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EXHIBIT 4.1
EXECUTION COPY
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TRANSWITCH CORPORATION
And
STATE STREET BANK AND TRUST COMPANY
as Trustee
INDENTURE
__________________________
Dated as of September 12, 2000
__________________________
4 1/2% Convertible Notes due 2005
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TABLE OF CONTENTS
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ARTICLE 1 Definitions and Other Provisions of General Application.............................................................. 1
SECTION 1.01. Definitions.............................................................................................. 1
SECTION 1.02. Other Definitions........................................................................................ 7
SECTION 1.03. Compliance Certificates and Opinions..................................................................... 8
SECTION 1.04. Form of Documents Delivered to Trustee................................................................... 8
SECTION 1.05. Acts of Holders.......................................................................................... 9
SECTION 1.06. Notices, Etc............................................................................................. 11
SECTION 1.07. Notice to Holders; Waiver................................................................................ 11
SECTION 1.08. Effect of Headings and Table of Contents................................................................. 12
SECTION 1.09. Successors and Assigns................................................................................... 12
SECTION 1.10. Separability Clause...................................................................................... 12
SECTION 1.11. Benefits of Indenture.................................................................................... 12
SECTION 1.12. Governing Law............................................................................................ 12
SECTION 1.13. Legal Holidays........................................................................................... 12
SECTION 1.14. Personal Immunity from Liability for Incorporators, Stockholders, Etc.................................... 13
SECTION 1.15. Conflict with Trust Indenture Act........................................................................ 13
ARTICLE 2 Securities Forms..................................................................................................... 13
SECTION 2.01. Forms of Securities...................................................................................... 13
SECTION 2.02. Form of Trustee's Certificate of Authentication.......................................................... 13
SECTION 2.03. Securities Issuable in Global Form....................................................................... 14
ARTICLE 3 The Securities....................................................................................................... 15
SECTION 3.01. Title and Term........................................................................................... 15
SECTION 3.02. Denominations............................................................................................ 15
SECTION 3.03. Execution, Authentication, Delivery and Dating........................................................... 15
SECTION 3.04. Registration, Registration of Transfer and Exchange...................................................... 16
SECTION 3.05. Mutilated, Destroyed, Lost and Stolen aecurities......................................................... 21
SECTION 3.06. Payment of Interest; Interest Rights Preserved........................................................... 22
SECTION 3.07. Persons Deemed Owners.................................................................................... 23
SECTION 3.08. Cancellation............................................................................................. 24
SECTION 3.09. Computation of Interest.................................................................................. 24
SECTION 3.10. Cusip Numbers............................................................................................ 24
ARTICLE 4 Remedies............................................................................................................. 25
SECTION 4.01. Events of Default........................................................................................ 25
SECTION 4.02. Acceleration of Maturity; Rescission and Annulment....................................................... 26
SECTION 4.03. Collection of Indebtedness and Suits for Enforcement by Trustee.......................................... 27
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SECTION 4.04. Trustee May File Proofs of Claim........................................................................ 28
SECTION 4.05. Trustee May Enforce Claims Without Possession of Securities............................................. 29
SECTION 4.06. Application of Money Collected.......................................................................... 29
SECTION 4.07. Limitation on Suits..................................................................................... 30
SECTION 4.08. Unconditional Right of Holders to Receive Principal, Premium, If Any, and Interest...................... 30
SECTION 4.09. Restoration of Rights and Remedies......................................................................
SECTION 4.10. Rights and Remedies Cumulative.......................................................................... 31
SECTION 4.11. Delay or Omission Not Waiver............................................................................ 31
SECTION 4.12. Control by Holders of Securities........................................................................ 31
SECTION 4.13. Waiver of Past Defaults................................................................................. 32
SECTION 4.14. Waiver Of Usury, Stay or Extension Laws................................................................. 32
SECTION 4.15. Undertaking for Costs................................................................................... 32
ARTICLE 5 The Trustee......................................................................................................... 33
SECTION 5.01. General................................................................................................. 33
SECTION 5.02. Certain Rights of Trustee............................................................................... 33
SECTION 5.03. Individual Rights of Trustee............................................................................ 35
SECTION 5.04. Trustee's Disclaimer.................................................................................... 35
SECTION 5.05. Notice of Default....................................................................................... 35
SECTION 5.06. Conflicting Interests of Trustee........................................................................ 35
SECTION 5.07. Compensation and Indemnity.............................................................................. 36
SECTION 5.08. Replacement of Trustee.................................................................................. 36
SECTION 5.09. Successor Trustee by Merger, Etc........................................................................ 37
SECTION 5.10. Eligibility............................................................................................. 37
SECTION 5.11. Money Held in Trust..................................................................................... 38
SECTION 5.12. Preferential Collection of Claims....................................................................... 38
SECTION 5.13. Trustee's Application for Instructions from the Company; Liquidated Damages............................. 38
ARTICLE 6 Holders' Lists and Reports By Trustee and Company................................................................... 39
SECTION 6.01. Disclosure of Names and Addresses of Holders............................................................ 39
SECTION 6.02. Reports by Trustee...................................................................................... 39
SECTION 6.03. Reports by Company...................................................................................... 39
SECTION 6.04. Company to Furnish Trustee Names and Addresses of Holders............................................... 40
ARTICLE 7 Consolidation, Merger, Sale, Lease or Conveyance.................................................................... 40
SECTION 7.01. Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain
Conditions.............................................................................................. 40
SECTION 7.02. Rights and Duties of Successor Corporation.............................................................. 41
SECTION 7.03. Officers' Certificate and Opinion of Counsel............................................................ 41
ARTICLE 8 Supplemental Indentures............................................................................................. 41
SECTION 8.01. Supplemental Indentures Without Consent of Holders...................................................... 41
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SECTION 8.02. Supplemental Indentures with Consent of Holders......................................................... 42
SECTION 8.03. Execution of Supplemental Indenture..................................................................... 43
SECTION 8.04. Effect of Supplemental Indentures....................................................................... 43
SECTION 8.05. Conformity with Trust Indenture Act..................................................................... 44
SECTION 8.06. Reference in Securities to Supplemental Indentures...................................................... 44
ARTICLE 9 Covenants........................................................................................................... 44
SECTION 9.01. Payment of Principal, Premium, If Any, and Interest..................................................... 44
SECTION 9.02. Maintenance of Office or Agency......................................................................... 44
SECTION 9.03. Money for Securities Payments to Be Held in Trust....................................................... 45
SECTION 9.04. Existence............................................................................................... 46
SECTION 9.05. Payment of Taxes and Other Claims....................................................................... 46
SECTION 9.06. Statement as to Compliance; Notice of Default........................................................... 46
SECTION 9.07. Waiver of Certain Covenants............................................................................. 47
SECTION 9.08. Rule 144a Information Requirement....................................................................... 47
ARTICLE 10 Redemption Of Securities........................................................................................... 47
SECTION 10.01. Provisional and Optional Redemption by the Company...................................................... 47
SECTION 10.02. Election to Redeem; Notice to Trustee................................................................... 48
SECTION 10.03. Selection by Trustee of Securities to Be Redeemed....................................................... 49
SECTION 10.04. Notice of Redemption.................................................................................... 49
SECTION 10.05. Deposit of Redemption Price............................................................................. 51
SECTION 10.06. Securities Payable on Redemption Date................................................................... 51
SECTION 10.07. Securities Redeemed in Part............................................................................. 51
ARTICLE 11 Repurchase At Option Of Holders Upon Change In Control............................................................. 52
SECTION 11.01. Right to Require Repurchase............................................................................. 52
SECTION 11.02. Notices; Method of Exercising Repurchase Right, Etc..................................................... 52
SECTION 11.03. Certain Definitions..................................................................................... 54
SECTION 11.04. Change in Control....................................................................................... 55
ARTICLE 12 Conversion......................................................................................................... 56
SECTION 12.01. Conversion Privilege, Conversion Rate and Conversion Price.............................................. 56
SECTION 12.02. Exercise of Conversion Privilege........................................................................ 56
SECTION 12.03. Fractions of Shares..................................................................................... 58
SECTION 12.04. Adjustment of Conversion Rate........................................................................... 58
SECTION 12.05. Notice of Adjustments of Conversion Rate................................................................ 64
SECTION 12.06. Notice of Certain Corporate Action...................................................................... 64
SECTION 12.07. Company's Obligation Regarding Common Stock............................................................. 65
SECTION 12.08. Taxes on Conversions.................................................................................... 65
SECTION 12.09. Covenant as to Common Stock............................................................................. 66
SECTION 12.10. Cancellation of Converted Securities.................................................................... 66
SECTION 12.11. Provisions in Case of Reclassification, Consolidation, Merger or Sale of Assets......................... 66
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SECTION 12.12. Company's Obligation.................................................................................... 67
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SIGNATURES
EXHIBIT A - FORM OF SECURITY
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INDENTURE, dated as of September 12, 2000, between TRANSWITCH CORPORATION,
a Delaware corporation (the "Company"), having its principal office at 3
Enterprise Drive, Shelton, Connecticut 06484 and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company, as Trustee hereunder (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the issue of its 4 1/2% Convertible Notes
due 2005 (the "Securities"), and to provide for such issuance, the Company has
duly authorized the execution and delivery of this Indenture.
Upon qualification of this Indenture under the Trust Indenture Act of 1939
(the "TIA"), it shall be subject to the provisions of such Act that are deemed
to be incorporated into this Indenture and shall, to the extent applicable, be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all the holders of the Securities, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular, and
references to he or him or she or her are intended to be gender neutral;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them therein;
(3) the word "including" means "including without limitation," and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.05.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"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.
"Bankruptcy Law" has the meaning specified in Section 4.01.
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"Board of Directors" means the board of directors of the Company, the
executive committee of that board or any committee of that board duly authorized
to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the City of New York or a
city in which the Corporate Trust Office is located or, when used with respect
to any Place of Payment, such Place of Payment, are authorized or obligated by
law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after execution of this instrument such Commission is not existing and
performing substantially the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" means the common stock of the Company, $0.001 par value, as
it exists on the date of this Indenture and any shares of any class or classes
of capital stock of the Company resulting from any reclassification or
reclassifications thereof.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman of the Board of
Directors, the Chief Executive Officer, the President, the Chief Financial
Officer or a Vice President of the Company and any of the
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foregoing or any Assistant Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
"Conversion Agent" means any Person authorized by the Company pursuant to
Section 9.02 to convert Securities in accordance with Article 12.
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"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business as it relates to this Indenture
shall be principally administered and as to which notice to that effect has been
delivered to the Company and the Holders in accordance with the provisions
hereof, which office at the date hereof is located at State Street Bank and
Trust Company, 2 Avenue de Lafayette, Boston, MA 02111-1724, Attention:
Corporate Trust/LCC6.
"corporation" means a corporation, association, partnership, company
(including limited liability company), joint-stock company or business trust.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company.
"Government Obligations" means securities that are (i) direct obligations
of the United States of America, for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which is not callable or redeemable
at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of any
such Government Obligation held by such custodian for the account of the holder
of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depository receipt.
"Holder" means the Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Initial Purchasers" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Robertson Stephens, Inc. and Banc of America Securities LLC.
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"Interest Payment Date" means, with respect to any Security, the Stated
Maturity of an installment of interest on such Security.
"Liquidated Damages" means additional interest that may accrue on the
Securities and be payable to Holders pursuant to and in accordance in each case
with the terms of the Registration Rights Agreement.
"Maturity" means the date on which the principal of the Securities becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
upon conversion or by declaration of acceleration, notice of redemption, notice
of option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, the President or a Vice President and by any of the
foregoing or the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or who may be an employee of or other counsel for the Company
and who shall be reasonably satisfactory to the Trustee.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder, money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities that have been paid pursuant to Section 3.05 or in
----
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(iv) Securities converted into Common Stock pursuant to or in
accordance with this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice,
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consent or waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required by TIA Section
313, Securities owned by the Company or any other obligor upon the Securities
under a supplemental indenture entered into in accordance herewith or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities that the Trustee knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities under a supplemental
indenture entered into in accordance herewith or any Affiliate of the Company or
of such other obligor.
"Paying Agent" means any Person (including the Company) authorized by the
Company to pay the principal of (and premium, if any) or interest (including any
Liquidated Damages) on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means the place or places where the principal of (and
premium, if any), interest on (including any Liquidated Damages) and the
Redemption Prices and the Repurchase Price with respect to the Securities are
payable as specified by Section 9.02.
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"Predecessor Security" means, with respect to any Security, every previous
Security evidencing all or a portion of the same debt as that evidenced by such
Security; and, for the purposes of this definition, any Security authenticated
and delivered under Section 3.05 in exchange for or in lieu of a mutilated,
----
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date," when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," means the Optional Redemption Price, in the event of an
Optional Redemption, or the Provisional Redemption Price, in the event of a
Provisional Redemption, as the case may be.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of September 12, 2000, among the Company and the Initial Purchasers.
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"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities means the date specified for that purpose as contemplated by
Section 3.06, whether or not a Business Day.
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"Responsible Officer," when used with respect to the Trustee, means any
senior vice president, any vice president, any assistant vice president, any
assistant secretary, or other officer of the Trustee working in its Corporate
Trust division, or any other officer of the Trustee working in its Corporate
Trust Division and customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Rule 144A" shall mean Rule 144A as promulgated under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture.
"Significant Subsidiary" means any Subsidiary that is a "significant
subsidiary" (as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities means a date fixed by the Trustee pursuant to Section 3.06.
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"Stated Maturity" means the date specified in the Securities as the fixed
date on which the principal of, or interest on, such Securities is due and
payable.
"Subsidiary" means a corporation a majority of the outstanding voting
securities of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries of the Company, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting securities"
means shares, interests, participations or other equivalents of corporate stock,
partnership or limited liability company interests or any other participation,
right or other interest in the nature of an equity interest that ordinarily have
voting power for the election of directors, managers or trustees, whether at all
times or only so long as no senior class of equity interest has such voting
power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, and
the rules and regulations promulgated thereunder, as in force on the date this
Indenture is qualified thereunder; provided, however, that in the event the
Trust Indenture Act of 1939 or such rules and regulations are amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 and such rules and regulations as so amended.
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"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder.
"United States" means the United States of America (including the states
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
SECTION 1.02. Other Definitions.
