surrendered to the Paying Agent or at the office or
agency referred to in Section 4.05 to collect the
Redemption Price;
(8) the CUSIP number of the Securities;
(9) if fewer than all the outstanding Securities are to
be redeemed, the certificate numbers and Principal
Amounts of the particular Securities to be redeemed;
and
(10) that, unless the Company defaults in payment of the
Redemption Price, Original Issue Discount on
Securities called for redemption and interest, if
any, will cease to accrue on and after the Redemption
Date.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is given, Securities called for redemption become due and payable
on the Redemption Date stated in the notice and at the Redemption Price
therefor except for Securities that are converted in accordance with the terms
of this Indenture. Upon the later of the Redemption Date and the date such
Securities are surrendered to the Paying Agent or at the office or agency
referred to in
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<PAGE> 35
Section 4.05, such Securities called for redemption shall be paid at the
Redemption Price therefor.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to or on the
Redemption Date, the Company shall deposit with the Paying Agent (or if the
Company or a Subsidiary or an Affiliate of either of them is the Paying Agent,
shall segregate and hold in trust) money sufficient to pay the Redemption Price
of all Securities to be redeemed on that date other than Securities or portions
of Securities called for redemption which prior thereto have been delivered by
the Company to the Trustee for cancellation. The Paying Agent shall as
promptly as practicable return to the Company upon its written request any
money not required for that purpose because of conversion of Securities
pursuant to Article XI. If such money is then held by the Company or a
Subsidiary or an Affiliate of the Company in trust and is not required for such
purpose it shall be discharged from such trust.
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder, a new Security in an authorized
denomination equal in Principal Amount to the unredeemed portion of the
Security surrendered.
SECTION 3.07. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Securities, the Company may arrange, in lieu
of redemption, for the purchase and conversion of any Securities called for
redemption by an agreement with one or more investment bankers or other
purchasers to purchase all or a portion of such Securities by paying to the
Trustee in trust for the Securityholders whose Securities are to be so
purchased, on or before the close of business on the Redemption Date, an amount
that, together with any amounts deposited with the Trustee by the Company for
redemption of such Securities, is not less than the Redemption Price, together
with interest, if any, accrued to the Redemption Date, of such Securities.
Notwithstanding anything to the contrary contained in this Article III, the
obligation of the Company to pay the Redemption Price of such Securities,
including all accrued interest, if any, shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such purchasers, but no such
agreement shall relieve the Company of its obligation to pay such Redemption
Price and interest, if any. If such an agreement is entered into, any
Securities not duly surrendered for conversion by the Holders thereof may, at
the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article XI) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date, subject to payment of the above amount as aforesaid. The
Trustee shall hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it for purchase and conversion in the same
manner as it would moneys deposited with it by the Company for the redemption
of Securities. Without the Trustee's prior written consent, no arrangement
between the Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense
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<PAGE> 36
arising out of or in connection with any such arrangement for the purchase and
conversion of any Securities between the Company and such purchasers, including
the costs and expenses 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.
SECTION 3.08. PURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER.
(a) General. Securities shall be purchased by the Company
pursuant to paragraph 6 of the Securities as of March 11, 2003, March 11, 2008
and March 11, 2013 (each, a "Purchase Date"), at the purchase price specified
therein (each, a "Purchase Price"), at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent or to the office or
agency referred to in Section 4.05 by the Holder of a
written notice of purchase (a "Purchase Notice") at
any time from the opening of business on the date
that is 20 Business Days prior to a Purchase Date
until the close of business on such Purchase Date
stating:
(A) the certificate numbers of the Securities that the
Holder will deliver to be purchased;
(B) the portion of the Principal Amount of the Security
which the Holder will deliver to be purchased, which
portion must be $1,000 or an integral multiple
thereof;
(C) that such Security shall be purchased on the Purchase
Date pursuant to the terms and conditions specified
in this Indenture and in paragraph 6 of the
Securities; and
(D) that if the Company elects pursuant to Section
3.08(b) to pay the Purchase Price on such Purchase
Date, in whole or in part, in shares of Common Stock,
but such portion of the Purchase Price to be paid in
shares of Common Stock is ultimately to be paid in
cash because any of the conditions in Section 3.08(d)
are not satisfied, such Holder elects (i) to withdraw
such Purchase Notice as to some or all of the
Securities to which it relates (stating the Principal
Amount and certificate numbers of the Securities as
to which such withdrawal shall relate), or (ii) to
receive cash in respect of the Purchase Price for all
Securities subject to such Purchase Notice; and
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<PAGE> 37
(2) delivery of such Security prior to, on or after the
Purchase Date (together with all necessary
endorsements) to the Paying Agent at the offices of
the Paying Agent or to the office or agency referred
to in Section 4.05, such delivery being a condition
to receipt by the Holder of the Purchase Price
therefor; provided, however, that such Purchase Price
shall be so paid pursuant to this Section 3.08 only
if the Security so delivered conforms in all respects
to the description thereof in the related Purchase
Notice.
If a Holder, in such Holder's Purchase Notice and in any written
notice of withdrawal delivered by such Holder pursuant to the terms of Section
3.10, fails to indicate such Holder's choice with respect to the election set
forth in clause (D) of Section 3.08(a)(1) above, such Holder shall be deemed to
have elected to receive cash in respect of the Purchase Price otherwise payable
in shares of Common Stock.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Security if the Principal Amount of such portion
is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions
hereof shall be consummated by the delivery of the consideration to be paid to
the Holder promptly following the later of (i) the Business Day following the
Purchase Date and (ii) the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent or the office or agency referred to in Section 4.05 the
Purchase Notice contemplated by this Section 3.08(a) shall have the right to
withdraw such Purchase Notice at any time prior to the close of business on the
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
or such office or agency in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price.
The Securities to be purchased pursuant to Section 3.08(a) may be paid for, at
the election of the Company, in cash or shares of Common Stock, or in any
combination thereof, subject to the conditions set forth in this Section 3.08.
The Company shall designate, in its notice delivered pursuant to Section
3.08(e), whether it will purchase the Securities for cash or shares of Common
Stock, and, if a combination thereof, the percentages of the Purchase Price of
Securities in respect of which it will pay in cash or shares of Common Stock;
provided that the Company will pay cash for fractional interests in shares of
Common Stock. For purposes of determining the existence of potential
fractional interests, all Securities subject to purchase by the Company held by
a Holder shall be considered together (no matter how many separate certificates
are to be presented). All Holders whose Securities are purchased pursuant to
this Section 3.08 shall receive the same
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percentages of cash and shares of Common Stock in payment of the Purchase Price
for such Securities, except (i) as provided in Section 3.08(d) with regard to
the payment of cash in lieu of fractional shares of shares of Common Stock and
(ii) in the event that the Company is unable to purchase the Securities of a
Holder or Holders for shares of Common Stock because any necessary
qualifications or registrations of the shares of Common Stock under applicable
Federal or state securities laws cannot be obtained, the Company may purchase
the Securities of such Holder or Holders for cash. The Company may not change
its election with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given notice thereof to
Securityholders except pursuant to this Section 3.08(b) or Section 3.08(d).
At least five Business Days before the Company Notice Date (as defined
below), the Company shall deliver an Officers' Certificate to the Trustee
specifying:
(i) the manner of payment selected by the Company;
(ii) the information required by Section 3.08(e);
(iii) that the conditions to such manner of payment set forth in
Section 3.08(d) have or will be complied with; and
(iv) whether the Company desires the Trustee to give the notice
required by Section 3.08(e).
(c) Purchase with Cash. On each Purchase Date, at the option of
the Company, the Principal Amount of the Securities in respect of which a
Purchase Notice pursuant to Section 3.08(a) has been given, or a specified
percentage thereof, may be purchased by the Company with cash equal to the
aggregate Purchase Price of such Securities.
(d) Payment by Common Stock. On each Purchase Date, at the option
of the Company, the Principal Amount of the Securities in respect of which a
Purchase Notice pursuant to Section 3.08(a) has been given, or a specified
percentage thereof, may be purchased by the Company by the issuance of a number
of shares of Common Stock equal to the quotient obtained by dividing (i) the
amount of cash to which the Securityholders would have been entitled had the
Company elected to pay all or such specified percentage, as the case may be, of
the Purchase Price of such Securities in cash by (ii) the Market Price (as
defined below) of a share of Common Stock, subject to the next succeeding
paragraph.
The Company will not issue a fractional share of Common Stock in
payment of the Purchase Price. Instead the Company will pay cash for the
current market value of the fractional share. The current market value of a
fraction of a share shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent, with one-half cent
being rounded upward. It is understood that if a Holder elects to have more
than one
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Security purchased, the number of shares of Common Stock shall be based on the
aggregate amount of Securities to be purchased.
The Company's right to exercise its election to purchase the
Securities pursuant to this Section through the issuance of shares of Common
Stock shall be conditioned upon:
(i) the Company's not having given notice of an election to pay
entirely in cash and its giving of timely notice of election to
purchase all or a specified percentage of the Securities with shares
of Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued
in respect of the payment of the Purchase Price under the Securities
Act of 1933, as amended (the "Securities Act") and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), in each case if
required unless there exists an applicable exemption to registration
thereunder;
(iii) the listing of the Common Stock on the relevant Purchase Date
on the New York Stock Exchange or other national securities exchange
or the quotation thereof on Nasdaq; and
(iv) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of
the shares of Common Stock to be issued by the Company in payment of
the Purchase Price in respect of the Securities are in conformity with
this Indenture and (B) such shares of Common Stock have been duly
authorized and, when issued and delivered pursuant to the terms of
this Indenture in payment of the Purchase Price in respect of the
Securities, will be validly issued, fully paid and nonassessable and
shall be free of any preemptive rights and any lien or adverse claim
(provided that such Opinion of Counsel may state that, insofar as it
relates to the absence of such preemptive rights, liens and adverse
claims, it is given upon the best knowledge of such counsel), and, in
the case of such Officers' Certificate, that conditions (i), (ii) and
(iii) above have been satisfied and, in the case of such Opinion of
Counsel, that conditions (ii) and (iii) above have been satisfied.
Such Officers' Certificate shall also set forth the number of shares of Common
Stock to be issued for each $1,000 Principal Amount of Securities and the Sale
Price of a share of Common Stock on each of the seven Trading Days prior to the
Purchase Date. The Company may elect to pay in shares of Common Stock only if
the information necessary to calculate the Market Price is reported in The Wall
Street Journal or another daily newspaper of national circulation. If such
conditions are not satisfied prior to or on the Purchase Date and the Company
elected to purchase the Securities pursuant to this Section 3.08 through the
issuance of shares of Common Stock, the Company shall pay the Purchase Price in
cash.
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The "Market Price" means the average of the Sale Prices of the Common
Stock for the five Trading Day period ending on the third Trading Day prior to
the related Purchase Date, appropriately adjusted to take into account the
actual occurrence, during the seven Trading Days preceding such Purchase Date,
of any event described in Section 11.06, 11.07 or 11.08; subject, however, to
the conditions set forth in Sections 11.09 and 11.10.
(e) Notice of Election. The Company shall send notice of its
election (the "Company Notice") to purchase with cash or shares of Common Stock
or any combination thereof to the Holders (or to DTC participants on an
official DTC listing or proxy who will deliver such notice to beneficial owners
as required by applicable law) in the manner provided in Section 13.02. The
Company Notice shall be sent to Holders (or to DTC participants on an official
DTC listing or proxy who will deliver such notice to beneficial owners as
required by applicable law) on a date not less than 20 Business Days prior to
the Purchase Date (such date not less than 20 Business Days prior to the
Purchase Date being herein referred to as the "Company Notice Date"). Such
notices shall state the manner of payment elected and shall contain the
following information:
In the event the Company has elected to pay the Purchase Price (or any
specified percentage thereof) with shares of Common Stock, the notice shall:
(1) state that each Holder will receive shares of Common Stock
with a Market Price determined as of the third Trading Day prior to
the related Purchase Date equal to such specified percentage of the
Purchase Price of the Securities held by such Holder (except for any
cash amount to be paid in lieu of fractional shares); and
(2) state that because the Market Price of the Common Stock will
be determined prior to the Purchase Date, Holders will bear the market
risk with respect to the value of the shares of Common Stock to be
received from the date such Market Price is determined to the Purchase
Date.
In any case, each notice shall include a form of Purchase Notice to be
completed by the Securityholder and shall state:
(i) the Purchase Price and Conversion Rate;
(ii) the name and address of the Paying Agent and the Conversion
Agent and of the office or agency referred to in Section 4.05;
(iii) that Securities as to which a Purchase Notice has been given
may be converted into shares of Common Stock at any time prior to the
close of business on the applicable Purchase Date only if the
applicable Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;
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(iv) that Securities must be surrendered to the Paying Agent or to
the office or agency referred to in Section 4.05 to collect payment;
(v) that the Purchase Price for any Security as to which a
Purchase Notice has been given and not withdrawn will be paid promptly
following the later of the Purchase Date and the time of surrender of
such Security as described in (iv);
(vi) the procedures the Holder must follow to exercise rights under
Section 3.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities and that
Holders who want to convert Securities must satisfy the requirements
set forth in paragraph 9 of the Securities; and
(viii) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms
of Section 3.08(a)(1)(D) or Section 3.10).
At the Company's written request, the Trustee shall give such notice
in the Company's name and at the Company's expense; provided, however, that, in
all cases, the text of such notice shall be prepared by the Company.
Upon determination of the actual number of shares of Common Stock to
be issued for each $1,000 Principal Amount of Securities, the Company will
publish such determination in The Wall Street Journal or another daily
newspaper of national circulation and furnish the Trustee with an affidavit of
publication.
(f) Covenants of the Company. All shares of Common Stock
delivered upon purchase of the Securities shall be newly issued shares or
treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive rights and free of any lien or
adverse claim.
The Company shall use its best efforts to list or cause to have quoted
any shares of Common Stock to be issued to purchase Securities on the
principal national securities exchange or over-the-counter or other domestic
market on which any other shares of the Common Stock are then listed or quoted.
The Company will promptly inform the Trustee in writing of any such listing.
(g) Procedure Upon Purchase. The Company shall deposit cash (in
respect of a cash purchase under Section 3.08(c) or for fractional interests,
as applicable) or shares of Common Stock, or any combination thereof, as
applicable, at the time and in the manner as provided in Section 3.11,
sufficient to pay the aggregate Purchase Price of all Securities to be
purchased pursuant to this Section 3.08. As soon as practicable after the
later of the Purchase Date and the date such Securities are surrendered to the
Paying Agent or at the office or agency referred to in
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Section 4.05, but, in no case later than seven Business Days thereafter, (i)
the Company shall deliver, in book-entry form through DTC, to each Holder
entitled to receive shares of Common Stock the number of full shares of Common
Stock issuable in payment of the Purchase Price and (ii) the Trustee shall
deliver to each such Holder cash in lieu of any fractional interests. The
person in whose name the certificate for shares of Common Stock is registered
shall be treated as a holder of record of such shares of Common Stock on the
later of (i) the Business Day following the related Purchase Date and (ii) the
date on which the Transfer Agent registers such shares, provided that such
Holder has complied with all applicable requirements of this Section 3.08.
Subject to Section 3.08(d), no payment or adjustment will be made for dividends
on the Common Stock the record date for which occurred prior to the Purchase
Date.
(h) Taxes. If a Holder of a Security is paid in shares of Common
Stock, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on such issue of such Common Stock. However, the Holder shall
pay any such tax which is due because the Holder requests the shares of Common
Stock to be issued in a name other than the Holder's name. The Paying Agent may
refuse to deliver the certificates representing the shares of Common Stock
being issued in a name other than the Holder's name until the Paying Agent
receives a sum sufficient to pay any tax which will be due because the shares
of Common Stock are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any income tax withholding required by law or
regulations.
SECTION 3.09. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON
CHANGE IN CONTROL. (a) If on or prior to March 11, 2003 there shall have
occurred a Change in Control, Securities shall be purchased, at the option of
the Holder thereof, by the Company at the purchase price specified in paragraph
6 of the Securities (the "Change in Control Purchase Price"), on the date that
is 35 Business Days after the occurrence of the Change of Control (the "Change
in Control Purchase Date"), subject to satisfaction by or on behalf of the
Holder of the requirements set forth in Section 3.09(c).
A "Change in Control" shall be deemed to have occurred at such time as
either of the following events shall occur:
(i) There shall be consummated any consolidation or merger of the
Company in which the Company is not the continuing or surviving
corporation (other than any consolidation or merger effected primarily
to change the jurisdiction of incorporation of the Company) or
pursuant to which the Common Stock would be converted into cash,
securities or other property, in each case, other than a consolidation
or merger of the Company in which the holders of Common Stock
immediately prior to the consolidation or merger have, directly or
indirectly, at least a majority of the total voting power in the
aggregate of all classes of Capital Stock of the continuing or
surviving corporation normally entitled to vote in elections of
directors immediately after such consolidation or merger; or
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(ii) There is a report filed by any person, including its
Affiliates and Associates, on Schedule 13D or 14D-1 (or any successor
schedule, form or report) pursuant to the Exchange Act, disclosing
that such person (for the purposes of this Section 3.09 only, the term
"person" shall include a "person" within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor
provision to either of the foregoing) has become the beneficial owner
(as the term "beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of
50% or more of the total voting power in the aggregate of all classes
of Capital Stock then outstanding of the Company normally entitled to
vote in elections of directors; provided, however, that a person shall
not be deemed beneficial owner of, or to own beneficially, (A) any
securities tendered pursuant to a tender or exchange offer made by or
on behalf of such person or any of such person's Affiliates or
Associates until such tendered securities are accepted for purchase or
exchange thereunder, or (B) any securities if such beneficial
ownership (1) arises solely as a result of a revocable proxy delivered
in response to a proxy or consent solicitation made pursuant to, and
in accordance with, the applicable rules and regulations under the
Exchange Act, and (2) is not also then reportable on Schedule 13D (or
any successor schedule, form or report) under the Exchange Act.
Notwithstanding the foregoing provisions of this Section 3.09, a Change in
Control shall not be deemed to have occurred if at any time the Company, any
Subsidiary of the Company, any employee stock ownership plan or any other
employee benefit plan of either the Company or any Subsidiary of the Company,
or any person holding shares of Common Stock for or pursuant to the terms of
any such employee benefit plan files or becomes obligated to file a report
under or in response to Schedule 13D or Schedule 14D-1 (or any successor
schedule, form or report) under the Exchange Act disclosing beneficial
ownership by it of 50% or more of the total voting power in the aggregate of
all classes of Capital Stock then outstanding of the Company normally entitled
to vote in elections of directors.
"Associate" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect on
the date hereof.
(b) Within 15 Business Days after the occurrence of a Change in
Control, (i) the Company shall mail a written notice of such Change in Control
by first-class mail to the Trustee and to each Holder (or to Agent Members on
an official Depository position listing or proxy who will deliver such notice
to beneficial owners required by applicable law) and (ii) the Company shall
cause a copy of such notice to be published in The Wall Street Journal or
another daily newspaper of national circulation. The notice shall include a
form of Change in Control Purchase Notice to be completed by the Securityholder
and shall state:
(1) the events causing a Change in Control and the date such
Change in Control is deemed to have occurred for purposes of this
Section 3.09;
(2) the date by which the Change in Control Purchase Notice
pursuant to this Section 3.09 must be given;
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(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the name and address of the Paying Agent and the Conversion
Agent and the office or agency referred to in Section 4.05;
(6) the Conversion Rate and any adjustments thereto;
(7) that Securities as to which a Change in Control Purchase
Notice has been given may be converted into shares of Common Stock
(or, in lieu thereof, cash, if the Company shall so elect) at any time
prior to the close of business on the Change of Control Purchase Date
only if the Change in Control Purchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(8) that Securities must be surrendered to the Paying Agent or the
office or agency referred to in Section 4.05 to collect payment;
(9) that the Change in Control Purchase Price for any Security as
to which a Purchase Notice has been duly given and not withdrawn will
be paid promptly following the later of the Change in Control Purchase
Date and the time of surrender of such Security as described in (8);
(10) the procedures the Holder must follow to exercise rights under
this Section 3.09 and a brief description of those rights;
(11) briefly, the conversion rights of the Securities; and
(12) the procedures for withdrawing a Change in Control Purchase
Notice.
(c) A Holder may exercise its rights specified in Section 3.09(a)
upon delivery of a written notice of purchase (a "Change in Control Purchase
Notice") to the Paying Agent or to the office or agency referred to in Section
4.05 at any time prior to the close of business on the Change in Control
Purchase Date, stating:
(1) the certificate number of the Security which the Holder will
deliver to be purchased;
(2) the portion of the Principal Amount of the Security which the
Holder will deliver to be purchased, which portion must be $1,000 or
an integral multiple thereof; and
(3) that such Security shall be purchased on the Change in Control
Purchase Date pursuant to the terms and conditions specified in
paragraph 6 of the Securities.
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Receipt of the Security by the Paying Agent prior to, on or after the
Change in Control Purchase Date (together with all necessary endorsements), at
the offices of the Paying Agent or to the office or agency referred to in
Section 4.05 shall be a condition to the receipt by the Holder of the Change in
Control Purchase Price therefor; provided, however, that such Change in Control
Purchase Price shall be so paid pursuant to this Section 3.09 only if the
Security so delivered to the Paying Agent or such office or agency shall
conform in all respects to the description thereof set forth in the related
Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.09, a portion of a Security if the Principal Amount of such portion
is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent or to the office or agency referred to in Section 4.05 the
Change in Control Purchase Notice contemplated by this Section 3.09(c) shall
have the right to withdraw such Change in Control Purchase Notice at any time
prior to or on the Change in Control Purchase Date by delivery of a written
notice of withdrawal to the Paying Agent or to such office or agency in
accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Change in Control Purchase Notice or written withdrawal thereof.