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Defined in
Term Section
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"Act" 1.05
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"Average Sale Price" 12.04
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"Bankruptcy Law" 4.01
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"Change in Control" 11.04
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"Change in Control Purchase Notice" 11.02
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"Closing Price" 12.03
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"Commencement Date" 12.04
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"Company Notice" 11.02
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"Conversion Price" 12.01
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"Conversion Rate" 12.01
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"Current Event" 12.04
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"Custodian" 4.01
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"Defaulted Interest" 3.06
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"Event of Default" Article 4
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"Ex-Dividend Time" 12.04
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"Expiration Time" 12.04
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"Indemnities" 5.07
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"Make-Whole Payment" 10.01
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"Material Adverse Effect" 9.04
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"Notice Date" 10.01
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"Notice of Default" 4.01
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"Optional Redemption" 10.01
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"Other Event" 12.04
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"Provisional Redemption" 10.01
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"Provisional Redemption Date" 10.01
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"Purchased Shares" 12.04
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"Redeemable Capital Stock" 11.04
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"Reference Date" 12.04
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"Repurchase Date" 11.01
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"Repurchase Price" 11.01
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"Restricted Securities" 3.04
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"Security Register" 3.04
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"Security Registrar" 3.04
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"Time of Determination" 12.04
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"Trading Day" 12.03
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Section 1.03. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.04. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which such certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the
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Company, unless such counsel knows that the certificate or opinion or
representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.05. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section 1.05.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of the Securities shall be proved by the Security
Register.
(d) (i) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, in or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to effect such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so; provided that the Company shall not
be entitled to set a record date for, and the provisions of this paragraph shall
not apply with respect to, the giving or making of any notice, declaration,
request or direction referred to in clause 1.05(d)(iii) below. Notwithstanding
------------
TIA Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be effected before or after such record date,
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<PAGE>
but only the Holders of record at the close of business on such record date
shall be deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(ii) Subject to clause 1.05(d)(iii) below, in the absence of
------------
any such record date fixed by the Company, regardless as to whether any
solicitation of the Holders is occurring on behalf of the Company or any Holder,
the Trustee may, at its option, fix in advance a record date for the
determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Trustee
shall have no obligation to do so. Any such record date shall be a date not more
than 30 days prior to the first solicitation of Holders generally in connection
therewith and no later than the date of such solicitation.
(iii) The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to join in
the giving or making of (A) any notice of default, (B) any declaration of
acceleration referred to in Section 4.02, (C) any request to institute
----
proceedings referred to in Section 4.07(b), or (D) any direction referred to in
-------
Section 4.12, and may also set an expiration date by which the relevant Act must
----
be taken. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
Act shall be effective hereunder unless taken on or prior to any applicable
expiration date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action (whereupon the
record date previously set shall automatically and without any action by any
Person be canceled and of no effect), nor shall anything in this paragraph be
construed to render ineffective any Act taken by Holders of the requisite
principal amount of Outstanding Securities on the date such Act is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date, the proposed
Act by Holders and the applicable expiration date to be given to the Company in
writing and to each Holder of Outstanding Securities in the manner set forth in
Section 1.07.
----
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Conversion Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 1.06. Notices, Etc. to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or other Act of Holders or
other notice or
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communication provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee, delivered in person, mailed by first class mail, postage
prepaid, or sent by facsimile or overnight courier, at its address as follows:
if mailed by first class mail, to State Street Bank and Trust Company, Corporate
Trust Division, P.O. Box 778, Boston, MA 02102-0778, Attention: Transwitch
Corporation 4 1/2% Convertible Notes due 2005, or if sent by other means to
State Street Bank and Trust Company, Corporate Trust Division, 2 Avenue de
Lafayette, 6th Floor, Boston, MA 02111-1724, Attention: Transwitch Corporation 4
1/2% Convertible Notes due 2005 (facsimile: 617-662-1466), or to such other
address as the Trustee may designate by written notice from time to time;
provided that notices or other communications to the Trustee shall only be
deemed given when actually received by the Trustee,
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and delivered in person, mailed by first class mail, postage prepaid, or
sent by facsimile or overnight courier, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
Indenture; provided that the Company may, by notice furnished in writing to the
Trustee, designate additional or different addresses for subsequent notices or
communications by the Company; and further provided that notices or other
communications to the Company shall only be deemed given when actually received
by the Company.
SECTION 1.07. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders given as
provided herein. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders as shall be made with the approval of
the Trustee shall constitute a sufficient notification to such Holders for every
purpose hereunder.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
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<PAGE>
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.08. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this
Indenture or in any Security 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 1.11. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent, any Conversion Agent and their
successors hereunder and the Holders any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the law of the State of New York
without regard to conflict of laws principles.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, Repurchase Date, Stated Maturity or Maturity of any Security or
the last date on which a Holder has the right to convert his Securities shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or any Security), payment of Redemption Price,
Repurchase Price, interest (including any Liquidated Damages) or principal (and
premium, if any), or conversion of the Securities, need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Repurchase Date or at the Stated
Maturity or Maturity or on such last day for conversion; provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repurchase Date, Stated Maturity or
Maturity or on such last day for conversion, as the case may be.
SECTION 1.14. Personal Immunity from Liability for Incorporators,
Stockholders, Etc. No recourse shall be had for the payment of the principal of
or premium, if any, or interest (including any Liquidated Damages), if any, on
any Security, or for any claim based thereon, or otherwise in respect of any
Security, or based on or in respect of this Indenture or any indenture
supplemental hereto, against any incorporator, or against any past, present or
future stockholder, director or officer, as such, of the Company or of any
successor corporation, whether by virtue of
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<PAGE>
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being expressly waived
and released as a condition of, and as consideration for, the execution of this
Indenture and the issue of Securities.
SECTION 1.15. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the TIA that is required
under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the TIA that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as
the case may be. To the extent that any provision of a Security conflicts with a
provision in this Indenture, the provision of this Indenture shall control.
ARTICLE 2
Securities Forms
SECTION 2.01. Forms of Securities. The Securities shall be in
substantially the form of Exhibit A hereto, and shall have notations, legends or
endorsements required by law, stock exchange rule or usage or as otherwise
indicated in Exhibit A hereto.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities described in the within-mentioned Indenture.
DATED: STATE STREET BANK AND TRUST COMPANY
as Trustee
By: _____________________________________________
Authorized Signatory
SECTION 2.03. Securities Issuable in Global Form. Except as otherwise
provided in this Section 2.03 or in Section 3.04, the Securities shall be
---- ----
issuable only in global form and deposited with the Trustee, at its Corporate
Trust Office (or such other location as it may determine from time to time for
such purpose), as custodian for DTC or the nominees thereof, and any such
Security shall represent such of the Outstanding Securities as shall be set
forth in the books and records of the Trustee and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time as
adjusted in the books and records of the Trustee, and that the aggregate amount
of Outstanding Securities represented thereby may from time to time be increased
or decreased to reflect exchanges. Any adjustment of the aggregate amount of
Outstanding Securities represented by a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03.
----
Subject to the provisions of Section 3.03, the Trustee shall, if required,
----
deliver and redeliver any Security in global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable
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<PAGE>
Company Order. If a Company Order pursuant to Section 3.03 has been, or
----
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.03 and need not be accompanied by an
----
Opinion of Counsel.
The provisions of the last sentence of Section 3.03 shall apply to any
----
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.03 and need not be accompanied by an Opinion of Counsel)
----
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.03.
----
Notwithstanding the provisions of Section 3.07, payment of principal of and
----
any premium and interest (including any Liquidated Damages) on any Security in
global form shall be made to the Person or Persons specified in such Security.
All Securities issued in global form shall bear the following legend:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, 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 IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE 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.
ARTICLE 3
The Securities
SECTION 3.01. Title and Term. The Securities shall be and are hereby
authorized to be designated as "4 1/2% Convertible Notes due 2005", limited in
aggregate principal amount to $400,000,000 (or to $460,000,000, if the option
set forth in Section 2(b) of the Purchase Agreement dated September 6, 2000
among the Company and the Initial Purchasers, is exercised in full). The
Securities shall mature and the principal thereof shall be due and payable,
together with all accrued and unpaid interest thereon, on September 12, 2005.
The Securities shall be convertible into shares of Common Stock as set forth
herein. The Securities are entitled to the payment of Liquidated Damages as set
forth herein and in the Registration Rights Agreement.
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<PAGE>
SECTION 3.02. Denominations. The Securities shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by the Chief Executive
Officer, the Chief Financial Officer, the Treasurer, the President or a Vice
President of the Company. The signature of any of these individuals on the
Securities may be a manual or facsimile signature of such authorized officer and
may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of an individual who
was at any time the proper officer of the Company shall bind the Company,
notwithstanding that such individual shall have ceased to hold such office prior
to the authentication and delivery of such Securities or did not hold such
office at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities, executed by the Company, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. In the case of
authentication and delivery of Securities in excess of $400,000,000 aggregate
outstanding amount, the Trustee shall be entitled to require that such Company
Order certify that such order is given in connection with a corresponding
exercise of the option set forth in Section 2(b) of the Purchase Agreement.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section
2.02, 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 and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 3.08 together with a written statement (which need not comply with
----
Section 1.03 and need not be accompanied by an Opinion of Counsel) stating that
----
such Security has never been issued and sold by the Company, for all purposes of
this Indenture, such Security shall be deemed not to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 3.04. Registration, Registration of Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee or in any office or agency of the Company in a Place of Payment a
register for the Securities (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of the Securities and of transfers of the Securities. The Security
Register shall be in written form or any other form capable of being converted
into written
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<PAGE>
form within a reasonable time. The Trustee, at its Corporate Trust Office, is
hereby appointed "Security Registrar" for the purpose of registering the
Securities and transfers of the Securities on such Security Register as herein
provided. In the event that the Trustee shall cease to be Security Registrar, it
shall have the right to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 3.04 and except as otherwise
----
provided in any Security, including any legend thereon, upon surrender for
registration of transfer of any Security at any office or agency of the Company
in a Place of Payment, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities, of any authorized denominations and of
a like aggregate principal amount, bearing a number not contemporaneously
outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 3.04, at the option of the
----
Holder, the Securities may be exchanged for other Securities, of any authorized
denomination or denominations and of a like aggregate principal amount,
containing identical terms and provisions, upon surrender of the Securities to
be exchanged at any such office or agency. Whenever any such Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, any global Security shall be exchangeable
only as provided in this paragraph. The depositary for the global Securities
shall be DTC, and the global Securities may be transferred, in whole but not in
part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor
to DTC for such global Security selected or approved by the Company or to a
nominee of such successor to DTC. If at any time DTC notifies the Company that
it is unwilling or unable to continue as depositary for the applicable global
Security or Securities or if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, if so required by
applicable law or regulation, the Company shall appoint a successor depositary
with respect to such global Security or Securities. If (x) a successor
depositary for such global Security or Securities is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such unwillingness, inability or ineligibility, or (y) a Default or an Event
of Default has occurred and is continuing, or (z) the Company, in its sole
discretion, executes and delivers to the Trustee and the Security Registrar an
Officers' Certificate stating that definitive Securities may be issued in
exchange for interests in a global Security or Securities, then the Company
shall execute, and the Trustee shall authenticate and deliver, definitive
Securities of like rank, tenor and terms in definitive form, registered in such
names as DTC shall direct and bearing such legends as the Company shall specify
in writing, in an aggregate principal amount equal to the principal amount of
such global Security or Securities. If a Security is issued in exchange for any
portion of a global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to
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whom interest in respect of such portion of such global Security is payable in
accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange or redemption shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 10.07 or 11.02(e) not involving any transfer.
----- --------
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security during a period
beginning at the opening of business 15 days before the date of the mailing of a
notice of redemption with respect to the Securities to be redeemed under Section
10.03 and ending at the close of business on the day of the mailing of the
-----
relevant notice of redemption, or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except, in the case
of any Security to be redeemed in part, the portion thereof not to be redeemed,
or (iii) to issue, register the transfer of or exchange any Security that has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
(b) Every Security that bears or is required under this Section
3.04(b) to bear the legend set forth in this Section 3.04(b) (together with any
------- -------
Common Stock issued upon conversion or exchange of the Securities (including any
exchange constituting payment of the Make-Whole Payment for Securities pursuant
to Article 10) and required to bear the legend set forth in Section 3.04(c),
-------
collectively, the "Restricted Securities") shall be subject to the restrictions
on transfer set forth in this Section 3.04(b) (including one of the legends set
-------
forth below), unless such restrictions on transfer shall be waived by written
consent of the Company, and the holder of each such Restricted Security, by such
holder's acceptance thereof, agrees to be bound by all such restrictions on
transfer. As used in Sections 3.04(b) and 3.04(c), the term "transfer"
------- -------
encompasses any sale, pledge, transfer or other disposition whatsoever of any
Restricted Security. Upon the effectiveness of a filed registration statement
covering the Securities, the Company shall deliver an Officers' Certificate to
the Trustee informing the Trustee of the effectiveness of such registration and
instructing the Trustee regarding the issuance and delivery of unlegended
Securities.
Until two years after the original issuance date of any Security, any
certificate evidencing such Security (and all securities issued in exchange
therefor or substitution thereof, other than Common Stock, if any, issued upon
conversion thereof or upon payment of the Make-Whole
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<PAGE>
Payment therefor pursuant to Article 10, which shall bear the legend set forth
in Section 3.04(c), if applicable) shall bear a legend in substantially the
-------
following form (unless such Securities have been transferred pursuant to a
registration statement that has been declared effective under the Securities Act
(and which continues to be effective at the time of such transfer), or pursuant
to the exemption from registration provided by Rule 144 under the Securities Act
(as evidenced by such certifications, legal opinions or other information as the
Company may require), with instruction to remove the legend having been given to
the Trustee by the Company in the form of an Officers' Certificate, or unless
otherwise agreed by the Company in writing, with notice thereof to the Trustee
in the form of an Officers' Certificate):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT); (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE
SECURITY EVIDENCED HEREBY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OR EXCHANGE OF SUCH SECURITY
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE. IF
THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER MUST, PRIOR
TO SUCH TRANSFER, FURNISH TO STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE,
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE
EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(C)
OR 2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE
SECURITY EVIDENCED HEREBY.
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Any Security (or Security issued in exchange or substitution therefor) as
to which such restrictions on transfer shall have expired in accordance with
their terms may, upon surrender of such Security for exchange to the Security
Registrar in accordance with the provisions of this Section 3.04, be exchanged
----
for a new Security or Securities, of like tenor and aggregate principal amount,
which shall not bear the restrictive legend required by this Section 3.04(b).
-------
At such time as all interests in the global Security have been redeemed,
converted, canceled, repurchased or transferred, the global Security shall be,
upon receipt thereof, canceled by the Trustee in accordance with standing
procedures and instructions existing between the depositary and the Custodian.
(c) Until two years after the original issuance date of any Security,
any stock certificate representing Common Stock issued upon conversion or
exchange of such Security (including any exchange constituting payment of the
Make-Whole Payment for any Securities pursuant to Article 10) shall bear a
legend in substantially the following form (unless such Common Stock has been
sold pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (as evidenced by such certifications, legal opinions or other
information as the Company may require), with instruction to remove the legend
having been given by the Company to its Transfer Agent or pursuant to a
registration statement that has been declared effective under the Securities
Act, and which continues to be effective at the time of such transfer, or such
Common Stock has been issued upon conversion or exchange of Securities that have
been transferred pursuant to a registration statement that has been declared
effective under the Securities Act, or unless otherwise agreed by the Company
with written notice thereof to the Trustee (in the form of an Officers'
Certificate) and any transfer agent for the Common Stock):
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT UNTIL THE EXPIRATION OF TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY UPON THE CONVERSION OR
EXCHANGE OF WHICH THE COMMON STOCK EVIDENCED HEREBY WAS ISSUED, (1) IT WILL NOT
RESELL OR OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C)
IN ACCORDANCE WITH THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT, OR (D) IN ACCORDANCE WITH A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND THAT CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER; (2) PRIOR TO ANY SUCH TRANSFER (OTHER
THAN A TRANSFER PURSUANT TO CLAUSE 1(D) ABOVE), IT WILL FURNISH TO THE COMPANY'S
TRANSFER AGENT, SUCH CERTIFICATIONS, LEGAL OPINIONS AND OTHER INFORMATION AS THE
COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A
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TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT;
AND (3) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY
IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(D) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE
EARLIER OF THE TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE
1(C) OR 1(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF
THE SECURITY UPON THE CONVERSION OR EXCHANGE OF WHICH THE COMMON STOCK EVIDENCED
HEREBY WAS ISSUED.
Any such Common Stock as to which such restrictions on transfer shall have
expired in accordance with their terms may, upon surrender of the certificates
representing such shares of Common Stock for exchange in accordance with the
procedures of the transfer agent for the Common Stock, be exchanged for a new
certificate or certificates for a like aggregate number of shares of Common
Stock, which shall not bear the restrictive legend required by this Section
3.04(c).
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(d) Any Security or Common Stock issued upon the conversion or
exchange of a Security that, prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), is purchased or owned by the Company or any Affiliate
thereof may not be resold by the Company or such Affiliate unless registered
under the Securities Act or resold pursuant to an exemption from the
registration requirements of the Securities Act in a transaction that results in
such Securities or Common Stock, as the case may be, no longer being "restricted
securities" (as defined under Rule 144).
(e) Notwithstanding any provision of Section 3.04 to the contrary, in
----
the event Rule 144(k) as promulgated under the Securities Act (or any successor
rule) is amended to change the two-year period under Rule 144(k) (or the
corresponding period under any successor rule), from and after receipt by the
Trustee of the Officers' Certificate and Opinion of Counsel provided for in this
Section 3.04(e), (i) each reference in Section 3.04(b) to "two years" and in the
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restrictive legend set forth in such paragraph to "TWO YEARS" shall be deemed
for all purposes hereof to be references to such changed period, (ii) each
reference in Section 3.04(c) to "two years" and in the restrictive legend set
-------
forth in such paragraph to "TWO YEARS" shall be deemed for all purposes hereof
to be references to such changed period and (iii) all corresponding references
in the Securities and the restrictive legends thereon shall be deemed for all
purposes hereof to be references to such changed period, provided that such
changes shall not become effective if they are otherwise prohibited by, or would
otherwise cause a violation of, the then-applicable federal securities laws. As
soon as practicable after the Company has knowledge of the effectiveness of any
such amendment to change the two-year period under Rule 144(k) (or the
corresponding period under any successor rule), unless such changes would
otherwise be prohibited by, or would otherwise cause a violation of, the then-
applicable federal securities law, the Company shall provide to the Trustee an
Officers' Certificate and Opinion of Counsel informing the Trustee of the
effectiveness of such amendment and the effectiveness of the foregoing changes
to Sections 3.04(b) and 3.04(c) and the Securities. The provisions of this
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Section 3.04(e) shall not be effective until such time as the Opinion of Counsel
-------
and Officers' Certificate have been received by the Trustee hereunder. This
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Section 3.04(e) shall apply to successive amendments to Rule 144(k) (or any
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successor rule) changing the holding period thereunder.
SECTION 3.05. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee or the Company, together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall, at
the relevant Holder's expense, execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either 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, at the relevant Holder's expense, shall execute, and
upon the Company's request the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the same
principal amount, containing identical terms and provisions and bearing a number
not contemporaneously outstanding, appertaining to such destroyed, lost or
stolen Security.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.
Upon the issuance of any new Security 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) connected 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 mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section 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 3.06. Payment of Interest; Interest Rights Preserved . Interest on
any Security (including any Liquidated Damages) 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 (or one or more Predecessor
Securities) 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 pursuant to Section 9.02; provided, however, that each installment of
----
interest (including any Liquidated Damages) on any Security may at the Company's
option be paid by (i) mailing a check for such
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interest, payable to or upon the written order of the Person entitled thereto
pursuant to Section 3.07, to the address of such Person as it appears on the
----
Security Register or (ii) if the Trustee shall have received written bank wire
instructions prior to the Regular Record Date for such payment, transfer to an
account maintained by the payee located inside the United States; provided,
however, that payments to DTC shall be made by wire transfer of immediately
available funds to the account of DTC or its nominee. The term "Regular Record
Date" with respect to any Interest Payment Date shall mean the February 25 or
August 28 preceding March 12 or September 12, respectively.
Any interest (including any Liquidated Damages) on any Security that is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the 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, at its election in each case, as provided in clause 3.06(a) or
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3.06(b) below:
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(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment (which shall not be less than 30 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
Company 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. The Company shall promptly notify the Trustee
of such Special Record Date and, in the name and at the expense of the Company,
the Trustee 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 in the
Security Register 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 (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (b).
---
(b) 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>
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.07. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Sections 3.04 and 3.06)
---- ----
interest on, such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall 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 any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as a
Holder of such global Security.
SECTION 3.08. Cancellation. All Securities surrendered for payment,
redemption, repayment at the option of the Holder or registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities surrendered directly to the
Trustee for any such purpose 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 that the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder that the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. Canceled Securities held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company, unless by a Company Order the Company directs their
return to it.
SECTION 3.09. Computation of Interest. Interest (including any Liquidated
Damages) on the Securities shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
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SECTION 3.10. CUSIP Numbers. The Company in issuing the Securities shall
use "CUSIP" numbers, and the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; provided however, 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 shall promptly notify
the Trustee of any change in the CUSIP numbers applicable to the Securities.
ARTICLE 4
REMEDIES
SECTION 4.01. Events of Default. "Event of Default," wherever used herein
with respect to the Securities, means any one of the following events (whatever
the reason for such Event of Default and whether or not it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest (including any Liquidated
Damages) upon any Security, when such interest becomes due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of (i) the principal of (or premium, if
any, on) any Security when it becomes due and payable at its Maturity, or (ii)
the Redemption Price (including the Make-Whole Payment, if any) with respect to
any Security when it becomes due and payable; or
(c) default in the payment of the Repurchase Price in respect of any
Security on the Repurchase Date therefor (whether or not a Person other than the
Company has offered to repurchase Outstanding Securities as contemplated by
Section 11.02(k)); or
--------
(d) failure by the Company to give the Company Notice in accordance
with Section 11.02(a) to all Holders of Outstanding Securities and to the
--------
Trustee; or
(e) failure by the Company to deliver shares of Common Stock
(together with cash in lieu of fractional shares) when such Common Stock (or
cash in lieu of fractional shares) is required to be delivered following
conversion of a Security and continuation of such default for a period of 10
days; or
(f) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security (other
than a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with) and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying
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such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(g) a default under any bonds, debentures, notes or other evidences
of indebtedness for money borrowed of the Company or under any mortgages,
indentures or instruments under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed by the Company,
whether such indebtedness now exists or shall hereafter be created, which
indebtedness, individually or in the aggregate, has a principal amount
outstanding in excess of $10,000,000, which default shall have resulted in such
indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or annulled,
within a period of 60 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Securities then
Outstanding, a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
hereunder (unless such default has been cured or waived); or
(h) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors; or
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(ii) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of the property of any of them, or
(iii) orders the winding up or liquidation of the Company or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
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<PAGE>
As used in this Section 4.01 only, the term "Bankruptcy Law" means title
----
11, U.S. Code or any similar Federal or State law for the relief of debtors and
the term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 4.02. Acceleration of Maturity; Rescission and Annulment . If an
Event of Default with respect to Securities at the time Outstanding occurs and
is continuing, then and in every such case the Trustee, or the Holders of not
less than 25% in principal amount of the Outstanding Securities, may declare the
principal of all the Securities, and accrued interest thereon to the date of
such declaration, to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal shall become immediately due and payable. If an Event
of Default specified in Section 4.01(h) or Section 4.01(i) occurs, the principal
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of, and accrued interest on, all the Securities shall automatically, and without
any declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to the
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter provided in this
Article, the Holders of a majority in principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest on all Outstanding
Securities,
(ii) the principal of (and premium, if any, on) any Outstanding
Securities that have become due otherwise than by reason of such declaration of
acceleration and interest thereon at the rate or rates borne by or provided for
in such Securities,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates borne by or
provided for in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(b) all Events of Default with respect to the Securities, other than
the nonpayment of the principal of (or premium, if any) or interest on
Securities which have become due solely by reason of such declaration of
acceleration, have been cured or waived as provided in Section 4.13.
----
No such rescission shall affect any subsequent Default or Event of Default
or impair any right in respect thereof.
SECTION 4.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
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(a) default is made in the payment of any installment of interest
(including any Liquidated Damages) on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium,
if any, on) any Security at its Maturity,
then the Company shall, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest
(including any Liquidated Damages), with interest upon any overdue principal
(and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest (including any
Liquidated Damages), at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities under a
supplemental indenture entered into in accordance herewith and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other such obligor upon such Securities,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 4.04. 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 under a supplemental
indenture entered into in accordance herewith or the property of the Company or
of such other obligor or the Company's, or any such other obligor's, creditors,
the Trustee (irrespective of whether the principal of the Securities shall then
be due and payable as therein expressed or by acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities, of principal (and premium, if
any) and interest, owing and unpaid in respect of the Securities 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
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compensation, expenses, disbursements and advances of the 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 other similar official) in any such judicial proceeding is hereby directed
by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall request or consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee and any
predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 5.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security, any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security in any
such proceeding; provided however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors' or other similar committee.
SECTION 4.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or any of the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 4.06. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 5.07;
----
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal (and premium, if any) and interest (including
Liquidated Damages, if any) payable, and any other amounts due and payable under
this Indenture or under the Securities (including Make-Whole Payment, if any),
in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities for principal (and premium, if any)
and, interest (including Liquidated Damages, if any), respectively; and
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THIRD: To the payment of the remainder, if any, to the Company.
SECTION 4.07. Limitation on Suits . No Holder of any Security shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of security or indemnity has failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all such Holders.
SECTION 4.08. Unconditional Right of Holders to Receive Principal,
Premium, If Any, and Interest . Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of, and premium, if any,
including the Redemption Prices and Make-Whole Payment upon redemption pursuant
to Article 10, the Repurchase Price pursuant to Article 11 and (subject to
-- --
Sections 3.04 and 3.06) interest (including Liquidated Damages, if any) on such
---- ----
Security on the respective due dates expressed in such Security (or, in the case
of redemption or repurchase, on the Redemption Date or Repurchase Date, as the
case may be) and to convert such Security in accordance with the provisions of
this Indenture and to institute suit for the enforcement of any such payment and
right to convert, and such rights shall not be impaired or adversely affected
without the consent of such Holder.
SECTION 4.09. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, the Company, the Trustee and the
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Holders of Securities shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 4.10. Rights and Remedies Cumulative . Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.05, no right or
----
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 4.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities, as the case may be.
SECTION 4.12. Control by Holders of Securities. The Holders of not less
than a majority in principal amount of the Outstanding Securities shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities, provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction, and
(c) the Trustee need not take any action that might involve it in
personal liability or be unduly prejudicial to the Holders of Securities not
joining therein.
SECTION 4.13. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities may on behalf of the
Holders of all the Securities waive any past Default or Event of Default
hereunder with respect to such Securities and its consequences, except a Default
or Event of Default:
(a) in the payment of the principal of (or premium, if any) or
interest (including Liquidated Damages) on any Security,
(b) in respect of the conversion by the Company of any Security into
Common Stock,
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(c) in the payment of the Redemption Price or Make-Whole Payment
pursuant to Article 10,
--
(d) in the payment of the Repurchase Price pursuant to Article 11,
--
(e) in respect of a covenant or provision hereof that under Article 8
-
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected; or
(f) in respect of a covenant or provision hereof for the personal
protection or benefit of the Trustee, without the consent of the Trustee.
Upon any such waiver, such Default or Event of Default shall cease to
exist, and any Event of Default arising from any such Default shall be deemed to
have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
SECTION 4.14. Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that 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 usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall 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.
SECTION 4.15. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption or repurchase, on or after the
Redemption Date or the Repurchase Date, respectively), or the right to convert
any Security in accordance with Article 12.
--
ARTICLE 5
The Trustee
SECTION 5.01. General. The Trustee, prior to the occurrence of an Event of
Default known to a Responsible Officer of the Trustee and after the curing of
all Events of Default that may
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have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has
occurred (that has not been cured or waived) and is known to a Responsible
Officer of the Trustee, 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.
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,
its own willful misconduct, its own recklessness or its own bad faith.
SECTION 5.02. Certain Rights of Trustee. Subject to TIA Sections 315(a)
through (d):
(a) the Trustee may rely, and shall be protected in acting or
refraining from acting, upon any resolution, certificate, statement, instrument,
facsimile transmission, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, made or presented
by the proper person, and may accept and rely upon the same as conclusive
evidence of the truth and accuracy of the statements and opinions contained
therein. The Trustee need not investigate any fact or matter stated in any such
document;
(b) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, which shall conform to
Section 1.03. The Trustee shall not be liable for any action it takes or omits
----
to take in good faith in reliance on such certificate or opinion;
(c) the Trustee may consult with counsel, and the written advice of
such counsel shall be full and complete authorization and protection with
respect to any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon, and may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or agent
appointed with due care;
(d) 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, 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 complying with such request or direction;
(e) the Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its rights or
powers or for any action it takes or omits to take in accordance with the
written direction of the holders of a majority in principal amount of the
Outstanding Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture;
(f) 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
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hereunder, the Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(g) 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;
(h) the Trustee shall not be required to take notice or be deemed to
have notice of any Default or Event of Default unless the Trustee be
specifically notified of such Default or Event of Default in writing by the
Company or any Holder, and in the absence of such notice the Trustee may
conclusively assume that there is no Default or event of Default; provided that
if the Trustee is acting as Paying Agent, the Trustee shall be required to take
and be deemed to have notice of its failure to receive payments of interest or
principal hereunder;
(i) the Trustee shall have no responsibility with respect to any
information in any offering memorandum or other disclosure material distributed
with respect to the Securities, and the Trustee shall have no responsibility for
compliance with securities laws in connection with the issuance and sale,
resale, transfer or exchange of the Securities;
(j) in the event the Trustee shall receive inconsistent or
conflicting requests and security or indemnity from two or more groups of
Holders, each representing at least 25% (but less than 50%) of the aggregate
principal amount of the Securities then Outstanding, the Trustee shall act in
accordance with instructions received by the Holders of the greater percentage
thereof;
(k) except as otherwise expressly provided by the provisions of this
Indenture, the Trustee shall not be obligated, and may not be required to give
or furnish any notice, demand, report, request, reply, statement, advice or
opinion to any Holder or to the Company or any other Person, and the Trustee
shall not incur any liability for its failure or refusal to give or furnish the
same unless obligated or required to do so by the express provisions hereof;
(l) the Trustee shall not be required to give any bond or surety with
respect to the performance of its duties or the exercise of its powers under
this Indenture; and
(m) any permissive power or authority granted to the Trustee shall
not be construed to be a duty.