SECTION 3.10. EFFECT OF PURCHASE NOTICE OR CHANGE IN CONTROL PURCHASE
NOTICE. Upon receipt by the Paying Agent of the Purchase Notice or Change in
Control Purchase Notice specified in Section 3.08(a) or Section 3.09(c), as
applicable, the Holder of the Security in respect of which such Purchase Notice
or Change in Control Purchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Change in Control Purchase Notice is withdrawn
as specified in the following two paragraphs) thereafter be entitled to receive
solely the Purchase Price or Change in Control Purchase Price, as the case may
be, with respect to such Security. Such Purchase Price or Change in Control
Purchase Price shall be paid to such Holder promptly following the later of (x)
the Business Day following the Purchase Date or the Change in Control Purchase
Date, as the case may be, with respect to such Security (provided the
conditions in Section 3.08(a) or Section 3.09(c), as applicable, have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent or
to the office or agency referred to in Section 4.05 by the Holder thereof in
the manner required by Section 3.08(a) and (g) or Section 3.09(c), as
applicable. Securities in respect of which a Purchase Notice or Change in
Control Purchase Notice, as the case may be, has been given by the Holder
thereof may not be converted into shares of Common Stock on or after the date
of the delivery of such Purchase Notice or Change in Control Purchase Notice,
as the case may be, unless such Purchase Notice or Change in Control Purchase
Notice, as the case may be, has first been validly withdrawn as specified in
the following two paragraphs.
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A Purchase Notice or Change in Control Purchase Notice, as the case
may be, may be withdrawn by a Holder by means of a written notice of withdrawal
delivered to the office of the Paying Agent or to the office or agency referred
to in Section 4.05 at any time on or prior to the Purchase Date or the Change
in Control Purchase Date, as the case may be, specifying:
(1) the certificate number of the Security in respect of which
such notice of withdrawal is being submitted;
(2) the Principal Amount of the Security with respect to which
such notice of withdrawal is being submitted; and
(3) the Principal Amount, if any, of such Security which remains
subject to the original Purchase Notice or Change in Control Purchase
Notice, as the case may be, and which has been or will be delivered
for purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in the form
set forth in the preceding paragraph or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
3.08(a)(1)(D) or (ii) a conditional withdrawal containing the information set
forth in Section 3.08(a)(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
There shall be no purchase of any Securities pursuant to Sections 3.08
(other than through the issuance of Common Stock) or 3.09 if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such
Securities, of the required Purchase Notice or Change in Control Purchase
Notice, as the case may be) and is continuing an Event of Default (other than a
default in the payment of the Purchase Price or Change in Control Purchase
Price, as the case may be, with respect to such Securities). The Paying Agent
will promptly return to the respective Holders thereof any Securities (x) with
respect to which a Purchase Notice or Change in Control Purchase Notice, as the
case may be, has been withdrawn in compliance with this Indenture, or (y) held
by it during the continuance of an Event of Default (other than a default in
the payment of the Purchase Price or Change in Control Purchase Price, as the
case may be, with respect to such Securities).
SECTION 3.11. DEPOSIT OF PURCHASE PRICE OR CHANGE IN CONTROL PURCHASE
PRICE. Prior to 12:00 p.m. (local time in The City of New York) on the
Business Day following the Purchase Date or the Change in Control Purchase
Date, as the case may be, the Company shall deposit with the Trustee or with
the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either
of them is acting as Paying Agent, shall segregate and hold in trust as
provided in Section 2.04) an amount of cash in immediately available funds or
Common Stock, if expressly permitted hereunder, sufficient to pay the aggregate
Purchase Price or Change in Control Purchase Price, as the case may be, of all
the Securities or portions thereof which are to be purchased.
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SECTION 3.12. SECURITIES PURCHASED IN PART. Any Security which is to
be purchased only in part shall be surrendered at the office of the Paying
Agent or the office or agency referred to in Section 4.05 (with, if the Company
or the Trustee so requires, due endorsement, or a written instrument of
transfer in form satisfactory to the Company and the Trustee executed by the
Holder or such Holder's attorney duly authorized in writing), and the Company
shall execute and the Trustee shall authenticate and deliver 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 portion of the Principal Amount of
the Security so surrendered which is not purchased.
SECTION 3.13. COVENANT TO COMPLY WITH SECURITIES LAWS UPON PURCHASE
OF SECURITIES. In connection with any offer to purchase or purchase of
Securities under Section 3.08 or 3.09 hereof, the Company shall (i) comply with
Rule 13e-4 under the Exchange Act, if applicable, (ii) file the related
Schedule 13E-4 (or any successor schedule, form or report) under the Exchange
Act, if applicable, and (iii) otherwise comply with all Federal and state
securities laws regulating the offer and delivery of shares of Common Stock
upon purchase of the Securities (including positions of the SEC under
applicable no-action letters) so as to permit the rights and obligations under
Sections 3.08 and 3.09 to be exercised in the time and in the manner specified
in Sections 3.08 and 3.09.
SECTION 3.14. REPAYMENT TO THE COMPANY. The Trustee and the Paying
Agent shall return to the Company, upon written request, any cash or shares of
Common Stock, or dividends on such shares of Common Stock, if any, held by them
for the payment of a Purchase Price or Change in Control Purchase Price, as the
case may be, of the Securities that remain unclaimed as provided in paragraph
14 of the Securities; provided, however, that to the extent that the aggregate
amount of cash or shares of Common Stock deposited by the Company pursuant to
Section 3.11 exceeds the aggregate Purchase Price or Change in Control Purchase
Price, as the case may be, of the Securities or portions thereof to be
purchased, then promptly after the Business Day following the Purchase Date or
Change in Control Purchase Date, as the case may be, the Trustee shall return
any such excess to the Company together with dividends, if any, thereon.
ARTICLE IV.
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. The Company shall promptly make
all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price,
Change in Control Purchase Price and interest, if any, shall be considered paid
on the applicable date due if on such date the Trustee or the Paying Agent
holds, in accordance with this Indenture, cash or Common Stock, if expressly
permitted hereunder, sufficient to pay all such amounts then due.
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The Company shall, to the extent permitted by law, pay interest on
overdue amounts at the per annum rate of interest set forth in paragraph 1 of
the Securities, compounded semi-annually, which interest on overdue amounts (to
the extent payment of such interest shall be legally enforceable) shall accrue
from the date such overdue amounts were originally due and payable.
SECTION 4.02. SEC REPORTS. The Company shall deliver to the Trustee,
within 15 days after it files with the SEC, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. Upon registration, the Company also shall use all reasonable
efforts to comply with the other provisions of TIA Section 314(a). The Company
shall timely comply (after giving effect to filings made pursuant to Rule
12b-25 under the Exchange Act) with its reporting and filing obligations under
the applicable Federal securities law.
If the Company is at any time not required to file annual or quarterly
reports pursuant to Section 13 or 15(d) of the Exchange Act, the Company will
file with the Trustee, within 15 days after the last date on which it would
have been required to make such a filing with the SEC, and will, upon request
of a Holder, mail to such Holder (as soon as practical after receipt of such
request) at his or her address as it appears on the register of Securities kept
by the Registrar, audited annual financial statements prepared in accordance
with GAAP and unaudited quarterly financial statements. Such financial
statements shall be accompanied by a Management's Discussion and Analysis of
Financial Condition and Results of Operations of the Company for the period
reported upon in substantially the form required under the rules and
regulations of the SEC, or any successor form of similar disclosure then
required under the rules and regulations of the SEC.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.03. STATEMENTS BY OFFICERS AS TO DEFAULT. The Company
shall deliver to the Trustee within 120 days after the end of each fiscal year
of the Company ending after the date hereof, an Officers' Certificate, one of
the signers of which shall be the principal executive officer, principal
financial officer or principal accounting officer, stating whether or not to
the best knowledge of the signers thereof, the Company has complied with all
provisions, terms, conditions and covenants contained in this Indenture
(without regard to any grace period or requirement of notice provided
hereunder) and, if the Company shall be in default in the performance,
observance or fulfillment of any such provision, term, condition or covenant,
specifying all such defaults and the nature and status thereof of which they
may have knowledge.
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SECTION 4.04. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The Company
shall file with the Trustee within 30 days following the end of each calendar
year (i) a written notice specifying the amount of Original Issue Discount
(including daily rates and accrual periods) accrued on outstanding Securities
as of the end of such year and (ii) such other specific information relating to
such Original Issue Discount as may then be relevant under the Internal Revenue
Code of 1986, as amended from time to time.
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of New York, in such location as
may be required by the rules of any securities exchange or quotation system on
which the Securities may from time to time be listed, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer, exchange, purchase, redemption or
conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Corporate Trust Office of
the Trustee shall be such office or agency for all of the aforesaid purposes
unless the Company shall maintain some other office or agency for such purposes
and shall give prompt written notice to the Trustee of the location, and any
change of location, of such other office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 13.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in The
City of New York, for such purposes.
SECTION 4.06. TAXES. The Company shall pay prior to delinquency all
taxes, assessments and governmental levies, except as contested in good faith
and by appropriate proceedings or where the failure to do so would not have a
material adverse effect on the Company and its Subsidiaries, taken as a whole.
SECTION 4.07. CONTINUED EXISTENCE. Subject to Article V, the Company
will do or cause to be done all things necessary to preserve and keep in
full force and effect its existence as a corporation and will refrain from
taking any action that would cause its existence as a corporation to cease,
including without limitation any action that would result in its liquidation,
winding up or dissolution.
ARTICLE V.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 5.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the
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Company shall not permit any Person to consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person that
acquires by conveyance or transfer, or that leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership or trust organized and validly existing under
the laws of the United States of America, any state thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment
of the principal of and any premium and interest on all the Securities
and the performance or observance of every covenant of this Indenture
on the part of the Company to be performed or observed and shall have
provided for conversion rights in accordance with Section 11.14;
(2) immediately after giving effect to such transaction, no Event
of Default (as defined in Article VI), and no event that, after notice
or lapse of time, or both, would become an Event of Default, shall
have happened and be continuing;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with and if a supplemental indenture is
required that such supplemental indenture constitutes the legal, valid
and binding obligation of the Company in accordance with its terms.
SECTION 5.02. SUCCESSOR SUBSTITUTED. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 5.01, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs if:
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(1) after exercise of its option pursuant to Section 12.01 hereof
following a Tax Event, the Company defaults in the payment of interest
upon any Security when such interest becomes due and payable, and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price,
Purchase Price or Change in Control Purchase Price on any Security
when the same becomes due and payable at its Stated Maturity, upon
redemption, upon declaration, when due for purchase by the Company or
otherwise, whether or not such payment shall be prohibited by this
Indenture;
(3) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clause
(1) above) and such failure continues for 90 days after receipt by the
Company of a Notice of Default;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of an order for relief against
it in an involuntary case or proceeding or the commencement of
any case against it;
(c) consents to the appointment of a Custodian of it or
for any substantial part of its property;
(d) makes a general assignment for the benefit of its
creditors;
(e) files a petition in bankruptcy or answer or consent
seeking reorganization or relief; or
(f) consents to the filing of such petition or the
appointment of or taking possession by a Custodian;
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company in an involuntary
case or proceeding, or adjudicates the Company insolvent or
bankrupt;
(b) appoints a Custodian of the Company or for any
substantial part of its property; or
(c) orders the winding up or liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days;
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(6) the Company fails to deliver shares of Common Stock or pay
cash in lieu thereof (together with cash in lieu of fractional shares)
in accordance with the terms hereof when such Common Stock or cash is
required to be delivered upon conversion of a Security and such
failure is not remedied for a period of 10 days; or
(7) default under any bond, debenture, note or other evidence of
indebtedness for money borrowed of the Company having an aggregate
outstanding principal amount of in excess of the greater of (a)
$10,000,000 or (b) 5% of Consolidated Net Assets, which default shall
have resulted in such indebtedness being accelerated, without such
indebtedness being discharged or such acceleration having been
rescinded or annulled within ten days after receipt of notice thereof
by the Company from the Trustee or the Company and the Trustee from
the Holders of not less than 25% in aggregate Principal Amount of the
Securities then outstanding (unless such default has been cured or
waived).
A Default under clause (3) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Securities at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default
within the time specified in clause (3) above after receipt of such notice.
Any such notice must specify the Default in reasonable detail, demand that it
be remedied and state that such notice is a "Notice of Default."
The Company shall deliver to the Trustee, within 30 days after an
Executive Officer becomes aware of the occurrence thereof, written notice of
any event which with the giving of notice and the lapse of time or both would
become an Event of Default under clause (3), its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in Section 6.01(4) or (5)) occurs and is continuing,
unless the Principal Amount of all the Securities shall have already become due
and payable, either the Trustee by notice to the Company, or the Holders of at
least 25% in aggregate Principal Amount of the Securities at the time
outstanding by notice to the Company and the Trustee, may declare the Issue
Price and accrued Original Issue Discount through the date of declaration on
all the Securities to be immediately due and payable, whereupon such Issue
Price and accrued Original Issue Discount shall be due and payable immediately;
provided that, if an Event of Default specified in Section 6.01(4) or (5)
occurs and is continuing, the Issue Price and accrued Original Issue Discount
on all the Securities through the date of the occurrence of such Event of
Default shall become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Securityholders. The Holders of
a majority in aggregate Principal Amount of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder) may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of the Issue
Price and accrued Original Issue Discount that
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have become due solely as a result of acceleration and if all amounts due to
the Trustee under Section 7.07 have been paid. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the Issue Price and accrued Original Issue Discount on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder), may waive an
existing Default and its consequences except (a) an Event of Default described
in Section 6.01(1), 6.01(2) or 6.01(6), (b) a Default in respect of a provision
that under Section 9.02 cannot be amended without the consent of each
Securityholder affected or (c) a Default under Article XI. When a Default is
waived, it is deemed cured and shall cease to exist, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability unless the Trustee shall have been provided with
reasonable security or indemnity against such liability satisfactory to the
Trustee.
SECTION 6.06. LIMITATION ON SUITS. A Securityholder may not pursue
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of
the Securities at the time outstanding make a written request to the
Trustee to pursue the remedy;
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(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense
satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 60 days
after receipt of the notice, the request and the offer of security or
indemnity; and
(5) the Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price, Change in Control Purchase Price or interest,
if any, in respect of the Securities held by such Holder, on or after the
respective due dates expressed in the Securities or any Redemption Date, and to
convert the Securities in accordance with Article XI or to bring suit for the
enforcement of any such payment on or after such respective dates or the right
to convert, shall not be impaired or affected adversely without the consent of
each such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.01(1) or 6.01(2) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount owing with respect to the Securities and the
amounts provided for in Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, in respect of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of any such amount) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the
Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, and to file such other papers or documents 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
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Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding; and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any Custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
the Trustee any amount due 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 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder 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 in any such proceeding.
SECTION 6.10. PRIORITIES. If the Trustee collects any money pursuant
to this Article VI, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness to the extent required by
Article X;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, as the case may be, ratably, without preference or priority
of any kind, according to such amounts due and payable on the Securities; and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10 provided the Company is given
notice of such record date and payment date by the Trustee at least 20 Business
Days prior to the record date. At least 15 days before such record date, the
Company shall mail to each Securityholder and the Trustee a notice that states
the record date, the payment date and amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys' fees and expenses,
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against any party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section
6.11 does not apply to a suit initiated by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate
Principal Amount of the Securities at the time outstanding.
SECTION 6.12. NOTICE OF DEFAULTS. The Trustee shall, within 90 days
after the occurrence of any Default, mail to all Holders of Securities, as the
names and addresses of such Holders appear on the books of registry of the
Company, notice of all Defaults of which a Responsible Officer of the Trustee
shall be actually aware, unless such Defaults shall have been cured or waived
before the giving of such notice; provided that, except in the case of a
Default described in Section 6.01(1) or 6.01(2), the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Securities.
SECTION 6.13. WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent it may lawfully do so) that it shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or other law, wherever
enacted, now or at any time hereafter in force, that would prohibit or forgive
the Company from paying all or any portion of the Principal Amount, Issue
Price, accrued Original Issue Discount, Redemption Price, Purchase Price,
Change in Control Purchase Price or Conversion Payment in respect of the
Securities, or any interest on any such amounts, as contemplated herein, or
that may affect the covenants or the performance of this Indenture or the
Securities; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede 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 VII.
THE TRUSTEE
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee shall undertake 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 believed by
it to be
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genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter
stated in such document.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the
effect of subsection (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 not less than
a majority in aggregate Principal Amount of the outstanding
Securities, determined as provided in Section 6.05, 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 with
respect to the Securities.
No provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any personal financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers.
SECTION 7.02. NOTICE OF DEFAULTS. If a default occurs and is
continuing and if a Responsible Officer of the Trustee receives written notice
of such Default, the Trustee shall mail to each Holder a notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
principal or interest on any Security, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of the Holders.
SECTION 7.03. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions
of Section 7.01:
(1) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report,
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notice, request, direction, consent, order, security or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors shall be sufficiently
evidenced by a board resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney upon reasonable advance written notice and during regular
business hours at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such
inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) 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 this Indenture; and
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(9) the Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and
this Indenture.
SECTION 7.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee or any Authenticating Agent assumes no responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use of the proceeds from
the Securities.
SECTION 7.05. MAY HOLD SECURITIES. The Trustee, any Authenticating
Agent, any Paying Agent, any Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 7.08 and 7.13, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Registrar or such other agent.
SECTION 7.06. MONEY HELD IN TRUST. Money held by the Trustee, or by
any Paying Agent (other than the Company if the Company shall act as Paying
Agent), in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
SECTION 7.07. COMPENSATION AND REIMBURSEMENT. The Company agrees
(1) to pay to the Trustee from time to time compensation agreed to
in writing by an Executive Officer with the Trustee 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) 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 each of the Trustee or any predecessor Trustee
for, and to hold it harmless against, any and all loss, liability,
damages, claim or expense, including taxes (other than taxes based on
the income of the Trustee) incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or performance of its
duties hereunder, including the costs
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and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 6.01(4) or Section 6.01(5), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive any termination of this
Indenture, including any termination under any bankruptcy law.
SECTION 7.08. DISQUALIFICATION; CONFLICTING INTERESTS. If the Trustee
has or shall acquire a conflicting interest within the meaning of the TIA, 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 TIA and this Indenture
and the Company shall take prompt action to have a successor Trustee appointed
in the manner provided herein. Nothing herein shall prevent the Trustee from
filing with the SEC the application referred to in the second to the last
paragraph of Section 310(b) of the TIA or any equivalent successor provision.
SECTION 7.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. The Trustee
shall at all times satisfy the requirements of TIA Sections 310(a)(1) and
310(b). The Trustee shall have combined capital and surplus of at least
$50,000,000. If the Trustee publishes reports of condition at least annually,
then for the purposes of this Section, the combined capital and surplus of the
Trustee shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. Neither the Company nor any
person directly or indirectly controlling, controlled by or under common control
with the Company may serve as Trustee. If at any time the Trustee shall cease to
be eligible in accordance with the requirements of the TIA or the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 7.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. 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 7.11 and all amounts due and owning to the Trustee under
Section 7.07 have been paid.
The Trustee may resign at any time by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 7.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the
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resigning Trustee may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.
The Holders of a majority in aggregate Principal Amount of the
outstanding Securities may remove the Trustee at any time by so notifying the
Trustee and the Company. If the instrument of acceptance by a successor Trustee
required by Section 7.11 shall not have been delivered to the Trustee within 30
days after the giving of such notice of removal, the Trustee being removed may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
If at any time:
(1) the Trustee shall fail to comply with Section 7.08 after written
request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 7.09 and shall
fail to resign after written request therefor by the Company or by any
such Holder, or
(3) 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, (A) the Company by a board resolution may remove the
Trustee, or (B) subject to Section 6.11, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself or
herself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a board resolution, shall promptly appoint a successor Trustee (it being
understood that any such successor Trustee may be appointed) and shall comply
with the applicable requirements of Section 7.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by the Holders of a majority in aggregate
Principal Amount of the outstanding Securities after notifying the retiring
Trustee and the Company, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of Section 7.11, become the successor Trustee and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 7.11, any Holder 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.
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The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders of
Securities of such series. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of the
appointment hereunder of a successor Trustee, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to herein.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 7.12. 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 the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and 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. In the
event any Securities shall not have been authenticated by such predecessor
Trustee, any such successor Trustee may authenticate and deliver such
Securities, in either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the TIA regarding the collection of claims against the Company (or
any such other obligor).
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SECTION 7.14. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may
appoint an Authenticating Agent with respect to the Securities that shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 2.07, and Securities so authenticated
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.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference 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 acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or state authority. If such Authenticating Agent 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 Authenticating Agent 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 an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
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, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent that shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities as their names and addresses appear in the Security Register. 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.
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The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon an alternative certificate of authentication in the
following form:
This is one of the Securities designated therein referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By:_________________________________
As Authenticating Agent
By:_________________________________
Authorized Officer
SECTION 7.15. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.
Any application by the Trustee for written instructions from the Company may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
SECTION 7.16. REPORTS BY TRUSTEE. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the TIA at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of the TIA, the Trustee shall,
within sixty days after each January 1 following the date of this Indenture,
deliver to Holders a brief report, dated as of January 1, which complies with
the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the SEC and with the Company. The Company will
promptly notify the Trustee when the Securities are listed on any stock
exchange.
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ARTICLE VIII.
DISCHARGE OF INDENTURE
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits with
the Trustee cash or, if expressly permitted by the terms hereof, securities
sufficient to pay at Stated Maturity the Principal Amount of all outstanding
Securities (other than Securities replaced pursuant to Section 2.07), and if in
either case the Company pays all other sums payable hereunder by the Company
(including, without limitation, sums payable by delivery of shares of Common
Stock pursuant to Section 3.08), then this Indenture shall, subject to Section
7.07, cease to be of further effect. The Trustee shall join in the execution of
a document prepared by the Company acknowledging satisfaction and discharge of
this Indenture on demand of the Company accompanied by an Officers' Certificate
and Opinion of Counsel and at the cost and expense of the Company.
SECTION 8.02. REPAYMENT TO THE COMPANY. The Trustee and the Paying
Agent shall return to the Company upon written request any money or securities
held by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years; provided, however, that the Trustee or such
Paying Agent, before being required to make any such return, may, at the expense
of the Company, cause to be published once in The Wall Street Journal or another
daily newspaper of national circulation or mail to each such Holder notice that
such money or securities remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing, any
unclaimed money or securities then remaining will be returned to the Company.
After return to the Company, Holders entitled to the money or securities must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person, and the Trustee and the Paying
Agent shall have no further liability with respect to such money or securities
for that period commencing after the return thereof.
ARTICLE IX.
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the Trustee
may amend this Indenture or the Securities without the consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency; provided,
however, that such amendment does not materially adversely affect the
rights of any Securityholder;
(2) to comply with Article V or Section 11.14;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities so long as such uncertificated
Securities are in registered form for purposes of the Internal Revenue
Code of 1986, as amended;
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(4) make any change that does not adversely affect the rights of any
Securityholder;
(5) to add to the covenants or obligations of the Company hereunder
or to surrender any right, power or option herein conferred upon the
Company; or
(6) to make any change to comply with the TIA, or any amendment
thereafter, or any requirement of the SEC in connection with the
qualification of this Indenture under the TIA or any amendment thereof.
SECTION 9.02. WITH CONSENT OF HOLDERS. With the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
at the time outstanding, the Company and the Trustee may amend this Indenture or
the Securities. However, without the consent of each Securityholder affected, an
amendment or supplement to this Indenture or the Securities may not:
(1) make any change that would reduce the Principal Amount of
Securities whose Holders must consent to an amendment;
(2) make any change to the rate of accrual in connection with Original
Issue Discount, reduce the rate of interest referred to in paragraph 1
of the Securities, reduce the rate of interest referred to in Section
12.01 upon the occurrence of a Tax Event or extend the time for payment
of accrued Original Issue Discount or interest, if any, on any
Security;
(3) reduce the Principal Amount or the Issue Price of or extend the
Stated Maturity of any Security;
(4) reduce the amount of cash payable in respect of conversion upon
the Company's election to pay cash with respect thereto, the Redemption
Price, Purchase Price or Change in Control Purchase Price of any
Security or extend the date on which the Purchase Price or Change in
Control Purchase Price of any Security is payable;
(5) make any Security payable in money or securities other than that
stated in the Security;
(6) make any change in Section 6.04 or this Section 9.02, except to
increase any percentage referred to therein, or make any change in
Section 6.07;
(7) make any change that adversely affects the right to convert any
Security (including the right to receive cash in lieu of shares of
Common Stock);
(8) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms thereof
and this Indenture (including the right to receive cash if the Company
has elected to pay cash upon such purchase);
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(9) make any change to the provisions of this Indenture relating to
the purchase of Securities at the option of the Holder pursuant to
Section 3.08 or 3.09 which change would result in a violation of
applicable federal or state securities laws (including positions of the
SEC under applicable no-action letters), whether as a result of the
exercise or performance of any rights or obligations under such
provisions or otherwise;
(10) modify the provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to the Holders of
the Securities; or
(11) impair the right to institute suit for the enforcement of any
payment with respect to, or conversion of, the Securities.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 or Section 9.01 may not make any
change that adversely affects the rights under Article X of any holder of Senior
Indebtedness then outstanding (or for which a commitment is outstanding) unless
the requisite holders of such Senior Indebtedness consent to such change
pursuant to the terms of such Senior Indebtedness.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall comply with the
TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment or waiver becomes effective, a consent to it or any other
action by a Holder of a Security hereunder is a continuing consent by the Holder
and every subsequent Holder of that Security or portion of the Security that
evidences the same obligation as the consenting Holder's Security, even if
notation of the consent, waiver or action is not made on the Security. However,
any such Holder or subsequent Holder may revoke the consent, waiver or action as
to such Holder's Security or portion of the Security if the Trustee receives
the notice of revocation before the date the amendment, waiver or action becomes
effective. After an amendment, waiver or action becomes effective, it shall bind
every Securityholder, except as provided in Section 9.02.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. 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
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as to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for outstanding Securities.
SECTION 9.06. TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article IX if
the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment the Trustee shall be entitled to receive, and (subject
to the provisions of Section 7.04) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture and that such supplemental indenture
constitutes the legal valid and binding obligation of the Company enforceable in
accordance with its terms subject to the customary exceptions.
SECTION 9.07. 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.
ARTICLE X.
SUBORDINATION
SECTION 10.01. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. The
Company covenants and agrees, and each Holder of a Security, by his acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the indebtedness represented by the
Securities and the payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, cash in respect of Purchase Price,
cash in respect of a conversion, Change in Control Purchase Price and interest,
if any, in respect of each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
SECTION 10.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any distribution of assets of the Company in the event of
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding, relative to the Company or to its creditors, as such, or to
its assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or
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(c) any assignment for the benefit of creditors or any other marshaling
of assets and liabilities of the Company, or
(d) any other event which would constitute an Event of Default
specified in Section 6.01(4) or Section 6.01(5).
then, and in any such event, the holders of Senior Indebtedness shall be
entitled to receive
(1) payment in full in cash of all amounts due or to become due on or
in respect of all Senior Indebtedness, or provision shall be made for
such payment in money or money's worth (as such phrase is defined
below), before the Holders of the Securities are entitled to receive
any payment (other than Permitted Junior Securities) on account of the
Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, cash in respect of the Purchase Price, cash in
respect of a conversion, Change in Control Purchase Price or interest,
if any, in respect of the Securities, and
(2) any payment or distribution of any kind or character, whether in
cash, property or securities (other than Permitted Junior Securities),
which may be payable or deliverable in respect of the Securities in any
such case, proceeding, dissolution, liquidation or other winding up or
event, including any such payment or distribution which may be payable
or deliverable by reason of the payment of any other indebtedness of
the Company being subordinated to the payment of the Securities;
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than Permitted Junior
Securities), including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities, before all Senior
Indebtedness is paid in full in cash or payment thereof provided for (as such
phrase is defined below), and if such fact shall, at or prior to the time of
such payment or distribution, have been made known to the Trustee or, as the
case may be, such Holder, then, in such event, such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, Custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all
Senior Indebtedness in full in cash or as payment thereof is otherwise provided
for (as such phrase is defined below), after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another person or the liquidation or dissolution of the Company following
the conveyance or transfer of its properties and assets substantially as an
entirety to another person upon the terms and conditions set forth in Article V
shall not be deemed a dissolution, winding up, liquidation, reorganization,
assignment for the benefit of creditors or marshalling of assets and liabilities
of
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the Company for the purposes of this Section if the person formed by such
consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer such properties and assets substantially as an
entirety, as the case may be, shall as part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article V.
Wherever in this Article X, the phrase "or provision shall be made for
such payment in money or money's worth" or "payment thereof provided for"
appears, or like words appear, in each case applicable to payments due, to
become due or to be made on Senior Indebtedness, such phrase, insofar as it is
applicable to outstanding Senior Indebtedness described in clause (i) or
(iii)(c)(1) of the definition herein of "Senior Indebtedness", shall mean only
such provision for payment as shall have been made or provided for (i) in
accordance with the terms of a plan of reorganization that is authorized by a
court decree or order and approved by the Requisite Percentage of the holders of
such Senior Indebtedness, each voting as a separate class or (ii) with
the approval of the Requisite Percentage of the holders of such Senior
Indebtedness, each voting as a separate class.
SECTION 10.03. ACCELERATION OF SECURITIES. In the event that any
Securities are declared due and payable before their Stated Maturity pursuant to
Section 6.02, then and in such event the Company shall promptly notify holders
of Senior Indebtedness of such acceleration. The Company may not pay the
Securities until the earlier of (i) 120 or more days have passed after such
acceleration occurs or (ii) the payment in full in cash of all Senior
Indebtedness or as payment thereof is otherwise provided for (as such phrase is
defined below), and may thereafter pay the Securities if this Indenture permits
the payment at that time; provided, however, that with respect to payments made
after the 120-day period referred to in clause (i) of this Section 10.03, the
Trustee or the Holder of any Securities shall pay over and deliver forthwith to
the Company for the benefit of the holders of Senior Indebtedness any amounts
received by the Trustee or any such Holder to the extent necessary to pay all
holders of Senior Indebtedness in full in cash or otherwise provide for such
payment thereof (as such phrase is defined above).
In the event that, notwithstanding the foregoing, (a) the Company shall
make any payment to the Trustee or the Holder of any Securities prohibited by
the foregoing provisions of this Section 10.03, and (b) with respect to any
payment made after 120 or more days have passed after such acceleration occurs
if such facts shall, at or prior to the time of such payment, have been made
known to the Trustee or, as the case may be, such Holder, then and in such event
such payment shall be paid over and delivered forthwith to the Company by or on
behalf of the person holding such payment for the benefit of the holders of
Senior Indebtedness.
The provisions of this Section 10.03 shall not apply to any payment
with respect to which Section 10.02 would be applicable.
SECTION 10.04. DEFAULT ON SENIOR INDEBTEDNESS. The Company may not make
a Conversion Payment or make any payment of the Principal Amount, Issue Price,
accrued Original Issue Discount, Redemption Price, Change in Control Purchase
Price or interest, if any,
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in respect of the Securities nor may the Company pay cash with respect to the
Purchase Price or acquire any Securities for cash or property (except as
otherwise provided by Article XI and other than for Capital Stock of the
Company) if:
(1) a payment default on any Senior Indebtedness has occurred and is
continuing beyond any applicable grace period with respect thereto; or
(2) a default (other than a default referred to in the preceding
clause (1)) on any Senior Indebtedness occurs and is continuing that
permits holders of such Senior Indebtedness to accelerate the maturity
thereof and the default is the subject of judicial proceedings or the
Company receives a notice of default thereof from any person who may
give such notice pursuant to the instrument evidencing or document
governing such Senior Indebtedness.
If the Company receives any such notice, then a similar notice received within
nine months thereafter relating to the same default on the same issue of Senior
Indebtedness shall not be effective for purposes of this Section 10.04.
The Company may resume payment on the Securities and may acquire Securities if
and when:
(a) the default referred to above is cured or waived as provided or
permitted in accordance with the terms of the applicable Senior
Indebtedness; or
(b) in the case of a default referred to in clause (2) of the
preceding paragraph, 179 or more days pass after the receipt by the
Company of the notice described in clause (2) above; and
this Indenture otherwise permits the payment or acquisition at that time;
provided, however, that with respect to payments made after the 179-day period
referred to in clause (b) of this Section 10.04, the Trustee or the Holder of
any Securities shall pay over and deliver forthwith to the Company for the
benefit of the holders of Senior Indebtedness any amounts received by the
Trustee or any such Holder to the extent necessary to pay all holders of Senior
Indebtedness in full in cash or otherwise provide for such payment thereof (as
such phrase is defined above).
In the event that, notwithstanding the foregoing, (a) the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and (b) with respect to any payment made
after the expiration of the 179-day period if such fact shall then have been
made known to the Trustee or, as the case may be, such Holder, then and in such
event such payment shall (to the extent permitted by law) be paid over and
delivered forthwith to the Company by or on behalf of the person holding such
payment for the benefit of the holders of the Senior Indebtedness.
Nothing contained in this Article X or elsewhere in this Indenture or
in any of the Securities shall prevent the conversion by a Holder of any
Securities into shares of Common
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Stock in accordance with the provisions for conversion of such Securities set
forth in this Indenture, including the payment of cash in lieu of fractional
shares of Common Stock in accordance with Article XI, or in any of such
Securities in the event of an occurrence of the events described in this Section
10.04.
The provisions of this Section shall not apply to any payment with
respect to which Section 10.02 would be applicable.
SECTION 10.05. PAYMENT PERMITTED IF NO DEFAULT. Nothing contained in
this Article or elsewhere in this Indenture or in any of the Securities shall
prevent the Company, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the
Company referred to in Section 10.02 or under the conditions described in
Section 10.03 or 10.04, from making the Conversion Payment or from making
payments at any time of Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, as the case may be, in respect of the Securities.
SECTION 10.06. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS. Subject to payment in full of all Senior Indebtedness to the
extent and in the manner set forth in this Article X, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to indebtedness of the
Company 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 such
Senior Indebtedness to receive payments or distributions of cash, property and
securities applicable to the Senior Indebtedness until the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price,
Conversion Payment, Change in Control Purchase Price or interest, if any, as the
case may be, in respect of the Securities shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 10.07. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Indebtedness, on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligation of the
Company,
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which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company), to pay to the
Holders of the Securities the Principal Amount, Issue Price, accrued Original
Issue Discount, Redemption Price, Purchase Price, Conversion Payment, Change in
Control Purchase Price or interest, if any, as the case may be, in respect of
the Securities as and when the same shall become due and payable in accordance
with the terms of the Securities and this Indenture; or (b) affect the relative
rights against the Company of the Holders of the Securities and creditors of the
Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
SECTION 10.08. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a
Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 10.09. NO WAIVER OF SUBORDINATION PROVISIONS. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to act
by any such holder, or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew, increase
or alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 10.10. NOTICE TO TRUSTEE. The Company shall give prompt written
notice to a Responsible Officer of the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect
of the Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the
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Trustee shall have received written notice thereof from the Company or a holder
of Senior Indebtedness or from any trustee therefor; and, prior to the receipt
of any such written notice, the Trustee shall be entitled in all respects to
assume that no such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee therefor). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness held by such person, the
extent to which such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such person under
this Article, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 10.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Securities shall
be entitled to rely upon any final, nonappealable order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, Custodian, receiver, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 10.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
or otherwise. The Trustee shall not be charged with knowledge of the existence
of Senior Indebtedness or of any facts that would prohibit any payment hereunder
or that would permit the resumption of any such payment unless a Responsible
Officer of the Trustee shall have received notice to that effect at the address
of the Trustee set forth in Section 13.02. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article X and no
implied covenants or obligations with respect to holders of Senior Indebtedness
shall be read into this Indenture against the Trustee.
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SECTION 10.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 10.14. ARTICLE X APPLICABLE TO PAYING AGENTS. In case at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that Sections 10.10
and 10.12 shall not apply to the Company or any Affiliate of the Company if it
or such Affiliate acts as Paying Agent.
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ARTICLE XI.
CONVERSION
SECTION 11.01. CONVERSION PRIVILEGE. Subject to the terms and
conditions set forth herein and in the Securities, a Holder of a Security may
convert such Security into shares of Common Stock at any time during the period
stated in paragraph 9 of the Securities. The number of shares of Common Stock
issuable upon conversion of a Security, for each $1,000 of Principal Amount
thereof, or from and after any Option Exercise Date as defined in Section 12.01,
for each Restated Principal Amount (the "Conversion Rate"), shall be that amount
set forth in paragraph 9 in the Securities, subject to adjustment as herein set
forth.
The Holders' right to convert Securities into shares of Common Stock is
subject to the Company's right to elect to instead pay such Holder the amount of
cash set forth in the next succeeding sentence, in lieu of delivering such
shares of Common Stock; provided, however, that if such payment of cash is not
permitted pursuant to the provisions of this Indenture or the provisions of any
other agreement or instrument to which the Company is a party or by which it is
bound or otherwise, the Company shall deliver shares of Common Stock (and cash
in lieu of fractional shares of Common Stock) in accordance with this Article
XI, whether or not the Company has delivered a notice pursuant to Section 11.02
to the effect that the Securities would be paid in cash. The amount of cash to
be paid pursuant to Section 11.02 for each per $1,000 Principal Amount of a
Security upon conversion shall be equal to the Conversion Payment.
The Company shall not pay cash in lieu of delivering shares of Common
Stock upon the conversion of any Security pursuant to the terms of this Article
XI (other than cash in lieu of fractional shares pursuant to Section 11.03) if
there has occurred (prior to, on or after, as the case may be, the Conversion
Date or the date on which the Company delivers its notice of whether such
Security shall be converted into shares of Common Stock or cash pursuant to
Section 11.02) and is continuing an Event of Default (other than a default in
such payment on such Securities), provided, however, that this sentence shall
not apply in the event that an Event of Default occurs after such cash is paid.
A Holder may convert a portion of the Principal Amount of a Security if
the portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of a Security.
"Average Sale Price" means the average of the Sale Prices of the Common
Stock for the shorter of
(i) 30 consecutive Trading Days ending on the last full Trading Day
prior to the Time of Determination with respect to the rights, options,
warrants or distribution in respect of which the Average Sale Price is
being calculated,
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(ii) the period (x) commencing on the date next succeeding the first
public announcement of (a) the issuance of rights, options or warrants
or (b) the distribution, in each case, in respect of which the Average
Sale Price is being calculated and (y) proceeding through the last full
Trading Day prior to the Time of Determination with respect to the
rights, warrants or distribution in respect of which the Average Sale
Price is being calculated, and
(iii) the period, if any, (x) commencing on the date next succeeding
the Ex-Dividend Time with respect to the next preceding (a) issuance of
rights, warrants, or options or (b) distribution, in each case, for
which an adjustment is required by the provisions of Section 11.06(4),
11.07 or 11.08 and (y) proceeding through the last full Trading Day
prior to the Time of Determination with respect to the rights,
warrants, or options or distribution in respect of which the Average
Sale Price is being calculated.
If the Ex-Dividend Time (or in the case of a subdivision, combination
or reclassification, the effective date with respect thereto) with respect to a
dividend, subdivision, combination or reclassification to which Section
11.06(1), (2), (3) or (5) applies occurs during the period applicable for
calculating "Average Sale Price" pursuant to the definition in the preceding
sentence, "Average Sale Price" shall be calculated for such period in a manner
determined by the Board of Directors to reflect the impact of such dividend,
subdivision, combination or reclassification on the Sale Price of the Common
Stock during such period.
"Time of Determination" means the time and date of the earlier of (i)
the determination of stockholders entitled to receive rights, warrants, or
options or a distribution, in each case, to which Sections 11.07 and 11.08 apply
and (ii) the time ("Ex-Dividend Time") immediately prior to the commencement of
"ex-dividend" trading for such rights, options, warrants or distribution on the
New York Stock Exchange or such other national or regional exchange or market on
which the shares of the Common Stock are then listed or quoted.
SECTION 11.02. CONVERSION PROCEDURE. To convert a Security a Holder
must satisfy the requirements in paragraph 9 of the Securities. The date on
which the Holder satisfies all those requirements is the conversion date (the
"Conversion Date"). Within two Business Days following the Conversion Date, the
Company shall deliver to the Holder, through the Conversion Agent, written
notice of whether such Security shall be converted into shares of Common Stock
or paid in cash. If the Company shall have notified the Holder that such
Security shall be converted into shares of Common Stock, the Company shall
deliver to the Holder as soon as practicable, but in any event no later than the
seventh Business Day following the Conversion Date, in book-entry form the
number of full shares of Common Stock issuable upon the conversion and the
Conversion Agent shall deliver to such Holder cash in lieu of any fractional
share determined pursuant to Section 11.03. Except as provided in Section 11.01,
if the Company shall have notified the Holder that such Security shall be paid
in cash, the Company shall deliver to the Holder surrendering such Security the
amount of cash payable with respect to such Security no later than the fifth
Business Day following such Conversion Date. Except as provided in Section
11.01, the Company may not change its election with respect to the
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consideration to be delivered upon conversion of a Security once the Company has
notified the Holder in accordance with this paragraph.
The person in whose name the certificate is registered shall be treated
as a stockholder of record on and after the Conversion Date; provided, however,
that no surrender of a Security on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the person or persons
entitled to receive the shares of Common Stock upon such conversion as the
record holder or holders of such shares of Common Stock on such date, but such
surrender shall be effective to constitute the person or persons entitled to
receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the close of business on the next succeeding day on which such
stock transfer books are open; provided, further, that such conversion shall be
at the Conversion Rate in effect on the date that such Security shall have been
surrendered for conversion, as if the stock transfer books of the Company had
not been closed. Upon conversion of a Security, such person shall no longer be a
Holder of such Security.
Holders may surrender a Security for conversion by means of book entry
delivery in accordance with paragraph 9 of the Securities and the regulations of
the applicable book entry facility.