SECTION 5.03. Individual Rights of Trustee. The Trustee, any Paying
Agent, Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company, its Subsidiaries or its Affiliates with the
same rights it would have if it were not the Trustee, Paying Agent, Security
Registrar or such other agent. Any registrar, co-registrar, paying agent,
conversion agent or
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authenticating agent may do the same with like rights. However, upon
qualification of this Indenture under the TIA, the Trustee shall be subject to
TIA Sections 310(b) and 311.
SECTION 5.04. Trustee's Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture, the Securities
or the offering documents relating to the Securities, (ii) shall not be
accountable for the Company's use or application of the proceeds from the
Securities and (iii) shall not be responsible for any statement in the
Securities other than its certificate of authentication.
SECTION 5.05. Notice of Default. If any Event of Default occurs and is
continuing and if a Responsible Officer of the Trustee has actual knowledge of
such Event of Default, the Trustee shall mail to each holder in the manner and
to the extent provided in TIA Section 313(c) notice of the Event of Default
within 90 days after it occurs, unless such Event of Default has been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of (or premium, if any) or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interests of the Holders of the Securities.
SECTION 5.06. Conflicting Interests of Trustee. 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.
SECTION 5.07. Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing for its services.
The compensation of the Trustee shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee in accordance with this Indenture. Such expenses
shall include the reasonable compensation, expenses, disbursements and advances
of the Trustee's agents and counsel.
The Company shall indemnify and hold harmless the Trustee and its
directors, agents and employees (including officers) (collectively the
"Indemnitees") against any and all losses, liabilities, obligations, damages,
penalties, fines, judgments, actions, suits, proceedings, reasonable costs and
expenses (including reasonable fees and disbursements of counsel) of any kind
whatsoever that may be incurred by or imposed on the Indemnitees or any of them
arising out of or in connection with the acceptance or administration of the
Trustee's duties under this Indenture; provided, however, that the Company need
not reimburse any expense or indemnify against any loss, obligation, damage,
penalty, fine, judgment, action, suit, proceeding, reasonable cost or expense
(including reasonable fees and disbursements of counsel) of any kind whatsoever
that may be incurred by Indemnitees or any of them which results from the
negligence or willful misconduct of the Indemnitees or any of them. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder, unless the Company is materially prejudiced thereby.
The Company shall defend the claim, and the Trustee shall cooperate in the
defense. Unless otherwise
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set forth herein, the Indemnitees or any of them, may have separate counsel and
the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. The provisions of this Section 5.07 shall
----
survive the termination of this Indenture and the resignation or removal of the
Trustee for any reason, including any termination under any bankruptcy law.
To secure the Company's payment obligations in this Section 5.07, the
----
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of, premium, if any, and interest on
particular Securities.
If the Trustee incurs expenses or renders services after the occurrence
of an Event of Default specified in Section 4.01(h) or Section 4.01(i), such
------- -------
expenses, and the compensation due to the Trustee for such services, are
intended to constitute expenses of administration under Title 11 of the United
States Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
SECTION 5.08. Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
5.08.
----
The Trustee may resign at any time by so notifying the Company in writing
at least thirty days prior to the date of the proposed resignation. The Holders
of a majority in principal amount of the Outstanding Securities may at any time,
by written notice to the Trustee and the Company, remove the Trustee and, with
the prior consent of the Company, appoint a successor Trustee. The Company may
remove the Trustee if: (i) the Trustee is no longer eligible under Section 5.10;
----
(ii) the Trustee is adjudged a bankrupt or an insolvent; (iii) a receiver or
other public officer takes charge of the Trustee or its property; or (iv) the
Trustee becomes incapable of acting.
If the Trustee is removed without the concurrent appointment by the Holders
of a successor Trustee, if the Trustee resigns, or if a vacancy exists in the
office of Trustee for any other reason, the Company shall promptly appoint a
successor Trustee. If no successor Trustee has delivered its written acceptance
required by the next succeeding paragraph of this Section 5.08 within thirty
----
days after the retiring Trustee delivers notice of its resignation or is
removed, or after the occurrence of a vacancy in the office of Trustee for any
other reason, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the Outstanding Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after the delivery of
such written acceptance, subject to the lien provided in Section 5.07, (i) the
----
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, (ii) the resignation or removal of the retiring Trustee shall
become effective and (iii) the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor Trustee shall
mail notice of its succession to each Holder.
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If the Trustee is no longer eligible under Section 5.10, any Holder who
satisfies the requirements of TIA Section 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
The Company shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all holders. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section 5.08,
----
the Company's obligations under Section 5.07 shall continue for the benefit of
----
the retiring Trustee.
SECTION 5.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business (including the administration of this
Indenture) to, another corporation or national banking association, the
resulting, surviving or transferee corporation or national banking association,
without any further act, shall be the successor Trustee with the same effect as
if the successor Trustee had been named as the Trustee herein.
SECTION 5.10. Eligibility. This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1). The Trustee (or the bank
holding company to which the Trustee is a member) shall have a combined capital
and surplus of at least $25 million as set forth in its most recent published
annual report of condition.
SECTION 5.11. Money Held in Trust. Subject to the provisions of Section
9.03, all monies received by the Trustee shall, until used or applied as herein
----
provided, be held in trust for the purposes for which they were received. The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law.
SECTION 5.12. Preferential Collection of Claims. If and when the Trustee
shall be or become a creditor of the Company (or any other obligor upon the
Securities under a supplemental indenture entered into in accordance herewith),
the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of the claims against the Company (or any such other
obligor).
SECTION 5.13. Trustee's Application for Instructions from the Company;
Liquidated Damages. (a) Any application by the Trustee for written instructions
from the Company (other than with regard to any action proposed to be taken or
omitted to be taken by the Trustee that affects the rights of the Holders) 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 ten 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
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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.
(b) If Liquidated Damages are payable to Holders pursuant to the
terms of the Registration Rights Agreement, the Company shall deliver to the
Trustee a certificate to that effect stating (i) the amount of Liquidated
Damages that is payable and (ii) the date on which such amount of Liquidated
Damages is payable. Unless and until a Responsible Officer of the Trustee
receives at the Corporate Trust Office such a certificate, the Trustee may
assume without inquiry that no Liquidated Damages are payable. Upon receipt of a
Company Request together with a sum sufficient to pay such Liquidated Damages so
becoming due, the Trustee shall pay such Liquidated Damages to the Holders in
the same manner as interest on the Securities. If the Company has paid
Liquidated Damages directly to the Persons entitled to them, the Company shall
deliver to the Trustee a certificate setting forth the particulars of such
payment.
ARTICLE 6
Holders' Lists And Reports By Trustee And Company
SECTION 6.01. Disclosure of Names and Addresses of Holders. Every Holder
of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that none of the Company, the Trustee, any Paying Agent or any
Security Registrar, shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 6.02. Reports by Trustee. Within 60 days after October 15 of each
year, commencing with the first October 15 to occur after the qualification of
this Indenture, the Trustee shall transmit by mail to all Holders of Securities
as provided in TIA Section 313(c), if required by TIA Section 313(a), a brief
report dated as of such October 15. A copy of each such report shall at the time
of such transmission to Holders be filed by the Trustee with the Company.
SECTION 6.03. Reports by Company. The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, 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 Commission may from time to time by rules and
regulations prescribe) that the Company may be required to file with the
Commission pursuant to Sections 13(a) or 13(b) or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to any of such Sections, then it
shall file with the Trustee, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports that may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
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(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(c) file with the Trustee and the Commission, if applicable, and
transmit by mail to the Holders, within thirty days after the filing thereof
with the Trustee, in the manner and to the extent provided in TIA Section
313(c), such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission and sell other information as may be required pursuant to the TIA, at
the time and in the manner provided pursuant to such Act.
SECTION 6.04. Company to Furnish Trustee Names and Addresses of Holders.
(a) The Company shall furnish or cause to be furnished to the Trustee:
(i) semiannually, not later than 10 days after the Regular
Record Date for the payment of interest on the Securities, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders
as of such Regular Record Date; and
(ii) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished,
provided, however, that, so long as the Trustee is the Security Registrar,
no such list shall be required to be furnished.
(b) The Company shall provide the Trustee with at least thirty days'
prior notice of any change in location of its principal executive offices or
other principal place of business.
ARTICLE 7
Consolidation, Merger, Sale, Lease Or Conveyance
SECTION 7.01. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease, transfer, convey or otherwise dispose of all
or substantially all of its assets to, or merge with or into any other Person,
provided however, that in any such case, (1) either the Company shall be the
continuing corporation, or the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person (if other than a
Subsidiary of the Company) that acquires or leases the Company's assets
substantially as an entirety is a corporation, partnership, limited liability
company or trust organized and existing under the laws of any United States
jurisdiction and expressly assumes the due and punctual payment of the principal
of (and premium, if any) and any interest (including Liquidated Damages, if any)
payable pursuant to this Indenture on all of the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company and
shall
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have provided for conversion rights, if applicable, in accordance with the
provisions of Article 12 hereof, by supplemental indenture, complying with
--
Article 8 hereof, satisfactory to the Trustee, executed and delivered to the
-
Trustee by such corporation and (2) immediately after giving effect to such
transaction, no Default or Event of Default, shall have occurred and be
continuing. For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of the properties and assets of one or more Subsidiaries
(other than to the Company or another Subsidiary), which, if such assets were
owned by the Company, would constitute all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
SECTION 7.02. Rights and Duties of Successor Corporation. In case of any
such consolidation, merger, sale, lease, conveyance or other disposition and
upon any such assumption by the successor Person, such successor Person shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder that
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor Person, instead of the Company,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities that such successor Person
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease, conveyance or other
disposition, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 7.03. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease, transfer, conveyance or other disposition
permitted under Section 7.01 is also subject to the condition that the Trustee
----
receive an Officers' Certificate and an Opinion of Counsel to the effect that
any such consolidation, merger, sale, lease, transfer, conveyance or other
disposition complies with the provisions of this Article. Such opinion of
counsel shall state that any supplemental indenture executed and delivered by a
successor Person pursuant to this Article 7 constitutes the legal, valid and
-
binding obligation of such successor Person, subject to customary exceptions.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders of Securities, the Company, when authorized by or
pursuant to a Board
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Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company contained
herein and the Securities issued hereunder;
(b) to add to the covenants of the Company for the equal and ratable
benefit of the Holders or to surrender any right, power or option herein
conferred upon the Company;
(c) to add any Events of Default for the benefit of the Holders
proposed by the Company in a Company Request and, in respect of any such
additional Event of Default, such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such Event of Default, or may limit the remedies available to
the Trustee upon such Event of Default or limit the right of the Holders of a
majority in aggregate principal amount of those Securities to which such
additional Events of Default apply to waive such default, all as set forth in
the Company Request;
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;
(e) to cure any ambiguity or to correct or supplement any provision
herein that may be defective or inconsistent with any other provision herein;
provided such provisions shall not adversely affect the interests of the Holders
of Securities in any material respect;
(f) to make any change that does not adversely affect the rights of
any holder of Securities or to surrender any right, power or option conferred on
the Company hereunder;
(g) to make any change to comply with any requirement of the
Commission in connection with the qualification of the Indenture under TIA; or
(h) to provide for the issuance of uncertificated Securities in
addition to or in place of certificated Securities; provided, however that the
uncertificated Securities are issued in registered form for purposes of Section
163(f) of the Internal Revenue Code of 1986.
The Company and the Trustee may not enter into a supplemental indenture
pursuant to this Section 8.01 if such supplemental indenture modifies in any
respect any Event of Default relating to any covenant in this Indenture in
effect immediately prior to the time such supplemental indenture becomes
effective.
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SECTION 8.02. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(a) reduce the principal amount, Repurchase Price or
Redemption Price with respect to any Security, or extend the Stated Maturity of
any Security or alter the manner of payment or rate of interest on any Security
or make any Security (including any Liquidated Damages or Redemption Price or
Repurchase Price in respect of such Security) payable in money or securities
other than that stated in the Security;
(b) reduce the percentage in principal amount of the
Outstanding Securities the consent of whose Holders is required for any such
supplemental indenture or the consent of whose Holders is required for any
waiver with respect to Securities (or for any waiver of compliance with certain
provisions of this Indenture or certain Defaults or Events of Default and their
consequences);
(c) make any change that adversely affects the right to
convert any Security;
(d) modify the provisions of the Indenture relating to the
ranking of the Securities in a manner adverse to the Holders of the Securities;
or
(e) 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 any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 8.03. Execution of Supplemental Indenture. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Article 5)
-
shall be fully protected in relying upon, an Opinion of Counsel stating that (i)
the execution of such supplemental indenture is authorized or permitted by this
Indenture, (ii) all conditions precedent to its execution and delivery have been
complied with, and (iii) such supplemental indenture constitutes the valid and
binding obligation of the Company. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 8.04. 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
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Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 8.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 8.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the 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.
ARTICLE 9
Covenants
SECTION 9.01. Payment of Principal, Premium, If Any, and Interest. The
Company covenants and agrees for the benefit of the Holders of Securities that
it shall duly and punctually pay the principal of (and premium, if any),
interest on (including Liquidated Damages, if any), and the Repurchase Price,
the Redemption Price and the Make-Whole Payment with respect to, the Securities
in accordance with the terms of the Securities and this Indenture. At the option
of the Company, all payments of principal with respect to any Security may be
paid by check to the registered Holder of the Security or other Person entitled
thereto against surrender of such Security. The conversion of any Securities
pursuant to Article 12 hereof and payment of the Make-Whole Payment by delivery
--
of shares of Common Stock in accordance with Article 10, together with the
--
making of any cash payments required to be made in accordance with the terms of
the Securities and this Indenture, shall satisfy the Company's obligations under
this Section 9.01 with respect to such Securities.