No payment or adjustment will be made for dividends on any Common Stock
except as provided in this Article XI. On conversion of a Security, that portion
of accrued Original Issue Discount (or interest, if the Company has exercised
its option provided for in Section 12.01) attributable to the period from the
Issue Date (or, if the Company has exercised the option provided for in Section
12.01, the later of (x) the date of such exercise and (y) the date on which
interest was last paid) of the Security through the Conversion Date with respect
to the converted Security shall not be cancelled, extinguished or forfeited, but
rather shall be deemed to be paid in full to the Holder thereof through delivery
of the shares of Common Stock (together with the cash payment, if any, in lieu
of fractional shares) or of cash, as the case may be, in exchange for the
Security being converted pursuant to the provisions hereof.
If the Holder converts more than one Security at the same time, the
number of shares of Common Stock issuable upon the conversion shall be computed
based on the total Principal Amount of the Securities converted.
Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Security in an authorized denomination equal in Principal Amount to the
unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday
in a place where the Conversion Agent is located, the Security may be
surrendered to such Conversion Agent on the next succeeding day that is not a
Legal Holiday.
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SECTION 11.03. FRACTIONAL SHARES. The Company will not issue a
fractional share of Common Stock upon conversion of a Security. Instead, the
Company will deliver cash for the current market value of the fractional share.
The current market value of a fractional share shall be determined to the
nearest 1/1000th of a share by multiplying the Sale Price, on the last Trading
Day prior to the Conversion Date, of a full share by the fractional amount and
rounding the product to the nearest whole cent.
SECTION 11.04. TAXES ON CONVERSION. If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Common Stock upon such conversion. However, the
Holder shall pay any such tax which is due because the Holder requests the
shares to be issued in a name other than the Holder's name. The Conversion Agent
may refuse to deliver the certificates representing the shares of Common Stock
being issued in a name other than the Holder's name until the Conversion Agent
receives a sum sufficient to pay any tax which will be due because the shares
are to be issued in a name other than the Holder's name. Nothing herein shall
preclude any tax withholding required by law or regulations.
SECTION 11.05. COMPANY TO PROVIDE STOCK. The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be necessary,
reserve out of its authorized but unissued Common Stock a sufficient number of
shares of Common Stock to permit the conversion of the Securities for shares of
Common Stock.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable and shall be free from preemptive rights
and free of any lien or adverse claim.
The Company will promptly comply with all Federal and state
securities laws regulating the offer and delivery of shares of Common Stock upon
conversion of Securities, if any, and will list or cause to have quoted such
shares of Common Stock on each national securities exchange or in the
over-the-counter market or such other market on which the shares of the Common
Stock are then listed or quoted.
SECTION 11.06. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If, after the
Issue Date, the Company:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller
number of shares;
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(4) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock (other than Common Stock or rights,
warrants or options for its Capital Stock); or
(5) issues by reclassification of its Common Stock any shares of its
Capital Stock (other than rights, warrants or options for its Capital
Stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares or other units of Capital
Stock of the Company which such Holder would have owned immediately following
such action if such Holder had converted the Security immediately prior to such
action.
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares or other units of two or more classes or series of
Capital Stock of the Company, the Conversion Rate shall thereafter be subject to
adjustment upon the occurrence of an action taken with respect to any such class
or series of Capital Stock as is contemplated by this Article XI with respect to
the Common Stock, on terms comparable to those applicable to Common Stock in
this Article XI.
SECTION 11.07. ADJUSTMENT FOR RIGHTS ISSUE. If, after the Issue Date,
the Company distributes any rights, warrants or options to all holders of its
Common Stock entitling them, for a period expiring within 60 days after the
record date for such distribution, to purchase shares of Common Stock at a price
per share less than the Sale Price as of the Time of Determination, the
Conversion Rate shall be adjusted in accordance with the formula:
R' = R x (O + N)
__________________
(O + (N x P)/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on the
record date for the distribution to which this Section 11.07
is being applied.
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N = the number of additional shares of Common Stock offered
pursuant to the distribution.
P = the offering price per share of such additional shares.
M = the Average Sale Price, minus, in the case of (i) a
distribution to which Section 11.06(4) applies or (ii) a
distribution to which Section 11.08 applies, for which, in
each case, (x) the record date shall occur on or before the
record date for the distribution to which this Section 11.07
applies and (y) the Ex-Dividend Time shall occur on or after the
date of the Time of Determination for the distribution to which
this Section 11.07 applies, the fair market value (on the record
date for the distribution to which this Section 11.07 applies) of:
(1) the Capital Stock of the Company distributed in respect of
each share of Common Stock in such Section 11.06(4)
distribution, and
(2) the assets of the Company or debt securities or any
rights, warrants or options to purchase securities of the
Company distributed in respect of each share of Common Stock
in such Section 11.08 distribution.
The Board of Directors shall determine fair market values for the purposes of
this Section 11.07.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights, warrants
or options to which this Section 11.07 applies.
No adjustment shall be made under this Section 11.07 if the application
of the formula stated above in this Section 11.07 would result in value of R'
that is equal to or less than the value of R.
SECTION 11.08. ADJUSTMENT FOR OTHER DISTRIBUTIONS. If, after the Issue
Date, the Company distributes to all holders of its Common Stock any of its
assets or debt securities or any rights, warrants or options to purchase
securities of the Company (including securities or cash, but excluding (x)
distributions of Capital Stock referred to in Section 11.06 and distributions of
rights, warrants or options referred to in Section 11.07 and (y) cash dividends
or other cash distributions that are paid out of consolidated current net
earnings or earnings retained in the business as shown on the books of the
Company unless such cash dividends or other cash distributions are Extraordinary
Cash Dividends (as defined below)), the Conversion Rate shall be adjusted,
subject to the provisions of the last paragraph of this Section 11.08, in
accordance with the formula:
R' = R x M
_______
M - F
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where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case of a distribution
to which Section 11.06(4) applies for which (i) the record
date shall occur on or before the record date for the
distribution to which this Section 11.08 applies and (ii) the
Ex-Dividend Time shall occur on or after the date of the Time
of Determination for the distribution to which this Section 11.08
applies, the fair market value (on the record date for the
distribution to which this Section 11.08 applies) of any Capital
Stock of the Company distributed in respect of each share of
Common Stock in such Section 11.06(4) distribution.
F = the fair market value (on the record date for the
distribution to which this Section 11.08 applies) of the
assets, securities, rights, warrants or options to be
distributed in respect of each share of Common Stock in the
distribution to which this Section 11.08 is being applied
(including, in the case of cash dividends or other cash
distributions giving rise to an adjustment, all such cash
distributed concurrently).
The Board of Directors shall determine fair market values for the purpose of
this Section 11.08.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 11.08 applies.
For purposes of this Section 11.08, the term "Extraordinary Cash
Dividend" shall mean any cash dividend with respect to the Common Stock the
amount of which, together with the aggregate amount of cash dividends on the
Common Stock to be aggregated with such cash dividend in accordance with the
provisions of this paragraph, equals or exceeds the threshold percentages set
forth in items (i) or (ii) below:
(i) If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends on the Common
Stock with Ex-Dividend Times occurring in the eighty-five (85)
consecutive day period ending on the date prior to the Ex-Dividend Time
with respect to the cash dividend to which this provision is being
applied equals or exceeds 12.5% of the average of the Sale Prices
during the period beginning on the date after the first such
Ex-Dividend Time in such period and ending on the date prior to the
Ex-Dividend Time with respect to the cash dividend to which this
provision is being applied (except that if no other cash dividend has
had an Ex-Dividend Time occurring in such period, the period for
calculating the average of the Sale Prices
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shall be the period commencing 85 days prior to the date prior to the
Ex-Dividend Time with respect to the cash dividend to which this
provision is being applied), such cash dividend together with each
other cash dividend with an Ex-Dividend Time occurring in such 85-day
period shall be deemed to be an Extraordinary Cash Dividend and for
purposes of applying the formula set forth above in this Section 11.08,
the value of "F" shall be equal to (w) the aggregate amount of such
cash dividend together with the amounts of the other cash dividends
with Ex-Dividend Times occurring in such period minus (x) the aggregate
amount of such other cash dividends with Ex-Dividend Times occurring in
such period for which a prior adjustment in the Conversion Rate was
previously made under this Section 11.08.
(ii) If upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Common Stock, the aggregate amount of such cash
dividend, together with the amounts of all cash dividends on the Common
Stock with Ex-Dividend Times occurring in the 365-consecutive-day
period ending on the date prior to the Ex-Dividend Time with respect to
the cash dividend to which this provision is being applied equals or
exceeds 25% of the average of the Sale Prices during the period
beginning on the date after the first such Ex-Dividend Time in such
period and ending on the date prior to the Ex-Dividend Time with
respect to the cash dividend to which this provision is being applied
(except that if no other cash dividend has had an Ex-Dividend Time
occurring in such period, the period for calculating the average of the
Sale Prices shall be the period commencing 365 days prior to the date
prior to the Ex-Dividend Time with respect to the cash dividend to
which this provision is being applied), such cash dividend together
with each other cash dividend with an Ex-Dividend Time occurring in
such 365-day period shall be deemed to be an Extraordinary Cash
Dividend and for purposes of applying the formula set forth above in
this Section 11.08, the value of "F" shall be equal to (y) the
aggregate amount of such cash dividend together with amounts of the
other cash dividends with Ex-Dividend Times occurring in such period
minus (z) the aggregate amount of such other cash dividends with
Ex-Dividend Times occurring in such period for which a prior adjustment
in the Conversion Rate was previously made under this Section 11.08.
In the event that, with respect to any distribution to which this
Section 11.08 would otherwise apply, the difference "M-F" as defined in the
above formula is less than $1.00 or "F" is greater than "M", then the adjustment
provided by this Section 11.08 shall not be made and in lieu thereof the
provisions of Section 11.14 shall apply to such distribution.
SECTION 11.09. WHEN ADJUSTMENT MAY BE DEFERRED. No adjustment in the
Conversion Rate need be made unless the adjustment would require an increase or
decrease of at least 1% (e.g., if the Conversion Rate is 4, an increase or
decrease of .04 (1% of 4)) in the Conversion Rate. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
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All calculations under this Article XI shall be made to the nearest
cent or to the nearest 1/1,000th of a share, as the case may be, with one-half
of a cent and 5/10,000ths of a share being rounded upwards.
SECTION 11.10. WHEN NO ADJUSTMENT REQUIRED. No adjustment need be
made for a transaction referred to in Section 11.06, 11.07, 11.08 or 11.14 if
Securityholders are to participate in the transaction on a basis and with notice
that the Board of Directors determines to be fair and appropriate in light of
the basis and notice on which holders of Common Stock participate in the
transaction.
No adjustment need be made for rights to purchase Common Stock pursuant
to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par
value of the Common Stock.
To the extent the Securities become convertible into cash pursuant to
the terms of Section 11.06, 11.07, 11.08 or 11.14, no adjustment need be made
thereafter as to the cash. Interest will not accrue on the cash.
Notwithstanding any provision to the contrary in this Indenture, no
adjustment shall be made in the Conversion Rate to the extent, but only to the
extent, such adjustment results in the following quotient being less than the
par value of the Common Stock: (i) the Issue Price plus accrued Original Issue
Discount as of the date such adjustment would otherwise be effective divided by
(ii) the Conversion Rate as so adjusted.
SECTION 11.11. NOTICE OF ADJUSTMENT. Whenever the Conversion Rate is
adjusted, the Company shall promptly mail to the Holders a notice of the
adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice and a certificate from the Company's independent public accountants
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is correct.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate except to exhibit the same
to any Holder desiring inspection thereof.
SECTION 11.12. VOLUNTARY INCREASE. The Company from time to time may
increase the Conversion Rate by any amount and for any period of time (provided,
that such period is not less than 20 Business Days). Whenever the Conversion
Rate is increased, the Company shall mail to Securityholders and file with the
Trustee and the Conversion Agent a notice of the increase. The Company shall
mail the notice at least 15 days before the date the increased Conversion Rate
takes effect. The notice shall state the increased Conversion Rate and the
period it will be in effect.
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<PAGE> 85
A voluntary increase of the Conversion Rate does not change or adjust
the Conversion Rate otherwise in effect for purposes of Sections 11.06, 11.07 or
11.08.
SECTION 11.13. NOTICE OF CERTAIN TRANSACTIONS. If:
(1) the Company takes any action that would require an adjustment in
the Conversion Rate pursuant to Section 11.06, 11.07 or 11.08 (unless no
adjustment is to occur pursuant to Section 11.10); or
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 11.14; or
(3) there is a liquidation or dissolution of the Company; then the
Company shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend or
distribution of the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in it
shall not affect the validity of the transaction.
SECTION 11.14. REORGANIZATION OF COMPANY; SPECIAL DISTRIBUTIONS.
If the Company is a party to a transaction subject to Section 5.01 (other than a
sale of all or substantially all of the assets of the Company in a transaction
in which the holders of Common Stock immediately prior to such transaction do
not receive securities, cash or other assets of the Company or any other person)
or a merger or binding share exchange which reclassifies or changes its
outstanding Common Stock, the person obligated to deliver securities, cash or
other assets upon conversion of Securities shall enter into a supplemental
indenture. If the issuer of securities deliverable upon conversion of Securities
is an Affiliate of the successor Company, that issuer shall join in the
supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had converted the
Security immediately before the effective date of the transaction, assuming (to
the extent applicable) that such Holder (i) was not a constituent person or an
Affiliate of a constituent person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated alike with the plurality of
non-electing Holders. The supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practical to the adjustments
provided for in this Article XI. The successor Company shall mail to
Securityholders a notice briefly describing the supplemental indenture.
If this Section applies, neither Section 11.06 nor 11.07 applies.
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<PAGE> 86
If the Company makes a distribution to all holders of its Common Stock
of any of its assets, or debt securities or any rights, warrants or options to
purchase securities of the Company that, but for the provisions of the last
paragraph of Section 11.08, would otherwise result in an adjustment in the
Conversion Rate pursuant to the provisions of Section 11.08, then, from and
after the record date for determining the holders of Common Stock entitled to
receive the distribution, a Holder of a Security that converts such Security in
accordance with the provisions of this Indenture shall upon such conversion be
entitled to receive, in addition to the shares of Common Stock into which the
Security is convertible, the kind and amount of securities, cash or other assets
comprising the distribution that such Holder would have received if such Holder
had converted the Security immediately prior to the record date for determining
the holders of Common Stock entitled to receive the distribution.
SECTION 11.15. COMPANY DETERMINATION FINAL. Any determination that the
Company or the Board of Directors must make pursuant to Section 11.03, 11.06,
11.07, 11.08, 11.09, 11.10, 11.14 or 11.17 is conclusive.
SECTION 11.16. TRUSTEE'S ADJUSTMENT DISCLAIMER. The Trustee has no duty
to determine when an adjustment under this Article XI should be made, how it
should be made or what it should be. The Trustee has no duty to determine
whether a supplemental indenture under Section 11.14 need be entered into or
whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
Article XI. Each Conversion Agent (other than the Company or an Affiliate of the
Company) shall have the same protection under this Section 11.16 as the Trustee.
SECTION 11.17. SIMULTANEOUS ADJUSTMENTS. If this Article XI requires
adjustments to the Conversion Rate under more than one of Sections 11.06(4),
11.07 or 11.08, and the record dates for the distributions giving rise to such
adjustments shall occur on the same date, then such adjustments shall be made by
applying, first, the provisions of Section 11.06, second, the provisions of
Section 11.08 and, third, the provisions of Section 11.07.
SECTION 11.18. SUCCESSIVE ADJUSTMENTS. After an adjustment to the
Conversion Rate under this Article XI, any subsequent event requiring an
adjustment under this Article XI shall cause an adjustment to the Conversion
Rate as so adjusted.
SECTION 11.19. RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED UPON
CONVERSION. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article XI shall be entitled to receive the appropriate number
of preferred share purchase rights (the "Rights"), if any, and the certificates
representing the Common Stock issued upon such conversion shall bear such
legends, if any, in each case as provided by and subject to the terms of the
Rights Agreement dated as of February 20, 1997 between the Company and
Continental Stock Transfer & Trust Company, as Rights Agent, as amended (the
"Rights Agreement") as in effect at the time of such conversion. Notwithstanding
anything else to the
80
<PAGE> 87
contrary in this Article XI, there shall not be any adjustment to the
conversion privilege or Conversion Rate as a result of (i) the distribution of
separate certificates representing the Rights (ii) the occurrence of certain
events entitling holders of Rights to receive, upon exercise thereof, Common
Stock of the Company or Capital Stock of another corporation or (iii) the
exercise of such Rights in accordance with the Rights Agreement.
ARTICLE XII.
SPECIAL TAX EVENT CONVERSION
SECTION 12.01. OPTIONAL CONVERSION TO SEMIANNUAL COUPON NOTE UPON TAX
EVENT. From and after (i) the date (the "Tax Event Date") of the occurrence of a
Tax Event and (ii) the date the Company exercises such option, whichever is
later (the "Option Exercise Date"), at the option of the Company, interest in
lieu of future Original Issue Discount shall accrue at the rate of 4% per annum
on a restated principal amount per $1,000 original Principal Amount (the
"Restated Principal Amount") equal to the Issue Price plus Original Issue
Discount accrued through the Option Exercise Date and shall be payable
semiannually on March 11 and September 11 of each year (each an "Interest
Payment Date") to holders of record at the close of business on February 24 or
August 27 (each a "Regular Record Date") immediately preceding such Interest
Payment Date. Interest will be computed on the basis of a 360-day year
comprised of twelve 30- day months and will accrue from the most recent date on
which interest has been paid or, if no interest has been paid, from the Option
Exercise Date. Within 15 days of the occurrence of a Tax Event, the Company
shall mail a written notice of such Tax Event by first-class mail to the Trustee
and within 15 days of its exercise of such option the Company shall mail a
written notice of the Option Exercise Date by first-class mail to the Trustee
and Holders of the Securities. From and after the Option Exercise Date, (i) the
Restated Principal Amount of a Security shall constitute its Principal Account
and (ii) "Issue Price and accrued Original Issue Discount," Issue Price plus
Original Issue Discount" or similar words, as used herein, shall mean Restated
Principal Amount plus accrued and unpaid interest with respect to any Security.
SECTION 12.02. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. (a)
Interest on any Security that 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 is registered at the close of business on the Regular Record
Date for such interest at the office or agency of the Company maintained for
such purpose. Each installment of interest on any Security shall be paid in
same-day funds by transfer to an account maintained by the payee located inside
the United States. In the case of a permanent Global Security, interest payable
on any Interest Payment Date will be paid to the Depositary, Euroclear and/or
CEDEL, as the case may be, with respect to that portion of such permanent Global
Security held for its account by Cede & Co. or the London office of a
depositary, as the case may be, for the purpose of permitting such party to
credit the interest received by it in respect of such permanent Global Security
to the accounts of the beneficial owners thereof.
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<PAGE> 88
(b) Except as otherwise specified with respect to the Securities, any
interest on any Security that is payable, but is not punctually paid or duly
provided for, within 30 days following on any Interest Payment Date (herein
called "Defaulted Interest", which term shall include any accrued and unpaid
interest that has accrued on such defaulted amount in accordance with paragraph
1 of the Securities ), which term shall include any accrued and unpaid interest
that has accrued on such defaulted mount in accordance with paragraph 1 of the
Securities shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, as its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the persons in whose names the Securities are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 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 Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities at his address as it appears on the list
of Securityholders maintained pursuant to Section 2.05 not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in an Authorized Newspaper
in each place of payment, but such publications shall not be a
condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the persons in whose names the
Securities are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
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<PAGE> 89
Subject to the foregoing provisions of this Section and Section 2.06,
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.
ARTICLE XIII.
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02. NOTICES. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company:
Brightpoint, Inc.
6402 Corporate Drive
Indianapolis, Indiana 46728
Attention: Phillip A. Bounsall
if to the Trustee:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Securityholder shall be mailed
by first-class mail to the Securityholder at the Securityholder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Security holder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
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<PAGE> 90
SECTION 13.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Trustee may require the Company to furnish either or
both of the following:
(1) an Officers' Certificate stating that, in the opinion of the
principal signer thereof, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that the principal signer of such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of the principal signer, he or
she has made such examination or investigation as is reasonably
necessary to enable such person to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 13.06. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 13.07. RULES BY TRUSTEE, PAYING AGENT, CONVERSION AGENT AND
REGISTRAR. The Trustee may make reasonable rules for action by or a meeting of
the
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<PAGE> 91
Securityholders. The Registrar, Conversion Agent and the Paying Agent may
make reasonable rules for their functions.
SECTION 13.08. LEGAL HOLIDAY. A "Legal Holiday" is any day other than a
Business Day. If any specified date (including a date for giving notice) is a
Legal Holiday, the action shall be taken on the next succeeding day that is not
a Legal Holiday, and to the extent applicable no Original Issue Discount or
interest, if any, shall accrue for the intervening period.
SECTION 13.09. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES 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.
SECTION 13.10. NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 13.11. SUCCESSORS. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 13.12. MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
[Signature Page to Follow]
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<PAGE> 92
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
BRIGHTPOINT, INC.
By /s/ Robert J. Laikin
---------------------------------
Title: Chairman of the Board
and Chief Executive Officer
ATTEST:
/s/ Steven E. Fivel
- ---------------------------------
(SEAL)
The Chase Manhattan Bank, as Trustee
By: /s/ P.J. Gilkeson
---------------------------------
Title: Vice President
ATTEST:
/s/ Gregory P. Shea
- ---------------------------------
(SEAL)
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<PAGE> 93
EXHIBIT A-1
[FORM OF FACE OF 144A/REGULATION S/
INSTITUTIONAL ACCREDITED INVESTOR LYON]
BRIGHTPOINT, INC.
LIQUID YIELD OPTION NOTE DUE 2018
(ZERO COUPON -- SUBORDINATED)
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF
PRINCIPAL AMOUNT OF THIS SECURITY IS $547.11, THE ISSUE DATE IS MARCH 11, 1998,
AND THE YIELD TO STATED MATURITY IS 4% PER ANNUM (COMPUTED ON A SEMIANNUAL BOND
EQUIVALENT BASIS).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY 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 TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO.), ANY TRANSFER PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO., OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. UNLESS THE SHARES OF COMMON
<PAGE> 94
STOCK HAVE BEEN REGISTERED UNDER THE SECURITIES ACT, A HOLDER OF THIS SECURITY
WILL BE ABLE TO EXERCISE THE CONVERSION RIGHT ONLY IF THE HOLDER CERTIFIES THAT
IT IS A "QUALIFIED INSTITUTIONAL BUYER" OR AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS DEFINED BELOW.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF ANY SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2),(3) OR (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (D) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (E) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE DELIVERY TO
THE TRUSTEE OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY AND THE TRUSTEE, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
[THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION OF
THE CONDITIONS SPECIFIED IN THE INDENTURE.]
A-1-2
<PAGE> 95
BRIGHTPOINT, INC.
LIQUID YIELD OPTION(TM) NOTE DUE 2018
(ZERO COUPON -- SUBORDINATED)
<TABLE>
<S> <C> <C>
No. $____________
Issue Date: March 11, 1998 CUSIP No. ___________
Issue Price: $452.89
Original Issue Discount: $547.11
</TABLE>
(for each $1,000 Principal amount)
Brightpoint, Inc., a Delaware corporation, promises to pay to Cede & Co.,
or registered assigns, the Principal Amount of _____________________ Dollars on
March 11, 2018.
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security. All capitalized terms used herein without
definition shall have the respective meanings assigned thereto in the Indenture
referred to on the other side of this Security.
Additional provisions of this Security are set forth on the other side of
this Security.
- ------------------------
/TM/ Trademark of Merrill Lynch & Co., Inc.
A-1-3
<PAGE> 96
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
BRIGHTPOINT, INC.
By:_________________________________
Title:
ATTEST:
___________________________________
(Seal)
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
_____________________________________
The Chase Manhattan Bank,
as Trustee, certifies that this Security
is one of the Securities referred to
in the within-mentioned Indenture.
By:__________________________________
Authorized Officer
Date:_________________________________
A-1-4
<PAGE> 97
[FORM OF REVERSE SIDE OF LYON]
LIQUID YIELD OPTION(TM) NOTE DUE 2018
(ZERO COUPON -- SUBORDINATED)
1. INTEREST
This Security shall not bear interest except as specified in this
paragraph or in paragraph 10 hereof. If the Principal Amount hereof or any
portion of such Principal Amount is not paid when due (whether upon
acceleration pursuant to Section 6.02 of the Indenture, upon the date set for
payment of the Redemption Price pursuant to paragraph 5 hereof, upon the date
set for payment of a Purchase Price or Change in Control Purchase Price
pursuant to paragraph 6 hereof, upon the date set for a Conversion Payment
pursuant to paragraph 9 hereof or upon the Stated Maturity of this Security),
if interest due hereon or any portion of such interest is not paid when due in
accordance with paragraph 10 hereof, or if shares of Common Stock or cash (or
cash in lieu of fractional shares) in respect of a conversion of this Security
in accordance with the terms of Article XI of the Indenture is not delivered
when due, then in each such case the overdue amount shall bear interest at the
rate of 4% per annum, compounded semiannually (to the extent that the payment
of such interest shall be legally enforceable), which interest shall accrue
from the date such overdue amount was due through the date payment of such
amount, including interest thereon, has been made or duly provided for. All
such interest shall be payable on demand.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount of the Security), in the period during which a Security
remains outstanding, shall accrue at the rate of 4% per annum, on a semiannual
bond equivalent basis using a 360-day year composed of twelve 30-day months,
commencing from the Issue Date of such Security and accruing through the
earlier of (a) the date on which the Principal Amount at Stated Maturity hereof
or any portion of such Principal Amount at Stated Maturity becomes due and
payable and (b) any Redemption Date, Conversion Date, Change in Control
Purchase Date, Purchase Date or other date on which such Original Issue
Discount shall cease to accrue in accordance with Section 2.08 of the
Indenture.
2. METHOD OF PAYMENT
Subject to the terms and conditions of the Indenture, Brightpoint, Inc.
(the "Company") will make payments in respect of the Securities to the persons
who are registered Holders of Securities at the close of business on the
Business Day preceding the Redemption Date or Stated Maturity, as the case may
be, or at the close of business on a Purchase Date, Change in Control Purchase
Date or Conversion Date, as the case may be. Holders must surrender Securities
to a Paying Agent to collect such payments in respect of the Securities. The
Company will pay cash
- --------------------
(TM) Trademark of Merrill Lynch & Co., Inc.
A-1-5
<PAGE> 98
amounts in money of The United States of America that at the time of payment is
legal tender for payment of public and private debts. However, the Company may
make such cash payments in respect of a certificated Security, if applicable,
by check payable in such money.
3. PAYING AGENT, CONVERSION AGENT AND REGISTRAR
Initially, The Chase Manhattan Bank, a New York banking corporation, as
trustee (the "Trustee"), will act as Paying Agent, Conversion Agent and
Registrar. The Company may appoint and change any Paying Agent, Conversion
Agent or Registrar, upon notice to the Trustee and the Holders. The Company or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent or Registrar.
4. INDENTURE
The Company issued the Securities under an Indenture, dated as of March
11, 1998 (the "Indenture"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990, and, as in effect on the date of the
Indenture (the "TIA"), except as provided in Section 9.03 of the Indenture.
Capitalized terms used herein or on the face hereof and not defined herein have
the meanings ascribed thereto in the Indenture. The Securities are subject to
all such terms, and Securityholders are referred to the Indenture and the TIA
for a statement of those terms.
The Securities are general unsecured obligations of the Company limited to
the aggregate Principal Amount at Stated Maturity specified in Section 2.02 of
the Indenture (subject to Section 2.07 of the Indenture). The Indenture does
not limit other indebtedness of the Company, secured or unsecured, including
Senior Indebtedness.
5. REDEMPTION AT THE OPTION OF THE COMPANY
No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the option
of the Company at the Redemption Prices set forth below, provided, however,
that the Securities are not redeemable prior to March 11, 2003.
The table below shows the Redemption Prices of a Security per $1,000
Principal Amount at Stated Maturity on the dates shown below and at Stated
Maturity, which prices reflect accrued Original Issue Discount calculated
through each such date. The Redemption Price of a Security redeemed between
such dates would include an additional amount reflecting the additional
Original Issue Discount accrued from the next preceding date in the table
through the Redemption Date.
A-1-6
<PAGE> 99
<TABLE>
<CAPTION>
(1) (2) (3)
ACCRUED
ORIGINAL REDEMPTION
LYON ISSUE PRICE
REDEMPTION DATE ISSUE DISCOUNT -----------
- --------------- PRICE AT 4% (1) +(2)
----- --------
<S> <C> <C> <C>
March 11, 2003............... $452.89 $99.18 $552.07
March 11, 2004............... 452.89 121.48 574.37
March 11, 2005............... 452.89 144.69 597.58
March 11, 2006............... 452.89 168.83 621.72
March 11, 2007............... 452.89 193.95 646.84
March 11, 2008............... 452.89 220.08 672.97
March 11, 2009............... 452.89 247.27 700.16
March 11, 2010............... 452.89 275.56 728.45
March 11, 2011............... 452.89 304.98 757.87
March 11, 2012............... 452.89 335.60 788.49
March 11, 2013............... 452.89 367.46 820.35
March 11, 2014............... 452.89 400.60 853.49
March 11, 2015............... 452.89 435.08 887.97
March 11, 2016............... 452.89 470.96 923.85
March 11, 2017............... 452.89 508.28 964.17
At Maturity.................. 452.89 547.11 1,000.00
</TABLE>
If converted to a semiannual coupon note following the occurrence of a Tax
Event, this Security will be redeemable at the Restated Principal Amount plus
accrued and unpaid interest from the date of such conversion through the
Redemption Date; but in no event will this Security be redeemable before March
11, 2003.
6. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER; CHANGE IN CONTROL
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
Prices per $1,000 Principal Amount at Stated Maturity of such Securities, upon
delivery of a Purchase Notice containing the information set forth in the
Indenture, at any time from the opening of business on the date that is 20
Business Days prior to such Purchase Date until the close of business on such
Purchase Date and upon delivery of the Securities to the Paying Agent by the
Holder as set forth in the Indenture. Such Purchase Price (equal to Issue Price
plus accrued Original Issue Discount through such Purchase Date) may be paid,
at the option of the Company, in cash or by the issuance and delivery of shares
of Common Stock of the Company, or in any combination thereof.
A-1-7
<PAGE> 100
<TABLE>
<CAPTION>
PURCHASE DATE PURCHASE PRICE
<S> <C>
March 11, 2003 $552.07
March 11, 2008 $672.97
March 11, 2013 $820.35
</TABLE>
If prior to a Purchase Date this Security has been converted to a
semiannual coupon note following the occurrence of a Tax Event, the Purchase
Price will be equal to the Restated Principal Amount plus accrued and unpaid
interest from the date of conversion through the Purchase Date.
Subject to the terms and conditions of the Indenture, if any Change in
Control occurs on or prior to March 11, 2003, the Company shall, at the option
of the Holders, purchase all Securities for which a Change in Control Purchase
Notice shall have been delivered as provided in the Indenture and not
withdrawn, on the date that is 35 Business Days after the occurrence of such
Change in Control, for a Change in Control Purchase Price equal to the Issue
Price plus accrued Original Issue Discount through the Change in Control
Purchase Date, which Change in Control Purchase Price shall be paid in cash. If
prior to a Change in Control Purchase Date this Security has been converted to
a semiannual coupon note following the occurrence of a Tax Event, the Change in
Control Purchase Price shall be equal to the Restated Principal Amount plus
accrued and unpaid interest from the date of conversion through the Change in
Control Purchase Date.
Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent
a written notice of withdrawal in accordance with the provisions of the
Indenture.
If cash sufficient to pay the Purchase Price or Change in Control Purchase
Price of all Securities or portions thereof to be purchased as of the Purchase
Date or the Change in Control Purchase Date, as the case may be, is deposited
with the Paying Agent on the Business Day following the Purchase Date or the
Change in Control Purchase Date, as the case may be, Original Issue Discount
ceases to accrue on such Securities (or portions thereof) immediately after
such Purchase Date or Change in Control Purchase Date, as the case may be, and
the Holders thereof shall have no other rights as such (other than the right to
receive the Purchase Price or Change in Control Purchase Price, as the case may
be, upon surrender of such Security).
7. NOTICE OF REDEMPTION
Notice of redemption under paragraph 5 will be mailed at least 30 days but
not more than 60 days before the Redemption Date to each Holder of Securities
to be redeemed at the Holder's registered address. If money sufficient to pay
the Redemption Price of all Securities (or portions thereof) to be redeemed on
the Redemption Date is deposited with the Paying Agent prior to or on the
Redemption Date, immediately after such date Original Issue Discount ceases to
accrue
A-1-8
<PAGE> 101
on such Securities or portions thereof. Securities in denominations larger than
$1,000 of Principal Amount may be redeemed in part but only in integral
multiples of $1,000 of Principal Amount.
8. SUBORDINATION
The Securities are subordinated to all existing and future Senior
Indebtedness. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Indenture does not limit the
present or future amount of Senior Indebtedness the Company may have. The
Company agrees, and each Securityholder by accepting a Security agrees, to the
subordination and authorizes the Trustee to give it effect and appoints the
Trustee as attorney-in-fact for such purpose.
9. CONVERSION
Subject to the next two succeeding sentences, a Holder of a Security may
convert it at any time before the close of business on March 11, 2018;
provided, however, that if a Security is called for redemption, the Holder may
convert it at any time before the close of business on the Redemption Date.
The number of shares of Common Stock to be delivered upon conversion of a
Security into Common Stock for each $1,000 of Principal Amount shall be equal
to the Conversion Rate. A Security in respect of which a Holder has delivered
a Purchase Notice or Change in Control Purchase Notice exercising the option of
such Holder to require the Company to purchase such Security may be converted
only if the notice of exercise is withdrawn in accordance with the terms of the
Indenture.
The initial Conversion Rate is 19.109 shares of Common Stock per 1,000
Principal Amount, subject to adjustment in certain events described in the
Indenture. The Company will deliver cash or a check in lieu of any fractional
share of Common Stock.
The Holders' right to convert Securities into shares of Common Stock is
subject to the Company's right to elect to instead pay such Holder the amount
of cash set forth in the next succeeding sentence, in lieu of delivering such
shares of Common Stock; provided, however, that if such payment of cash is not
permitted pursuant to the provisions of the Indenture or the provisions of any
other agreement or instrument to which the Company is a party or by which it is
bound or otherwise, the Company shall deliver shares of Common Stock (and cash
in lieu of fractional shares of Common Stock) in accordance with Article XI of
the Indenture, whether or not the Company has delivered a notice pursuant to
Section 11.02 thereof to the effect that the conversion price will be paid in
cash. The amount of cash to be paid for each $1,000 Principal Amount of a
Security shall be equal to the Sale Price of a share of Common Stock on the
Trading Day immediately prior to the related Conversion Date multiplied by the
Conversion Rate in effect on such Trading Day.
The Company shall not pay cash in lieu of delivering shares of Common
Stock upon the conversion of any Security pursuant to the terms of Article XI
of the Indenture (other than cash
A-1-9
<PAGE> 102
in lieu of fractional shares) if there has occurred (prior to, on or after, as
the case may be, the Conversion Date or the date on which the Company delivers
its notice of whether each Security shall be converted into shares of Common
Stock or cash) and is continuing an Event of Default (other than a default in
such payment on such Securities), provided, however, that this sentence shall
not apply in the event that an Event of Default occurs after such cash is paid.
In the event the Company exercises its option pursuant to Section 12.01 of
the Indenture to have interest in lieu of Original Issue Discount accrue on the
Security following a Tax Event, the Holder will be entitled on conversion to
receive the same number of shares of Common Stock (or, at the Company's option,
the same amount of cash in lieu thereof) such Holder would have received if the
Company had not exercised such option. If the Company exercises such option,
Securities surrendered for conversion during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business of such Interest Payment Date (except Securities to be
redeemed on a date within such period) must be accompanied by payment of an
amount equal to the interest thereon that the registered Holder is to receive.
Except where Securities surrendered for conversion must be accompanied by
payment as described above, no interest on converted Securities will be payable
by the Company on any Interest Payment Date subsequent to the date of
conversion.
To convert a Security a Holder must (i) complete and manually sign the
conversion notice on the back of the Security (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent (or
the office or agency referred to in Section 4.05 of the Indenture) or, if
applicable, complete and deliver to The Depository Trust Company ("DTC" or the
"Depositary," which term includes any successor thereto) the appropriate
instruction form for conversion pursuant to the Depositary's book entry
conversion program, (ii) surrender the Security to a Conversion Agent by
physical or book entry delivery (which is not necessary in the case of
conversion pursuant to the Depositary's book entry conversion program), (iii)
furnish appropriate endorsements and transfer documents if required by the
Conversion Agent, the Company or the Trustee and (iv) pay any transfer or
similar tax, if required. Book entry delivery of a Security to the Conversion
Agent may be made by any financial institution that is a participant in the
Depositary; conversion through the Depositary's book entry conversion program
is available for any security that is held in an account maintained at the
Depositary by any such participant.
A Holder may convert a portion of a Security if the Principal Amount of
such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the Common Stock except as provided in
the Indenture. On conversion of a Security, that portion of accrued Original
Issue Discount (or interest, if the Company has exercised its option provided
for in paragraph 10 hereof) attributable to the period from the Issue Date (or,
if the Company has exercised the option referred to in paragraph 10 hereof, the
later of (x) the date of such exercise and (y) the date on which interest was
last paid) through the Conversion Date with respect to the converted Security
shall not be canceled, extinguished or forfeited, but rather shall be deemed
paid in full to the Holder thereof through the delivery of shares of Common
Stock
A-1-10
<PAGE> 103
(and any cash in lieu of fractional shares) or cash in exchange for the
Security being converted pursuant to the terms hereof.
The Conversion Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of certain rights to purchase Common Stock for a period
expiring within 60 days at less than the Sale Price at the Time of
Determination; and distributions to such holders of assets or debt securities
of the Company or certain rights to purchase securities of the Company
(excluding certain cash dividends or distributions). However, no adjustment
need be made if Securityholders may participate in the transaction or in
certain other cases. The Company from time to time may voluntarily increase
the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange of the type specified in the Indenture, or certain transfers of all or
substantially all of its assets to another person, or in certain other
circumstances described in the Indenture, the right to convert a Security into
Common Stock may be changed into a right to convert it into securities,
cash or other assets of the Company or another person.
10. TAX EVENT
(a) From and after (i) the date (the "Tax Event Date") of the occurrence
of a Tax Event and (ii) the date the Company exercises such option, whichever
is later (the "Option Exercise Date"), at the option of the Company, interest
in lieu of future Original Issue Discount shall accrue at the rate of 4% per
annum on a principal amount per Security (the "Restated Principal Amount")
equal to the Issue Price plus Original Issue Discount accrued through the
Option Exercise Date and shall be payable semiannually on March 11 and
September 11 of each year (each an "Interest Payment Date") to holders of
record at the close of business on February 24 or August 27 (each a "Regular
Record Date") immediately preceding such Interest Payment Date. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months
and will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the Option Exercise Date.
(b) Interest on any Security that 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 is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose. Each installment of interest on any Security shall be paid in
same-day funds by transfer to an account maintained by the payee located inside
the United States. In the case of a Global Security, interest payable
on any Interest Payment Date will be paid to the Depositary for the purpose of
permitting such party to credit the interest received by it in respect of such
Global Security to the accounts of the beneficial owners thereof.
A-1-11
<PAGE> 104
(c) Except as otherwise specified with respect to the Securities, any
Defaulted Interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company
as provided for in Section 12.02 (b) of the Indenture.
11. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Redemption Date, may be deemed to be
purchased from the Holders of such Securities at an amount not less than the
Redemption Price, by one or more investment bankers or other purchasers who may
agree with the Company to purchase such Securities from the Holders and to make
payment for such Securities to the Trustee in trust for such Holders.
12. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are issued in registered book-entry form, without coupons,
in denominations of $1,000 of Principal Amount and integral multiples thereof.
The Securities will initially be sold in minimum denominations of $100,000 and
integral multiples of $1,000 in excess thereof. A Holder may transfer or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not transfer or exchange any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities in respect of
which a Purchase Notice or Change in Control Purchase Notice has been given and
not withdrawn (except, in the case of a Security to be purchased in part, the
portion of the Security not to be purchased) or any Securities for a period of
15 days before a selection of Securities to be redeemed.
13. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner of this
Security for all purposes.
14. UNCLAIMED MONEY OR SECURITIES
The Trustee and the Paying Agent shall return to the Company upon written
request any money or securities held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years, provided,
however, that the Trustee or such Paying Agent, before being required to make
any such return, may at the expense of the Company cause to be mailed to each
such Holder notice that such money or securities remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such mailing, any unclaimed money or securities then remaining will be
returned to the Company. After return to the Company at its written request,
Holders entitled to the money or securities must look to
A-1-12
<PAGE> 105
the Company for payment as general creditors unless an applicable abandoned
property law designates another person, and the Trustee and the Paying Agent
shall have no further liability with respect to such money or securities for
that period commencing after the return thereof.
15. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
at the time outstanding and (ii) certain defaults or noncompliance with certain
provisions may be waived with the written consent of the Holders of a majority
in aggregate Principal Amount of the Securities at the time outstanding.
Subject to certain exceptions set forth in the Indenture, without the consent
of any Securityholder, the Company and the Trustee may amend the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, or to comply
with Article V or Section 11.14 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated
Securities, or to add to the covenants or obligations of the Company
thereunder, or to surrender any right, power or option conferred upon the
Company, or to make any change to comply with the TIA, or any amendment
thereafter, or any requirement of the SEC in connection with the qualification
of the Indenture under the TIA or any amendment thereof or to make any change
that does not adversely affect the rights of any Securityholder.
16. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) if the Securities have
been converted to semiannual coupon notes following a Tax Event, default in the
payment of interest which default continues for a period of 30 days; (ii)
default in payment of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Conversion Payment or Change in
Control Purchase Price, as the case may be, in respect of the Securities when
the same becomes due and payable; (iii) failure either to deliver the shares of
Common Stock or pay cash in lieu thereof (together with cash in lieu of
fractional shares) in accordance with the terms of the Indenture when such
shares of Common Stock or cash are required to be delivered following
conversion of a Security and such failure is not remedied for a period of 10
days; (iv) failure by the Company to comply with other agreements in the
Indenture or the Securities, subject to notice and lapse of time; (v) default
under any bond, debenture, note or other evidence of indebtedness for money
borrowed of the Company having an aggregate outstanding principal amount of in
excess of the greater of (a) $10,000,000 or (b) 5% of Consolidated Net Assets,
which default shall have resulted in such indebtedness being accelerated,
without such indebtedness being discharged or such acceleration having been
rescinded or annulled within ten days after receipt of notice thereof by the
Company from the Trustee or the Company and the Trustee from the Holders of not
less than 25% in aggregate Principal Amount of the Securities then outstanding
(unless such default has been cured or waived); or (vi) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee, or the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding, may declare all the Securities to be due
and payable immediately. Certain events of bankruptcy
A-1-13
<PAGE> 106
or insolvency are Events of Default that will result in the Securities becoming
due and payable immediately upon the occurrence of such Events of Default.