----
SECTION 9.02. Maintenance of Office or Agency. The Company shall maintain
a Place of Payment for the Securities in the Borough of Manhattan, The City of
New York, which shall be an office or agency where the Securities may be
presented or surrendered for payment or conversion, exchange or redemption,
where the Securities may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company initially designates
State Street Bank and Trust Company, N.A., at 61 Broadway, New York, N.Y. 10006
as such an office or agency of the Company, unless and until the Company shall
designate and maintain some other office or agency for one or more of such
purposes. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive all such presentations, surrenders, notices and
demands.
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The Company may from time to time designate one or more other offices or
agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all of 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 accordance with the requirements set forth above for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 9.03. Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any
Securities, it shall, on or before each due date of the principal of (and
premium, if any), or interest on, the Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it shall, before each due date of the principal of (and premium, if
any), or interest on, the Securities, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest, so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of its action or failure
so to act.
The Company shall cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument pursuant to which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of principal of (and
premium, if any,) or interest on the Securities, in trust for the benefit of the
Persons entitled thereto, until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities under a supplemental indenture entered into in
accordance herewith) in the making of any such payment of principal (and
premium, if any) or interest; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
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Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company upon Company Request or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment of such
principal of (and premium, if any) or interest on any Security, without interest
thereon, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the Company.
SECTION 9.04. Existence. Subject to Article 7, the Company shall do or
-
cause to be done all things necessary to preserve and keep in full force and
effect the corporate existence of the Company and its Subsidiaries, and their
respective rights (charter and statutory) and franchises, except to the extent
that the Board of Directors shall determine that the failure to do so would not
have a material adverse effect on the business, assets, financial condition or
results of operation of the Company (a "Material Adverse Effect"); provided,
however, that the Company shall not be required to preserve any right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 9.05. Payment of Taxes and Other Claims. The Company shall pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary and have a Material Adverse Effect; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim, the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings.
SECTION 9.06. Statement as to Compliance; Notice of Default.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, a certificate from the Company's Chief
Executive Officer, Chief Financial Officer or principal accounting officer as to
his or her knowledge of the Company's compliance with all terms, conditions and
provisions under this Indenture and, in the event of any noncompliance,
specifying such noncompliance and the nature and status thereof. As of the date
hereof, the Company's fiscal year ends on December 31. For purposes of this
Section 9.06, such compliance shall be determined without regard to any period
----
of grace or requirement of notice under this
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Indenture. The Company, within five Business Days of becoming aware of the
occurrence of any Default or Event of Default, shall deliver written notice to
the Trustee of the occurrence thereof.
SECTION 9.07. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 9.04 or 9.05 if, before the time for such compliance, the Holders of at
---- ----
least a majority in principal amount of the Outstanding Securities, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 9.08. Rule 144A Information Requirement. Within the period prior
to the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), the Company
covenants and agrees that it shall, during any period in which it is not subject
to Section 13 or 15(d) under the Exchange Act, make available to any Holder or
beneficial owner of Securities that continue to be Restricted Securities, in
connection with any sale thereof, and to any prospective purchaser of Securities
from such holder or beneficial owner, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any such holder or
beneficial owner of the Securities, and the Company shall take such further
action as any holder or beneficial owner of such Securities may reasonably
request, all to the extent required from time to time to enable such holder or
beneficial owner to sell its Securities without registration under the
Securities Act within the limitation of the exemption provided by Rule 144A, as
such rule may be amended from time to time.
ARTICLE 10
Redemption Of Securities
SECTION 10.01. Provisional and Optional Redemption by the Company.
(a) The Securities may be redeemed at the election of the Company, as
a whole or in part, from time to time, at any time on or before September 12,
2003 (a "Provisional Redemption"), upon notice as set forth in Section 10.04, at
-----
a redemption price equal to $1,000 per $1,000 principal amount of the Securities
redeemed plus accrued and unpaid interest (including Liquidated Damages, if
any), if any (such amount, together with the Make-Whole Payment described below,
the "Provisional Redemption Price"), to but excluding the date of redemption
(the "Provisional Redemption Date") if (i) the Closing Price of the Common Stock
has exceeded 150% of the Conversion Price (as defined in Article 12 and as such
--
may be adjusted from time to time) then in effect for at least 20 Trading Days
in any period of 30 consecutive Trading Days ending on the Trading Day prior to
the date of mailing of the provisional notice of redemption pursuant to Section
10.04 (the "Notice Date"), and (ii) a registration statement covering resales of
-----
the Securities and the Common Stock issuable upon conversion thereof is
effective and available for use and is expected to remain effective for the 30
days following the Provisional Redemption Date.
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Upon any such Provisional Redemption, the Company shall make an additional
payment, at the option of each holder of Securities, in cash or Common Stock or
a combination of cash and Common Stock (the "Make-Whole Payment") with respect
to the Securities called for redemption to holders on the Notice Date in an
amount equal to $135 per $1,000 principal amount of the Securities, less the
amount of any interest actually paid on such Securities on or prior to the
Provisional Redemption Date; provided that, if a Holder makes no specific
election, such Holder shall receive its Make-Whole Payment in cash. Holders of
Securities may elect the form of consideration for their Make-Whole Payment at
least 15 days prior to the Provisional Redemption Date. Payments made in Common
Stock will be valued at 97% of the average of the closing sales prices of Common
Stock for the five trading days ending on the date prior to the Provisional
Redemption Date. The Company shall make the Make-Whole Payment on all Securities
called for Provisional Redemption, including those Securities converted into
Common Stock (meaning, those Securities, if any, as to which the conversion
privilege has been exercised pursuant to Section 12.02) between the Notice Date
-----
and the Provisional Redemption Date, and shall deliver an Officers' Certificate
to the Trustee setting forth (i) the value given to the Common Stock (as
determined pursuant to the preceding sentence), and (ii) the amount of interest
previously and concurrently (if applicable) paid on such Securities on or prior
to the Provisional Redemption Date and the amount of the Make-Whole Payment
reduced thereby per $1,000 in aggregate principal amount of Securities. The
Trustee shall not be under any duty to review, verify, challenge or contest any
such determination by the Company.
(b) The Securities may be redeemed at the election of the Company, as
a whole or from time to time in part, at any time after September 12, 2003, and
prior to maturity (an "Optional Redemption"), upon notice as set forth in
Section 10.04, at the following optional redemption prices (expressed as
-----
percentages of the principal amount), together in each case with accrued and
unpaid interest (including Liquidated Damages, if any), if any, up to but not
including the date fixed for redemption (the "Optional Redemption Price"), if
redeemed during the periods described below:
Period Redemption Price
-------------------------------------------------- ------------------
September 13, 2003 through September 12, 2004 101.8%
Thereafter 100.9%
SECTION 10.02. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of all or any part of the
Securities pursuant to Section 10.01 (Provisional Redemption or Optional
-----
Redemption), the Company shall, at least 15 days prior to the giving of the
notice of redemption in Section 10.04 to the Holders (unless a shorter notice
-----
shall be satisfactory to the Trustee), notify the Trustee of the Redemption Date
and of the principal amount of Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the
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Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with all such restrictions.
SECTION 10.03. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days and not less than 30 days prior
to the Redemption Date by the Trustee, from the Outstanding Securities not
previously called for redemption, by lot, pro rata or any other method that
complies with the requirements of any exchange on which the Securities are
listed or quoted and that the Trustee shall deem fair and appropriate.
If any Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed, solely for
purposes of determining the aggregate principal amount of the Securities to be
redeemed, to be the portion selected for redemption (provided, however, that the
Holder of such Security so converted and deemed redeemed shall not be entitled
to any interest payment as a result of such deemed redemption except for such
interest payment as such Holder would have otherwise been entitled to receive
upon conversion of such Security). 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.
Securities in denominations of $1,000 may only be redeemed in whole. The
Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 10.04. Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 1.07, (i) at least 30 days, but not more than
----
60 days, prior to the Provisional Redemption Date in the case of a Provisional
Redemption, to each Holder of Securities to be redeemed, and (ii) at least 30
days, but not more than 60 days, prior to the Redemption Date in the case of an
Optional Redemption; provided, in each case, that failure to give such notice in
the manner herein provided to the Holder of any Security designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other such Security or portion thereof.
All notices of redemption shall state:
(a) the Redemption Date;
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(b) the Redemption Price;
(c) in the case of a Provisional Redemption, the date by which
holders must elect the form of consideration of their Make-Whole Payment;
(d) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the principal amount) of
the particular Securities to be redeemed;
(e) if any Security is to be redeemed in part only, the portion of
the principal amount of such Security to be redeemed, and the notice that
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the holder shall receive, without a charge, a new
Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
(f) whether the redemption is a Provisional Redemption or an Optional
Redemption;
(g) that on the Redemption Date, the Redemption Price shall become
due and payable upon each such Security, or the portion thereof, to be redeemed
and, if applicable, that interest thereon shall cease to accrue on and after
said date;
(h) the Place or Places of Payment where such Securities are to be
surrendered for payment of the Redemption Price;
(i) that Securities called for redemption must be presented and
surrendered to the Paying Agent to collect the redemption price;
(j) the then current Conversion Price and Make-Whole Payment, if any;
(k) that the Securities called for redemption may be converted at any
time before the close of business on the last Business Day prior to the
Redemption Date;
(l) the CUSIP number of such Security, if any; and
(m) that a Holder of Securities who desires to convert Securities
must satisfy the requirements for conversion contained in such Securities.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 10.05. Deposit of Redemption Price. Not later than 11:00 a.m. New
York City time on the Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 9.03) an amount of
----
money sufficient to pay, on the Redemption Date, the Redemption Price of all the
Securities or portions thereof that are to be redeemed on that date, other than
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Securities or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation or have been converted.
Upon written request, the Trustee or the Paying Agent, as the case may be, shall
return to the Company no later than 5 Business Days after such request any money
not required to pay such Redemption Price.
SECTION 10.06. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price
provided, however, that if the Provisional Redemption Date is an Interest
Payment Date, the semi-annual payment of interest becoming due on such date
shall be payable to the Holders of such Securities registered as such on the
relevant Regular Record Date according to their terms and the provisions of
Section 3.06, and with respect to a Provisional Redemption, the holder of any
----
Securities converted into Common Stock pursuant to the terms hereof after the
Notice Date and prior to the Provisional Redemption Date shall have the right to
the Make-Whole Payment regardless of the conversion of such Securities.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Redemption Price, shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security and such Security
shall remain convertible into Common Stock until the Redemption Price, and any
such accrued interest, shall have been paid or duly provided for.
SECTION 10.07. Securities Redeemed in Part. Any Security that is to be
redeemed only in part (pursuant to the provisions of this Article) shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing) and the Company shall execute and
the Trustee shall authenticate and 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 unredeemed portion of the principal of the Security so
surrendered.
ARTICLE 11
Repurchase At Option Of Holders Upon Change In Control
SECTION 11.01. Right to Require Repurchase. In the event that a Change in
Control shall occur, each Holder shall have the right, at the Holder's option,
to require the Company to repurchase all of such Holder's Securities, or any
portion of the principal amount thereof that is an integral multiple of $1,000
(provided that no single Security may be repurchased in part unless the portion
of the principal amount of such Security to be outstanding after such repurchase
is equal to $1,000 or an integral multiple of $1,000), on the date (the
"Repurchase Date") that is 45 Business Days after the date of the occurrence of
a Change in Control at a purchase price equal to 100% of the
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principal amount plus interest (including Liquidated Damages, if any) accrued
and unpaid to the Repurchase Date (the "Repurchase Price"). The Repurchase Price
shall be paid in cash.
SECTION 11.02. Notices; Method of Exercising Repurchase Right, Etc. (a)
Unless the Company shall have theretofore called for redemption all of the
Outstanding Securities, on or before the date that is 30 Business Days after the
occurrence of a Change in Control, the Company shall give notice to all Holders
of Outstanding Securities and to the Trustee (the "Company Notice") of the
occurrence of the Change in Control and of the repurchase right set forth herein
arising as a result thereof.
Each Company Notice shall state:
(i) the date of such Change in Control and, briefly, the events
causing such Change in Control;
(ii) the date by which the Change in Control Purchase Notice (as
defined below) must be delivered;
(iii) the Repurchase Date;
(iv) the Repurchase Price;
(v) a description of the procedure that a Holder must follow to
exercise a repurchase right;
(vi) the procedures for withdrawing a Change in Control Purchase
Notice;
(vii) the place or places where such Securities are to be surrendered
for payment of the Repurchase Price or for conversion;
(viii) briefly, the conversion rights of Holders of Securities;
(ix) the Conversion Rate and any adjustments thereto; and
(x) that Holders who want to convert Securities must satisfy the
requirements set forth in the Securities.
Promptly after giving the Company Notice to the Holders of Outstanding
Securities and to the Trustee, the Company shall cause a copy of the Company
Notice to be published in The Wall Street Journal or another daily newspaper of
national circulation.
(b) [Intentionally Omitted]
(c) To exercise a repurchase right, a Holder must deliver to the
Trustee or at the office or agency maintained by the Company for such purpose in
the Borough of Manhattan, The City of New York pursuant to Section 9.02, prior
----
to the close of business on or before the
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<PAGE>
Repurchase Date, (i) written notice of the Holder's exercise of such right (the
"Change in Control Purchase Notice"), which notice shall set forth (A) the name
of the Holder, (B) the certificate numbers of the Securities with respect to
which the repurchase right is being exercised, (C) the principal amount of the
Securities to be repurchased (and, if any Security is to be repurchased in part,
the portion of the principal amount thereof to be repurchased, which shall be in
integral multiples of $1,000) and (D) a statement that an election to exercise
the repurchase right is being made thereby pursuant to the applicable provisions
of the Securities and (ii) surrender the Securities subject to the Change in
Control Purchase Notice.
(d) On or prior to the Repurchase Date the Company shall deposit with
the Trustee or with the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 9.03) an amount
----
of money sufficient to pay the Repurchase Price of the Securities that are to be
repaid on the Repurchase Date. On the Repurchase Date, the Trustee, a Paying
Agent (or, if the Company is acting as its own Paying Agent, the Company) shall
repurchase all such Securities validly tendered prior to such date.
In the event that a Holder has previously delivered a Change in Control
Purchase Notice, but failed to surrender the Security with respect to which such
Change in Control Purchase Notice relates, then so long as the Trustee or the
Paying Agent holds (or, if the Company is acting as its own Paying Agent, the
Company segregates and holds in trust as provided in Section 9.03) money
----
sufficient to pay the Repurchase Price in respect of such Security, then such
Security shall cease to be Outstanding for the purposes of this Indenture on the
Repurchase Date and all rights of the Holder thereof other than the right to
receive the Repurchase Price shall terminate.
(e) If any Security (or portion thereof) surrendered for repurchase
shall not have been repurchased on the Business Day following the Repurchase
Date, the Repurchase Price in respect of such Security shall, until paid, bear
interest from the Business Day following the Repurchase Date at the rate borne
by the Security and such Security shall remain convertible into Common Stock
until the Repurchase Price and any such accrued interest shall have been paid or
duly provided for.
(f) Any Security that is to be repurchased only in part shall be
surrendered to the Trustee or any such Paying Agent (or if the Company is acting
as its own Paying Agent, the Company) 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, containing identical terms and
conditions, each in an authorized denomination in aggregate principal amount
equal to and in exchange for the portion of the principal of the Security so
surrendered that was not repurchased.
(g) Any Holder that has delivered a Change in Control Purchase Notice
shall have the right to withdraw such notice by delivery of a written notice of
withdrawal to the Trustee or any such Paying Agent prior to the close of
business on the Repurchase Date. The notice of withdrawal shall state the
principal amount and the certificate numbers of the Securities as to which the
withdrawal notice relates and the principal amount, if any, that remains subject
to the Change in Control Purchase Notice. A Security in respect of which a
Holder has exercised its right to require repurchase upon a Change in Control
may thereafter be converted into Common Stock only if, and at
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<PAGE>
such time as, such Holder withdraws its Change in Control Purchase Notice in
accordance with the preceding sentence.
(h) [Intentionally Omitted]
(i) [Intentionally Omitted]
(j) [Intentionally Omitted]
(k) Notwithstanding anything to the contrary in this Section 11.02,
-----
the Company shall not be required to give the Company Notice following the
occurrence of a Change in Control if, in the manner, at the time and otherwise
in compliance with the requirements set forth herein regarding the Company's
obligation to offer to repurchase the Outstanding Securities following the
occurrence of a Change in Control, (A) another Person makes an offer to
repurchase the Outstanding Securities by giving a notice containing the
information set forth in clauses (i) through (x) of Section 11.02 (a) to the
---------
Holders of all Outstanding Securities and to the Trustee, (B) such Person
repurchases all Outstanding Securities validly tendered and not withdrawn, and
(C) such Person makes all payments with respect thereto. This Section 11.02(k)
--------
shall not relieve the Company of any of its obligations under this Indenture or
any Security; provided, however, that if another Person makes the offer to
repurchase Outstanding Securities as set forth in this Section, the Company
shall not be obligated to give the Company Notice.
(l) Absent, and except to the extent of, the Trustee's receipt of a
Company Notice of a Change in Control, the Trustee shall not be under any duty
to determine or monitor whether a Change in Control has occurred, from time to
time.
SECTION 11.03. Certain Definitions. For purposes of this Article 11:
--
(a) the terms "beneficial owner" and "beneficial ownership" shall be
determined in accordance with Rules 13d-3 and 13d-5 promulgated by the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), except that a Person shall be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time; and
(b) the term "Person" shall include any syndicate or group that would
be deemed to be a "person" under Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act.
SECTION 11.04. Change in Control. A "Change in Control" shall be deemed to
have occurred at such time after the original issuance of the Securities as:
(a) any Person acquires the beneficial ownership, directly or
indirectly, through a purchase, merger or other acquisition transaction (other
than a transaction described in (b) below), of more than 50% of the total voting
power of the total outstanding voting stock of the Company other than an
acquisition by the Company, any of its Subsidiaries or any of its employee
benefit plans;
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<PAGE>
(b) the Company shall consolidate with, or merge with or into,
another Person or convey, transfer, lease or otherwise dispose of all or
substantially all of its assets to any Person, or any Person consolidates with
or merges with or into the Company, in any such event pursuant to a transaction
in which the Company's outstanding voting stock is converted into or exchanged
for cash, securities or other property, other than any such transactions where:
(i) the Company's voting stock is not converted or exchanged at
all (except to the extent necessary to reflect a change in the Company's
jurisdiction of incorporation) or is converted into or exchanged for voting
stock (other than Redeemable Capital Stock) of the surviving or transferee
corporation, and
(ii) immediately after such transaction, no Person, other than
one or more Persons who were the beneficial owner, directly or indirectly, of
more than 50% of the total voting power of all of the Company's voting stock
immediately before such transaction, is the beneficial owner, directly or
indirectly, of more than 50% of the total outstanding voting stock of the
surviving or transferee corporation;
(c) during any consecutive two-year period, individuals who at the
beginning of such period constituted the Board of Directors (but not a committee
thereof), together with any new directors whose election to such Board of
Directors (but not a committee thereof), or whose nomination for election by the
Company's stockholders, was approved by a vote of a majority of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved cease
for any reason to constitute a majority of the Board of Directors (but not a
committee thereof) then in office; or
(d) a special resolution is passed by the Company's stockholders
approving a plan of liquidation or dissolution of the Company (other than in a
transaction that complies with the provisions described in Article 7), and no
-
additional approvals of the Company's stockholders are required under applicable
law to cause such a liquidation or dissolution.
"Redeemable Capital Stock" means any class or series of capital stock that,
either by its terms, by the terms of any security into which it is convertible
or exchangeable or by contract or otherwise, is, or upon the happening of an
event or passage of time would be, required to be redeemed prior to the Stated
Maturity of the Securities or is redeemable at the option of the holder thereof
at any time prior to such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to such Stated Maturity;
provided, however, that Redeemable Capital Stock shall not include any Common
Stock which the holder may cause the Company to repurchase or redeem upon
termination of such holder's employment.
ARTICLE 12
Conversion
SECTION 12.01. Conversion Privilege, Conversion Rate and Conversion Price.
Subject to and upon compliance with the provisions of this Article 12, at the
--
option of the Holder thereof, any Security or any portion of the principal
amount thereof that is $1,000 or an integral multiple of
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<PAGE>
$1,000 may be converted at any time after original issuance thereof through the
close of business on September 12, 2005 into that number of fully paid and non-
assessable shares of Common Stock obtained by multiplying the Conversion Rate
then in effect by each $1,000 principal amount of Securities surrendered for
conversion. In case a Security or portion thereof has previously been called for
redemption at the election of the Company, such conversion right in respect of
the Security or portion so called shall expire at the close of business, New
York City time, on the last Business Day prior to the Redemption Date, unless
the Company defaults in making the payment due upon redemption. A Security in
respect of which a Holder has delivered a Change in Control Purchase Notice (as
defined in Article 11 hereof) exercising the option of such Holder to require
--
the Company to purchase such Security may be converted only if such notice and
the Security is withdrawn by a written notice of withdrawal delivered by the
Holder to the Trustee or any Paying Agent prior to the close of business on the
Repurchase Date, in accordance with the terms of this Indenture.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") shall be initially $61.9225
per share of Common Stock, which is equal to a conversion rate of 16.1492 shares
per $1,000 principal amount of the Securities (the "Conversion Rate"). The
Conversion Rate shall be adjusted in certain instances as provided in Section
12.04 and, in every instance in which an adjustment is made to the Conversion
-----
Rate, a corresponding adjustment shall be made to the Conversion Price. The
adjusted Conversion Price shall equal at any time 1,000 divided by the then
adjusted Conversion Rate.
SECTION 12.02. Exercise of Conversion Privilege. In order to exercise the
conversion privilege with respect to any Security in definitive form, the Holder
of any Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency maintained by the
Company pursuant to Section 9.02, accompanied by (a) written notice to the
----
Company in substantially the form of conversion notice attached to the form of
Security attached as Exhibit A hereto at such office or agency that the Holder
elects to convert such Security or, if less than the entire principal amount
thereof is to be converted, the portion thereof to be converted, (b) the funds,
if any, required by this Section 12.02, and (c) if shares or any portion of such
-----
Security not to be converted are to be issued in the name of a Person other than
the Holder thereof, the name of the Person in which to issue such shares and the
transfer taxes, if any, required to be paid by the Holder pursuant to Section
12.08.
-----
In order to exercise the conversion privilege with respect to any interest
in a global Security, the beneficial owner must complete, or cause to be
completed, the appropriate instruction form for conversion pursuant to the
depositary's book-entry conversion program, deliver, or cause to be delivered,
by book-entry delivery, an interest in such global Security, furnish appropriate
endorsements and transfer documents if required by the Company or the Trustee or
other agent, and pay the funds, if any, required by this Section 12.02 and any
-----
transfer taxes if required pursuant to Section 12.08.
-----
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, the Company shall issue and shall deliver to such
Holder a certificate or certificates for the
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<PAGE>
number of full shares of Common Stock issuable upon the conversion of such
Security or portion thereof in accordance with the provisions of this Article
and a check or cash in respect of any fractional interest in respect of a share
of Common Stock arising upon such conversion, as provided in Section 12.03. In
-----
case any Security of a denomination greater than $1,000 shall be surrendered for
partial conversion, and subject to Article 2, the Company shall execute, and the
Trustee shall authenticate and deliver to the holder of the Security so
surrendered, without charge, a new Security or Securities in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Security.
Each conversion shall be deemed to have been effected as to any such
Security (or portion thereof) on the date on which the requirements set forth
above in this Section 12.02 have been satisfied as to such Security (or portion
-----
thereof), and the Person in whose name any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall be deemed to
have become on said date the holder of record of the shares represented thereby;
provided however that any such surrender on any date when the stock transfer
books of the Company shall be closed shall constitute the Person in whose name
the certificates are to be issued as the record holder thereof for all purposes
on the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Rate in effect on the date upon which such
Security shall be surrendered.
Any Security or portion thereof surrendered for conversion during the
period from the close of business on the record date for any interest payment
date to the close of business on the Business Day next preceding the following
interest payment date that has not been called for redemption during such
period, shall be accompanied by payment, in immediately available funds or other
funds acceptable to the Company, of an amount equal to the interest otherwise
payable on such interest payment date on the principal amount being converted;
provided however that no such payment need be made to the extent any overdue
interest shall exist at the time of conversion with respect to any such Security
or portion thereof. On conversion of a Security, that portion of accrued and
unpaid interest, if any, remaining unpaid on such conversion 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 Common Stock (together with
the cash payment, if any, in lieu of fractional shares) in exchange for the
Security being converted pursuant to the provisions hereof. Except as provided
above in this Section 12.02, no payment or other adjustment shall be made for
-----
interest accrued on any Security converted or for dividends on any shares issued
upon the conversion of such Security as provided in this Article.
Upon the conversion of an interest in a global Security, the Trustee (or
other conversion agent appointed by the Company), shall make a notation on such
global Security as to the reduction in the principal amount represented thereby.
The Company shall notify the Trustee in writing of any conversions of Securities
effected through any Conversion Agent other than the Trustee.
SECTION 12.03. Fractions of Shares. No fractional shares of Common Stock
shall be issued upon conversion of Securities. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of full
shares that shall be issuable upon conversion
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<PAGE>
thereof shall be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof) so surrendered. Instead of any
fractional share of Common Stock that would otherwise be issuable upon
conversion of any Security (or specified portions thereof), the Company shall
pay a cash adjustment in respect of such fraction in an amount equal to the same
fraction of the Closing Price per share of the Common Stock at the close of
business on the Trading Day immediately preceding such day.
"Trading Day" shall mean each day on which the primary securities exchange
or quotation system that is used to determine the Closing Price is open for
trading or quotation.
"Closing Price" of a single share of Common Stock on any Trading Day shall
mean the closing sale price per share for the Common Stock (or if no closing
sale price is reported, the average of the bid and ask prices) on such Trading
Day on the principal United States national securities exchange on which the
Common Stock is traded or, if the Common Stock is not listed on a United States
national stock exchange, as reported by the Nasdaq National Market.
SECTION 12.04. Adjustment of Conversion Rate.
(a) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in Common Stock, the Conversion
Rate in effect at the opening of business on the earlier of the day next
following such dividend or other distribution or the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be adjusted so that a Holder upon conversion shall be
entitled to receive that number of shares of Common Stock it would have been
entitled to after such dividend or other distribution if it had converted its
Security immediately prior to such dividend or other distribution.
(b) In case the Company shall pay or make a dividend or other
distribution on its Common Stock consisting exclusively of, or shall otherwise
issue to all holders of its Common Stock, rights, warrants or options entitling
the holders thereof, for a period not exceeding 45 days, to subscribe for or
purchase shares of Common Stock at a price per share less than the current
market price per share (determined as provided in Section 12.04(g)) of the
--------
Common Stock on the date fixed for the determination of stockholders entitled to
receive such rights, warrants or options, the Conversion Rate in effect at the
opening of business on the day following the date fixed for such determination
shall be increased by multiplying such Conversion Rate by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock so offered for subscription or purchase and the
denominator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate price of the total number of shares
so offered would purchase at the current market price per share (determined as
provided in Section 12.04(g)), such increase to become effective immediately
--------
after the opening of business on the day following the date fixed for such
determination.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Rate in effect
at the opening of business
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<PAGE>
on the day following the day upon which such subdivision becomes effective shall
be proportionately increased, and, conversely, in case outstanding shares of
Common Stock shall each be combined into a smaller number of shares of Common
Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness, shares of any
class of capital stock, securities, cash or assets (excluding any rights,
warrants or options referred to in Section 12.04(b), any dividend or
--------
distribution paid exclusively in cash and any dividend or distribution referred
to in Section 12.04(a)), the Conversion Rate shall be adjusted by multiplying
---------
the Conversion Rate in effect immediately prior to the earlier of such
distribution or the determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be the current market
price per share (determined as provided in Section 12.04(g)) and the denominator
---------
shall be such current market price less the fair market value (as determined in
good faith by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution), on the date of such effectiveness, of the
portion of the evidences of indebtedness, shares of capital stock, securities,
cash and assets so distributed applicable to one share of Common Stock, such
adjustment to become effective immediately prior to the opening of business on
the day next following the later of (i) the date fixed for the payment of such
distribution and (ii) the date 20 days after the notice relating to such
distribution is given pursuant to Section 12.06 (such later date of (i) and (ii)
-----
being referred to as the "Reference Date"). The provisions of this Section
12.04(d) shall not be applicable to an event covered by Section 12.04(j). For
-------- --------
purposes of this Section 12.04(d) and Sections 12.04(a) and 12.04(b), any
-------- -------- --------
dividend or distribution for which an adjustment is being made pursuant to this
Section 12.04(d) that also includes shares of Common Stock or rights, warrants
--------
or options to subscribe for or purchase shares of Common Stock shall be deemed
instead to be (A) a dividend or distribution of the evidences of indebtedness,
cash, property, shares of capital stock or securities other than such shares of
Common Stock or such rights, warrants or options (making any Conversion Rate
adjustment required by this Section 12.04(d)) immediately followed by (B) a
--------
dividend or distribution of such shares of Common Stock or such rights (making
any further Conversion Rate adjustment required by Sections 12.04(a) or
--------
12.04(b)), except (1) the record date of such dividend or distribution as
---------
defined in this Section 12.04(d) shall be substituted as "the date fixed for the
--------
determination of stockholders entitled to receive such dividend or other
distributions", "the date fixed for the determination of stockholders entitled
to receive such rights, warrants or options" and "the date fixed for such
determination" within the meaning of Sections 12.04(a) and 12.04(b) and (2) any
-------- --------
shares of Common Stock included in such dividend or distribution shall not be
deemed "outstanding at the close of business on the date fixed for such
determination" within the meaning of this 12.04(d).
--------
(e) In case the Company shall, by dividend or otherwise, make a
distribution to all holders of its Common Stock exclusively in cash in an
aggregate amount that, together with (i) the aggregate amount of any other
distributions to all holders of its Common Stock made
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<PAGE>
exclusively in cash within the 12 months preceding the date of payment of such
distribution and in respect of which no Conversion Rate adjustment pursuant to
this Section 12.04(e) has been made and (ii) the aggregate of any cash plus the
--------
fair market value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution), as of
the expiration of the tender or exchange offer referred to below, of
consideration payable in respect of any tender or exchange offer by the Company
or a Subsidiary for all or any portion of the Common Stock concluded within the
12 months preceding the date of payment of such distribution and in respect of
which no Conversion Rate adjustment pursuant to this Section 12.04(e) has been
--------
made, exceeds 10% of the product of the current market price per share
(determined as provided in Section 12.04(g)) of the Common Stock as of the
--------
Trading Day immediately preceding the record date fixed for stockholders
entitled to receive such distribution times the number of shares of Common Stock
outstanding on such record date, the Conversion Rate shall be increased so that
the same shall equal the price determined by multiplying the Conversion Rate in
effect immediately prior to the close of business on the date fixed for the
determination of the stockholders of record entitled to such distribution by a
fraction of which (i) the denominator shall be the current market price per
share (determined as provided in Section 12.04(g)) on such date less an amount
--------
equal to the quotient of (x) the excess of such combined amount over such 10%
and (y) the number of shares of Common Stock outstanding on the record date and
(ii) the numerator shall be equal to the current market price on such date, such
adjustment to become effective immediately prior to the opening of business on
the day following the record date fixed for the payment of such distribution.
(f) In case a successful tender or exchange offer, other than an odd
lot offer, made by the Company or any Subsidiary for all or any portion of the
Common Stock shall involve an aggregate consideration having a fair market value
(as determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) at the last time (the
"Expiration Time") tenders or exchanges may be made pursuant to such tender or
exchange offer (as it may be amended) that, together with (i) the aggregate of
the cash plus the fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution), as of the expiration of the other tender or exchange offer referred
to below, of consideration payable in respect of any other tender or exchange
offer by the Company or a Subsidiary for all or any portion of the Common Stock
concluded within the preceding 12 months and in respect of which no Conversion
Rate adjustment pursuant to this Section 12.04(f) has been made and (ii) the
--------
aggregate amount of any distributions to all holders of the Common Stock made
exclusively in cash within the preceding 12 months and in respect of which no
Conversion Rate adjustment pursuant to Section 12.04(e) has been made, exceeds
10% of the product of the current market price per share (determined as provided
in Section 12.04(g)) of the Common Stock outstanding (including any tendered
--------
shares) on the Expiration Time times the number of shares of Common Stock
outstanding (including any tendered shares) as of the Expiration Time, then, in
each case, the Conversion Rate shall be adjusted by multiplying the Conversion
Rate in effect immediately prior to the Expiration Time by a fraction of which
(i) the denominator shall be (x) the product of the current market price per
share (determined as provided in Section 12.04(g)) of the Common Stock on the
---------
Trading Day next succeeding the Expiration Time times the number of shares of
Common Stock outstanding (including any tendered or exchanged shares) at the
Expiration Time minus (y) the fair market value (determined as aforesaid) of the
aggregate consideration
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payable to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased Shares")
and (ii) the numerator shall be the product of (x) such current market price per
share (determined in accordance with Section 12.04(g)) on the Trading Day next
---------
succeeding the Expiration Time times (y) such number of outstanding shares at
the Expiration Time less the number of Purchased Shares, such increase to become
effective immediately prior to the opening of business on the day following the
Expiration Time.
(g) For the purpose of any computation under Sections 12.04(b), (d)
-------- ---
and (e), the current market price per share of Common Stock on any date in
question shall be deemed to be the average of the daily Closing Prices per share
of Common Stock for the ten consecutive Trading Days immediately prior to the
date in question; provided, however, that (i) if the "ex" date (as hereinafter
defined) for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Rate pursuant to
Section 12.04(a), (b), (c), (d), (e) or (f) ("Other Event") occurs on or after
-------- --- --- --- --- ---
the 20th Trading Day prior to the date in question and prior to the "ex" date
for the issuance or distribution requiring such computation (the "Current
Event"), the Closing Price for each Trading Day prior to the "ex" date for such
Other Event shall be adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the Conversion Rate is so required to be
adjusted as a result of such Other Event, (ii) if the "ex" date for any Other
Event occurs after the "ex" date for the Current Event and on or prior to the
date in question, the Closing Price for each Trading Day on and after the "ex"
date for such Other Event shall be adjusted by multiplying such Closing Price by
the fraction by which the Conversion Rate is so required to be adjusted as a
result of such Other Event, (iii) if the "ex" date for any Other Event occurs on
the "ex" date for the Current Event, one of those events shall be deemed for
purposes of clauses (i) and (ii) of this proviso to have an "ex" date occurring
prior to the "ex" date for the Other Event, and (iv) if the "ex" date for the
Current Event is on or prior to the date in question, after taking into account
any adjustment required pursuant to clause (ii) of this proviso, the Closing
Price for each Trading Day on or after such "ex" date shall be adjusted by
adding thereto the amount of any cash and the fair market value on the date in
question (as determined in good faith by the Board of Directors in a manner
consistent with any determination of such value for purposes of Section 12.04(d)
--------
or (e), whose determination shall be conclusive and described in a Board
---
Resolution) of the portion of the rights, warrants, options, evidences of
indebtedness, shares of capital stock, securities, cash or property being
distributed applicable to one share of Common Stock. For the purpose of any
computation under Section 12.04(f), the current market price per share of Common
--------
Stock on any date in question shall be deemed to be the average of the daily
Closing Prices for the five consecutive Trading Days selected by the Company
commencing on or after the latest (the "Commencement Date") of (i) the date 20
Trading Days before the date in question, (ii) the date of commencement of the
tender or exchange offer requiring such computation and (iii) the date of the
last amendment, if any, of such tender or exchange offer involving a change in
the maximum number of shares for which tenders are sought or a change in the
consideration offered, and ending not later than the Trading Day next succeeding
the Expiration Time of such tender or exchange offer (or, if such Expiration
Time occurs before the close of trading on a Trading Day, not later than the
Trading Day during which the Expiration Time occurs); provided, however, that if
the "ex" date for
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any Other Event (other than the tender or exchange offer requiring such
computation) occurs on or after the Commencement Date and on or prior to the
Trading Day next succeeding the Expiration Time for the tender or exchange offer
requiring such computation, the Closing Price for each Trading Day prior to the
"ex" date for such Other Event shall be adjusted by multiplying such Closing
Price by the reciprocal of the same fraction by which the Conversion Rate is so
required to be adjusted as a result of such other event. For purposes of this
paragraph, the term "ex" date, (i) when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades regular way
on the relevant exchange or in the relevant market from which the Closing Price
was obtained without the right to receive such issuance or distribution, (ii)
when used with respect to any subdivision or combination of shares of Common
Stock, means the first date on which the Common Stock trades regular way on such
exchange or in such market after the time at which such subdivision or
combination becomes effective, and (iii) when used with respect to any tender or
exchange offer means the first date on which the Common Stock trades regular way
on such exchange or in such market after the Expiration Time of such tender or
exchange offer.
(h) In addition to those required by paragraphs (a), (b), (c), (d),
--- --- --- ---
(e) and (f) of this Section 12.04, to the extent permitted by applicable law,
--- --- -----
the Company from time to time may increase the Conversion Rate by any amount for
any period of time if the period is at least twenty (20) days and the Board of
Directors shall have made a determination that such increase would be in the
best interests of the Company, which determination shall be conclusive. Whenever
the Conversion Rate is increased pursuant to the preceding sentence, the Company
shall give notice of the increase to the Holders of Securities in the manner
provided in Section 1.06 at least fifteen (15) days prior to the date the
increased Conversion Rate takes effect, and such notice shall state the
increased Conversion Rate and the period during which it will be in effect.
(i) No adjustment in the Conversion Rate shall be required unless
such adjustment would require an increase or decrease of at least 1% in the
Conversion Rate; provided, however, that any adjustments, which by reason of
this Section 12.04(i) are not required to be made, shall be carried forward and
--------
taken into account in any subsequent adjustment.
(j) In the event that the Company distributes assets, debt
securities, rights, warrants or options (other than those referred to in Section
12.04(b)) pro rata to holders of Common Stock, and the fair market value of the
---------
portion of assets, debt securities, rights, warrants or options applicable to
one share of Common Stock distributed to holders of Common Stock exceeds the
Average Sale Price (as defined below) per share of Common Stock, or such Average
Sale Price exceeds such fair market value by less than $1.00, then so long as
any such assets, debt securities, rights, options or warrants have not expired
or been redeemed by the Company, the Company shall make proper provision so that
the Holder of any Security upon conversion, rather than being entitled to an
adjustment in the Conversion Rate, will be entitled to receive upon such
conversion, in addition to the shares of Common Stock otherwise issuable upon
conversion, the kind and amount of assets, debt securities, rights, warrants and
options such Holder would have received had such Holder converted its Security
immediately prior to the date of determination of the holders entitled to such
distribution.
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<PAGE>
"Average Sale Price" means the average of the Closing 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 (as defined below) with respect
to the rights, options, warrants or distribution in respect of which the Average
Sale Price is being calculated, or (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,
options, warrants or distribution in respect of which the Average Sale Price is
being calculated, or (iii) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time (as defined below) 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
12.04(b) or Section 12.04(j) and (y) proceeding through 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. 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 12.04(a), (b) or (c) 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 in good faith by the Board of Directors to reflect the impact of such
dividend, subdivision, combination or reclassification on the Closing 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 this Section 12.04 applies 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 Common Stock are listed or quoted.
SECTION 12.05. Notice of Adjustments of Conversion Rate. Whenever the
Conversion Rate and Conversion Price are adjusted as herein provided, the
Company shall compute the adjusted Conversion Rate and Conversion Price in
accordance with Section 12.04 and shall prepare a certificate signed by the
-----
Chief Financial Officer of the Company setting forth the adjusted Conversion
Rate and Conversion Price and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall forthwith be filed (with a
copy to the Trustee or the Conversion Agent) at each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 9.02; and the
----
Company shall forthwith cause a notice setting forth the adjusted Conversion
Rate and Conversion Price to be mailed, first class postage prepaid, to each
Holder of Securities at its address appearing on the Security Register. Unless
and until the Trustee (and the Conversion Agent, as the case may be) shall
receive such notice, the Trustee (and the Conversion Agent, as the case may be)
may assume without inquiry that the Conversion Rate and Conversion Price have
not been, and are not required to be, adjusted and that the last Conversion Rate
and Conversion Price of which it has written notice remain in effect.
SECTION 12.06. Notice of Certain Corporate Action. In case:
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<PAGE>
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock that would require a Conversion Rate adjustment pursuant to
Section 12.04(e); or
--------
(b) the Company shall authorize the granting to all holders of its
Common Stock of rights, warrants or options to subscribe for or purchase any
shares of capital stock of any class or of any other rights (excluding rights
distributed pursuant to any stockholder rights plan); or
(c) of any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding shares of Common Stock), or
of any consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company or any Subsidiary of the Company shall commence a
tender or exchange offer for all or a portion of the Company's outstanding
shares of Common Stock (or shall amend any such tender or exchange offer);
then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to Section 9.02,
----
and shall cause to be mailed to all Holders at their last addresses as they
shall appear in the Security Register, at least 20 days (or 10 days in any case
specified in clause 12.06(a) or 12.06(b) above) prior to the applicable record,
-------- --------
effective or expiration date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution or granting of rights, warrants or options, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights, warrants or options are to be
determined, or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up,
or (z) the date on which such tender offer commenced, the date on which such
tender offer is scheduled to expire unless extended, the consideration offered
and the other material terms thereof (or the material terms of any amendment
thereto).
SECTION 12.07. Company's Obligation Regarding Common Stock. The Company
shall at all times reserve and keep available, free from preemptive rights, out
of its authorized but unissued Common Stock, solely for the purpose of effecting
the conversion of Securities, the whole number of shares of Common Stock then
issuable upon the conversion in full of all Outstanding Securities.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the shares of Common Stock
issuable upon conversion of the Securities, the Company shall take all corporate
action that may, in the opinion of its counsel, be
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<PAGE>
necessary in order that the Company may validly and legally issue shares of such
Common Stock at such adjusted Conversion Price.
The Company covenants that if any shares of Common Stock to be provided for
the purpose of conversion of Securities hereunder require registration with or
approval of any governmental authority under any federal or state law before
such shares may be validly issued upon conversion, the Company shall in good
faith and as expeditiously as practicable endeavor to secure such registration
or approval, as the case may be.
The Company further covenants that so long as the Common Stock shall be
listed or quoted on the New York Stock Exchange, the Nasdaq Stock Market
(National Market), or any other national securities exchange the Company shall,
if permitted by the rules of such exchange, list and keep listed so long as the
Common Stock shall be so listed on such market or exchange, all Common Stock
issuable upon conversion of the Securities.
SECTION 12.08. Taxes on Conversions. The Company shall pay any and all
stamp, documentary or issuance taxes that may be payable in respect of the issue
or delivery of shares of Common Stock on conversion of Securities pursuant
hereto, but shall not pay any taxes measured by net income or otherwise imposed
on Holders in connection with a conversion. The Company shall not, however, be
required to pay any tax that may be payable in respect of any transfer involved
in the issue and delivery of shares of Common Stock in a name other than that of
the Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax, or has established to the
satisfaction of the Company that such tax has been paid.
SECTION 12.09. Covenant as to Common Stock. The Company covenants that all
shares of Common Stock that may be issued upon conversion of Securities shall
upon issue be newly issued (and not treasury shares) and shall be duly
authorized, validly issued, fully paid and nonassessable and, except as provided
in Section 12.08, the Company shall pay all taxes, liens and charges with
-----
respect to the issue thereof.
SECTION 12.10. Cancellation of Converted Securities. All Securities
delivered for conversion shall be delivered to the Trustee to be cancelled by or
at the direction of the Trustee, which shall dispose of the same as provided in
Section 3.08.
----
SECTION 12.11. Provisions in Case of Reclassification, Consolidation,
Merger or Sale of Assets. In the event that the Company shall be a party to any
transaction (including any (i) recapitalization or reclassification of the
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination of the Common Stock), (ii) any consolidation of the Company with, or
merger of the Company into, any other person, any merger of another person into
the Company (other than a merger that does not result in a reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock of
the Company), (iii) any sale, lease, transfer, conveyance or other disposition
of all or substantially all of the assets of the Company or (iv) any compulsory
share exchange) pursuant to which the Common Stock is converted into the right
to receive other
-63-
<PAGE>
securities, cash or other property, then lawful provision shall be made as part
of the terms of such transaction whereby the Holder of each Security then
Outstanding shall have the right thereafter to convert such Security only into
(subject to funds being legally available for such purpose under applicable law
at the time of such conversion) the kind and amount of securities, cash and
other property receivable upon such transaction by a holder of the number of
shares of Common Stock into which such Security might have been converted
immediately prior to such transaction. The Company or the Person formed by such
consolidation or resulting from such merger or that acquired such assets or that
acquired the Company's shares of Common Stock, as the case may be, shall execute
and deliver to the Trustee a supplemental indenture establishing such rights.
Such supplemental indenture shall provide for adjustments that, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section 12.11 shall similarly apply to
-----
successive transactions of the foregoing type.
SECTION 12.12. Company's Obligation. All calculations, adjustments,
conversions and other determinations under this Article 12 shall be the sole
--
responsibility and obligation of the Company. The Trustee (a) shall have no
obligation to review, verify, challenge or contest any such calculation,
adjustment, conversion or other determination and (b) shall not be liable for
any default or error by the Company under this Article 12.
--
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
TRANSWITCH CORPORATION
By: /s/ Michael C. McCoy
-------------------------------
Name: Michael C. McCoy
-----------------------------
Title: Vice-President and Secretary
----------------------------
STATE STREET BANK AND TRUST COMPANY as
Trustee
By: /s/ Patrick E. Thebado
-------------------------------
Name: Patrick E. Thebado
-----------------------------
Title: Assistant Vice President
----------------------------
<PAGE>
[If in global form, insert legend set forth in Section 2.03]
[If applicable, insert restrictive legend set forth in Section 3.04(b)]
EXHIBIT A
TRANSWITCH CORPORATION
4 1/2% CONVERTIBLE NOTE DUE 2005
No. $
CUSIP NO.
TRANSWITCH CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company," which term includes
any successor entity under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ___________, or registered assigns, the
principal sum of _____________________________ ($____________) at the office or
agency of the Company referred to below, on September 12, 2005 in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest on
said principal sum semiannually on March 12 and September 12 of each year,
commencing March 12, 2001 (each an "Interest Payment Date"), at said office or
agency, in like coin or currency, at the rate of 4 1/2% per annum, until the
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date shall, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the February 25 or
August 28 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest on this Security
shall be made at the office or agency of the Company maintained for such
purpose, which initially shall be the Corporate Trust Office of the Trustee
referred to on the reverse side hereof, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts, provided that the Company may make such payment either
by (i) mailing a check in
A-1
<PAGE>
the amount of such payment, payable to or upon the written order of the Person
entitled thereto pursuant to Section 3.07 of the Indenture (as defined therein)
or (ii) transfer to an account maintained by the payee located inside the United
States.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DATED: ______________, 2000 TRANSWITCH CORPORATION
By: ________________________
Name:
Title:
Attest:
By: _________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
DATED: ________________, 2000 STATE STREET BANK AND TRUST
COMPANY as Trustee
By: ________________________
Authorized Signatory
A-2
<PAGE>
FORM OF REVERSE OF SECURITY
Transwitch Corporation
4 1/2% CONVERTIBLE NOTE DUE 2005
This Security is one of a duly authorized issue of securities of the
Company designated as its 4 1/2% Convertible Notes due 2005 (herein called the
"Securities"), limited in aggregate principal amount to $400,000,000 (or to
$460,000,000, if the option set forth in Section 2(b) of the Purchase Agreement
dated as of September 12, 2000 among the Company and the Initial Purchasers
named therein is exercised in full) as adjusted from time to time on the books
and records of the Trustee, which may be issued under an Indenture, dated as of
September 12, 2000 (the "Indenture"), between the Company and STATE STREET BANK
AND TRUST COMPANY, as Trustee for the Holders of Securities issued under said
Indenture (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Indebtedness and the Holders of the Securities
and of the terms upon which the Securities are, and are to be, authenticated and
delivered.
The Holder of this Security (including any Person that has a beneficial
interest in this Security) and the Common Stock of the Company issuable upon
conversion hereof is entitled to the benefits of a Registration Rights
Agreement, dated as of September 12, 2000 executed by the Company (the
"Registration Rights Agreement"). Pursuant to the Registration Rights Agreement,
the Company has agreed for the benefit of the Holders from time to time of the
Registrable Securities to pay additional interest on this Security ("Liquidated
Damages") in accordance with the terms of the Registration Rights Agreement.
Whenever in this Security there is a reference, in any context, to the payment
of the principal of, premium, if any, or interest on, or in respect of, any
Security, such mention shall be deemed to include mention of the payment of
Liquidated Damages payable as described in this paragraph to the extent that, in
such context, Liquidated Damages are, were or would be payable in respect of
such Security and express mention of the payment of Liquidated Damages (if
applicable) in any provisions of this Security shall not be construed as
excluding Liquidated Damages in those provisions of this Security where such
express mention is not made.
Subject to and upon compliance with the provisions of the Indenture, the
Holder of this Security is entitled, at its option, at any time on or before
maturity of the Securities, or in case this Security or a portion hereof is
called for redemption, then in respect of this Security or such portion hereof
until and including, but (unless the Company defaults in making the payment due
upon redemption or repurchase) not after, the close of business on the Business
Day immediately preceding the Redemption Date or Repurchase Date, as the case
may be, to convert this Security (or any portion of the principal amount hereof
which is U.S. $1,000 or an integral multiple thereof), at the principal amount
hereof, or of such portion, into fully paid and nonassessable shares of Common
A-3
<PAGE>
Stock of the Company at a Conversion Rate of 16.1492 shares of common stock per
$1,000 principal amount of the Securities (or at the current adjusted Conversion
Rate if an adjustment has been made as provided in Article 12 of the Indenture)
by surrender of this Security, duly endorsed or assigned to the Company or in
blank, to the Company at its office or agency maintained for such purpose,
accompanied by the conversion notice hereon executed by the Holder hereof
evidencing such Holder's election to convert this Security, or if less than the
entire principal amount hereof is to be converted, the portion hereof to be
converted, and, in case such surrender shall be made during the period from the
close of business on any Regular Record Date to the opening of business on the
corresponding Interest Payment Date (unless this Security or the portion hereof
being converted has been called for redemption on a Redemption Date within such
period between and including such Regular Record Date and such Interest Payment
Date), also accompanied by payment in funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted. Subject to the aforesaid
requirement for payment of interest and, in the case of a conversion after the
close of business on any Regular Record Date and on or before the corresponding
Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest (even if the Security has been called for redemption on
a Redemption Date within such period), no payment or adjustment is to be made on
conversion for interest accrued hereon or for dividends on the Common Stock
issued on conversion. No fractions of shares or scrip representing fractions of
shares will be issued on conversion, but instead of any fractional interest the
Company shall pay a cash adjustment as provided in Article 12 of the Indenture.
The Conversion Rate and Conversion Price are subject to adjustment as provided
in Article 12 of the Indenture. In addition, the Indenture provides that in case
of certain reclassifications, consolidations, mergers, sales or transfers of
assets or other transactions pursuant to which the Common Stock is converted
into the right to receive other securities, cash or other property, the
conversion privilege shall be modified so that this Security, if then
outstanding, will be convertible thereafter, during the period this Security
shall be convertible as specified above, only into the kind and amount of
securities, cash and other property receivable upon the transaction by a holder
of the number of shares of Common Stock into which this Security might have been
converted immediately prior to such transaction.
The Securities may be redeemed at the election of the Company, as a whole
or from time to time in part, at any time on or before September 12, 2003 (a
"Provisional Redemption"), at a Redemption Price equal to $1,000 per $1,000
principal amount of the Securities plus accrued and unpaid interest, if any, to
but excluding the date of redemption (the "Provisional Redemption Date") if (i)
the Closing Price of the Common Stock has exceeded 150% of the Conversion Price
(as defined in Article 12 of the Indenture and as such may be adjusted from time
to time) then in effect for at least 20 Trading Days in any period of 30
consecutive Trading Days ending on the Trading Day prior to the date of mailing
of the provisional notice of redemption pursuant to Section 10.04 (the "Notice
Date") and (ii) a registration statement covering resales of the Securities and
Common Stock issuable upon the conversion thereof is effective and available for
use and is expected to remain effective for the 30 days following the
Provisional Redemption Date.
A-4
<PAGE>
Upon any such Provisional Redemption, the Company shall make an additional
payment, at the option of each holder of Securities, in cash or Common Stock of
the Company or a combination of cash and Common Stock (the "Make-Whole Payment")
to holders of the Securities called for redemption, including those Securities
converted into Common Stock between the Notice Date and the Provisional
Redemption Date, in an amount equal to $135 per $1,000 principal amount of the
Securities, less the amount of any interest actually paid on the Securities
before the Provisional Redemption Date.
The Securities (other than those Securities that have been converted in
accordance with the terms of the Indenture) are subject to redemption at the
option of the Company upon not less than 30 days' or more than 60 days' notice
by mail, as a whole or from time to time in part, at any time after September
12, 2003. The redemption prices (expressed as percentages of the principal
amount) shall be as set forth below for Securities redeemed during the following
periods described below:
Period Redemption Price
------------------------------------------------ ------------------------
September 13, 2003 through September 12, 2004 101.8%
Thereafter 100.9%
together, in the case of any such redemption, with accrued interest to (but not
including) the Redemption Date (subject to the right of holders of record on the
Regular Record Date to receive interest on the related Interest Payment Date).
Any redemption of Securities must be in integral multiples of $1,000.
If fewer than all of the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed in principal amounts at maturity of $1,000
or integral multiples thereof by lot, pro rata or by any other method that
complies with the requirements of any exchange on which the Securities are
listed or quoted and that the Trustee considers fair and appropriate. If a
portion of a Holder's Securities is selected for partial redemption and that
holder converts a portion of those Securities prior to the redemption, the
converted portion shall be deemed, solely for purposes of determining the
aggregate principal amount of the Securities to be redeemed by the Company, to
be of the portion selected for redemption.
In certain circumstances involving a Change in Control, each Holder shall
have the right to require the Company to repurchase all or part of its
Securities at a repurchase price equal to 100% of the principal amount thereof,
together with accrued and unpaid interest through the Repurchase Date (subject
to the right of holders of record on the Regular Record Date to receive interest
on the related Interest Payment Date). The repurchase price shall be paid in
cash.
The Securities do not have the benefit of any sinking fund.
In the event of redemption, conversion or repurchase of this Security in
part only, a new Security or Securities for the unredeemed, unconverted or
unrepurchased portion hereof shall be issued in the name of the Holder hereof
upon the cancellation hereof.
A-5
<PAGE>
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in Article 4 of the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with (or, in the limited circumstances
set forth in the Indenture, without) the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding, on behalf
of the Holders of all the Securities, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest (including Liquidated Damages) on this Security at the times, place and
rate, and in the coin or currency, herein prescribed or to convert this Security
as provided in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the Corporate
Trust Office duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
No service charge shall be made to a Holder for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
Interest (including Liquidated Damages) on this Security shall be computed
on the basis of a 360-day year of twelve 30-day months. In the event that any
date on which interest (including Liquidated Damages) is payable on the
Securities is not a Business Day, then payment of interest
A-6
<PAGE>
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay).
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES.
A-7
<PAGE>
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
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Please print or typewrite name and address including zip code of assignee
____________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____ __________________________________ attorney to transfer said
Note on the books of the Company with full power of substitution in the
premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES BEARING THE RESTRICTIVE LEGEND
SET FORTH IN SECTION 3.04(b) OF THE INDENTURE]
In connection with any transfer of this Note (i) other than pursuant to a
registration statement that has been declared effective under the Securities Act
(and which continues to be effective at the time of transfer) and (ii) occurring
prior to the end of the period referred to in Rule 144(k) under the Securities
Act, the undersigned confirms that without utilizing any general solicitation or
general advertising that:
[Check One]
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[_] (a) This Note is being transferred to the Company or any Subsidiary
thereof.
or
--
[_] (b) This Note is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) in compliance with
the exemption from registration under the Securities Act of 1933
provided by Rule 144A thereunder.
or
--
[_] (c) This Note is being transferred pursuant to the exemption from
registration provided by Rule 144 under the Securities Act and
documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
A-8
<PAGE>
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 3.04 of the Indenture shall have
been satisfied.
Date:_________________ _________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of the within-mentioned instrument in every
particular, without alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933 and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date:_________________ _________________________________________________
NOTICE: To be executed by an executive officer
A-9
<PAGE>
CONVERSION NOTICE
To: TRANSWITCH CORPORATION
The undersigned Holder of this Security hereby irrevocably exercises the
option to convert this Security, or the portion hereof (which is $1,000 or an
integral multiple thereof) below designated, at any time following the date of
original issuance thereof, into shares of Common Stock in accordance with the
terms of the Indenture referred to in this Security, and directs that the shares
issuable and deliverable upon conversion, together with any check in payment for
a fractional share and any Security representing any unconverted principal
amount hereof, be issued and delivered to the registered owner hereof unless a
different name has been provided below. If shares or any portion of this
Security not converted are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto and is delivering herewith a certificate in proper form certifying that
the applicable restrictions on transfer have been complied with. Any amount
required to be paid by the undersigned on account of interest accompanies this
Security.
Dated: By:_________________________________
Signature of Registered Holder*
If shares or Securities are to be Principal amount to be converted
registered in the name of a Person (if less than all): $______,000
other than the Holder, please print
such Person's name and address:
___________________________________
Name
___________________________________
Social Security or Taxpayer
Identification Number
___________________________________
Street Address
___________________________________
City, State and Zip Code
* Signature(s) must be guaranteed by an eligible guarantor institution
(banks, stock brokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program) pursuant to
Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to
be delivered, or unconverted Securities are to be issued, other than to and in
the name of the registered owner.
1
<PAGE>
ELECTION OF HOLDER TO REQUIRE REPURCHASE
(1) Pursuant to Article 11.01 of the Indenture, the undersigned hereby
elects to have this Security repurchased by the Company.
(2) The undersigned hereby directs the Trustee or the Company to pay it or
______________ an amount in cash equal to 100% of the principal amount to be
repurchased (as set forth below), plus interest (including Liquidated Damages,
if any) accrued to the Repurchase Date, as provided in the Indenture.
Dated:
______________________________________________
______________________________________________
Signature(s)
Signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an
approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange
Act of 1934.
______________________________________________
Signature Guaranteed
Principal amount to be repurchased (at least
U.S. $1,000 or an integral multiple of $1,000
in excess thereof): ___________________
Remaining principal amount following such
repurchase (not less than U.S. $1,000):
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NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