Security holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of amounts specified in clause
(i) or (ii) above) if it determines that withholding notice is in their
interests.
17. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
18. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
19. AUTHENTICATION
This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Certificate of Authentication on the other side of
this Security.
20. ABBREVIATIONS
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (=tenants in common), TENANT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common) and CUST (=custodian), and UNIF TRANS MIN ACT (=Uniform
Transfers to Minors Act).
21. GOVERNING LAW
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
A-1-14
<PAGE> 107
APPLIED TO CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
<TABLE>
<S> <C>
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, fill To convert this Security into
in the form below: Common Stock of the
Company, check the box:
I or we assign and transfer ____________________________
this Security to:
__________________________: ____________________________
(Insert assignee's soc.
sec. or tax ID no.) To convert only part of this
Security, state the Principal
______________________________ Amount to be converted (which
must be $1,000 or an integral
______________________________ multiple of $1,000):
______________________________ :$
______________________________ If you want the stock certificate
(Print or type assignee's made out in another person's
name, address and zip code) name, fill in the form below:
and irrevocably appoint
____________________ agent ____________________________
to transfer this Security on
the books of the Company. The ____________________________
agent may substitute another (Insert person's soc.
to act for him. sec. or tax ID no.)
</TABLE>
______________________________
______________________________
______________________________
______________________________
(Print or type person's name,
address and zip code)
_________________________________________________________________
Date:_________________ Your Signature:_________________________*
A-1-15
<PAGE> 108
_________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
* Your signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
A-1-16
<PAGE> 109
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 3.08 or Section 3.09 of the Indenture, check the
appropriate box:
Section 3.08 [ ]
Section 3.09 [ ]
If you want to elect to have only part of this Security purchased by the
Issuer pursuant to Section 3.08 or Section 3.09 of the Indenture, state the
amount you elect to have purchased:
$___________________________________________
Dated: ____________________ ___________________________________________
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Security in
every particular without alteration or
enlargement or any change whatsoever and be
guaranteed.
Signature Guarantee:___________________________
A-1-17
<PAGE> 110
SCHEDULE OF EXCHANGES FOR GLOBAL SECURITY
The following exchanges of a part of this Global Security for Certificated
Securities or other Global Securities have been made:
<TABLE>
<CAPTION>
Principal Amount
Amount of decrease Amount of increase of this global Signature of
in Principal in Principal Security following Authorized
Amount of this Amount of this such decrease Signatory of
Date of Exchange Global Security Global Security (or increase) Trustee
- ---------------- ------------------ -------------------- ------------------ ------------
<S> <C> <C> <C> <C>
</TABLE>
- -----------------------
This schedule should be included only if the Security is a Global Security
deposited with the Depository.
A-1-18
<PAGE> 111
EXHIBIT A-2
[FORM OF FACE OF CERTIFICATED LYON]
BRIGHTPOINT, INC.
LIQUID YIELD OPTION NOTE DUE 2018
(ZERO COUPON -- SUBORDINATED)
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF
PRINCIPAL AMOUNT OF THIS SECURITY IS $547.11, THE ISSUE DATE IS MARCH 11, 1998,
AND THE YIELD TO STATED MATURITY IS 4% PER ANNUM (COMPUTED ON A SEMIANNUAL BOND
EQUIVALENT BASIS).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY 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 TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO.), ANY TRANSFER PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO., OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. UNLESS THE SHARES OF COMMON STOCK HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT, A HOLDER OF
<PAGE> 112
THIS SECURITY WILL BE ABLE TO EXERCISE THE CONVERSION RIGHT ONLY IF THE HOLDER
CERTIFIES THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" OR AN INSTITUTIONAL
"ACCREDITED INVESTOR" AS DEFINED BELOW.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF ANY SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2),(3) OR (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (D) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (E) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE DELIVERY TO
THE TRUSTEE OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY AND THE TRUSTEE, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
[THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION OF
THE CONDITIONS SPECIFIED IN THE INDENTURE.]
A-2-2
<PAGE> 113
BRIGHTPOINT, INC.
LIQUID YIELD OPTION(TM) NOTE DUE 2018
(ZERO COUPON -- SUBORDINATED)
<TABLE>
<S> <C>
No. $____________
Issue Date: March 11, 1998 CUSIP No. ___________
Issue Price: $452.89
Original Issue Discount: $547.11
</TABLE>
(for each $1,000 Principal amount)
Brightpoint, Inc., a Delaware corporation, promises to pay to Cede & Co.,
or registered assigns, the Principal Amount of _____________________ Dollars on
March 11, 2018.
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security. All capitalized terms used herein without
definition shall have the respective meanings assigned thereto in the Indenture
referred to on the other side of this Security.
Additional provisions of this Security are set forth on the other side of
this Security.
- -----------------------
(TM) Trademark of Merrill Lynch & Co., Inc.
A-2-3
<PAGE> 114
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
BRIGHTPOINT, INC.
By:_________________________________
Title:
ATTEST:
___________________________________
(Seal)
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
_____________________________________
The Chase Manhattan Bank,
as Trustee, certifies that this Security
is one of the Securities referred to
in the within-mentioned Indenture.
By:__________________________________
Authorized Officer
Date:_________________________________
A-2-4
<PAGE> 115
[FORM OF REVERSE SIDE OF LYON]
LIQUID YIELD OPTION(TM) NOTE DUE 2018
(ZERO COUPON -- SUBORDINATED)
1. INTEREST
This Security shall not bear interest except as specified in this
paragraph or in paragraph 10 hereof. If the Principal Amount hereof or any
portion of such Principal Amount is not paid when due (whether upon
acceleration pursuant to Section 6.02 of the Indenture, upon the date set for
payment of the Redemption Price pursuant to paragraph 5 hereof, upon the date
set for payment of a Purchase Price or Change in Control Purchase Price
pursuant to paragraph 6 hereof, upon the date set for a Conversion Payment
pursuant to paragraph 9 hereof or upon the Stated Maturity of this Security),
if interest due hereon or any portion of such interest is not paid when due in
accordance with paragraph 10 hereof, or if shares of Common Stock or cash (or
cash in lieu of fractional shares) in respect of a conversion of this Security
in accordance with the terms of Article XI of the Indenture is not delivered
when due, then in each such case the overdue amount shall bear interest at the
rate of 4% per annum, compounded semiannually (to the extent that the payment
of such interest shall be legally enforceable), which interest shall accrue
from the date such overdue amount was due through the date payment of such
amount, including interest thereon, has been made or duly provided for. All
such interest shall be payable on demand.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount of the Security), in the period during which a Security
remains outstanding, shall accrue at the rate of 4% per annum, on a semiannual
bond equivalent basis using a 360-day year composed of twelve 30-day months,
commencing from the Issue Date of such Security and accruing through the
earlier of (a) the date on which the Principal Amount at Stated Maturity hereof
or any portion of such Principal Amount at Stated Maturity becomes due and
payable and (b) any Redemption Date, Conversion Date, Change in Control
Purchase Date, Purchase Date or other date on which such Original Issue
Discount shall cease to accrue in accordance with Section 2.08 of the
Indenture.
2. METHOD OF PAYMENT
Subject to the terms and conditions of the Indenture, Brightpoint, Inc.
(the "Company") will make payments in respect of the Securities to the persons
who are registered Holders of Securities at the close of business on the
Business Day preceding the Redemption Date or Stated Maturity, as the case may
be, or at the close of business on a Purchase Date, Change in Control Purchase
Date or Conversion Date, as the case may be. Holders must surrender Securities
to a Paying Agent to collect such payments in respect of the Securities. The
Company will pay cash
- ----------------------
(TM) Trademark of Merrill Lynch & Co., Inc.
A-2-5
<PAGE> 116
amounts in money of The United States of America that at the time of payment is
legal tender for payment of public and private debts. However, the Company may
make such cash payments in respect of a certificated Security, if applicable,
by check payable in such money.
3. PAYING AGENT, CONVERSION AGENT AND REGISTRAR
Initially, The Chase Manhattan Bank, a New York banking corporation, as
trustee (the "Trustee"), will act as Paying Agent, Conversion Agent and
Registrar. The Company may appoint and change any Paying Agent, Conversion
Agent or Registrar, upon notice to the Trustee and the Holders. The Company or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent or Registrar.
4. INDENTURE
The Company issued the Securities under an Indenture, dated as of March
11, 1998 (the "Indenture"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990, and, as in effect on the date of the
Indenture (the "TIA"), except as provided in Section 9.03 of the Indenture.
Capitalized terms used herein or on the face hereof and not defined herein have
the meanings ascribed thereto in the Indenture. The Securities are subject to
all such terms, and Securityholders are referred to the Indenture and the TIA
for a statement of those terms.
The Securities are general unsecured obligations of the Company limited to
the aggregate Principal Amount at Stated Maturity specified in Section 2.02 of
the Indenture (subject to Section 2.07 of the Indenture). The Indenture does
not limit other indebtedness of the Company, secured or unsecured, including
Senior Indebtedness.
5. REDEMPTION AT THE OPTION OF THE COMPANY
No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the option
of the Company at the Redemption Prices set forth below, provided, however,
that the Securities are not redeemable prior to March 11, 2003.
The table below shows the Redemption Prices of a Security per $1,000
Principal Amount at Stated Maturity on the dates shown below and at Stated
Maturity, which prices reflect accrued Original Issue Discount calculated
through each such date. The Redemption Price of a Security redeemed between
such dates would include an additional amount reflecting the additional
Original Issue Discount accrued from the next preceding date in the table
through the Redemption Date.
A-2-6
<PAGE> 117
<TABLE>
<CAPTION>
(1) (2) (3)
ACCRUED
ORIGINAL REDEMPTION
LYON ISSUE PRICE
REDEMPTION DATE ISSUE DISCOUNT -----------
- --------------- PRICE AT 4% (1) +(2)
----- --------
<S> <C> <C> <C>
March 11, 2003................. $452.89 $99.18 $552.07
March 11, 2004................. 452.89 121.48 574.37
March 11, 2005................. 452.89 144.69 597.58
March 11, 2006................. 452.89 168.83 621.72
March 11, 2007................. 452.89 193.95 646.84
March 11, 2008................. 452.89 220.08 672.97
March 11, 2009................. 452.89 247.27 700.16
March 11, 2010................. 452.89 275.56 728.45
March 11, 2011................. 452.89 304.98 757.87
March 11, 2012................. 452.89 335.60 788.49
March 11, 2013................. 452.89 367.46 820.35
March 11, 2014................. 452.89 400.60 853.49
March 11, 2015................. 452.89 435.08 887.97
March 11, 2016................. 452.89 470.96 923.85
March 11, 2017................. 452.89 508.28 964.17
At Maturity.................... 452.89 547.11 1,000.00
</TABLE>
If converted to a semiannual coupon note following the occurrence of a Tax
Event, this Security will be redeemable at the Restated Principal Amount plus
accrued and unpaid interest from the date of such conversion through the
Redemption Date; but in no event will this Security be redeemable before March
11, 2003.
6. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER; CHANGE IN CONTROL
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
Prices per $1,000 Principal Amount at Stated Maturity of such Securities, upon
delivery of a Purchase Notice containing the information set forth in the
Indenture, at any time from the opening of business on the date that is 20
Business Days prior to such Purchase Date until the close of business on such
Purchase Date and upon delivery of the Securities to the Paying Agent by the
Holder as set forth in the Indenture. Such Purchase Price (equal to Issue Price
plus accrued Original Issue Discount through such Purchase Date) may be paid,
at the option of the Company, in cash or by the issuance and delivery of shares
of Common Stock of the Company, or in any combination thereof.
A-2-7
<PAGE> 118
<TABLE>
<CAPTION>
PURCHASE DATE PURCHASE PRICE
<S> <C>
March 11, 2003 $552.07
March 11, 2008 $672.97
March 11, 2013 $820.35
</TABLE>
If prior to a Purchase Date this Security has been converted to a
semiannual coupon note following the occurrence of a Tax Event, the Purchase
Price will be equal to the Restated Principal Amount plus accrued and unpaid
interest from the date of conversion through the Purchase Date.
Subject to the terms and conditions of the Indenture, if any Change in
Control occurs on or prior to March 11, 2003, the Company shall, at the option
of the Holders, purchase all Securities for which a Change in Control Purchase
Notice shall have been delivered as provided in the Indenture and not
withdrawn, on the date that is 35 Business Days after the occurrence of such
Change in Control, for a Change in Control Purchase Price equal to the Issue
Price plus accrued Original Issue Discount through the Change in Control
Purchase Date, which Change in Control Purchase Price shall be paid in cash. If
prior to a Change in Control Purchase Date this Security has been converted to
a semiannual coupon note following the occurrence of a Tax Event, the Change in
Control Purchase Price shall be equal to the Restated Principal Amount plus
accrued and unpaid interest from the date of conversion through the Change in
Control Purchase Date.
Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent
a written notice of withdrawal in accordance with the provisions of the
Indenture.
If cash sufficient to pay the Purchase Price or Change in Control Purchase
Price of all Securities or portions thereof to be purchased as of the Purchase
Date or the Change in Control Purchase Date, as the case may be, is deposited
with the Paying Agent on the Business Day following the Purchase Date or the
Change in Control Purchase Date, as the case may be, Original Issue Discount
ceases to accrue on such Securities (or portions thereof) immediately after
such Purchase Date or Change in Control Purchase Date, as the case may be, and
the Holders thereof shall have no other rights as such (other than the right to
receive the Purchase Price or Change in Control Purchase Price, as the case may
be, upon surrender of such Security).
7. NOTICE OF REDEMPTION
Notice of redemption under paragraph 5 will be mailed at least 30 days but
not more than 60 days before the Redemption Date to each Holder of Securities
to be redeemed at the Holder's registered address. If money sufficient to pay
the Redemption Price of all Securities (or portions thereof) to be redeemed on
the Redemption Date is deposited with the Paying Agent prior to or on the
Redemption Date, immediately after such date Original Issue Discount ceases to
accrue
A-2-8
<PAGE> 119
on such Securities or portions thereof. Securities in denominations larger than
$1,000 of Principal Amount may be redeemed in part but only in integral
multiples of $1,000 of Principal Amount.
8. SUBORDINATION
The Securities are subordinated to all existing and future Senior
Indebtedness. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Indenture does not limit the
present or future amount of Senior Indebtedness the Company may have. The
Company agrees, and each Securityholder by accepting a Security agrees, to the
subordination and authorizes the Trustee to give it effect and appoints the
Trustee as attorney-in-fact for such purpose.
9. CONVERSION
Subject to the next two succeeding sentences, a Holder of a Security may
convert it at any time before the close of business on March 11, 2018;
provided, however, that if a Security is called for redemption, the Holder may
convert it at any time before the close of business on the Redemption Date.
The number of shares of Common Stock to be delivered upon conversion of a
Security into Common Stock for each $1,000 of Principal Amount shall be equal
to the Conversion Rate. A Security in respect of which a Holder has delivered
a Purchase Notice or Change in Control Purchase Notice exercising the option of
such Holder to require the Company to purchase such Security may be converted
only if the notice of exercise is withdrawn in accordance with the terms of the
Indenture.
The initial Conversion Rate is 19.109 shares of Common Stock per 1,000
Principal Amount, subject to adjustment in certain events described in the
Indenture. The Company will deliver cash or a check in lieu of any fractional
share of Common Stock.
The Holders' right to convert Securities into shares of Common Stock is
subject to the Company's right to elect to instead pay such Holder the amount
of cash set forth in the next succeeding sentence, in lieu of delivering such
shares of Common Stock; provided, however, that if such payment of cash is not
permitted pursuant to the provisions of the Indenture or the provisions of any
other agreement or instrument to which the Company is a party or by which it is
bound or otherwise, the Company shall deliver shares of Common Stock (and cash
in lieu of fractional shares of Common Stock) in accordance with Article XI of
the Indenture, whether or not the Company has delivered a notice pursuant to
Section 11.02 thereof to the effect that the conversion price will be paid in
cash. The amount of cash to be paid for each $1,000 Principal Amount of a
Security shall be equal to the Sale Price of a share of Common Stock on the
Trading Day immediately prior to the related Conversion Date multiplied by the
Conversion Rate in effect on such Trading Day.
The Company shall not pay cash in lieu of delivering shares of Common
Stock upon the conversion of any Security pursuant to the terms of Article XI
of the Indenture (other than cash
A-2-9
<PAGE> 120
in lieu of fractional shares) if there has occurred (prior to, on or after, as
the case may be, the Conversion Date or the date on which the Company delivers
its notice of whether each Security shall be converted into shares of Common
Stock or cash) and is continuing an Event of Default (other than a default in
such payment on such Securities), provided, however, that this sentence shall
not apply in the event that an Event of Default occurs after such cash is paid.
In the event the Company exercises its option pursuant to Section 12.01 of
the Indenture to have interest in lieu of Original Issue Discount accrue on the
Security following a Tax Event, the Holder will be entitled on conversion to
receive the same number of shares of Common Stock (or, at the Company's option,
the same amount of cash in lieu thereof) such Holder would have received if the
Company had not exercised such option. If the Company exercises such option,
Securities surrendered for conversion during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business of such Interest Payment Date (except Securities to be
redeemed on a date within such period) must be accompanied by payment of an
amount equal to the interest thereon that the registered Holder is to receive.
Except where Securities surrendered for conversion must be accompanied by
payment as described above, no interest on converted Securities will be payable
by the Company on any Interest Payment Date subsequent to the date of
conversion.
To convert a Security a Holder must (i) complete and manually sign the
conversion notice on the back of the Security (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent (or
the office or agency referred to in Section 4.05 of the Indenture) or, if
applicable, complete and deliver to The Depository Trust Company ("DTC" or the
"Depositary," which term includes any successor thereto) the appropriate
instruction form for conversion pursuant to the Depositary's book entry
conversion program, (ii) surrender the Security to a Conversion Agent by
physical or book entry delivery (which is not necessary in the case of
conversion pursuant to the Depositary's book entry conversion program), (iii)
furnish appropriate endorsements and transfer documents if required by the
Conversion Agent, the Company or the Trustee and (iv) pay any transfer or
similar tax, if required. Book entry delivery of a Security to the Conversion
Agent may be made by any financial institution that is a participant in the
Depositary; conversion through the Depositary's book entry conversion program
is available for any security that is held in an account maintained at the
Depositary by any such participant.
A Holder may convert a portion of a Security if the Principal Amount of
such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the Common Stock except as provided in
the Indenture. On conversion of a Security, that portion of accrued Original
Issue Discount (or interest, if the Company has exercised its option provided
for in paragraph 10 hereof) attributable to the period from the Issue Date (or,
if the Company has exercised the option referred to in paragraph 10 hereof, the
later of (x) the date of such exercise and (y) the date on which interest was
last paid) through the Conversion Date with respect to the converted Security
shall not be canceled, extinguished or forfeited, but rather shall be deemed
paid in full to the Holder thereof through the delivery of shares of Common
Stock
A-2-10
<PAGE> 121
(and any cash in lieu of fractional shares) or cash in exchange for the
Security being converted pursuant to the terms hereof.
The Conversion Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of certain rights to purchase Common Stock for a period
expiring within 60 days at less than the Sale Price at the Time of
Determination; and distributions to such holders of assets or debt securities
of the Company or certain rights to purchase securities of the Company
(excluding certain cash dividends or distributions). However, no adjustment
need be made if Securityholders may participate in the transaction or in
certain other cases. The Company from time to time may voluntarily increase
the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange of the type specified in the Indenture, or certain transfers of all or
substantially all of its assets to another person, or in certain other
circumstances described in the Indenture, the right to convert a Security into
Common Stock may be changed into a right to convert it into securities,
cash or other assets of the Company or another person.
10. TAX EVENT
(a) From and after (i) the date (the "Tax Event Date") of the occurrence
of a Tax Event and (ii) the date the Company exercises such option, whichever
is later (the "Option Exercise Date"), at the option of the Company, interest
in lieu of future Original Issue Discount shall accrue at the rate of 4% per
annum on a principal amount per Security (the "Restated Principal Amount")
equal to the Issue Price plus Original Issue Discount accrued through the
Option Exercise Date and shall be payable semiannually on March 11 and
September 11 of each year (each an "Interest Payment Date") to holders of
record at the close of business on February 24 or August 27 (each a "Regular
Record Date") immediately preceding such Interest Payment Date. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months
and will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the Option Exercise Date.
(b) Interest on any Security that 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 is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose. Each installment of interest on any Security shall be paid in
same-day funds by transfer to an account maintained by the payee located inside
the United States. In the case of a Global Security, interest payable
on any Interest Payment Date will be paid to the Depositary for the purpose of
permitting such party to credit the interest received by it in respect of such
Global Security to the accounts of the beneficial owners thereof.
A-2-11
<PAGE> 122
(c) Except as otherwise specified with respect to the Securities, any
Defaulted Interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company
as provided for in Section 12.02 (b) of the Indenture.
11. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Redemption Date, may be deemed to be
purchased from the Holders of such Securities at an amount not less than the
Redemption Price, by one or more investment bankers or other purchasers who may
agree with the Company to purchase such Securities from the Holders and to make
payment for such Securities to the Trustee in trust for such Holders.
12. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are issued in registered book-entry form, without coupons,
in denominations of $1,000 of Principal Amount and integral multiples thereof.
The Securities will initially be sold in minimum denominations of $100,000 and
integral multiples of $1,000 in excess thereof. A Holder may transfer or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not transfer or exchange any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities in respect of
which a Purchase Notice or Change in Control Purchase Notice has been given and
not withdrawn (except, in the case of a Security to be purchased in part, the
portion of the Security not to be purchased) or any Securities for a period of
15 days before a selection of Securities to be redeemed.
13. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner of this
Security for all purposes.
14. UNCLAIMED MONEY OR SECURITIES
The Trustee and the Paying Agent shall return to the Company upon written
request any money or securities held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years, provided,
however, that the Trustee or such Paying Agent, before being required to make
any such return, may at the expense of the Company cause to be mailed to each
such Holder notice that such money or securities remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such mailing, any unclaimed money or securities then remaining will be
returned to the Company. After return to the Company at its written request,
Holders entitled to the money or securities must look to
A-2-12
<PAGE> 123
the Company for payment as general creditors unless an applicable abandoned
property law designates another person, and the Trustee and the Paying Agent
shall have no further liability with respect to such money or securities for
that period commencing after the return thereof.
15. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
at the time outstanding and (ii) certain defaults or noncompliance with certain
provisions may be waived with the written consent of the Holders of a majority
in aggregate Principal Amount of the Securities at the time outstanding.
Subject to certain exceptions set forth in the Indenture, without the consent
of any Securityholder, the Company and the Trustee may amend the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, or to comply
with Article V or Section 11.14 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated
Securities, or to add to the covenants or obligations of the Company
thereunder, or to surrender any right, power or option conferred upon the
Company, or to make any change to comply with the TIA, or any amendment
thereafter, or any requirement of the SEC in connection with the qualification
of the Indenture under the TIA or any amendment thereof or to make any change
that does not adversely affect the rights of any Securityholder.
16. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) if the Securities have
been converted to semiannual coupon notes following a Tax Event, default in the
payment of interest which default continues for a period of 30 days; (ii)
default in payment of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Conversion Payment or Change in
Control Purchase Price, as the case may be, in respect of the Securities when
the same becomes due and payable; (iii) failure either to deliver the shares of
Common Stock or pay cash in lieu thereof (together with cash in lieu of
fractional shares) in accordance with the terms of the Indenture when such
shares of Common Stock or cash are required to be delivered following
conversion of a Security and such failure is not remedied for a period of 10
days; (iv) failure by the Company to comply with other agreements in the
Indenture or the Securities, subject to notice and lapse of time; (v) default
under any bond, debenture, note or other evidence of indebtedness for money
borrowed of the Company having an aggregate outstanding principal amount of in
excess of the greater of (a) $10,000,000 or (b) 5% of Consolidated Net Assets,
which default shall have resulted in such indebtedness being accelerated,
without such indebtedness being discharged or such acceleration having been
rescinded or annulled within ten days after receipt of notice thereof by the
Company from the Trustee or the Company and the Trustee from the Holders of not
less than 25% in aggregate Principal Amount of the Securities then outstanding
(unless such default has been cured or waived); or (vi) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee, or the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding, may declare all the Securities to be due
and payable immediately. Certain events of bankruptcy
A-2-13
<PAGE> 124
or insolvency are Events of Default that will result in the Securities becoming
due and payable immediately upon the occurrence of such Events of Default.
Security holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of amounts specified in clause
(i) or (ii) above) if it determines that withholding notice is in their
interests.
17. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
18. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
19. AUTHENTICATION
This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Certificate of Authentication on the other side of
this Security.
20. ABBREVIATIONS
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (=tenants in common), TENANT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common) and CUST (=custodian), and UNIF TRANS MIN ACT (=Uniform
Transfers to Minors Act).
21. GOVERNING LAW
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
A-2-14
<PAGE> 125
APPLIED TO CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
<TABLE>
<S> <C>
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, fill To convert this Security into
in the form below: Common Stock of the
Company, check the box:
I or we assign and transfer ____________________________
this Security to:
__________________________: ____________________________
(Insert assignee's soc.
sec. or tax ID no.) To convert only part of this
Security, state the Principal
______________________________ Amount to be converted (which
must be $1,000 or an integral
______________________________ multiple of $1,000):
______________________________ :$
______________________________ If you want the stock certificate
(Print or type assignee's made out in another person's
name, address and zip code) name, fill in the form below:
and irrevocably appoint
____________________ agent ____________________________
to transfer this Security on
the books of the Company. The ____________________________
agent may substitute another (Insert person's soc.
to act for him. sec. or tax ID no.)
</TABLE>
______________________________
______________________________
______________________________
______________________________
(Print or type person's name,
address and zip code)
_________________________________________________________________
Date:_________________ Your Signature:_________________________*
A-2-15
<PAGE> 126
_________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
* Your signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
A-2-16
<PAGE> 127
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 3.08 or Section 3.09 of the Indenture, check the
appropriate box:
Section 3.08 [ ]
Section 3.09 [ ]
If you want to elect to have only part of this Security purchased by the
Issuer pursuant to Section 3.08 or Section 3.09 of the Indenture, state the
amount you elect to have purchased:
$___________________________________________
Dated: ____________________ ___________________________________________
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Security in
every particular without alteration or
enlargement or any change whatsoever and be
guaranteed.
Signature Guarantee:___________________________
A-2-17
<PAGE> 128
SCHEDULE OF EXCHANGES FOR GLOBAL SECURITY
The following exchanges of a part of this Global Security for Certificated
Securities or other Global Securities have been made:
<TABLE>
<CAPTION>
Principal Amount
Amount of decrease Amount of increase of this global Signature of
in Principal in Principal Security following Authorized
Amount of this Amount of this such decrease Signatory of
Date of Exchange Global Security Global Security (or increase) Trustee
- ---------------- ------------------ -------------------- ------------------ ------------
<S> <C> <C> <C> <C>
</TABLE>
- -----------------
This schedule should be included only if the Security is a Global Security
deposited with the Depository.
A-2-18
<PAGE> 129
EXHIBIT B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RESTRICTED GLOBAL SECURITY TO REGULATION S GLOBAL SECURITY
(Pursuant to Section 2.11(a)(i) of the Indenture)
_______________________________
_______________________________
_______________________________
_______________________________
Re: Liquid Yield Option Notes due 2018 (Zero Coupon --
Subordinated) of Brightpoint, Inc.
Reference is hereby made to the Indenture, dated as of March 11, 1998
(the "Indenture"), between Brightpoint, Inc. (the "Company") and The Chase
Manhattan Bank, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $_______ principal amount of Securities which
are evidenced by one or more Restricted Global Securities (CUSIP No._________)
and held with the Depositary in the name of ____________________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Securities to a person who will take delivery thereof in the
form of an equal principal amount of Securities evidenced by one or more
Regulation S Global Securities (CUSIP No. __________), which amount, immediately
after such transfer, is to be held with the Depositary.
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Global Securities and pursuant
to and in accordance with Rule 903 or Rule 904 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(1) The offer of the Securities was not made to a person in the
United States;
(2) either:
(a) at the time the buy order was originated, the
transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed and believes that the transferee
was outside the United States; or
B-1-1
<PAGE> 130
(b) the transaction was executed in, on or
through the facilities of a designated
offshore securities market and neither the
Transferor nor any person acting on its
behalf knows that the transaction was
prearranged with a buyer in the United
States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the
Depositary.
Upon giving effect to this request to exchange a beneficial interest in
a Restricted Global Security for a beneficial interest in a Regulation S Global
Security, the resulting beneficial interest shall be subject to the restrictions
on transfer applicable to Regulation S Global Securities pursuant to the
Indenture and the Securities Act and, if such transfer occurs prior to the end
of the 40-day restricted period associated with the initial offering of
Securities, the additional restrictions applicable to transfers of interest in
the Regulation S Global Security.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, the initial purchaser of such Securities
being transferred. Terms used in this certificate and not otherwise defined in
the Indenture have the meanings set forth in Regulation S under the Securities
Act.
-------------------------------
[Insert Name of Transferor]
By:
----------------------------
Name:
Title:
Dated:
--------------------
cc: Brightpoint, Inc.
B-1-2
<PAGE> 131
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL SECURITY TO RESTRICTED GLOBAL SECURITY
(Pursuant to Section 2.11(a)(ii) of the Indenture)
_______________________________
_______________________________
_______________________________
_______________________________
Re: Liquid Yield Option Notes due 2018 (Zero Coupon --
Subordinated) of Brightpoint, Inc.
Reference is hereby made to the Indenture, dated as of March 11, 1998
(the "Indenture"), between Brightpoint, Inc. (the "Company") and The Chase
Manhattan Bank, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $_______ principal amount of Securities which
are evidenced by one or more Regulation S Global Securities (CUSIP No.
__________) and held with the Depositary in the name of ______________________
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Securities to a person who will take delivery thereof in the
form of an equal principal amount of Securities evidenced by one or more
Restricted Global Securities (CUSIP No. _________), to be held with the
Depositary.
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that:
[CHECK ONE]
[ ] such transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Securities are being transferred to a person that
the Transferor reasonably believes is purchasing the Securities for its
own account, or for one or more accounts with respect to which such
person exercises sole investment discretion, and such person and each
such account is a "qualified institutional buyer" within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A;
or
B-2-1
<PAGE> 132
[ ] such transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
[ ] such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that
the Securities are being transferred in compliance with the
transfer restrictions applicable to the Global Securities and in
accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by the
transferor or the transferee (a copy of which the Transferor has
attached to this certification) in form reasonably acceptable to the
Company and to the Registrar, to the effect that such transfer is in
compliance with the Securities Act;
and such Securities are being transferred in compliance with any applicable blue
sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Securities for a beneficial interest in Restricted Global
Securities, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Restricted Global Securities pursuant to
the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, the initial purchaser of such Securities
being transferred. Terms used in this certificate and not otherwise defined in
the Indenture have the meanings set forth in Regulation S under the Securities
Act.
----------------------------
[Insert Name of Transferor]
By:
-------------------------
Name:
Title:
Dated:
----------------------
cc: Brightpoint, Inc.
B-2-2
<PAGE> 133
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM 144A GLOBAL SECURITY TO INSTITUTIONAL ACCREDITED
INVESTOR GLOBAL SECURITY
(Pursuant to Section 2.11(a)(iii) of the Indenture)
_______________________________
_______________________________
_______________________________
_______________________________
Re: Liquid Yield Option Notes due 2018 (Zero Coupon --
Subordinated) of Brightpoint, Inc.
Reference is hereby made to the Indenture, dated as of March 11, 1998
(the "Indenture"), between Brightpoint, Inc. (the "Company") and The Chase
Manhattan Bank, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $_______ principal amount of Securities which
are evidenced by one or more 144A Global Securities (CUSIP No. __________) and
held with the Depositary in the name of ______________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Securities to a person who will take delivery thereof in the
form of an equal principal amount of Securities evidenced by one or more
Institutional Accredited Investor Global Securities (CUSIP No. _________), to be
held with the Depositary.
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that:
[CHECK ONE]
[ ] such transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Securities are being transferred to a person that
the Transferor reasonably believes is purchasing the Securities for its
own account, or for one or more accounts with respect to which such
person exercises sole investment discretion, and such person and each
such account is a "qualified institutional buyer" within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A;
or
B-3-1
<PAGE> 134
[ ] such transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;
or
[ ] such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the
Securities are being transferred in compliance with the transfer
restrictions applicable to the Global Securities and in accordance with
the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or the
transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to the
Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and such Securities are being transferred in compliance with any applicable blue
sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest in
144A Global Securities for a beneficial interest in Institutional Accredited
Investor Global Securities, the resulting beneficial interest shall be subject
to the restrictions on transfer applicable to Institutional Accredited Investor
Global Securities pursuant to the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, the initial purchaser of such Securities
being transferred.
----------------------------
[Insert Name of Transferor]
By:
-------------------------
Name:
Title:
Dated:
-----------------------
cc: Brightpoint, Inc.
B-3-2
<PAGE> 135
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM INSTITUTIONAL ACCREDITED
INVESTOR GLOBAL SECURITY TO 144A GLOBAL SECURITY
(Pursuant to Section 2.11(a)(iv) of the Indenture)
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
Re: Liquid Yield Option Notes due 2018 (Zero Coupon --
Subordinated) of Brightpoint, Inc.
Reference is hereby made to the Indenture, dated as of March 11, 1998
(the "Indenture"), between Brightpoint, Inc. (the "Company") and The Chase
Manhattan Bank, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $_______ principal amount of Securities which
are evidenced by one or more Institutional Accredited Investor Global Securities
(CUSIP No. __________) and held with the Depositary in the name of
______________________ (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Securities to a person who will take
delivery thereof in the form of an equal principal amount of Securities
evidenced by one or more 144A Global Securities (CUSIP No. _________), to be
held with the Depositary.
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that:
[CHECK ONE]
[ ] such transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Securities are being transferred to a
person that the Transferor reasonably believes is purchasing the
Securities for its own account, or for one or more accounts with
respect to which such person exercises sole investment discretion, and
such person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A;
or
B-4-1
<PAGE> 136
[ ] such transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
[ ] such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Securities are being transferred in compliance with the transfer
restrictions applicable to the Global Securities and in accordance
with the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or the
transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to the
Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and such Securities are being transferred in compliance with any applicable blue
sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest in
Institutional Accredited Investor Global Securities for a beneficial interest in
144A Global Securities, the resulting beneficial interest shall be subject to
the restrictions on transfer applicable to 144A Global Securities pursuant to
the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, the initial purchaser of such Securities
being transferred.
----------------------------
[Insert Name of Transferor]
By:
-------------------------
Name:
Title:
Dated:
---------------------------
cc: Brightpoint, Inc.
B-4-2
<PAGE> 137
EXHIBIT B-5
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF CERTIFICATED SECURITIES
(Pursuant to Section 2.11(b) of the Indenture)
_______________________________
_______________________________
_______________________________
Re: Liquid Yield Option Notes due 2018 (Zero Coupon --
Subordinated) of Brightpoint, Inc.
Reference is hereby made to the Indenture, dated as of March 11, 1998
(the "Indenture"), between Brightpoint, Inc. (the "Company") and The Chase
Manhattan Bank,, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with such request and in respect of the Securities
surrendered to the Trustee herewith for exchange (the "Surrendered Securities"),
the Holder of such Surrendered Securities hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Securities are being acquired for the Transferor's own
account, without transfer;
or
[ ] the Surrendered Securities are being transferred to the Company;
or
[ ] the Surrendered Securities are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Securities
are being transferred to a person that the Transferor reasonably
believes is purchasing the Surrendered Securities for its own account,
or for one or more accounts with respect to which such person
exercises sole investment discretion, and such person and each such
account is a "qualified institutional buyer" within the meaning of
Rule 144A, in each case in a transaction meeting the requirements of
Rule 144A;
B-5-1
<PAGE> 138
or
[ ] the Surrendered Securities are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
[ ] the Surrendered Securities are being transferred pursuant to an
effective registration statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Securities are being transferred in compliance with the transfer
restrictions applicable to the Global Securities and in accordance
with the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or the
transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the Company and to the
Registrar, to the effect that such transfer is in compliance with the
Securities Act;
and the Surrendered Securities are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, the initial purchaser of such Securities
being transferred. Terms used in this certificate and not otherwise defined in
the Indenture have the meanings set forth in Regulation S under the Securities
Act.
--------------------------
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated:
----------------
cc: Brightpoint, Inc.
B-5-2
<PAGE> 1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of March 5, 1998 by and between Brightpoint, Inc., a Delaware
corporation (the "Company"), and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, a Delaware corporation (the "Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated of even
date herewith (the "Purchase Agreement"), between the Company and the
Purchaser, which provides for the sale by the Company to the Purchaser of
$335,000,000 aggregate principal amount at maturity of the Company's Liquid
Yield Option(TM) Notes due 2018 (Zero Coupon-Subordinated) (the "LYONs"(TM)) and
the grant by the Company to the Purchaser of the option to purchase all or any
part of an additional $45,000,000 aggregate principal amount at maturity of its
LYONs. In order to induce the Purchaser to enter into the Purchase Agreement,
the Company has 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 parties hereby agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement or Indenture. As used
in this Agreement, the following terms shall have the following meanings:
Closing Date: March 10, 1998, or such other date as may be agreed upon for
the sale and purchase of the LYONs pursuant to the Purchase Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Indenture: The Indenture, to be dated as of March 11, 1998, between
the Company and The Chase Manhattan Bank, as Trustee, pursuant to which the
LYONs are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Person: An individual, partnership, limited liability company, corporation
association, trust, joint venture or any other unincorporated organization or
entity.
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), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any
<PAGE> 2
portion of the Registrable Securities covered by such Registration Statement,
and all other amendments and supplements to the Prospectus, including post-
effective amendments and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Registrable Securities: All LYONs and shares of Common Stock that are
Restricted Securities.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the Company that
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.
Restricted Securities: Any and all LYONs upon original issuance thereof
(and any shares of Common Stock issued upon conversion thereof other than
pursuant to an effective registration statement under the Securities Act) and
at all times subsequent thereto until, as to any Restricted Security, (i) the
sale of such Restricted Security has been effectively registered under the
Securities Act and such Restricted Security has been disposed of in accordance
with the method of distribution set forth in the Registration Statement
relating thereto or (ii) it is distributed to the public, or is otherwise able
to be sold, pursuant to Rule 144(k) (or any similar provision then in force,
but not Rule 144A) under the Securities Act.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Shelf Registration: See Section 3 hereof.
Special Counsel: Mayer, Brown & Platt, special counsel to the Purchaser or
such other special counsel as may be designated by the holders of a majority in
aggregate principal amount at maturity of Registrable Securities outstanding.
TIA: The Trust Indenture Act of 1939, as amended.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Securities. The securities entitled to the benefits of this Agreement
are the Registrable Securities.
(b) Holders of Registrable Securities. A Person is deemed to be a holder
of
2
<PAGE> 3
Registrable Securities whenever such Person beneficially owns
Registrable Securities; provided that only Registrable Securities of holders
who are registered holders of Registrable Securities shall be counted for
purposes of calculating any proportion of holders of Registrable Securities
entitled to take action or give notice pursuant to this Agreement.
SECTION 3. SHELF REGISTRATIONS
(a) Shelf Registrations. As promptly as practicable and in no event later
than 90 days after the date hereof, the Company shall prepare and file with the
SEC a Registration Statement (which may include any previously filed
Registration Statement meeting the requirements set forth herein) under the
Securities Act for an offering to be made on a continuous basis pursuant to
Rule 415 (or any similar rule that may be adopted by the SEC) under the
Securities Act covering all of the Registrable Securities (the "Shelf
Registration").
(b) The 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.
(c) The Company shall use all reasonable efforts to cause the Shelf
Registration to become effective under the Securities Act in accordance with
Section 3(a) hereof and shall keep the Shelf Registration continuously
effective for a period of two years from the Closing Date or such shorter
period that will terminate when all Registrable Securities covered by the Shelf
Registration are no longer Restricted Securities. The Company shall also
supplement or make amendments to any Shelf Registration if required by the
rules, regulations or instructions applicable to the registration form used by
the Company or if required by the Securities Act.
SECTION 4. REGISTRATION PROCEDURES
In connection with the registration obligations pursuant to Section 3
hereof, the Company shall use all reasonable efforts to effect such
registration to permit the sale of such Registrable Securities in accordance
with the then intended method or methods of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC, within the time period specified in
Section 3, a Registration Statement or Registration Statements on any
appropriate form under the Securities Act, which form shall be 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 all
reasonable efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, however, that
before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to the Special Counsel copies of
the Registration Statement or Prospectus and all such documents in the form
proposed to be filed at least three business days prior thereto, which
documents will be subject to the review of the Special Counsel, and the Company
shall not
3
<PAGE> 4
file any such Registration Statement or amendment thereto or any
Prospectus or any supplement thereto to which the Special Counsel shall
reasonably object on a timely basis, unless the Company is advised by its
counsel that such Registration Statement or amendment thereto or any Prospectus
or supplement thereto is required to be filed by applicable law;
(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; 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;
(c) promptly notify the Special Counsel and, with respect to any event
contemplated by clauses (i)(B), (iv), (v), (vi) or (vii) hereof, notify such
holders promptly (and in each case, if requested, confirm any such oral or
telephonic notice in writing), (i) when a Prospectus or any Prospectus
supplement or post-effective amendment related to such Registrable Securities
(A) has been filed, and, (B) with respect to a Registration Statement or any
post-effective amendment related to such Registrable Securities, when the same
has become effective, (ii) of the receipt of any comments from the SEC, (iii)
of any request by the SEC for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iv) of the
issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
(v) if at any time the representations and warranties of the Company contained
in any agreement entered pursuant to paragraph (1) below in connection with the
sale of Restricted Securities by selling holders thereof cease to be true and
correct, (vi) 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 or exchange in any jurisdiction of the
United States of America or the initiation of any proceeding for such purpose,
(vii) of the happening of any event that makes any statement of a material fact
made in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue or that
requires the making of any changes in a Registration Statement or related
Prospectus so that such documents 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 light of the circumstances
under which they were made, not misleading (provided that the timely filing of
a report under the Exchange Act which is incorporated by reference in the
Registration Statement and related Prospectus shall constitute effective notice
under this subsection (vii)), and (viii) of the determination of the Company
that a post-effective amendment to a Registration Statement would be
appropriate;
(d) use every reasonable effort 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 or exchange in any jurisdiction of the United
States of America, as promptly as practicable;
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<PAGE> 5
(e) if reasonably requested by any holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as such holder
reasonably requests to be included therein as is required by applicable law,
(ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Company has received notification of
the matters to be incorporated in such Prospectus supplement or such
post-effective amendment, and (iii) supplement or make amendments to any
Registration Statement as is required by applicable law;
(f) furnish to each selling holder of Registrable Securities upon request,
and the Special Counsel, without charge, at least one conformed copy of the
Registration Statement or Statements and any post-effective amendment thereto,
including financial statements and schedules, without charge, as well as all
documents incorporated therein by reference or deemed incorporated therein by
reference and all exhibits (including those previously furnished or
incorporated by reference) (provided that the Company may charge such holders
reasonable duplication costs for copies of any exhibit that is not specifically
incorporated by reference in the document to which it is an exhibit), at the
earliest practicable time under the circumstances after the filing of such
documents with the SEC;
(g) deliver to each selling holder of Registrable Securities and the
Special Counsel, without charge, as many copies of the Prospectus or
Prospectuses (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; the Company consents
to the use of such Prospectus or any amendment or supplement thereto in
accordance with applicable law by each of the selling holders of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(h) prior to any public offering of Registrable Securities, use all
reasonable efforts to register or qualify or cooperate with the selling
holders of Registrable Securities 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, as the case
may be, under the securities or Blue Sky laws of such state or local
jurisdictions in the United States as any seller 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, however, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (iii) register or qualify securities prior to the
effective date of any Registration Statement under Section 3 hereof;
(i) cooperate with the selling holders of Registrable Securities to
facilitate the
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<PAGE> 6
timely preparation and delivery of certificates representing Registrable
Securities, which certificates shall not bear any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered
in such names, in all cases consistent with the requirements set forth in the
Indenture, as the holders may request;
(j) subject to the exceptions contained in (i), (ii) and (iii) of
subsection (h) hereof, use all reasonable efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other Federal, state and local governmental regulatory
agencies or authorities in the United States as may be necessary, by virtue of
the business and operations of the Company, to enable the seller or sellers
thereof to consummate the disposition of such Registrable Securities and
cooperate with each seller of Registrable Securities in connection with any
filings required to be made with the National Association of Securities
Dealers, Inc.;
(k) upon the occurrence of any event contemplated by paragraph 4(c)(vii)
or 4(c)(viii) above, as promptly as practicable thereafter, prepare and file
with the SEC a supplement or post-effective amendment to the applicable
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the 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;
(l) enter into such customary agreements and take all such other actions
in connection therewith (including those reasonably requested by the holders of
a majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities; provided, however,
that the Company shall not be required to enter into an underwriting agreement
in connection with any such disposition;
(m) cause the Indenture to be qualified under the TIA not later than the
effective date of any Registration Statement; and in connection therewith,
cooperate with the Trustee to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use all reasonable efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the Indenture
to be so qualified in a timely manner; and
(n) comply with all applicable rules and regulations of the SEC and make
generally available to the Company's securityholders an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder no later than the date required for the filing of the applicable
forms referred to in Rule 158 under the Exchange Act, commencing on the first
day of the first fiscal quarter of the Company commencing after the effective
date of a Registration Statement, which statement shall cover said 12-month
period.
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<PAGE> 7
Purchaser shall, as a condition to the sale of any Registrable Security,
require the holder to whom such Registrable Security is sold to agree to be
bound by this Agreement with respect to the obligations of holders of
Registrable Securities set forth herein. The Company may require each selling
holder of Registrable Securities under a Shelf Registration to furnish to the
Company such information regarding such selling holder and the distribution of
such Registrable Securities, including the information specified in Item 507 of
Regulation S-K under the Securities Act, as the Company may from time to time
reasonably request in writing, and each holder in acquiring such Registrable
Securities agrees to supply such information to the Company promptly upon such
request.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that (i) such holder will promptly (and in any case
within two business days after completion of such sale or distribution) notify
the Company following any sale of Registrable Securities under a Shelf
Registration or distribution to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A under the Securities Act)
and (ii) upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 4(c)(iii), 4(c)(iv), 4(c)(vi), or
4(c)(vii) hereof, such holder will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or Prospectus and
will not resume disposition of such Registrable Securities until such holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 4(k) hereof, or until it is advised in writing by the Company that the
use of the applicable Prospectus may be resumed and has received copies of the
Registration Statement and Prospectus and any additional or supplemental
filings that are incorporated or deemed to be incorporated by reference in such
Prospectus.
SECTION 5. REGISTRATION EXPENSES
The Company shall pay all fees and expenses incurred by it or Purchaser
incident to the performance of or compliance with this Agreement by the Company
including, without limitation, (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or Blue Sky laws (including reasonable fees and disbursements of counsel for
any underwriters or holders in connection with Blue Sky qualification of any
of the Registrable Securities), (iii) all expenses in preparing or assisting in
preparing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, other documents relating to
the Company's performance of and compliance with this Agreement, and (iv) all
rating agency fees but excluding fees of any special accountants retained by
the selling holders, counsel to the underwriters and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a holder of Registrable Securities.
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<PAGE> 8
SECTION 6. INDEMNIFICATION; CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless the Purchaser and
each holder of Registrable Securities and each person, if any, who controls the
Purchaser or any holder of Registrable Securities within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
reasonable expense (including the reasonable fees and disbursements of
counsel) whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of 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 or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
reasonable expense (including the reasonable fees and disbursements of
counsel) whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Purchaser or such holder of Registrable Securities (which also acknowledges the
indemnity provisions herein) and each person, if any, who controls the
Purchaser or any such holder of Registrable Securities expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
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<PAGE> 9
(b) In connection with any Shelf Registration in which a holder,
including, without limitation, the Purchaser, of Registrable Securities is
participating, in furnishing information relating to such holder of Registrable
Securities to the Company in writing expressly for use in such Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto, the holders of such Registrable Securities agree,
severally and not jointly, to indemnify and hold harmless the Purchaser and
each person, if any, who controls the Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act and the
Company, its directors and officers who sign a Registration Statement and each
person, if any, who controls the Company within the meaning of either such
Section, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such holder of Registrable
Securities (which also acknowledges the indemnity provisions herein) and each
person, if any, who controls any such holder of Registrable Securities
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
The Purchaser agrees to indemnify and hold harmless the Company, the
holders of Registrable Securities, the directors of the Company, the officers
of the Company who sign the Registration Statement and each person, if any, who
controls the Company or any holder of Registrable Securities within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Purchaser expressly for use in the Registration Statement
(or any amendment thereto) or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any
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<PAGE> 10
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 Purchaser and all persons, if any, who control the
Purchaser 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 the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either such Section and (c)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all holders of Registrable Securities and all persons, if any, who
control any holders of Registrable Securities within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In such case involving the Purchaser and control persons of the
Purchaser, such firm shall be designated in writing by the Purchaser and shall
be reasonably acceptable to the Company. In such case involving the holders of
Registrable Securities and such controlling persons of holders of Registrable
Securities, such firm shall be designated in writing by holders of a majority
in aggregate principal amount at maturity of Registrable Securities. In all
other cases, such firm shall be designated by the Company. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested, in writing,
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 6 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable
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considerations.
The relative fault of the Company on the one hand and the holders of the
Registrable Securities or the Purchaser on the other hand shall be determined
by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the holder
of the Registrable Securities or the Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 6(e). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred
by an indemnified party and referred to above in this Section 6(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission.
Notwithstanding the provisions of this Section 6, no holder of Registrable
Securities shall be required to indemnify or contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such holder of Registrable Securities and distributed to the public were
offered to the public exceeds the amount of any damages that such holder of
Registrable Securities 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.
For purposes of this Section 6(e), each person, if any, who controls the
Purchaser or any holder of Registrable Securities within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the
same rights to contribution of such Purchaser or holder, and each director
of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company.
SECTION 7. MISCELLANEOUS
(a) Remedies. In the event of a breach by the Company of any 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
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performance of its rights under this Agreement. 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, they shall waive the defense that a remedy at law would
be adequate.
(b) No Inconsistent Agreements. The Company shall not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented
(other than to cure any ambiguity or correct or supplement any provision
herein), 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 aggregate principal amount at maturity of
Registrable Securities, except in the case of the Purchaser prior to
distribution of the LYONs to the holders, then the consent of the Purchaser.
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 in aggregate principal amount at maturity of the
Registrable Securities being sold by such holders.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, or telecopier:
(i) 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 this Section 8(d), except with respect to the
Purchaser prior to distribution of the LYONs, then to the Purchaser at
the address set forth on the first page of the Purchase Agreement,
attention of Michael O'Grady, (fax: (312) 906-6262), with a copy to
Michael A. Campbell, Mayer, Brown & Platt, 190 South LaSalle Street,
Chicago, Illinois 60603 (fax: (312) 701-7711); and
(ii) if to the Company, to Brightpoint, Inc., 6402 Corporate
Drive, Indianapolis, Indiana 46728, attention of Steven E. Fivel (fax:
(317) 387-5479), with a copy to Elise M. Adams, Tenzer Greenblatt LLP,
405 Lexington Ave., New York, New York 10174 (fax: (212) 885-5001), and
thereafter by such other address, notice of which is given in
accordance with the provision of this Section 8(d).
All such notices and communications shall be deemed to have been duly
given: when
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delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; one business day after being
sent by next-day delivery by a solvent air courier; when answered back, if
telexed; and when receipt acknowledged, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent holders of Registrable Securities.
(f) 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 an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, 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, 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, void or unenforceable.
(j) 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. 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 securities sold pursuant to the Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
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(k) Securities Held by the Company or its Affiliates; Calculation of
Percentage of Registrable Securities. Whenever the consent or approval of
holders of a specified percentage of Registrable Securities is required
hereunder, (i) Registrable Securities held by the Company or any of its
affiliates shall not be counted in determining whether such consent or approval
was given by the holders of such required percentage or amount and (ii) any
shares of Common Stock that are included among the outstanding Registrable
Securities, or the applicable portions thereof, shall be deemed, subject to the
terms of clause (i) above, to represent the principal amount at maturity of
LYONs from which such shares were converted at the time of such conversion.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BRIGHTPOINT, INC.
By /s/ Robert J. Laikin
----------------------------
Name: Robert J. Laikin
Title: Chairman of the Board
and Chief Executive Officer
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By /s/ Michael G. O'Grady
----------------------------
Name: Michael G. O'Grady
Title: Vice President
14
<PAGE> 1
EXECUTION COPY
AMENDMENT NO. 2
TO MULTICURRENCY CREDIT AGREEMENT
Dated as of February 25, 1998
THIS AMENDMENT NO. 2 TO MULTICURRENCY CREDIT AGREEMENT ("AMENDMENT") is
made as of February 25, 1998 by and among BRIGHTPOINT, INC. ("BRIGHTPOINT"),
BRIGHTPOINT INTERNATIONAL LTD., the subsidiary borrowers from time to time
party thereto (collectively, the "BORROWERS"), the guarantors from time to time
party thereto (the "GUARANTORS"), the financial institutions listed on the
signature pages hereof as lenders (the "LENDERS"), BANK ONE, INDIANA, NATIONAL
ASSOCIATION, in its individual capacity as a Lender and as syndication agent
(the "SYNDICATION AGENT"), and THE FIRST NATIONAL BANK OF CHICAGO, in its
individual capacity as a Lender and as administrative agent (the
"ADMINISTRATIVE AGENT"; and together with the Syndication Agent, the "AGENTS")
on behalf of the Lenders under that certain Multicurrency Credit Agreement
dated as of June 24, 1997 by and among the Borrowers, the Guarantors, the
Lenders and the Agents, as amended by that certain Waiver and Amendment No. 1
dated as of November 15, 1997 and by the letter agreement dated August 8, 1997,
(as so modified, and as further amended, modified or restated, the "CREDIT
AGREEMENT"). Defined terms used herein and not otherwise defined herein shall
have the meaning given to them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrowers, the Guarantors, the Lenders and the Agents are
parties to the Credit Agreement;
WHEREAS, Brightpoint has informed the Lenders of its intention to issue
certain Liquid Yield Option (TM) Notes ("LYONS"(TM));
WHEREAS, the Borrowers have requested that the Lenders amend the Credit
Agreement in respect of the proposed issuance of the LYONS; and
WHEREAS, the Lenders and the Agents are willing to amend the Credit
Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Borrowers, the Guarantors, the Lenders and the Agents have agreed to the
following amendments to the Credit Agreement.
1. Amendments to Credit Agreement. Effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 2
below, the Credit Agreement is hereby amended as follows:
<PAGE> 2
1.1 Section 1.1 of the Credit Agreement is hereby amended to add the
following definitions thereto in the appropriate alphabetical order:
"INDENTURE" means that certain Indenture by and between Brightpoint and
the "Trustee" party thereto, pursuant to which the LYONS shall be issued, as
amended, supplemented or modified in accordance with Section 6.3 (R) hereof.
"LYONS"(TM) means those certain Liquid Yield Option(TM) Notes due 2018
(Zero Coupon -- Subordinated), issued by Brightpoint pursuant to the Indenture,
as the same may be amended, supplemented or modified in accordance with Section
6.3 (R) hereof.
"PERMITTED SUBORDINATED INDEBTEDNESS" means the Indebtedness evidenced by
the LYONS.
1.2 Section 6.3 (A) of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (h) thereof, inserting the text
set forth below immediately after clause (h) thereof, and restating the
existing clause (i) as a new clause (j):
"(i) Permitted Subordinated Indebtedness in an aggregate original
issued principal amount not greater than $180,000,000 provided (A) the LYONS
and the Indenture are in form and substance reasonably satisfactory to the
Agents and (B) all of the net cash proceeds from each issuance of LYONS are
paid to the Administrative Agent to repay the outstanding principal amount of
the Loans (provided net cash proceeds in excess of the outstanding principal
balance of the Loans need not be paid to the Adminstrative Agent), with the
payments being made (1) on the date of the closing of the LYONS transaction in
an amount equal to the principal amount of all outstanding Floating Rate Loans
and (2) thereafter at the end of each Interest Period with respect to maturing
Fixed Rate Loans; and".
1.3 A new Section 6.3 (R) shall be inserted immediately after Section
6.3 (Q) of the Credit Agreement and shall read in its entirety as follows:
(R) Subordinated Indebtedness. Brightpoint shall not and shall not
permit any Subsidiary to, amend, supplement or modify the terms of any
Permitted Subordinated Indebtedness, including without limitation, the LYONS or
the Indenture, or make any payment required as a result of an amendment or
change thereto other than amendments, supplements or modifications which (i)
decrease the rate of interest payable on the Permitted Subordinated
Indebtedness, (ii) provide for the payment in kind in lieu of cash of any
portion of the interest on the Permitted Subordinated Indebtedness, (iii)
provide for the extension of the maturity date with respect to any principal or
interest payment to be made under the instruments evidencing Permitted
Subordinated Indebtedness, (iv) provide more flexibility to Brightpoint or its
Subsidiaries in connection with any financial covenants, (v) waive any defaults
existing in connection with the Permitted Subordinated Indebtedness, and (vi)
do not adversely affect in any respect the interests of the Administrative
Agent or the Lenders.
2
<PAGE> 3
2. Conditions of Effectiveness. This Amendment shall become effective and
be deemed effective as of the date hereof, if, and only if, the Administrative
Agent shall have received duly executed originals of this Amendment from the
Borrowers, the Guarantors and the Required Lenders.
3. Representations and Warranties of the Borrowers. As of the
effectiveness of this Amendment and after giving effect to the issuance of the
LYONS and the application of the proceeds thereof, the Borrowers hereby
represent and warrant:
(a) This Amendment and the Credit Agreement as previously executed and
as amended hereby, constitute legal, valid and binding obligations of the
Borrowers and are enforceable against the Borrowers in accordance with their
terms.
(b) Upon the effectiveness of this Amendment, the Borrowers hereby
reaffirm all representations and warranties made in the Credit Agreement and
other Loan Documents, and agree that all such representations and warranties
shall be deemed to have been remade as of the effective date of this Amendment.
5. Reference to the Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import shall mean and be a
reference to the Credit Agreement, as amended previously and as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all
other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Administrative Agent or any of the Lenders, nor
constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
6. Costs and Expenses. The Borrowers agree to pay all reasonable costs,
fees and out-of-pocket expenses (including attorneys' fees and expenses charged
to the Administrative Agent) incurred by the Administrative Agent in connection
with the preparation, arrangement, execution and enforcement of this Amendment.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAW
PROVISIONS) OF THE STATE OF ILLINOIS.
3
<PAGE> 4
8. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
9. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A facsimile transmission of a counterpart hereof transmitted to
the Administrative Agent or its counsel shall be effective as an original.
10. No Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Amendment, the Credit Agreement and the
other Loan Documents. In the event an ambiguity or question of intent or
interpretation arises, this Amendment, the Credit Agreement and the other Loan
Documents shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Amendment, the Credit
Agreement or any of the other Loan Documents.
11. Reaffirmation of Guaranties and other Loan Documents. Each of the
Guarantors, without in any way establishing a course of dealing, as evidenced
by its signature below, hereby consents to the execution and delivery of this
Amendment by the parties hereto, (ii) agrees that this Amendment shall not
limit or diminish the obligations of such Guarantor under the Credit Agreement
or any other Loan Documents, (iii) reaffirms its obligations under the Credit
Agreement and other Loan Documents, and (iv) agrees that such obligations
remain in full force and effect and is hereby ratified and confirmed.
4
<PAGE> 5
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first above written.
BRIGHTPOINT, INC.
as a Borrower and Guarantor
By: /s/ Steven E. Fivel
---------------------------
Name: Steven E. Fivel
Title: E.V.P., General Counsel and Secretary
BRIGHTPOINT INTERNATIONAL LTD.
as a Borrower and Guarantor
By: /s/ Steven E. Fivel
---------------------------
Name: Steven E. Fivel
Title: E.V.P., General Counsel and Secretary
BRIGHTPOINT (UK) LIMITED,
as a Subsidiary Borrower and Guarantor
By: /s/ Steven E. Fivel
---------------------------
Name: Steven E. Fivel
Title: Authorized Signatory
BRIGHTPOINT AUSTRALIA PTY. LIMITED,
as a Subsidiary Borrower and Guarantor
By: /s/ Steven E. Fivel
---------------------------
Name: Steven E. Fivel
Title: Authorized Signatory
BRIGHTPOINT CHINA LIMITED,
as a Subsidiary Borrower and Guarantor
By: /s/ Steven E. Fivel
---------------------------
Name: Steven E. Fivel
Title: Authorized Signatory
<PAGE> 6
BRIGHTPOINT EMA LIMITED,
as a Guarantor
By: /s/ Steven E. Fivel
-----------------------------
Name: Steven E. Fivel
Title: Authorized Signatory
BRIGHTPOINT AUSTRALASIA PTY. LIMITED,
as a Guarantor
By: /s/ Steven E. Fivel
-----------------------------
Name: Steven E. Fivel
Title: Authorized Signatory
BRIGHTPOINT INTERNATIONAL (ASIA PACIFIC)
PTE LTD., as a Guarantor
By: /s/ Steven E. Fivel
-----------------------------
Name: Steven E. Fivel
Title: Authorized Signatory
BRIGHTPOINT F.S.C. INC., as a Guarantor
By: /s/ Steven E. Fivel
-----------------------------
Name: Steven E. Fivel
Title: Authorized Signatory
RPS INDUSTRIES COMPANY LIMITED, as a
Guarantor
By: /s/ Steven E. Fivel
-----------------------------
Name: Steven E. Fivel
Title: Authorized Signatory
<PAGE> 7
THE FIRST NATIONAL BANK OF CHICAGO
as the Administrative Agent, an Issuing Lender, the
Swing Line Lender, an Alternate Currency Agent
and as a Lender
By: /s/ Leo G. Watson, Jr.
-----------------------------------------------------
Name: Leo G. Watson, Jr.
Title: Vice President
BANK ONE, INDIANA, NATIONAL ASSOCIATION
as the Syndication Agent, an Issuing Lender and as a
Lender
By: /s/ William D. Herrick
-----------------------------------------------------
Name: William D. Herrick
Title: Senior Vice President
BANK BOSTON, N.A.
as a Lender
By: /s/ Robert W. MacElhiney
-----------------------------------------------------
Name: Robert W. MacElhiney
Title: Vice President
CORESTATES BANK, N.A.
as a Lender
By:
-----------------------------------------------------
Name:
Title:
SUNTRUST BANK OF CENTRAL FLORIDA,
NATIONAL ASSOCIATION
as a Lender
By: /s/ C.A. Black
-----------------------------------------------------
Name: Christopher A. Black
Title: Vice President
THE BANK OF NOVA SCOTIA
as a Lender
By: /s/ F.C.E. Ashby
-----------------------------------------------------
Name: F.C.E. Ashby
Title: Senior Manager Loan Operations
<PAGE> 8
CREDIT LYONNAIS CHICAGO BRANCH
as a Lender
By: /s/ Lee E. Greve
---------------------------
Name: Lee E. Greve
Title: First Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
as a Lender
By: /s/ Hajime Watanabe
---------------------------
Name: Hajime Watanabe
Title: Deputy General Manager
THE FUJI BANK, LIMITED
as a Lender
By:
---------------------------
Name:
Title:
