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ANADIGICS, INC.
To
U.S. Bank Trust National Association,
as Trustee
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INDENTURE
Dated as of
September 24, 2004
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5.00% CONVERTIBLE SENIOR NOTES DUE 2009
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS......................................................................2
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. DESIGNATION AMOUNT AND ISSUE OF NOTES............................................8
SECTION 2.02. FORM OF NOTES....................................................................8
SECTION 2.03. DATE AND DENOMINATION OF NOTES; PAYMENTS OF INTEREST.............................9
SECTION 2.04. EXECUTION OF NOTES..............................................................11
SECTION 2.05. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES; RESTRICTIONS ON TRANSFER........12
SECTION 2.06. MUTILATED, DESTROYED, LOST OR STOLEN NOTES......................................17
SECTION 2.07. TEMPORARY NOTES.................................................................18
SECTION 2.08. CANCELLATION OF NOTES...........................................................19
SECTION 2.09. CUSIP NUMBERS...................................................................19
ARTICLE 3
REPURCHASE OF NOTES
SECTION 3.01. [RESERVED.].....................................................................19
SECTION 3.02. [RESERVED.].....................................................................19
SECTION 3.03. [RESERVED.].....................................................................19
SECTION 3.04. [RESERVED.].....................................................................19
SECTION 3.05. REPURCHASE AT OPTION OF HOLDERS UPON A DESIGNATED EVENT.........................19
SECTION 3.06. [RESERVED.].....................................................................24
SECTION 3.07. [RESERVED.].....................................................................24
SECTION 3.08. [RESERVED.].....................................................................24
SECTION 3.09. [RESERVED.].....................................................................24
SECTION 3.10. NOTES REPURCHASED IN PART.......................................................24
ARTICLE 4
MAKE WHOLE PREMIUM
SECTION 4.01. MAKE WHOLE PREMIUM..............................................................24
SECTION 4.02. ADJUSTMENTS RELATING TO MAKE WHOLE PREMIUM......................................28
ARTICLE 5
[RESERVED.]
ARTICLE 6
PARTICULAR COVENANTS OF THE COMPANY
SECTION 6.01. PAYMENT OF PRINCIPAL AND INTEREST...............................................28
SECTION 6.02. MAINTENANCE OF OFFICE OR AGENCY.................................................28
SECTION 6.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE..............................29
SECTION 6.04. PROVISIONS AS TO PAYING AGENT...................................................29
SECTION 6.05. EXISTENCE.......................................................................30
SECTION 6.06. RULE 144A INFORMATION REQUIREMENT...............................................30
SECTION 6.07. STAY, EXTENSION AND USURY LAWS..................................................31
SECTION 6.08. COMPLIANCE CERTIFICATE..........................................................31
SECTION 6.09. LIQUIDATED DAMAGES NOTICE.......................................................31
ARTICLE 7
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 7.01. NOTEHOLDERS' LISTS..............................................................32
SECTION 7.02. PRESERVATION AND DISCLOSURE OF LISTS............................................32
SECTION 7.03. REPORTS BY TRUSTEE..............................................................32
SECTION 7.04. REPORTS BY COMPANY..............................................................33
ARTICLE 8
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT...............................................................33
SECTION 8.02. PAYMENTS OF NOTES ON DEFAULT; SUIT THEREFOR.....................................36
SECTION 8.03. APPLICATION OF MONIES COLLECTED BY TRUSTEE......................................37
SECTION 8.04. PROCEEDINGS BY NOTEHOLDER.......................................................38
SECTION 8.05. PROCEEDINGS BY TRUSTEE..........................................................39
SECTION 8.06. REMEDIES CUMULATIVE AND CONTINUING..............................................39
SECTION 8.07. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF NOTEHOLDERS......40
SECTION 8.08. NOTICE OF DEFAULTS..............................................................40
SECTION 8.09. UNDERTAKING TO PAY COSTS........................................................40
ARTICLE 9
THE TRUSTEE
SECTION 9.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE..........................................41
SECTION 9.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC............................................42
SECTION 9.03. NO RESPONSIBILITY FOR RECITALS, ETC.............................................44
SECTION 9.04. TRUSTEE, PAYING AGENTS, CONVERSION AGENTS OR REGISTRAR MAY OWN NOTES............44
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SECTION 9.05. MONIES TO BE HELD IN TRUST......................................................44
SECTION 9.06. COMPENSATION AND EXPENSES OF TRUSTEE............................................44
SECTION 9.07. OFFICER'S CERTIFICATE AS EVIDENCE...............................................45
SECTION 9.08. CONFLICTING INTERESTS OF TRUSTEE................................................45
SECTION 9.09. ELIGIBILITY OF TRUSTEE..........................................................45
SECTION 9.10. RESIGNATION OR REMOVAL OF TRUSTEE...............................................46
SECTION 9.11. ACCEPTANCE BY SUCCESSOR TRUSTEE.................................................47
SECTION 9.12. SUCCESSION BY MERGER............................................................48
SECTION 9.13. PREFERENTIAL COLLECTION OF CLAIMS...............................................48
SECTION 9.14. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.........................48
ARTICLE 10
THE NOTEHOLDERS
SECTION 10.01. ACTION BY NOTEHOLDERS..........................................................49
SECTION 10.02. PROOF OF EXECUTION BY NOTEHOLDERS..............................................49
SECTION 10.03. WHO ARE DEEMED ABSOLUTE OWNERS.................................................50
SECTION 10.04. COMPANY-OWNED NOTES DISREGARDED................................................50
SECTION 10.05. REVOCATION OF CONSENTS, FUTURE HOLDERS BOUND...................................50
ARTICLE 11
MEETINGS OF NOTEHOLDERS
SECTION 11.01. PURPOSE OF MEETINGS............................................................51
SECTION 11.02. CALL OF MEETINGS BY TRUSTEE....................................................51
SECTION 11.03. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS.....................................51
SECTION 11.04. QUALIFICATIONS FOR VOTING......................................................52
SECTION 11.05. REGULATIONS....................................................................52
SECTION 11.06. VOTING.........................................................................53
SECTION 11.07. NO DELAY OF RIGHTS BY MEETING..................................................53
ARTICLE 12
SUPPLEMENTAL INDENTURES
SECTION 12.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.........................53
SECTION 12.02. SUPPLEMENTAL INDENTURE WITH CONSENT OF NOTEHOLDERS.............................55
SECTION 12.03. EFFECT OF SUPPLEMENTAL INDENTURE...............................................56
SECTION 12.04. NOTATION ON NOTES.............................................................56
SECTION 12.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED TO TRUSTEE....56
ARTICLE 13
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 13.01. COMPANY MAY CONSOLIDATE ON CERTAIN TERMS.......................................57
SECTION 13.02. SUCCESSOR TO BE SUBSTITUTED....................................................57
SECTION 13.03. OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE......................................58
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ARTICLE 14
[RESERVED.]
ARTICLE 15
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 15.01. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS...............................58
ARTICLE 16
CONVERSION OF NOTES
SECTION 16.01. RIGHT TO CONVERT...............................................................59
SECTION 16.02. EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF COMMON STOCK ON CONVERSION;
NO ADJUSTMENT FOR INTEREST OR DIVIDENDS................................................60
SECTION 16.03. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES.....................................62
SECTION 16.04. CONVERSION RATE................................................................62
SECTION 16.05. ADJUSTMENT OF CONVERSION RATE..................................................63
SECTION 16.06. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE......................73
SECTION 16.07. TAXES ON SHARES ISSUED.........................................................74
SECTION 16.08. RESERVATION OF SHARES, SHARES TO BE FULLY PAID; COMPLIANCE WITH GOVERNMENTAL
REQUIREMENTS; LISTING OF COMMON STOCK..................................................74
SECTION 16.09. RESPONSIBILITY OF TRUSTEE......................................................75
SECTION 16.10. NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS.....................................76
SECTION 16.11. SHAREHOLDER RIGHTS PLANS.......................................................77
SECTION 16.12. ISSUER DETERMINATION FINAL.....................................................77
ARTICLE 17
MISCELLANEOUS PROVISIONS
SECTION 17.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS.....................................77
SECTION 17.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION.........................................77
SECTION 17.03. ADDRESSES FOR NOTICES, ETC.....................................................78
SECTION 17.04. GOVERNING LAW..................................................................78
SECTION 17.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT, CERTIFICATES TO TRUSTEE......78
SECTION 17.06. LEGAL HOLIDAYS.................................................................79
SECTION 17.07. TRUST INDENTURE ACT............................................................79
SECTION 17.08. NO SECURITY INTEREST CREATED...................................................79
SECTION 17.09. BENEFITS OF INDENTURE..........................................................79
SECTION 17.10. TABLE OF CONTENTS, HEADINGS, ETC...............................................79
SECTION 17.11. AUTHENTICATING AGENT...........................................................80
SECTION 17.12. EXECUTION IN COUNTERPARTS......................................................81
SECTION 17.13. SEVERABILITY...................................................................81
Exhibit A Form of Note A-1
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INDENTURE
THIS INDENTURE dated as of September 24, 2004 is between ANADIGICS,
Inc., a Delaware corporation (hereinafter called the "COMPANY"), having its
principal office at 141 Mt. Bethel Road, Warren, New Jersey 07059 and U.S. Bank
Trust National Association, as trustee hereunder (hereinafter called the
"TRUSTEE").
WITNESSETH:
WHEREAS, the Company has duly authorized the issuance of its 5.00%
Convertible Senior Notes Due 2009 (hereinafter called the "NOTES"), in an
aggregate principal amount not to exceed $38,000,000 and to provide the terms
and conditions upon which the Notes are to be authenticated, issued and
delivered, the Company has duly authorized the execution and delivery of this
Indenture; and
WHEREAS, the Notes, the certificate of authentication to be borne by
the Notes, a form of assignment, a form of Designated Event Repurchase Notice
and a form of conversion notice to be borne by the Notes are to be substantially
in the forms hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes, when executed
by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute this Indenture a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized,
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises and of the purchase and acceptance of the Notes by the holders
thereof, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below) as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01 . DEFINITIONS. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture that are defined in the Trust Indenture Act or
which are by reference therein defined in the Securities Act (except as herein
otherwise expressly provided or unless the context otherwise requires) shall
have the respective meanings assigned to such terms in the Trust Indenture Act
and in the Securities Act as in force at the date of the execution of this
Indenture. The words "HEREIN," "HEREOF," "HEREUNDER" and words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other Subdivision. The terms defined in this Article include the plural as well
as the singular.
"ADDITIONAL PREMIUM" has the meaning specified in Section 4.01(a).
"ADDITIONAL PREMIUM TABLE" has the meaning specified in Section
4.01(b)(iii).
"ADJUSTMENT EVENT" has the meaning specified in Section 16.05(n).
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "CONTROL", when used with
respect to any Person means the power to direct or cause the direction of the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the foregoing.
"AGENT MEMBERS" has the meaning specified in Section 2.05(b)(v).
"BOARD OF DIRECTORS" means either the board of directors of the Company
or any duly authorized committee of such board.
"BUSINESS DAY" means any day except a Saturday, Sunday or legal holiday
on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to close.
"CALCULATION AGENT" means the calculation agent from time to time
appointed by the Company pursuant to Section 4.01(e).
"CASH" or "CASH" means such coin or currency of the United States as at
any time of payment is legal tender for the payment of public and private debts.
"CLOSING PRICE" of the Common Stock on any date means the closing price
per share (or if no closing price is reported, the average of the closing bid
and ask prices or, if more than one in either case, the average of the average
closing bid and the average closing ask prices) on such date as reported on the
New York Stock Exchange Composite Tape or as reported in composite transactions
for the principal United States securities exchange on which the
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Common Stock is traded (if other than the New York Stock Exchange) or, if the
Common Stock is not listed on a United States national or regional securities
exchange, the closing price as reported by Nasdaq or by the National Quotation
Bureau Incorporated. In the absence of such a quotation, the Company shall
determine the Closing Price on the basis that it considers appropriate.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMMON STOCK" means any shares of stock of any class of the Company
that have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and that are not subject to redemption by the Company. Subject to
the provisions of Section 16.06, however, shares issuable on conversion of Notes
shall include only shares of the class designated as common stock of the Company
at the date of this Indenture (namely, the Common Stock, par value $0.01 per
share) or shares of any class or classes resulting from any reclassification or
reclassifications thereof and that have no preference in respect of dividends or
of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and that are not subject to redemption
by the Company; PROVIDED that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable on conversion
shall be substantially in the proportion that the total number of shares of such
class resulting from all such reclassifications bears to the total number of
shares of all such classes resulting from all such reclassifications.
"COMMON STOCK LEGEND" has the meaning specified in Section 2.05(c).
"COMPANY" means the corporation named as the "COMPANY" in the first
paragraph of this Indenture, and, subject to the provisions of Article 13 and
Section 16.06, shall include its successors and assigns.
"CONVERSION DATE" has the meaning specified in Section 16.02.
"CONVERSION PRICE" per Note means, on any date, $1,000 divided by the
Conversion Rate in effect on such date.
"CONVERSION RATE" has the meaning specified in Section 16.04.
"CORPORATE TRUST OFFICE" or other similar term, means the designated
office of the Trustee at which at any particular time its corporate trust
business as it relates to this Indenture shall be administered, which office is,
at the date as of which this Indenture is dated, located at 100 Wall Street,
Suite 1600, New York, NY 10005.
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"CURRENT MARKET PRICE" has the meaning specified in Section
16.05(i)(i).
"CUSTODIAN" means U.S. Bank Trust National Association, as custodian
for the Depositary with respect to the Notes in global form, or any successor
entity thereto.
"DEFAULT" means any event that is, or after notice or passage of time,
or both, would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 2.03.
"DEPOSITARY" means DTC or its successor depositary.
"DESIGNATED EVENT" means a Fundamental Change or a Termination of
Trading.
"DESIGNATED EVENT NOTICE" has the meaning specified in Section 3.05(b).
"DESIGNATED EVENT REPURCHASE DATE" has the meaning specified in Section
3.05(a).
"DESIGNATED EVENT REPURCHASE NOTICE" has the meaning set forth in
Section 3.05(a)(i).
"DESIGNATED EVENT REPURCHASE PRICE" has the meaning set forth in
Section 3.05(a).
"DETERMINATION DATE" has the meaning specified in Section 16.05(n).
"DISTRIBUTED PROPERTY" has the meaning specified in Section 16.05(d).
"DTC" means the Depository Trust Company.
"EFFECTIVE DATE" has the meaning specified in Section 4.01(b)(i).
"EVENT OF DEFAULT" means any event specified in Section 8.01 as an
Event of Default.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EX-DIVIDEND DATE" has the meaning specified in Section 16.05(d).
"EXPIRATION TIME" has the meaning specified in Section 16.05(g).
"FAIR MARKET VALUE" has the meaning specified in Section 16.05(i)(ii).
"FUNDAMENTAL CHANGE" shall be deemed to have occurred at the time after
the Notes are originally issued upon the occurrence of any transaction or event
(whether by means of an exchange offer, liquidation, tender offer,
4
consolidation, merger, combination, reclassification, recapitalization or
otherwise) in connection with which 90% or more of the Common Stock is exchanged
for, converted into, acquired for or constitutes solely the right to receive
consideration, less than 90% of which is common stock that (x) is listed on, or
immediately after the transaction or event will be listed on, a U.S. national
securities exchange, or (y) is approved, or immediately after the transaction or
event will be approved, for quotation on Nasdaq or any similar U.S. system of
automated dissemination of quotations of securities prices.
"GLOBAL NOTE" has the meaning specified in Section 2.02.
"INDENTURE" means this instrument as originally executed or, if amended
or supplemented as herein provided, as so amended or supplemented.
"INITIAL PURCHASER" means Morgan Stanley & Co. Incorporated.
"LIQUIDATED DAMAGES" has the meaning specified for "Liquidated Damages
Amounts" in Section 2(e) of the Registration Rights Agreement. Unless the
context otherwise requires, all references herein and in the Note to "interest"
shall include Liquidated Damages, if any.
"LIQUIDATED DAMAGES NOTICE" has the meaning specified in Section 6.09.
"MAKE WHOLE PREMIUM" has the meaning specified in Section 4.01(b)(iv).
"MATURITY DATE" means October 15, 2009.
"NASDAQ" means the Nasdaq National Market of the Nasdaq Stock Market,
Inc.
"NON-ELECTING SHARE" has the meaning specified in Section 16.06.
"NOTE" or "NOTES" means any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
"NOTE REGISTER" has the meaning specified in Section 2.05(a).
"NOTE REGISTRAR" has the meaning specified in Section 2.05(a).
"NOTEHOLDER" or "HOLDER" as applied to any Note, or other similar
terms, means any Person in whose name at the time a particular Note is
registered on the Note Registrar's books.
"OFFICER'S CERTIFICATE", when used with respect to the Company, means a
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the Chief Executive Officer, the President, the Chief Financial Officer, any
Vice President (whether or not designated by a number or numbers or word or
words
5
added before or after the title "VICE PRESIDENT"), the Treasurer or any
Assistant Treasurer, Controller or the Secretary or Assistant Secretary of the
Company.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or other counsel
reasonably acceptable to the Trustee.
"OUTSTANDING" when used with reference to Notes and subject to the
provisions of Section 10.04 means, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes in lieu of which, or in substitution for which, other
Notes shall have been authenticated and delivered pursuant to the terms of
Section 2.06; and
(c) Notes converted into Common Stock pursuant to Article 16 and
Notes deemed not Outstanding pursuant to Article 3.
"PERSON" means an individual, a corporation, an association, a
partnership, a limited liability company, a joint venture, a joint stock
company, a trust, an unincorporated organization or a government or political
subdivision or an agency or instrumentality thereof.
"PREDECESSOR NOTE" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note, and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.06 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note that it replaces.
"PURCHASED SHARES" has the meaning specified in Section 16.05(g)(i).
"RECORD DATE" has the meaning, (i) with respect to any interest payment
date, as set forth in Section 2.03 and (ii) with respect to any dividend,
distribution or other transaction or event in which the holders of Common Stock
have the right to receive any cash, securities or other property or in which the
Common Stock (or other applicable security) is exchanged for or converted into
any combination of cash, securities or other property, as set forth in Section
16.05(i)(iii).
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of September 24, 2004, by and between the Company and the
Initial Purchaser, as amended from time to time in accordance with its terms.
"RESPONSIBLE OFFICER" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee with
direct
6
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such person's knowledge of any familiarity with
the particular subject.
"RESTRICTED NOTE LEGEND" has the meaning specified in Section 2.05(c).
"RESTRICTED SECURITIES" has the meaning specified in Section 2.05(c).
"RIGHTS" has the meaning specified in Section 16.11.
"RIGHTS AGREEMENT" means the Shareholders' Rights Agreement dated as of
December 17, 1998 between the Company and Mellon Investor Servicers LLC
(formerly known as Chase Mellon Shareholder Services L.L.C.), as Rights Agent.
"RIGHTS PLAN" shall have the meaning specified in Section 16.11.
"RULE 144A" means Rule 144A as promulgated under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"STOCK PRICE" has the meaning specified in Section 4.01(b)(ii).
"STOCK PRICE CAP" has the meaning specified in Section 4.01(b)(iv)(C).
"STOCK PRICE THRESHOLD" has the meaning specified in Section
4.01(b)(iv)(B).
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than fifty percent (50%) of
the total voting power of shares of capital stock or other equity interest
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof) and (ii) any partnership
(a) the sole general partner or managing general partner of which is such Person
or a Subsidiary of such Person or (b) the only general partners of which are
such Person or of one or more Subsidiaries of such Person (or any combination
thereof).
"TERMINATION OF TRADING" shall be deemed to have occurred if the Common
Stock (or other common stock into which the Notes are then convertible) is
neither listed for trading on a United States national securities exchange nor
approved for trading on the Nasdaq.
"TRADING DAY" has the meaning specified in Section 16.05(i)(iv).
"TRANSFER" has the meaning set forth in Section 2.05(c).
7
"TRIGGER EVENT" has the meaning specified in Section 16.05(d).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as it was in force at the date of this Indenture, except as provided in
Section 12.03; PROVIDED that if the Trust Indenture Act of 1939 is amended after
the date hereof, the term "TRUST INDENTURE ACT" shall mean, to the extent
required by such amendment, the Trust Indenture Act of 1939, as so amended.
"TRUSTEE" means U.S. Bank Trust National Association and its successors
and any corporation resulting from or surviving any consolidation or merger to
which it or its successors may be a party and any successor trustee at the time
serving as successor trustee hereunder.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. DESIGNATION AMOUNT AND ISSUE OF NOTES. The Notes shall be
designated as "5.00% CONVERTIBLE SENIOR NOTES DUE 2009". Notes not to exceed the
aggregate principal amount of $38,000,000 (except pursuant to Sections 2.05,
2.06, 3.05 and 16.02 hereof) upon the execution of this Indenture, or from time
to time thereafter, may be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver
said Notes to or upon the written order of the Company, signed by its Chairman
of the Board, its Vice Chairman of the Board, Chief Executive Officer,
President, Chief Financial Officer or any Vice President, the Treasurer or any
Assistant Treasurer, Controller or the Secretary or Assistant Secretary, without
any further action by the Company hereunder.
Notwithstanding the foregoing, the Company may, without the consent of
the holders of the Notes, issue additional Notes under this Indenture with the
same terms and with the same CUSIP numbers as the Notes initially issued
hereunder in an unlimited aggregate principal amount, PROVIDED that such
additional Notes must be part of the same issue as the Notes offered hereby for
United States federal income tax purposes.
SECTION 2.02. FORM OF NOTES. The Notes and the Trustee's certificate of
authentication to be borne by such Notes shall be substantially in the form set
forth in Exhibit A. The terms and provisions contained in the form of Note
attached as Exhibit A hereto shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends, endorsements or changes as the
officers executing the same may approve (execution thereof to be conclusive
evidence of
8
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. in order for the Notes to be
tradable on The Portal Market operated by the National Association of Securities
Dealers, Inc. (or any successor thereto) or as may be required for the Notes to
be tradable on any other market developed for trading of securities pursuant to
Rule 144A or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed, or to conform to usage, or to indicate any special limitations or
restrictions to which any particular Notes are subject.
So long as the Notes are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, or otherwise contemplated by
Section 2.05(a), all of the Notes will be represented by one or more Notes in
global form registered in the name of the Depositary or the nominee of the
Depositary (a "GLOBAL NOTE"). The transfer and exchange of beneficial interests
in any such Global Note shall be effected through the Depositary in accordance
with this Indenture and the applicable procedures of the Depositary. Except as
provided in Section 2.05(a), beneficial owners of a Global Note shall not be
entitled to have certificates registered in their names, will not receive or be
entitled to receive physical delivery of certificates in definitive form and
will not be considered holders of such Global Note.
Any Global Note shall represent such aggregate amount of the
Outstanding Notes as shall be specified therein and shall provide that it shall
represent the aggregate amount of Outstanding Notes from time to time endorsed
thereon and that the aggregate amount of Outstanding Notes represented thereby
may from time to time be increased or reduced to reflect repurchases,
conversions, transfers or exchanges permitted hereby. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the amount of
Outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in such manner and upon instructions
given by the holder of such Notes in accordance with this Indenture. Payment of
principal of and interest on any Global Note shall be made to the holder of such
Note.
SECTION 2.03 . DATE AND DENOMINATION OF NOTES; PAYMENTS OF INTEREST.
The Notes shall be issuable in registered form without coupons in denominations
of $1,000 principal amount and integral multiples thereof. Each Note shall be
dated the date of its authentication and shall bear interest from the date
specified on the face of the form of Note attached as Exhibit A hereto. Interest
on the Notes shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.
The Person in whose name any Note (or its Predecessor Note) is
registered on the Note Register at the close of business on any Record Date with
respect to
9
any interest payment date shall be entitled to receive the interest payable on
such interest payment date, except that the interest payable upon any repurchase
pursuant to Article 3 hereof will be payable to the Person to whom principal is
payable pursuant to such repurchase (unless the Designated Event Repurchase Date
falls after a Record Date and on or prior to the corresponding interest payment
date, in which case the semi-annual payment of interest becoming due on such
interest payment date shall be payable to the holders of such Notes registered
as such on the applicable Record Date).
Interest shall be payable at the office maintained or caused to be
maintained by the Company for such purposes in the Borough of Manhattan, City of
New York, which shall initially be an office or agency of the Trustee. The
Company shall pay interest (i) on any Notes in certificated form by check mailed
to the address of the Person entitled thereto as it appears in the Note Register
(or upon written notice, by wire transfer in immediately available funds, if
such Person is entitled to interest on aggregate principal in excess of $2
million) or (ii) on any Global Note by wire transfer of immediately available
funds to the account of the Depositary or its nominee. The term "RECORD DATE"
with respect to any interest payment date shall mean the April 1 or October 1
preceding the applicable April 15 or October 15 interest payment date (beginning
April 15, 2005), respectively.
Any interest on any Note that is payable, but is not punctually paid or
duly provided for, on any April 15 or October 15 (beginning April 15, 2005)
(herein called "DEFAULTED INTEREST") shall forthwith cease to be payable to the
Noteholder on the relevant Record Date by virtue of his having been such
Noteholder, and such Defaulted Interest shall be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) 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 Note and the date of the
proposed payment (which shall be not less than twenty-five (25) calendar days
after the receipt by the Trustee of such notice, unless the Trustee shall
consent to an earlier date), and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall be not more than fifteen (15) calendar days and not less
than ten (10) calendar days prior to the date of the proposed payment, and not
less than ten (10) calendar days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company
10
of such special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first-class postage prepaid, to each
holder at his address as it appears in the Note Register, not less than ten (10)
calendar days prior to such special record date. Notice of the proposed payment
of such Defaulted Interest and the special record date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Notes (or their respective Predecessor Notes) are registered at the close of
business on such special record date and shall no longer be payable pursuant to
the following clause (2) of this Section 2.03.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Notes may be listed or
designated for issuance, and upon such notice as may be required by such
exchange or automated quotation system, 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.
SECTION 2.04 . EXECUTION OF NOTES. The Notes shall be signed in the
name and on behalf of the Company by the manual or facsimile signature of its
Chairman of the Board, the Vice Chairman of the Board, Chief Executive Officer,
President, Chief Financial Officer or any Vice President. Only such Notes as
shall bear thereon a certificate of authentication substantially in the form set
forth on the form of Note attached as Exhibit A hereto, manually executed by the
Trustee (or an authenticating agent appointed by the Trustee as provided by
Section 17.11), shall be entitled to the benefits of this Indenture or be valid
or obligatory for any purpose. Such certificate by the Trustee (or such an
authenticating agent) upon any Note executed by the Company shall be conclusive
evidence that the Note so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such officer of the
Company, and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
SECTION 2.05 . EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES;
RESTRICTIONS ON TRANSFER. The Company shall cause to be kept at the Corporate
Trust Office a register (the register maintained in such office and in any other
office or agency of the Company designated pursuant to Section 6.02 being
11
herein sometimes collectively referred to as the "NOTE REGISTER") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers of Notes. The Note
Register shall be in written form or in any form capable of being converted into
written form within a reasonably prompt period of time. The Trustee is hereby
appointed "NOTE REGISTRAR" for the purpose of registering Notes and transfers of
Notes as herein provided. The Company may appoint one or more co-registrars in
accordance with Section 6.02.
Upon surrender for registration of transfer of any Note to the Note
Registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.05, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denominations and of a
like aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture.
Notes may be exchanged for other Notes of any authorized denominations
and of a like aggregate principal amount, upon surrender of the Notes to be
exchanged at any such office or agency maintained by the Company pursuant to
Section 6.02. Whenever any Notes are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Notes which
the Noteholder making the exchange is entitled to receive bearing registration
numbers not contemporaneously outstanding.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
All Notes presented or surrendered for registration of transfer or for
exchange, repurchase or conversion shall (if so required by the Company or the
Note Registrar) be duly endorsed, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company, duly executed by
the Noteholder thereof or his attorney duly authorized in writing.
No service charge shall be made to any holder for any registration of,
transfer or exchange of Notes, but the Company may require payment by the holder
of a sum sufficient to cover any tax, assessment or other governmental charge
that may be imposed in connection with any registration of transfer or exchange
of Notes.
Neither the Company nor the Trustee nor any Note Registrar shall be
required to exchange or register a transfer of any Notes or portions thereof
tendered for repurchase (and not withdrawn) pursuant to Section 3.05.
(b) The following provisions shall apply only to Global Notes:
12
(i) Each Global Note authenticated under this Indenture
shall be registered in the name of the Depositary or a nominee thereof
and delivered to such Depositary or a nominee thereof or Custodian
therefor, and each such Global Note shall constitute a single Note for
all purposes of this Indenture.
(ii) Notwithstanding any other provision in this
Indenture, no Global Note may be exchanged in whole or in part for
Notes registered, and no transfer of a Global Note in whole or in part
may be registered, in the name of any Person other than the Depositary
or a nominee thereof, unless (A). the Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary for
such Global Note and a successor depositary has not been appointed by
the Company within ninety (90) calendar days or (ii) has ceased to be a
clearing agency registered under the Exchange Act and no successor
clearing agency has been appointed by the Company within ninety (90)
calendar days, (B) an Event of Default has occurred and is continuing
or (C) the Company, in its sole discretion, notifies the Trustee in
writing that it no longer wishes to have all the Notes represented by
Global Notes. Any Global Note exchanged pursuant to clause (A) or (B)
above shall be so exchanged in whole and not in part and any Global
Note exchanged pursuant to clause (C) above may be exchanged in whole
or from time to time in part as directed by the Company. Any Note
issued in exchange for a Global Note or any portion thereof shall be a
Global Note; PROVIDED that any such Note so issued that is registered
in the name of a Person other than the Depositary or a nominee thereof
shall not be a Global Note.
(iii) Securities issued in exchange for a Global Note or
any portion thereof pursuant to clause (ii) above shall be issued in
definitive, fully registered form, without interest coupons, shall have
an aggregate principal amount equal to that of such Global Note or
portion thereof to be so exchanged, shall be registered in such names
and be in such authorized denominations as the Depositary shall
designate and shall bear any legends required hereunder. Any Global
Note to be exchanged in whole shall be surrendered by the Depositary to
the Trustee, as Note Registrar. With regard to any Global Note to be
exchanged in part, either such Global Note shall be so surrendered for
exchange or, if the Trustee is acting as Custodian for the Depositary
or its nominee with respect to such Global Note, the principal amount
thereof shall be reduced, by an amount equal to the portion thereof to
be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the
Trustee shall authenticate and make available for delivery the Note
issuable on such exchange to or upon the written order of the
Depositary or an authorized representative thereof.
(iv) In the event of the occurrence of any of the events
specified in clause (ii) above, the Company will promptly make
available to the
13
Trustee a reasonable supply of certificated Notes in definitive, fully
registered form, without interest coupons.
(v) Neither any members of, or participants in, the
Depositary ("AGENT MEMBERS") nor any other Persons on whose behalf
Agent Members may act shall have any rights under this Indenture with
respect to any Global Note registered in the name of the Depositary or
any nominee thereof, and the Depositary or such nominee, as the case
may be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and holder of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing,
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 the Depositary
or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an
Agent Member may act, the operation of customary practices of such
Persons governing the exercise of the rights of a holder of any Note.
(vi) At such time as all interests in a Global Note have
been repurchased, converted, canceled or exchanged for Notes in
certificated form, such Global Note shall, upon receipt thereof, be
canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian. At any
time prior to such cancellation, if any interest in a Global Note is
repurchased, converted, canceled or exchanged for Notes in certificated
form, the principal amount of such Global Note shall, in accordance
with the standing procedures and instructions existing between the
Depositary and the Custodian, be appropriately reduced, and an
endorsement shall be made on such Global Note, by the Trustee or the
Custodian, at the direction of the Trustee, to reflect such reduction.
(c) Every Note that bears or is required under this Section
2.05(c) to bear the legend (the "RESTRICTED NOTE LEGEND") set forth in this
Section 2.05(c) (together with any Common Stock issued upon conversion of the
Notes and required to bear the Common Stock Legend, collectively, the
"RESTRICTED SECURITIES") shall be subject to the restrictions on transfer set
forth in this Section 2.05(c) (including those set forth in the Restricted Note
Legend 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
Note holder's acceptance thereof, agrees to be bound by all such restrictions on
transfer. As used in this Section 2.05(c), the term "TRANSFER" encompasses any
sale, pledge, loan, transfer or other disposition whatsoever of any Restricted
Security or any interest therein.
Until the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision), any
certificate evidencing such Note (and all securities issued in exchange therefor
or
14
substitution thereof) and any stock certificate representing Common Stock issued
upon conversion of any Note shall bear a legend (the "COMMON STOCK LEGEND") in
substantially the following form, unless such Note or such Common Stock has been
sold 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 Rule 144 under the Securities Act or any similar
provision then in force, or such Common Stock has been issued upon conversion of
Notes that have been transferred pursuant to a registration statement that has
been declared effective under the Securities Act or pursuant to Rule 144 under
the Securities Act, or unless otherwise agreed by the Company in writing, with
written notice thereof to the Trustee:
THIS SECURITY AND THE SHARES OF ANADIGICS, INC. (THE "COMPANY") COMMON STOCK
("COMMON STOCK") ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LAST DATE ON WHICH THE 5.00%
CONVERTIBLE SENIOR NOTES DUE 2009 OF THE COMPANY WERE ORIGINALLY ISSUED ONLY (A)
TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE RIGHTS OF THE COMPANY AND THE WITHIN MENTIONED TRUSTEE PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF
15
THE FOREGOING CASES WHERE REGISTRATION OR TRANSFER OF THIS SECURITY IS REQUIRED,
A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND
WILL BE REMOVED AFTER THE RESALE RESTRICTION TERMINATION DATE UPON THE REQUEST
OF THE HOLDER AND THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATES AND/OR
OTHER INFORMATION SATISFACTORY TO THE COMPANY.
Any Note (or security issued in exchange or substitution therefor) as
to which such restrictions on transfer shall have expired in accordance with
their terms or as to conditions for removal of the Restricted Note Legend set
forth therein have been satisfied may, upon surrender of such Note for exchange
to the Note Registrar in accordance with the provisions of this Section 2.05, be
exchanged for a new Note or Notes, of like tenor and aggregate principal amount,
which shall not bear the Restricted Note Legend. If the Restricted Security
surrendered for exchange is represented by a Global Note bearing the Restricted
Note Legend, the principal amount of the legended Global Note shall be reduced
by the appropriate principal amount and the principal amount of a Global Note
without the Restricted Note Legend shall be increased by an equal principal
amount. If a Global Note without the Restricted Note Legend is not then
outstanding, the Company shall execute and the Trustee shall authenticate and
deliver an unlegended Global Note to the Depositary.
Any such Common Stock as to which such restrictions on transfer shall
have expired in accordance with their terms or as to which the conditions for
removal of the Common Stock Legend set forth therein have been satisfied may,
upon surrender of the certificates representing such 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 number of shares of
Common Stock, which shall not bear the Common Stock Legend required by this
Section 2.05(c).
(d) Any Note or Common Stock issued upon the conversion of a Note
that 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 Notes or Common Stock, as
the case may be, no longer being "Restricted Securities" (as defined under Rule
144 under the Securities Act).
(e) The Trustee shall have no responsibility or obligation to any
Agent Members or any other Person with respect to the accuracy of the books or
records, or the acts or omissions, of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Notes or with respect to the delivery to any Agent Member or other Person (other
than the
16
Depositary) of any notice or the payment of any amount, under or with respect to
such Notes. All notices and communications to be given to the Noteholder and all
payments to be made to Noteholders under the Notes shall be given or made only
to or upon the order of the registered Noteholders (which shall be the
Depository or its nominee in the case of a Global Note). The rights of
beneficial owners in any Global Note shall be exercised only through the
Depository subject to the customary procedures of the Depository. The Trustee
may rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Agent Members.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Agent Members in any
Global Indenture) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Indenture, and to examine the same to
determine compliance as to form with the express requirements hereof.
SECTION 2.06. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. In case any
Note shall become mutilated or be destroyed, lost or stolen, the Company in its
discretion may execute, and upon the Company's written request the Trustee or an
authenticating agent appointed by the Trustee shall authenticate and make
available for delivery, a new Note, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note, or in lieu of
and in substitution for the Note so destroyed, lost or stolen. In every case,
the applicant for a substituted Note shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or connected with such substitution, and,
in every case of destruction, loss or theft, the applicant shall also furnish to
the Company, to the Trustee and, if applicable, to such authenticating agent
evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.
Following receipt by the Trustee or such authenticating agent, as the
case may be, of satisfactory security or indemnity and evidence, as described in
the preceding paragraph, the Trustee or such authenticating agent may
authenticate any such substituted Note and make available for delivery such
Note. Upon the issuance of any substituted Note, the Company may require the
payment by the holder of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note which has matured or is about to
mature or has been tendered for repurchase upon a Designated Event (and not
withdrawn) or is to be converted into Common Stock shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Note, pay or authorize the payment of or convert or authorize the conversion of
the same (without
17
surrender thereof except in the case of a mutilated Note), as the case may be,
if the applicant for such payment or conversion shall furnish to the Company, to
the Trustee and, if applicable, to such authenticating agent, such security or
indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or in connection with such substitution,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company, the Trustee and, if applicable, any paying agent or
conversion agent evidence to their satisfaction of the destruction, loss or
theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section
2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other
Notes duly issued hereunder. To the extent permitted by law, all Notes shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment or conversion or repurchase
of mutilated, destroyed, lost or stolen Notes and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment or
conversion or repurchase of negotiable instruments or other securities without
their surrender.
SECTION 2.07. TEMPORARY NOTES. Pending the preparation of Notes in
certificated form, the Company may execute and the Trustee or an authenticating
agent appointed by the Trustee shall, upon the written request of the Company,
authenticate and deliver temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in the
form of the Notes in certificated form, but with such omissions, insertions and
variations as may be appropriate for temporary Notes, all as may be determined
by the Company. Every such temporary Note shall be executed by the Company and
authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the Notes in certificated form. Without unreasonable delay, the Company will
execute and deliver to the Trustee or such authenticating agent Notes in
certificated form and thereupon any or all temporary Notes may be surrendered in
exchange therefor, at each office or agency maintained by the Company pursuant
to Section 6.02 and the Trustee or such authenticating agent shall authenticate
and make available for delivery in exchange for such temporary Notes an equal
aggregate principal amount of Notes in certificated form. Such exchange shall be
made by the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits and subject to the same limitations under this Indenture as Notes in
certificated form authenticated and delivered hereunder.
18
SECTION 2.08. CANCELLATION OF NOTES. All Notes surrendered for the
purpose of payment, repurchase, conversion, exchange or registration of transfer
shall, if surrendered to the Company or any paying agent or any Note Registrar
or any conversion agent, be surrendered to the Trustee and promptly canceled by
it, or, if surrendered to the Trustee, shall be promptly canceled by it, and no
Notes shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Indenture. The Trustee shall dispose of such canceled
Notes in accordance with its customary procedures. If the Company shall acquire
any of the Notes, such acquisition shall not operate as a repurchase or
satisfaction of the indebtedness represented by such Notes unless and until the
same are delivered to the Trustee for cancellation.
SECTION 2.09. CUSIP NUMBERS. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of repurchase as a convenience to Noteholders;
PROVIDED that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a repurchase and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such repurchase shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3
REPURCHASE OF NOTES
SECTION 3.01. [RESERVED.]
SECTION 3.02. [RESERVED.]
SECTION 3.03. [RESERVED.]
SECTION 3.04. [RESERVED.]
SECTION 3.05. REPURCHASE AT OPTION OF HOLDERS UPON A DESIGNATED EVENT.
(a) If there shall occur a Designated Event at any time prior to the Maturity
Date, then each Noteholder shall have the right, at such holder's option, to
require the Company to repurchase all of such holder's Notes, or any portion
thereof that is a multiple of $1,000 principal amount, as of a date (the
"DESIGNATED EVENT REPURCHASE DATE") specified by the Company that is not less
than twenty (20) nor more than thirty-five (35) Business Days after the date on
which the Designated Event Notice with respect to such Designated Event has been
mailed to holders of the Notes pursuant to Section 3.05(b) at a repurchase price
equal to one-hundred percent (100%) of the principal amount thereof, together
with accrued and unpaid interest and Liquidated Damages, if any, to but
excluding, the Designated Event Repurchase Date (the "DESIGNATED EVENT
REPURCHASE PRICE," such Designated Event Repurchase Price to be paid in Cash),
PLUS the Make
19
Whole Premium, if any, in connection with any Designated Event that is also a
Fundamental Change (the form and amount of any such Make Whole Premium
determined pursuant to Article 4); PROVIDED that if such Designated Event
Repurchase Date falls after a Record Date and on or prior the corresponding
interest payment date, then the full amount of interest payable on such interest
payment date, including Liquidated Damages, if any, shall be paid to the holders
of record of the Notes on the applicable Record Date instead of the holders
surrendering the Notes for repurchase on the Designated Event Repurchase Date.
Repurchases of Notes under this Section 3.05 shall be made, at the
option of the holder thereof, upon:
(i) delivery to the Trustee (or other paying agent
appointed by the Company) by a holder of a duly completed and executed
notice (the "DESIGNATED EVENT REPURCHASE NOTICE") in the form set forth
on the reverse of the Note prior to the close of business on the
Designated Event Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the
Trustee (or other paying agent appointed by the Company) at any time
simultaneous with or after delivery of the Designated Event Repurchase
Notice (together with all necessary endorsements) at the Corporate
Trust Office of the Trustee (or other paying agent appointed by the
Company) in the Borough of Manhattan as provided in Section 6.02, such
delivery being a condition to receipt by the holder of the Designated
Event Repurchase Price therefor; PROVIDED that such Designated Event
Repurchase Price and the Make Whole Premium, if any, shall be so paid
pursuant to this Section 3.05 only if the Note so delivered to the
Trustee (or other paying agent appointed by the Company) shall conform
in all respects to the description thereof in the related Designated
Event Repurchase Notice.
The Company may purchase from the holder thereof, pursuant to this
Section 3.05, any Note, in whole or in part, so long as the principal amount of
any such part is $1,000 or a whole multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Note also apply to the purchase
of such portion of such Note.
Notwithstanding anything herein to the contrary, any holder delivering
to the Trustee (or other paying agent appointed by the Company) the Designated
Event Repurchase Notice contemplated by this Section 3.05 shall have the right
to withdraw such Designated Event Repurchase Notice at any time prior to the
close of business on the Designated Event Repurchase Date by delivery of a
written notice of withdrawal to the Trustee (or other paying agent appointed by
the Company) in accordance with Section 3.05(c) below.
20
The Trustee (or other paying agent appointed by the Company) shall
promptly notify the Company of the receipt by it of any Designated Event
Repurchase Notice or written notice of withdrawal thereof.
(b) Within 15 calendar days after the effective date of a
Designated Event, the Company or at its written request, the Trustee, in the
name of and at the expense of the Company, shall mail or cause to be mailed to
all holders of record on the date of the Designated Event a notice (the
"DESIGNATED EVENT NOTICE") of the occurrence of such Designated Event and of the
repurchase right at the option of the holders arising as a result thereof. Such
Designated Event Notice shall be mailed to each holder at its last address as
the same appears on the Notes Register. Such mailing shall be by first class
mail. Such Designated Event Notice, if mailed in the manner herein provided,
shall be conclusively presumed to have been duly given, whether or not the
holder receives such Designated Event Notice. In any case, failure to give such
Designated Event Notice by mail or any defect in the Designated Event Notice
shall not affect the validity of the Designated Event Notice or any proceedings
for the repurchase of any Note that any holder may elect to have the Company
repurchase as provided in this Section 3.05. If the Company shall give such
notice, the Company shall also deliver a copy of the Designated Event Notice to
the Trustee at such time as it is mailed to Noteholders. Concurrently with the
mailing of any Designated Event Notice, the Company shall issue a press release
announcing such Designated Event referred to in the Designated Event Notice and
publish such information on its website, the form and content of which press
release and publication shall be determined by the Company in its sole
discretion. The failure to issue any such press release or any defect therein
shall not affect the validity of the Designated Event Notice or any proceedings
for the repurchase of any Note that any Noteholder may elect to have the Company
repurchase as provided in this Section 3.05.
Each Designated Event Notice shall specify the events causing the
Designated Event, the date of such Designated Event, the Designated Event
Repurchase Date, the Designated Event Repurchase Price that will be payable with
respect to the Notes as of the Designated Event Repurchase Date, the last date
on which the purchase right may be exercised, the name and address of the
Trustee or other Paying Agent, the applicable Conversion Rate and any
adjustments thereto, the requirement that any Designated Event Repurchase Notice
delivered with respect to a Note must be withdrawn in accordance with the terms
of this Section 3.05 prior to conversion of the relevant Note, the procedures
that a Noteholder must follow to exercise such repurchase right (including a
form of Designated Event Repurchase Notice) and to withdraw any surrendered
Notes (including a form of withdrawal notice), and the CUSIP number or numbers
of the Notes (if then generally in use).
(c) Notwithstanding anything herein to the contrary, any holder of
Notes delivering to the office of the Trustee (or other paying agent appointed
by the Company) the Designated Event Repurchase Notice shall have the right to
withdraw such Designated Event Repurchase Notice in whole or as to a portion
21
thereof that is an integral multiple of $1,000 of outstanding principal amount
of the Notes thereof at any time prior to the close of business on the
Designated Event Repurchase Date by delivery of a written notice of withdrawal
to the Trustee (or other paying agent appointed by the Company) in accordance
with provisions of this Section 3.05(c). The Trustee (or other paying agent
appointed by the Company) shall promptly notify the Company of the receipt by it
of any Designated Event Repurchase Notice or written withdrawal thereof. A
Designated Event Repurchase Notice may be withdrawn by means of a written notice
of withdrawal delivered to the office of the Trustee (or other paying agent
appointed by the Company) in accordance with the Designated Event Repurchase
Notice at any time prior to the close of business on the applicable Designated
Event Repurchase Date specifying:
(i) the certificate number, if any, of the Notes in
respect of which such notice of withdrawal is being submitted, or the
appropriate Depositary information if the Notes in respect of which
such notice of withdrawal is being submitted is represented by a Global
Note,
(ii) the principal amount of the Notes with respect to
which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that
remains subject to the original Designated Event Repurchase Notice and
that has been or will be delivered for purchase by the Company.
The Trustee (or other paying agent appointed by the Company) will
promptly return to the respective holders thereof any Notes with respect to
which a Designated Event Repurchase Notice has been withdrawn in compliance with
this Indenture, in which case, upon such return, the Designated Event Repurchase
Notice with respect thereto shall be deemed to have been withdrawn.
Upon receipt by the Trustee of the Designated Event Repurchase Notice,
the holder of the Notes in respect of which such Designated Event Repurchase
Notice was given shall (unless such Designated Event Repurchase Notice is
withdrawn as specified below) thereafter be entitled to receive the Designated
Event Repurchase Price with respect to such Notes, PLUS the Make Whole Premium,
if any, in connection with any Designated Event that is also a Fundamental
Change (the form and amount of any such Make Whole Premium determined pursuant
to Article 4), subject to the satisfaction of the conditions set forth in this
Section 3.05. Such Designated Event Repurchase Price and any Make Whole Premium
shall be paid to such holder at the later of (a) the Business Day immediately
following the Designated Event Repurchase Date with respect to such Notes and
(b) the time of delivery of such Notes to the Trustee by the holder thereof in
the manner required by this Section. Notes in respect of which a Designated
Event Repurchase Notice has been given by the holder thereof may not be
converted into Common Stock on or after the date of the delivery of such
22
Designated Event Repurchase Notice unless such Designated Event Repurchase
Notice has first been validly withdrawn as specified below.
Prior to 12:00 p.m. (New York City time) on the Business Day
immediately following the Designated Event Repurchase Date, the Company shall
deposit with the Trustee (or other paying agent appointed by the Company) an
amount of cash (in immediately available funds if deposited on such Business
Day) and other consideration, as applicable, sufficient to pay the aggregate
Designated Event Repurchase Price of, and the Make Whole Premium (if any) on,
all Notes or portions thereof that are to be repurchased as of the Designated
Event Repurchase Date. The manner in which the deposit required by this Section
3.05 is made by the Company shall be at the option of the Company, PROVIDED,
HOWEVER, that such deposit shall be made in a manner such that the Trustee shall
have immediately available funds on the date of deposit.
If, on the Business Day immediately following the Designated Event
Repurchase Date, the Trustee (or other paying agent appointed by the Company)
holds, in accordance with the terms hereof, cash and other consideration, as
applicable, sufficient to pay the Designated Event Repurchase Price of, and the
Make Whole Premium (if any) on, any Notes for which a Designated Event
Repurchase Notice has been tendered and not withdrawn in accordance with this
Indenture then, as of the Designated Event Repurchase Date, such Notes will
cease to be Outstanding, interest will cease to accrue thereon and the rights of
the holder in respect thereof shall terminate (other than the right to receive
the Designated Event Repurchase Price as aforesaid). The Company shall publicly
announce the number of Notes repurchased as a result of such Designated Event on
or as soon as practicable after the Designated Event Repurchase Date.
The Trustee shall return to the Company any cash or other consideration
that remains unclaimed for two years, subject to applicable unclaimed property
law, together with interest, if any, thereon held by them for the payment of the
Designated Event Repurchase Price; PROVIDED, HOWEVER, that to the extent that
the aggregate amount of cash and other consideration, as applicable, deposited
by the Company pursuant to this Section exceeds the aggregate Designated Event
Repurchase Price of, and the Make Whole Premium (if any) on, the Notes or
portions thereof that the Company is obligated to purchase as of the Business
Day immediately following the Designated Event Repurchase Date, then on the
second Business Day immediately following the Designated Event Repurchase Date,
the Trustee shall return any such excess cash and other consideration to the
Company. Thereafter, any holders entitled to payment must look to the Company
for payment as general creditors, unless an applicable abandoned property law
designates another Person.
(d) [RESERVED].
(e) The Company will comply with the provisions of Rule 13e-4 and
any other tender offer rules under the Exchange Act (including, without
23
limitation, filing a Schedule TO or other schedule) to the extent then
applicable in connection with the repurchase rights of the holders of Notes in
the event of a Designated Event.
Section 3.06. [RESERVED.]
Section 3.07. [RESERVED.]
Section 3.08. [RESERVED.]
Section 3.09. [RESERVED.]
SECTION 3.10. NOTES REPURCHASED IN PART. Upon presentation of any Note
repurchased pursuant to Section 3.05 only in part, the Company shall execute and
the Trustee shall authenticate and make available for delivery to the holder
thereof, at the expense of the Company, a new Note or Notes, of any authorized
denomination, in aggregate principal amount equal to the unrepurchased portion
of the Notes presented.
ARTICLE 4
MAKE WHOLE PREMIUM
SECTION 4.01. MAKE WHOLE PREMIUM. If a Fundamental Change occurs on or
prior to July 15, 2009, the Company shall pay the Make Whole Premium to holders
of Notes who convert their Notes in connection with such Fundamental Change
pursuant to Section 16.01(b) and to holders of Notes who tender their Notes for
repurchase in connection with such Fundamental Change pursuant to Section 3.05.
The Make Whole Premium shall be paid on the Business Day immediately following
that Designated Event Repurchase Date, in either case, and shall be paid solely
in shares of the Common Stock (other than Cash paid in lieu of fractional
shares) or in the same form of consideration into which 90% or more of the
shares of Common Stock have been converted or exchanged in connection with such
Fundamental Change, as described below. No Make Whole Premium shall be paid if
the Stock Price (as defined below) is less than $3.86 per share. The Make Whole
Premium shall be equal to (x) 1%, PLUS (y) a percentage (the "ADDITIONAL
PREMIUM"), of the principal amount of the Notes. The Make Whole Premium will be
in addition to, and not in substitution for, any Cash, securities, or other
assets otherwise due to holders of Notes upon conversion or repurchase as
described in this Indenture.
(b) The Make Whole Premium shall be determined as follows:
(i) "EFFECTIVE DATE" means the date that a Fundamental
Change becomes effective.
24
(ii) "STOCK PRICE" means the price paid (or deemed to be
paid) per share of Common Stock in the transaction constituting the
Fundamental Change, determined as follows:
(A) If holders of the Common Stock receive only
Cash in the Fundamental Change, the Stock Price shall be the
Cash amount paid per share of Common Stock; or
(B) Otherwise, the Stock Price shall be the
average Closing Price of the Common Stock for the 10
consecutive Trading Days immediately prior to but not
including the Effective Date.
(iii) The Additional Premium shall be the percentage set
forth on the table below (the "ADDITIONAL PREMIUM TABLE") for the Stock
Price and the Effective Date:
ADDITIONAL PREMIUM UPON FUNDAMENTAL CHANGE (% OF FACE VALUE)
EFFECTIVE DATE
SEPTEMBER 20, OCTOBER 15, OCTOBER 15, OCTOBER 15, OCTOBER 15, JULY 15,
STOCK PRICE 2004 2005 2006 2007 2008 2009
----------- --------------- ------------ ------------ ------------- ------------ -----------
$3.86 0.0 0.3 0.5 0.4 0.0 0.0
$4.00 2.0 2.2 2.2 1.9 0.8 0.0
$4.25 5.6 5.6 5.4 4.8 3.0 0.0
$4.50 9.3 9.2 8.8 7.8 5.6 0.0
$4.75 13.2 12.9 12.3 11.1 8.4 0.0
$5.00 17.1 16.7 16.0 14.6 11.6 0.0
$5.50 15.1 14.6 13.7 12.0 8.6 0.0
$6.00 13.4 12.8 11.7 9.9 6.4 0.0
$7.00 10.5 9.8 8.7 6.8 3.8 0.0
$8.00 8.2 7.5 6.5 4.8 2.3 0.0
$9.00 6.4 5.7 4.8 3.4 1.5 0.0
$10.00 4.9 4.3 3.5 2.3 1.0 0.0
$12.50 2.2 1.8 1.4 0.8 0.3 0.0
$15.00 0.7 0.5 0.3 0.1 0.0 0.0
$17.50 0.0 0.0 0.0 0.0 0.0 0.0
The exact Stock Price and Effective Dates may not be set forth on the table, in
which case, if the Stock Price is between two Stock Prices on the table or the
Effective Date is between two Effective Dates on the table, the Additional
Premium shall be determined by straight-line interpolation between Additional
Premium amounts set forth for the higher and lower Stock Prices and the two
Effective Dates, as applicable, based on a 365-day year. The Stock Prices set
forth in the column headers are subject to adjustment pursuant to Section 4.02.
(iv) "MAKE WHOLE PREMIUM" means the amount per $1,000
principal amount of Notes equal to:
(A) if the Effective Date is after July 15,
2009, $0;
25
(B) if the Stock Price is less than $3.86 per
share (subject to adjustment pursuant to Section 4.02) (the
"STOCK PRICE THRESHOLD"), $0; and
(C) if the Stock Price is equal to or exceeds
$17.50 per share (subject to adjustment pursuant to Section
4.02) (the "STOCK PRICE CAP"), $10; and
(D) otherwise, the dollar amount equal to (I)
the sum of (x) 1%, PLUS (y) the Additional Premium (expressed
as a percentage), TIMES, (II) $1,000.
(c) The Company shall pay the Make Whole Premium solely in shares
of Common Stock (other than Cash paid in lieu of fractional shares) or in the
same form of consideration into which 90% or more of the shares of Common Stock
have been converted or exchanged in connection with the Fundamental Change
(except that the Company will pay Cash in lieu of fractional interests in any
security or other property delivered in connection with such fundamental
change). If holders of Common Stock receive or have the right to receive more
than one form of consideration in connection with such Fundamental Change, then
for purposes of the foregoing, the forms of consideration in which the Make
Whole Premium will be paid will be in proportion to the relative values,
determined as described in Section 4.01(d) below, of the different forms of
consideration paid to holders of Common Stock in connection with such
Fundamental Change.
(d) The value of the shares of Common Stock or other consideration
for purposes of determining the number of shares of Common Stock or other
consideration to be issued or delivered, as the case may be, in respect of the
Make Whole Premium shall be calculated as follows:
(i) securities that are traded on a United States
national securities exchange or approved for quotation on Nasdaq or any
similar system of automated dissemination of quotations of securities
prices shall be valued at 98% of the average Closing Price or last sale
price, as the case may be, for the 10 consecutive Trading Days
immediately prior to but excluding the Designated Event Repurchase
Date,
(ii) other securities, assets or property (other than
Cash) that holders will have the right to receive shall be valued based
on 98% of the average of the Fair Market Value of such securities,
assets or property (other than Cash) as determined three Business Days
immediately prior to the Designated Event Repurchase Date by two
independent nationally recognized investment banks selected by the
Trustee, and
(iii) 100% of any Cash.
26
Notwithstanding the foregoing, in no event shall the value of each share of
Common Stock be less than 50% of the Stock Price used to determine the amount of
the Make Whole Premium.
(e) A Calculation Agent appointed from time to time by the Company
shall, on behalf of and on request by the Company, calculate (A) the Stock
Price, and (B) the Additional Premium and Make Whole Premium with respect to
such Stock Price, based on the Effective Date specified by the Company, and
shall deliver its calculation of the Stock Price, Additional Premium and Make
Whole Premium to the Company and the Trustee within three Business Days of the
request by the Company or the Trustee. In addition, the Calculation Agent shall,
on behalf of and upon request by the Company or the Trustee make the
determinations described in Section 4.01(d) above and deliver its calculations
to the Company or the Trustee by 9:00 p.m., New York City time, on the day prior
to the Designated Event Repurchase Date. The Company, or at the Company's
request, the Trustee in the name and at the expense of the Company, (X) shall
notify the holders of the Stock Price and Make Whole Premium per $1,000
principal amount of Notes with respect to a Fundamental Change as part of the
Designated Event Notice and (Y) shall notify the holders, by registered
first-class mail, sent promptly upon the opening of business on the Designated
Event Repurchase Date of the number of shares of Common Stock (or such other
securities, assets or property (including Cash) into which 90% or more of the
shares of Common Stock have been converted as of the Effective Date as described
above) to be paid in respect of the Make Whole Premium in connection with such
Fundamental Change, in the manner provided in this Indenture, and the Company
shall also publicly announce such information. Any notice so given shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. The Company shall verify, in writing, all calculations
made by the Calculation Agent pursuant to this Section 4.01(e).
(f) On or prior to the Business Day immediately following the
Designated Event Repurchase Date, the Company shall deposit with the Trustee or
with one or more paying agents a number of shares of Common Stock (or in the
case of a Fundamental Change in which 90% or more of the shares of Common Stock
have been, as of the Effective Date, converted into or exchanged for the right
to receive securities or other assets or property (including Cash), an amount of
such other securities or other assets or property (including Cash)) sufficient
to pay the Make Whole Premium with respect to all Notes to be repurchased on
such date and all Notes converted in connection with such Fundamental Change;
PROVIDED that if such deposit is made on the Business Day immediately following
the Designated Event Repurchase Date it must be received by the Trustee or
paying agent, as the case may be, by 12:00 p.m., New York City time, on such
date. Payment of the Make Whole Premium for Notes surrendered for repurchase
(and not withdrawn) within the period described in Section 3.05 or surrendered
for conversion within the period described in Section 16.01(b), shall be made
promptly on the Business Day immediately following the Designated Event
Repurchase Date by mailing checks in respect of Cash (or if the Notes are
27
represented by a Global Note, by wire transfer of immediately available funds to
the Depositary or its nominee) and otherwise delivering entitlements to
securities, other assets or property for the amount payable to the holders of
such Notes entitled thereto as they shall appear in the register kept by the
Notes Registrar.
SECTION 4.02. ADJUSTMENTS RELATING TO MAKE WHOLE PREMIUM. Whenever the
Conversion Rate shall be adjusted from time to time by the Company pursuant to
Section 16.05, the Stock Price Threshold and the Stock Price Cap shall be
adjusted and each of the Stock Prices set forth in the Additional Premium Table
shall be adjusted. The adjusted Stock Price Threshold, Stock Price Cap and Stock
Prices set forth in the Additional Premium Table shall equal the Stock Price
Threshold, Stock Price Cap and such Stock Prices, as the case may be,
immediately prior to such adjustment multiplied by a fraction, the numerator of
which is the Conversion Rate immediately prior to the adjustment giving rise to
such adjustment and the denominator of which is the Conversion Rate so adjusted.
ARTICLE 5
[RESERVED.]
ARTICLE 6
PARTICULAR COVENANTS OF THE COMPANY
SECTION 6.01. PAYMENT OF PRINCIPAL AND INTEREST. The Company covenants
and agrees that it will duly and punctually pay or cause to be paid the
principal of and interest on each of the Notes (including the Designated Event
Repurchase Price upon any repurchase pursuant to Article 3), PLUS the Make Whole
Premium, if any, at the places, at the respective times and in the manner
provided herein and in the Notes.
SECTION 6.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain, or cause to be maintained, an office or agency in the Borough of
Manhattan, City of New York, where the Notes may be surrendered for registration
of transfer or exchange or for presentation for payment or for conversion or
repurchase and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency not designated or appointed by the Trustee. If at any time the
Company shall fail to maintain, or cause to be maintained, 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 or the corporate trust office of the Trustee in the
Borough of Manhattan which office is located at 100 Wall Street, Suite 1600, New
York, NY 10005.
28
The Company may also from time to time designate co-registrars and one
or more offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company will give prompt written notice of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the Trustee as paying agent,
Note Registrar, Custodian and conversion agent and each of the Corporate Trust
Office and the office of agency of the Trustee in the Borough of Manhattan,
shall be considered as one such office or agency of the Company for each of the
aforesaid purposes.
So long as the Trustee is the Note Registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 9.10(a) and the
third paragraph of Section 9.11. If co-registrars have been appointed in
accordance with this Section, the Trustee shall mail such notices only to the
Company and the holders of Notes it can identify from its records.
SECTION 6.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 9.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 6.04. PROVISIONS AS TO PAYING AGENT. (a) If the Company shall
appoint a paying agent other than the Trustee, or if the Trustee shall appoint
such a paying agent, the Company will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 6.04:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of or interest on the Notes (whether such sums
have been paid to it by the Company or by any other obligor on the
Notes) in trust for the benefit of the holders of the Notes;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Notes) to make any payment of
the principal of or interest on the Notes when the same shall be due
and payable; and
(3) that at any time during the continuance of an Event of
Default, upon request of the Trustee, it will forthwith pay to the
Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal of or
interest on the Notes, deposit with the paying agent a sum (in funds which are
immediately available on the due date for such payment) sufficient to pay such
principal, interest, and Make Whole Premium, if any, and (unless such paying
agent is the Trustee) the Company will promptly notify the Trustee of any
failure
29
to take such action; PROVIDED that if such deposit is made on the due date, such
deposit shall be received by the paying agent by 12:00 p.m., New York City time,
on such date.
(b) If the Company shall act as its own paying agent, it will, on
or before each due date of the principal of or interest on the Notes, set aside,
segregate and hold in trust for the benefit of the holders of the Notes a sum
sufficient to pay such principal or interest so becoming due and will promptly
notify the Trustee of any failure to take such action and of any failure by the
Company (or any other obligor under the Notes) to make any payment of the
principal of or interest on the Notes when the same shall become due and
payable.
(c) Anything in this Section 6.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any paying agent hereunder
as required by this Section 6.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any paying agent
to the Trustee, the Company or such paying agent shall be released from all
further liability with respect to such sums.
(d) The Trustee shall not be responsible for the actions of any
other paying agents (including the Company if acting as its own paying agent)
and shall have no control of any funds held by such other paying agents.
SECTION 6.05. EXISTENCE. Subject to Article 13, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence and rights (charter and statutory); PROVIDED that the
Company shall not be required to preserve any such right if the Company 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 Noteholders.
SECTION 6.06. 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, upon three (3) Business Days'
prior notice, make available to any holder or beneficial holder of Notes or any
Common Stock issued upon conversion thereof that continue to be Restricted
Securities in connection with any sale thereof and any prospective purchaser of
Notes or such Common Stock designated by such holder or beneficial holder, the
information required pursuant to Rule 144A(d)(4) under the Securities Act upon
the request of any holder or beneficial holder of the Notes or such Common Stock
and it will take such further action as any holder or beneficial holder of such
Notes or such Common Stock may reasonably request, all to the extent required
from time to time to enable such holder or beneficial holder to sell its Notes
or Common Stock
30
without registration under the Securities Act within the limitation of the
exemption provided by Rule 144A under the Securities Act, as such Rule may be
amended from time to time. Upon the request of any holder or any beneficial
holder of the Notes or such Common Stock, the Company will deliver to such
holder a written statement as to whether it has complied with such requirements.
SECTION 6.07. STAY, EXTENSION AND USURY LAWS. The Company covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the principal of, interest
on or the Make Whole Premium, if any, on, the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture and the Company (to the extent it
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, 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 6.08. COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee, within one hundred twenty (120) calendar days after the end of each
fiscal year of the Company, a certificate signed by either the principal
executive officer, principal financial officer or principal accounting officer
of the Company, stating whether or not to the best knowledge of the signer
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the Company
shall be in default, specifying all such defaults and the nature and the status
thereof of which the signer may have knowledge. The first such certificate to be
delivered by the Company pursuant to this Section 6.08 shall be for the fiscal
year ending December 31, 2004.
The Company will promptly deliver to the Trustee, forthwith upon
becoming aware of (i) any default in the performance or observance of any
covenant, agreement or condition contained in this Indenture, or (ii) any Event
of Default, an Officer's Certificate specifying with particularity such default
or Event of Default and further stating what action the Company has taken, is
taking or proposes to take with respect thereto.
Any notice required to be given under this Section 6.08 shall be
delivered to a Responsible Officer of the Trustee at its Corporate Trust Office.
SECTION 6.09. LIQUIDATED DAMAGES NOTICE. In the event that the Company
is required to pay Liquidated Damages to holders of the Notes pursuant to the
Registration Rights Agreement, the Company will provide written notice
("LIQUIDATED DAMAGES NOTICE") to the Trustee of its obligation to pay
31
Liquidated Damages no later than fifteen (15) calendar days prior to the
proposed payment date for the Liquidated Damages, and the Liquidated Damages
Notice shall set forth the amount of Liquidated Damages to be paid by the
Company on such payment date. The Trustee shall not at any time be under any
duty or responsibility to any holder of Notes to determine the Liquidated
Damages, or with respect to the nature, extent or calculation of the amount of
Liquidated Damages when made, or with respect to the method employed in such
calculation of the Liquidated Damages.
ARTICLE 7
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 7.01. NOTEHOLDERS' LISTS. The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee, semiannually, not more
than fifteen (15) calendar days after each April 1 and October 1 in each year
beginning with April 1, 2005 and at such other times as the Trustee may request
in writing, within thirty (30) calendar days after receipt by the Company of any
such request (or such lesser time as the Trustee may reasonably request in order
to enable it to timely provide any notice to be provided by it hereunder), a
list in such form as the Trustee may reasonably require of the names and
addresses of the holders of Notes as of a date not more than fifteen (15)
calendar days (or such other date as the Trustee may reasonably request in order
to so provide any such notices) prior to the time such information is furnished,
except that no such list need be furnished by the Company to the Trustee so long
as the Trustee is acting as the sole Note Registrar.
SECTION 7.02. PRESERVATION AND DISCLOSURE OF LISTS. The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Notes contained in the most recent
list furnished to it as provided in Section 7.01 or maintained by the Trustee in
its capacity as Note Registrar or co-registrar in respect of the Notes, if so
acting. The Trustee may destroy any list furnished to it as provided in Section
7.01 upon receipt of a new list so furnished.
(a) The rights of Noteholders to communicate with other holders of
Notes with respect to their rights under this Indenture or under the Notes, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(b) Every Noteholder, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of holders of Notes made
pursuant to the Trust Indenture Act.
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SECTION 7.03. REPORTS BY TRUSTEE. (a) Within sixty (60) calendar days
after December 15 of each year commencing with the year 2004, the Trustee shall
transmit to holders of Notes such reports dated as of December 15 of the year in
which such reports are made concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. Except to the extent required by
the Trust Indenture Act, in the event that no events have occurred under the
applicable sections of the Trust Indenture Act the Trustee shall be under no
duty or obligation to provide such reports.
(b) A copy of such report shall, at the time of such transmission
to holders of Notes, be filed by the Trustee with each stock exchange and
automated quotation system upon which the Notes are listed and with the Company.
The Company will promptly notify the Trustee in writing when the Notes are
listed on any stock exchange or automated quotation system or delisted
therefrom.
SECTION 7.04. REPORTS BY COMPANY. The Company shall file with the
Trustee (and the Commission if at any time after the Indenture becomes qualified
under the Trust Indenture Act), and transmit to holders of Notes, such
information, documents and other reports and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act, whether or not the Notes are governed by such
Act; PROVIDED that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within fifteen (15) calendar days after the same
is so required to be filed with the Commission. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on an Officer's
Certificates).
ARTICLE 8
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT. In case one or more of the following
Events of Default (whatever the reason for such Event of Default and whether 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) shall have occurred and be
continuing:
(a) default in the payment of the principal of any of the Notes as
and when the same shall become due and payable either at maturity, upon
repurchase pursuant to Article 3 hereof or otherwise; or
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(b) default in the payment of any installment of interest upon any
of the Notes, including Liquidated Damages, if any, under the Registration
Rights Agreement, or any Make Whole Premium, as and when the same shall become
due and payable, and continuance of such default for a period of thirty (30)
calendar days; or
(c) default in the Company's obligation to deliver Common Stock,
together with cash in lieu of any fractional shares of Common Stock, when due
upon conversion of Notes as provided in Article 16 hereof; or
(d) default in the payment of principal when due at stated
maturity of other indebtedness or acceleration of such other indebtedness for
borrowed money where the aggregate principal amount with respect to which the
default or acceleration has occurred exceeds $10,000,000, and such acceleration
has not been rescinded or annulled within a period of (30) calendar days after
the date on which written notice of such failure, requiring the Company to
remedy the same, shall have been given to the Company by the Trustee, or to the
Company and a Responsible Officer of the Trustee by the holders of at least
twenty-five percent (25%) in aggregate principal amount of the Notes at the time
Outstanding determined in accordance with Section 10.04 hereof; or
(e) failure on the part of the Company to provide timely notice of
a Designated Event as provided in Section 3.05(b) hereof; or
(f) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company in the Notes
or in this Indenture (other than a covenant or agreement a default in the
performance or breach of which is elsewhere in this Section 8.01 specifically
dealt with) continued for a period of sixty (60) calendar days after the date on
which written notice of such failure, requiring the Company to remedy the same,
shall have been given to the Company by the Trustee, or to the Company and a
Responsible Officer of the Trustee by the holders of at least twenty-five
percent (25%) in aggregate principal amount of the Notes at the time Outstanding
determined in accordance with Section 10.04 hereof; or
(g) the Company shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
the Company or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, or shall consent to any such
relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against the Company, or shall
make a general assignment for the benefit of creditors, or shall admit in
writing its inability to generally to pay its debts as they become due; or
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(h) an involuntary case or other proceeding shall be commenced
against the Company seeking liquidation, reorganization or other relief with
respect to the Company or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of sixty
(60) consecutive calendar days;
then, and in each and every such case (other than an Event of Default specified
in Section 8.01(g) or 8.01(h)), unless the principal of all of the Notes shall
have already become due and payable, either the Trustee or the holders of not
less than twenty-five percent (25%) in aggregate principal amount of the Notes
then Outstanding hereunder determined in accordance with Section 10.04, by
notice in writing to the Company (and to the Trustee if given by Noteholders),
may declare the principal of all the Notes and the interest accrued and unpaid
thereon to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Notes contained to the contrary notwithstanding. If an Event
of Default specified in Section 8.01(g) or 8.01(h) occurs, the principal of all
the Notes and the interest accrued and unpaid thereon shall be immediately and
automatically due and payable without necessity of further action. This
provision, however, is subject to the conditions that if, at any time after the
principal of the Notes shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all Notes and the principal of any and all Notes which shall have
become due otherwise than by acceleration (with interest on overdue installments
of interest (to the extent that payment of such interest is enforceable under
applicable law) and on such principal at the default rate provided for in the
Notes, to the date of such payment or deposit) and amounts due to the Trustee
pursuant to Section 9.06, and if any and all defaults under this Indenture,
other than the nonpayment of principal of and accrued and unpaid interest on
Notes which shall have become due by acceleration, shall have been cured or
waived pursuant to Section 8.07, then and in every such case the holders of a
majority in aggregate principal amount of the Notes then Outstanding, by written
notice to the Company and to the Trustee, may waive all defaults or Events of
Default and rescind and annul such declaration and its consequences; but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default or Event of Default, or shall impair any right consequent
thereon.
The Trustee may withhold notice to the holders of the Notes of any
Event of Default, except an Event of Default specified in Section 8.01(a) or
8.01(b). However, the Trustee must consider it to be in the interest of the
holders of the Notes to withhold this notice.
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In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such waiver or rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case, subject to any orders entered in such proceedings the Company, the holders
of Notes, and the Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Company, the holders of Notes, and the Trustee shall continue as though no such
proceeding had been taken.
SECTION 8.02. PAYMENTS OF NOTES ON DEFAULT; SUIT THEREFOR. The Company
covenants that (a) in case default shall be made in the payment of any
installment of interest, including Liquidated Damages, if any, upon, or Make
Whole Premium, if any, on any of the Notes as and when the same shall become due
and payable, and such default shall have continued for a period of thirty (30)
calendar days, or (b) in case default shall be made in the payment of the
principal of any of the Notes as and when the same shall have become due and
payable, whether at maturity of the Notes, in connection with any repurchase
pursuant to Article 3, by declaration or otherwise, then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the holders of
the Notes, the whole amount that then shall have become due and payable on all
such Notes for principal, interest and Make Whole Premium, if any, as the case
may be, with interest upon the overdue principal, any Make Whole Premium and (to
the extent that payment of such interest is enforceable under applicable law)
upon the overdue installments of interest at the rate provided for in the Notes,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including reasonable compensation to the
Trustee, its agents, attorneys and counsel, and all other amounts due the
Trustee under Section 9.06. Until such demand by the Trustee, the Company may
pay the principal of, interest on and Make Whole Premium, if any, on the Notes
to the registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes
and collect in the manner provided by law out of the property of the Company or
any other obligor on the Notes wherever situated the monies adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Notes under Title
11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or such
36
other obligor, the property of the Company or such other obligor, or in the case
of any other judicial proceedings relative to the Company or such other obligor
upon the Notes, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 8.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal, interest and Make Whole Premium, if
any, owing and unpaid in respect of the Notes, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
Noteholders allowed in such judicial proceedings relative to the Company or any
other obligor on the Notes, its or their creditors, or its or their property,
and to collect and receive any monies or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of any
amounts due the Trustee under Section 9.06, and to take any other action with
respect to such claims, including participating as a member of any official
committee of creditors, as it reasonably deems necessary or advisable, and,
unless prohibited by law or applicable regulations, and any receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, custodian or similar
official is hereby authorized by each of the Noteholders to make such payments
to the Trustee, and, in the event that the Trustee shall consent to the making
of such payments directly to the Noteholders, to pay to the Trustee any amount
due it for reasonable compensation, expenses, advances and disbursements,
including reasonable counsel fees and expenses incurred by it up to the date of
such distribution. To the extent that such payment of reasonable compensation,
expenses, advances and disbursements out of the estate in any such proceedings
shall be denied for any reason, payment of the same shall be secured by a senior
lien on, and shall be paid out of, any and all distributions, dividends, monies,
securities and other property which the holders of the Notes may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Trustee without the possession of
any of the Notes, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or 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 Notes.
In any proceedings brought by the Trustee (and in any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Notes, and it shall not be necessary to make any holders of the Notes
parties to any such proceedings.
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SECTION 8.03. APPLICATION OF MONIES COLLECTED BY TRUSTEE. Any monies
collected by the Trustee pursuant to this Article 8 shall be applied in the
order following, at the date or dates fixed by the Trustee for the distribution
of such monies, upon presentation of the several Notes, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
9.06;
SECOND: In case the principal of the Outstanding Notes shall not have
become due and be unpaid, to the payment of interest on the Notes in default in
the order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the default rate provided for in the Notes,
such payments to be made ratably to the Persons entitled thereto;
THIRD: In case the principal of the Outstanding Notes shall have become
due, by declaration or otherwise, and be unpaid to the payment of the whole
amount then owing and unpaid upon the Notes for principal, interest and Make
Whole Premium, if any, with interest on the overdue principal, any Make Whole
Premium, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the default rate provided for
in the Notes, and in case such monies shall be insufficient to pay in full the
whole amounts so due and unpaid upon the Notes, then to the payment of such
principal, any Make Whole Premium, and interest without preference or priority
of principal over interest, or of interest over principal, Make Whole Premium
over principal or interest, interest or principal over Make Whole Premium or of
any installment of interest over any other installment of interest, or of any
Note over any other Note, ratably to the aggregate of such principal, any Make
Whole Premium and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
SECTION 8.04. PROCEEDINGS BY NOTEHOLDER. No holder of any Note shall
have any right by virtue of or by reference to any provision of this Indenture
to institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as hereinbefore
provided, and unless also the holders of not less than twenty-five percent (25%)
in aggregate principal amount of the Notes then Outstanding shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable security or indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for sixty
(60) calendar days after its receipt of such notice, request and offer of
indemnity, shall have neglected or
38
refused to take reasonable efforts to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 8.07; it being understood and
intended, and being expressly covenanted by the taker and holder of every Note
with every other taker and holder and the Trustee, that no one or more holders
of Notes shall have any right in any manner whatever by virtue of or by
reference to any provision of this Indenture to affect, disturb or prejudice the
rights of any other holder of Notes, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Notes (except as otherwise provided herein).
For the protection and enforcement of this Section 8.04, each and every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision
of any Note, the right of any holder of any Note to receive payment of the
principal of, any Make Whole Premium on, and accrued and unpaid interest on such
Note, on or after the respective due dates expressed in such Note, or to
institute suit for the enforcement of any such payment on or after such
respective dates against the Company shall not be impaired or affected without
the consent of such holder.
Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, in its own behalf and for its own
benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of conversion as provided herein.
SECTION 8.05. PROCEEDINGS BY TRUSTEE. In case of an Event of Default,
the Trustee may, in its discretion, proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial proceedings as are
necessary to protect and enforce any of such rights, either by suit in equity or
by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
SECTION 8.06. REMEDIES CUMULATIVE AND CONTINUING. Except as provided in
Section 2.06, all powers and remedies given by this Article 8 to the Trustee or
to the Noteholders shall, to the extent permitted by law, be deemed cumulative
and not exclusive of any thereof or of any other powers and remedies available
to the Trustee or the holders of the Notes, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any holder of any of the Notes to exercise any right or power accruing
upon any default or Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such
default or
39
any acquiescence therein, and, subject to the provisions of Section 8.04, every
power and remedy given by this Article 8 or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Noteholders.
SECTION 8.07. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY
MAJORITY OF NOTEHOLDERS. The holders of a majority in aggregate principal amount
of the Notes at the time Outstanding determined in accordance with Section 10.04
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee; PROVIDED that (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 which is not inconsistent with such direction, (c) the Trustee
may decline to take any action that would benefit some Noteholder to the
detriment of other Noteholders and (d) the Trustee may decline to take any
action that would involve the Trustee in personal liability. The holders of a
majority in aggregate principal amount of the Notes at the time Outstanding
determined in accordance with Section 10.04 may, on behalf of the holders of all
of the Notes, waive any past default or Event of Default hereunder and its
consequences except (i) a Default in the payment of interest on, the principal
of, or any Make Whole Premium on, the Notes, (ii) a failure by the Company to
convert any Notes into Common Stock, (iii) a Default in the payment of the
Designated Event Repurchase Price pursuant to Article 3 or (iv) a Default in
respect of a covenant or provisions hereof that under Article 12 cannot be
modified or amended without the consent of the holders of each or all Notes then
Outstanding or affected thereby. Upon any such waiver, the Company, the Trustee
and the holders of the Notes shall be restored to their former positions and
rights hereunder; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. Whenever any
Default or Event of Default hereunder shall have been waived as permitted by
this Section 8.07, said Default or Event of Default shall for all purposes of
the Notes and this Indenture be deemed to have been cured and to be not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon.
SECTION 8.08. NOTICE OF DEFAULTS. The Trustee shall, within ninety (90)
calendar days after a Responsible Officer of the Trustee has knowledge of the
occurrence of a Default, mail to all Noteholders, as the names and addresses of
such holders appear upon the Note Register, notice of all Defaults known to a
Responsible Officer, unless such Defaults shall have been cured or waived before
the giving of such notice; PROVIDED that except in the case of Default in the
payment of the principal of, interest on, or any Make Whole Premium on, any of
the Notes, the Trustee shall be protected in withholding such notice if and so
long as a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Noteholders.
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SECTION 8.09. UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each holder of any Note 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 and expenses, 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; PROVIDED that the provisions of this Section 8.09
(to the extent permitted by law) shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than ten percent (10%) in principal amount of the
Notes at the time Outstanding determined in accordance with Section 10.04, or to
any suit instituted by any Noteholder for the enforcement of the payment of the
principal of or interest on any Note on or after the due date expressed in such
Note or Make Whole Premium, if any, following a Fundamental Change or to any
suit for the enforcement of the right to convert any Note in accordance with the
provisions of Article 16.
ARTICLE 9
THE TRUSTEE
SECTION 9.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE. The Trustee,
prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may 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 (which has not been cured or waived), 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 person
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 or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture and the
Trust Indenture Act, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Indenture and no implied covenants, duties or obligations
shall be read into or imposed under this Indenture and the Trust
Indenture Act against the Trustee; and
41
(ii) in the absence of bad faith and willful misconduct on
the part of the Trustee, the Trustee may conclusively rely as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the Trustee, unless the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the written
direction of the holders of not less than a majority in principal amount of the
Notes at the time Outstanding determined as provided in Section 10.04 relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture;
(d) whether or not therein provided, every provision of this
Indenture relating to the conduct or affecting the liability of, or affording
protection to, the Trustee shall be subject to the provisions of this Section;
(e) the Trustee shall not be liable in respect of any payment (as
to the correctness of amount, entitlement to receive or any other matters
relating to payment) or notice effected by the Company or any paying agent or
any records maintained by any co-registrar with respect to the Notes;
(f) if any party fails to deliver a notice relating to an event
the fact of which, pursuant to this Indenture, requires notice to be sent to the
Trustee, the Trustee may conclusively rely on its failure to receive such notice
as reason to act as if no such event occurred; and
(g) the Trustee shall not be deemed to have knowledge of any Event
of Default hereunder unless it shall have been notified in writing of such Event
of Default by the Company or the holders of at least ten percent (10%) in
aggregate principal amount of the Notes.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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SECTION 9.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as otherwise
provided in Section 9.01:
(a) the Trustee may conclusively rely and shall be protected in
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon or other paper or
document (whether in its original or facsimile form) believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officer's Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel of its own selection and
any advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of Counsel;
(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, order or
direction of any of the Noteholders pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby;
(e) 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 or other paper or document, but the Trustee may make such further
inquiry or investigation into such facts or matters if and 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;
(f) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder;
(g) the Trustee shall not be liable for any action taken, suffered
or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(h) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended
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to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder;
(i) the Trustee may request that the Company deliver an Officer's
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officer's Certificate may be signed by any person authorized to sign an
Officer's Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and
(j) any permissive right or authority granted to the Trustee shall
not be construed as a mandatory duty.
SECTION 9.03. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals
contained herein and in the Notes (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the accuracy or correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of any Notes or the proceeds of any Notes.
SECTION 9.04. TRUSTEE, PAYING AGENTS, CONVERSION AGENTS OR REGISTRAR
MAY OWN NOTES. The Trustee, any paying agent, any conversion agent or Note
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Notes with the same rights it would have if it were not Trustee,
paying agent, conversion agent or Note Registrar.
SECTION 9.05. MONIES TO BE HELD IN TRUST. 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. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no obligation or liability to invest or pay
interest on any money received by it hereunder except as may be agreed in
writing from time to time by the Company and the Trustee.
SECTION 9.06. COMPENSATION AND EXPENSES OF TRUSTEE. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) as mutually agreed
to from time to time in writing between the Company and the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable and documented compensation and the reasonable expenses and
disbursements of its counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from the Trustee's
own
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negligence, willful misconduct, recklessness or bad faith. The Company also
covenants to indemnify the Trustee and any predecessor Trustee (or any officer,
director or employee of the Trustee), in any capacity under this Indenture and
its agents and any authenticating agent for, and to hold them harmless against,
any and all loss, liability, damage, claim or expense including taxes (other
than franchise taxes and taxes based on the income of the Trustee) incurred
without negligence, willful misconduct, recklessness or bad faith on the part of
the Trustee or such officers, directors, employees and agent or authenticating
agent, as the case may be, and arising out of or in connection with the
acceptance or administration of this trust or in any other capacity hereunder,
including the costs and expenses of defending themselves against any claim
(whether asserted by the Company, any holder or any other Person) of liability
in connection with the exercise or performance of any of its or their powers or
duties hereunder. If the Company fails to compensate or indemnify the Trustee
and to pay or reimburse the Trustee for expenses, disbursements and advances
under this Section 9.06, the Trustee's claim shall be secured by a lien prior to
that of the Notes upon all property and funds held or collected by the Trustee
as such. The obligation of the Company under this Section shall survive the
satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee as a result of its own negligence or
willful misconduct or bad faith.
When the Trustee and its agents and any authenticating agent incur
expenses or render services after an Event of Default specified in Section
8.01(g) or Section 8.01(h) with respect to the Company occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency or similar laws.
SECTION 9.07. OFFICER'S CERTIFICATE AS EVIDENCE. Except as otherwise
provided in Section 9.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter may, in the absence of bad faith or willful misconduct on the part of the
Trustee, be deemed to be conclusively proved and established by an Officer's
Certificate delivered to the Trustee.
SECTION 9.08. CONFLICTING INTERESTS OF TRUSTEE. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall (i) eliminate such conflicting interest within ninety
(90) calendar days, (ii) apply to the Commission for permission to continue as
trustee hereunder or (iii) resign, in each case to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
SECTION 9.09. ELIGIBILITY OF TRUSTEE. There shall at all times be a
Trustee hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture
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Act to act as such and has a combined capital and surplus of at least
$100,000,000 (or if such Person is a member of a bank holding company system,
its bank holding company shall have a combined capital and surplus of at least
$100,000,000). If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 9.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 9.10. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee may at any time resign by giving written notice of
such resignation to the Company and to the holders of Notes. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment sixty (60) calendar days after the
mailing of such notice of resignation to the Noteholders, the resigning Trustee
may, upon ten (10) Business Days' notice to the Company and the Noteholders,
appoint a successor identified in such notice or may petition, at the expense of
the Company, any court of competent jurisdiction for the appointment of a
successor trustee, or, if any Noteholder who has been a bona fide holder of a
Note or Notes for at least six (6) months may, subject to the provisions of
Section 8.09, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with Section 9.08
after written request therefor by the Company or by any Noteholder who
has been a bona fide holder of a Note or Notes for at least six (6)
months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.09 and shall fail to resign after
written request therefor by the Company or by any such Noteholder; or
(iii) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
46
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 8.09, any Noteholder who has been a bona fide holder of a
Note or Notes for at least six (6) months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee; PROVIDED that
if no successor Trustee shall have been appointed and have accepted appointment
sixty (60) calendar days after either the Company or the Noteholders has removed
the Trustee, or the Trustee resigns, the Trustee so removed may petition, at the
expense of the Company, any court of competent jurisdiction for an appointment
of a successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount of the
Notes at the time Outstanding may at any time remove the Trustee and nominate a
successor trustee which shall be deemed appointed as successor trustee unless,
within ten (10) calendar days after notice to the Company of such nomination,
the Company objects thereto, in which case the Trustee so removed or any
Noteholder, or if such Trustee so removed or any Noteholder fails to act, the
Company, upon the terms and conditions and otherwise as in Section 9.10(a)
provided, may petition any court of competent jurisdiction for an appointment of
a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 9.11.
(e) Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 9.06 shall continue for
the benefit of the retiring Trustee.
SECTION 9.11. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor trustee
appointed as provided in Section 9.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amount then due it pursuant to the provisions of Section
9.06, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the
47
Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon
all property and funds held or collected by such trustee as such, except for
funds held in trust for the benefit of holders of particular Notes, to secure
any amounts then due it pursuant to the provisions of Section 9.06.
No successor trustee shall accept appointment as provided in this
Section 9.11 unless, at the time of such acceptance, such successor trustee
shall be qualified under the provisions of Section 9.08 and be eligible under
the provisions of Section 9.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 9.11, the Company (or the former trustee, at the written direction
of the Company) shall mail or cause to be mailed notice of the succession of
such trustee hereunder to the holders of Notes at their addresses as they shall
appear on the Note Register. If the Company fails to mail such notice within ten
(10) calendar days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.
SECTION 9.12. SUCCESSION BY MERGER. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee (including any trust created
by this Indenture), shall be the successor to the Trustee hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, PROVIDED that in the case of any corporation succeeding to all
or substantially all of the corporate trust business of the Trustee, such
corporation shall be qualified under the provisions of Section 9.08 and eligible
under the provisions of Section 9.09.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee or authenticating agent appointed
by such predecessor trustee, and deliver such Notes so authenticated; and in
case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or any authenticating agent appointed by such successor
trustee may authenticate such Notes in the name of the successor trustee; and in
all such cases such certificates shall have the full force that is provided in
the Notes or in this Indenture; PROVIDED that the right to adopt the certificate
of authentication of any predecessor Trustee or authenticate Notes in the name
of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
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SECTION 9.13. PREFERENTIAL COLLECTION OF CLAIMS. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Notes), 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 9.14. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.
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 of the Notes or holders of
Senior Indebtedness under this Indenture) 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 five (5) Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such action
(or the effective date in the case of an omission), the Trustee shall have
received written instructions in response to such application specifying the
action to be taken or omitted, which shall conform to the terms and conditions
set forth in this Indenture.
ARTICLE 10
THE NOTEHOLDERS
SECTION 10.01. ACTION BY NOTEHOLDERS. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Noteholders
in person or by agent or proxy appointed in writing, or (b) by the record of the
holders of Notes voting in favor thereof at any meeting of Noteholders duly
called and held in accordance with the provisions of Article 11, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Noteholders. Whenever the Company or the Trustee solicits the taking
of any action by the holders of the Notes, the Company or the Trustee may fix in
advance of such solicitation, a date as the record date for determining holders
entitled to take such action. The record date shall be not more than fifteen
(15) calendar days prior to the date of commencement of solicitation of such
action.
SECTION 10.02. PROOF OF EXECUTION BY NOTEHOLDERS. Subject to the
provisions of Sections 9.01, 9.02 and 11.05, proof of the execution of any
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instrument by a Noteholder or its agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the registry of such Notes or by a
certificate of the Note Registrar.
The record of any Noteholders' meeting shall be proved in the manner
provided in Section 11.06.
SECTION 10.03. WHO ARE DEEMED ABSOLUTE OWNERS. The Company, the
Trustee, any paying agent, any conversion agent and any Note Registrar may deem
the Person in whose name such Note shall be registered upon the Note Register to
be, and may treat it as, the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by any Person other than the Company or any Note Registrar)
for the purpose of receiving payment of or on account of the principal of and
interest on such Note, for conversion of such Note and for all other purposes;
and neither the Company nor the Trustee nor any paying agent nor any conversion
agent nor any Note Registrar shall be affected by any notice to the contrary.
All such payments so made to any holder for the time being, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for monies payable upon any such Note.
SECTION 10.04. COMPANY-OWNED NOTES DISREGARDED. In determining whether
the holders of the requisite aggregate principal amount of Notes have concurred
in any direction, consent, waiver or other action under this Indenture, Notes
which are owned by the Company or any other obligor on the Notes or any
Affiliate of the Company or any other obligor on the Notes shall be disregarded
and deemed not to be Outstanding for the purpose of any such determination;
PROVIDED that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, consent, waiver or other action,
only Notes which a Responsible Officer of the Trustee knows are so owned shall
be so disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section 10.04 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Notes and that the pledgee is not the Company, any other obligor on the
Notes or any Affiliate of the Company or any such other obligor. In the case of
a dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officer's Certificate
listing and identifying all Notes, if any, known by the Company to be owned or
held by or for the account of any of the above described Persons, and, subject
to Section 9.01, the Trustee shall be entitled to accept such Officer's
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are Outstanding for the purpose of any
such determination.
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SECTION 10.05. REVOCATION OF CONSENTS, FUTURE HOLDERS BOUND. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 10.01 hereof, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any holder of a Note which is shown by
the evidence to be included in the Notes the holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 10.02, revoke such
action so far as concerns such Note. Except as aforesaid, any such action taken
by the holder of any Note shall be conclusive and binding upon such holder and
upon all future holders and owners of such Note and of any Notes issued in
exchange or substitution therefor, irrespective of whether any notation in
regard thereto is made upon such Note or any Note issued in exchange or
substitution therefor.
ARTICLE 11
MEETINGS OF NOTEHOLDERS
SECTION 11.01. PURPOSE OF MEETINGS. A meeting of Noteholders may be
called at any time and from time to time pursuant to the provisions of this
Article 11 for any of the following purposes:
(1) to give any notice to the Company or to the Trustee
or to give any directions to the Trustee permitted under this
Indenture, or to consent to the waiving of any default or Event of
Default hereunder and its consequences, or to take any other action
authorized to be taken by Noteholders pursuant to any of the provisions
of Article 8;
(2) to remove the Trustee and nominate a successor
trustee pursuant to the provisions of Article 9;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
12.02; or
(4) to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate principal amount of
the Notes under any other provision of this Indenture or under
applicable law.
SECTION 11.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time
call a meeting of Noteholders to take any action specified in Section 11.01, to
be held at such time and at such place as the Trustee shall determine, at the
expense of the Company. Notice of every meeting of the Noteholders, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting and the establishment of any record date
pursuant to Section 10.01, shall be mailed to holders of Notes at their
addresses as they shall appear on the Note Register. Such notice shall also be
mailed to the Company.
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Such notices shall be mailed not less than twenty (20) nor more than ninety (90)
calendar days prior to the date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the holders
of all Notes then Outstanding are present in person or by proxy or if notice is
waived before or after the meeting by the holders of all Notes Outstanding, and
if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.
SECTION 11.03. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least ten percent (10%) in aggregate principal amount of the Notes
then Outstanding, shall have requested the Trustee to call a meeting of
Noteholders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within twenty (20) calendar days after receipt of such
request, then the Company or such Noteholders may determine the time and the
place for such meeting and may call such meeting to take any action authorized
in Section 11.01, by mailing notice thereof as provided in Section 11.02.
SECTION 11.04. QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meeting of Noteholders a person shall (a) be a holder of one or more Notes on
the record date pertaining to such meeting or (b) be a person appointed by an
instrument in writing as proxy by a holder of one or more Notes on the record
date pertaining to such meeting. The only persons who shall be entitled to be
present or to speak at any meeting of Noteholders shall be the persons entitled
to vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 11.05. REGULATIONS. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 11.03, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Notes represented at the meeting and entitled to vote
at the meeting.
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Subject to the provisions of Section 10.04, at any meeting each
Noteholder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him; PROVIDED that no vote
shall be cast or counted at any meeting in respect of any Note challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Notes held by him or instruments in writing as aforesaid duly designating him as
the proxy to vote on behalf of other Noteholders. Any meeting of Noteholders
duly called pursuant to the provisions of Section 11.02 or 11.03 may be
adjourned from time to time by the holders of a majority of the aggregate
principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 11.06. VOTING. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballot on which shall be subscribed
the signatures of the holders of Notes or of their representatives by proxy and
the Outstanding principal amount of the Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Noteholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 11.02. The record shall show the principal amount of the
Notes voting in favor of or against any resolution. The record shall be signed
and verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 11.07. NO DELAY OF RIGHTS BY MEETING. Nothing contained in this
Article 11 shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Noteholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right
or rights conferred upon or reserved to the Trustee or to the Noteholders under
any of the provisions of this Indenture or of the Notes.
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ARTICLE 12
SUPPLEMENTAL INDENTURES
SECTION 12.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
The Company, when authorized by the resolutions of the Board of Directors, and
the Trustee may, from time to time, and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) make provision with respect to the conversion rights of the
holders of Notes pursuant to the requirements of Section 16.06 and the
repurchase obligations of the Company pursuant to the requirements of Section
3.05;
(b) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Notes, any property or assets;
(c) to evidence the succession of another Person to the Company,
or successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company pursuant to Article 13;
(d) to add to the covenants of the Company such further covenants,
restrictions or conditions for the benefit of the holders of Notes, and to make
the occurrence, or the occurrence and continuance, of a Default in any such
additional covenants, restrictions or conditions a Default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; PROVIDED that in respect of any
such additional covenant, restriction or condition, 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 default or may limit the remedies
available to the Trustee upon such Default;
(e) to provide for the issuance under this Indenture of
uncertificated Notes in addition to or in place of certificated Notes;
(f) to provide for the issuance under this Indenture of
certificated Notes;
(g) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture that may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to matters or
questions arising under this Indenture that shall not materially adversely
affect the interests of the holders of the Notes;
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes;
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(i) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualifications of
this Indenture under the Trust Indenture Act, or under any similar federal
statute hereafter enacted;
(j) make other changes to the Indenture or forms or terms of the
Notes, provided no such change individually or in the aggregate with all other
such changes has or will have an adverse effect on the interests of the
Noteholders; or
(k) to conform this Indenture to the "Description of Notes" in the
final offering memorandum of the Company, dated September 20, 2004, prepared in
connection with the offering of the Notes.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture, the Trustee
is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and
stipulations that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, PROVIDED that the Trustee
shall not be obligated to, but may in its discretion, enter into any
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
12.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Notes at the time Outstanding, notwithstanding any of the
provisions of Section 12.02.
Notwithstanding any other provision of the Indenture or the Notes, the
Registration Rights Agreement and the obligation to pay Liquidated Damages
thereunder may only be amended, modified or waived in accordance with the
provisions of the Registration Rights Agreement.
SECTION 12.02. SUPPLEMENTAL INDENTURE WITH CONSENT OF NOTEHOLDERS. With
the consent (evidenced as provided in Article 10) of the holders of at least a
majority in aggregate principal amount of the Notes at the time Outstanding, the
Company, when authorized by the resolutions of the Board of Directors, and the
Trustee may, from time to time and at any time, 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
any supplemental indenture or of modifying in any manner the rights of the
holders of the Notes; PROVIDED that no such supplemental indenture shall (i)
extend the fixed maturity of any Note, or reduce the rate or extend the time of
payment of interest, including Liquidated Damages, if any, thereon, or reduce
the principal amount thereof or reduce any amount payable on repurchase thereof,
or change the obligation of the Company to repurchase any Note upon the
happening
55
of a Designated Event in a manner adverse to the holders of Notes, or impair the
right of any Noteholder to institute suit for the payment on any Note, or make
the principal thereof or interest payable in any coin or currency other than
that provided in the Notes, or impair the right to convert the Notes into Common
Stock or reduce the number of shares of Common Stock or any other property
receivable by a Noteholder upon conversion subject to the terms set forth
herein, including Section 16.06, or reduce the amount of the Make Whole Premium
or otherwise impair the right of a holder to receive the Make Whole Premium due
on any Note, in each case, without the consent of the holder of each Note so
affected, or modify any of the provisions of this Section 12.02 or Section 8.07,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the holder of each Note so affected, or reduce the quorum or voting requirements
set forth in Article 11 or (ii) reduce the aforesaid percentage of Notes, the
holders of which are required to consent to any such supplemental indenture,
without the consent of the holder of each Outstanding Note affected thereby.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Noteholders under this
Section 12.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 12.03. EFFECT OF SUPPLEMENTAL INDENTURE. Any supplemental
indenture executed pursuant to the provisions of this Article 12 shall comply
with the Trust Indenture Act, as then in effect, PROVIDED that this Section
12.03 shall not require such supplemental indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is
in fact required under the terms of the Trust Indenture Act or the Indenture has
been qualified under the Trust Indenture Act, nor shall it constitute any
admission or acknowledgment by any party to such supplemental indenture that any
such qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act or the Indenture has been
qualified under the Trust Indenture Act. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 12, this Indenture shall be
and be deemed to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Notes shall
thereafter be determined, exercised and enforced hereunder,
56
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 12.04. NOTATION ON NOTES. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article 12 may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may, at the Company's expense, be
prepared and executed by the Company, authenticated by the Trustee (or an
authenticating agent duly appointed by the Trustee pursuant to Section 17.11)
and delivered in exchange for the Notes then Outstanding, upon surrender of such
Notes then Outstanding.
SECTION 12.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TO TRUSTEE. Prior to entering into any supplemental indenture, the
Trustee shall be provided with an Officer's Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
hereto complies with the requirements of this Article 12 and is otherwise
authorized or permitted by this Indenture.
ARTICLE 13
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 13.01. COMPANY MAY CONSOLIDATE ON CERTAIN TERMS. Subject to the
provisions of Section 13.02, the Company shall not consolidate with or merge
with or into any other Person or Persons (whether or not affiliated with the
Company), nor shall the Company sell, convey, transfer or lease the property and
assets of the Company substantially as an entirety, to any other Person (whether
or not affiliated with the Company), unless: (i) the Company is the surviving
Person, or the resulting, surviving or transferee Person, if other than the
Company, is organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia; (ii) upon any such
consolidation, merger, sale, conveyance, transfer or lease, the due and punctual
payment of the principal of and interest on all of the Notes, 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, shall
be expressly assumed, by supplemental indenture satisfactory in form and
substance to the Trustee, executed and delivered to the Trustee by the Person
(if other than the Company and other than a Person who is a successor to the
Company's obligations hereunder and under the Note by operation of law) formed
by such consolidation, or into which the Company shall have been merged, or by
the Person that shall have acquired or leased such property, and such
supplemental indenture shall provide for the applicable conversion rights set
forth
57
in Section 16.06; and (iii) immediately after giving effect to the transaction
described above, no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, shall have happened and be
continuing.
SECTION 13.02. SUCCESSOR TO BE SUBSTITUTED. In case of any such
consolidation, merger, sale, conveyance, transfer or lease and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and interest on all of the Notes and the
due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company, 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 this first part. Such successor Person thereupon may
cause to be signed, and may issue either in its own name or in the name of
ANADIGICS, Inc. any or all of the Notes, 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, or cause to be authenticated and
delivered, any Notes that previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Notes that
such successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Notes so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Notes theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Notes had been issued at the date of the execution hereof. In the event
of any such consolidation, merger, sale, conveyance, transfer or lease, the
Person named as the "COMPANY" in the first paragraph of this Indenture or any
successor that shall thereafter have become such in the manner prescribed in
this Article 13 may be dissolved, wound up and liquidated at any time thereafter
and such Person shall be released from its liabilities as obligor and maker of
the Notes and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance, transfer
or lease, such changes in phraseology and form (but not in substance) may be
made in the Notes thereafter to be issued as may be appropriate.
SECTION 13.03. OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE. The Trustee
shall receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
lease and any such assumption complies with the provisions of this Article 13.
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ARTICLE 14
[RESERVED.]
ARTICLE 15
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 15.01. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS. No
recourse for the payment of the principal of, or interest on any Note, or for
any claim based thereon or otherwise in respect thereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in this Indenture
or in any supplemental indenture or in any Note, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, agent, officer, director or subsidiary, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.
ARTICLE 16
CONVERSION OF NOTES
SECTION 16.01. RIGHT TO CONVERT. Subject to and upon compliance with
the provisions of this Indenture, at any time prior to 5:00 p.m., New York City
time, on the Business Day immediately preceding the Maturity Date, the holder of
any Note shall have the right, at such holder's option, to convert the principal
amount of the Note, or any portion of such principal amount that is a multiple
of $1,000, into fully paid and non-assessable shares of Common Stock (as such
Common Stock shall then be constituted) at the Conversion Rate in effect at such
time, by surrender of the Note to be so converted in whole or in part, together
with any required funds, in the manner provided in Section 16.02. If a record
date for a meeting of shareholders of the Company to be held after a holder of
the Notes converts his Notes has been fixed and falls before the Conversion
Date, such holder shall not have any voting rights at such meeting of
shareholders with respect to the Common Stock into which its Notes are
converted.
A Note in respect of which a holder is electing to exercise its option
to require the Company to repurchase such holder's Notes upon a Designated Event
pursuant to Section 3.05 may be converted only if such holder withdraws its
election in accordance with Section 3.05. A holder of Notes is not entitled to
any rights of a holder of Common Stock until such holder has converted its Notes
into Common Stock, and only to the extent such Notes are deemed to have been
converted into Common Stock under this Article 16. Noteholders shall not have
any right to receive dividends declared by the Company on the Common Stock,
59
unless the Record Date for the payment of such dividends falls on or after the
Conversion Date for such holder's Notes. In addition to the Designated Event
Notice described in Section 3.05(b), in the case of a Designated Event that is
also a Fundamental Change, at least ten (10) Trading Days prior to the
anticipated Effective Date of such Fundamental Change, the Company or at its
written request, the Trustee, in the name of and at the expense of the Company,
shall mail or cause to be mailed to all holders of record on such date a notice
of such anticipated Effective Date.
(b) If a holder converts its Notes at any time beginning on the
date on which the Company gives notice to the holders of Notes of the
anticipated Effective Date of any Fundamental Change that occurs on or prior to
July 15, 2009 (as set forth in Section 16.01(a) above), and ending at the close
of business on the Designated Event Repurchase Date corresponding to such
Fundamental Change, such holder shall receive:
(i) the Make Whole Premium, if any, which shall be in an
amount and form determined as set forth in Article 4, and shall be paid
on the Business Day immediately following the Designated Event
Repurchase Date corresponding to such Fundamental Change; PLUS
(ii) the number of shares of Common Stock into which such
holder's Notes are convertible (if such Notes are surrendered for
conversion prior to the record date for receiving distributions in
connection with the Fundamental Change or, if earlier, the effective
date of the Fundamental Change) or the kind and amount of cash,
securities and other assets or property that such holder would have
received if it had held the number of shares of Common Stock into which
such Notes were convertible immediately prior to the transaction or
event constituting a Fundamental Change (if such Notes are surrendered
for conversion after such record date or effective date, as the case
may be); PLUS
(iii) accrued but unpaid interest on such Notes, if any,
to, but excluding the Conversion Date, which interest shall be payable
in Cash.
(c) Notwithstanding any provision of this Indenture, in no event
will the total number of shares of Common Stock issuable upon conversion of the
Notes (including any shares of Common Stock issued pursuant to Article 4,)
exceed in the aggregate 259.0673 per $1,000 principal amount of Notes, such
number subject to adjustment in the same manner as set forth in Section 16.05.
(d) [RESERVED.]
(e) [RESERVED.]
(f) [RESERVED.]
60
SECTION 16.02 . EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF COMMON
STOCK ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR DIVIDENDS. In order to
exercise the conversion privilege with respect to any Note in certificated form,
the Company must receive at the office or agency of the Company maintained for
that purpose or, at the option of such holder, the Corporate Trust Office, such
Note with the original or facsimile of the form entitled "CONVERSION NOTICE" on
the reverse thereof, duly completed and manually signed, together with such
Notes duly endorsed for transfer, accompanied by the funds, if any, required by
this Section 16.02. Such notice shall also state the name or names (with address
or addresses) in which the certificate or certificates for shares of Common
Stock that shall be issuable on such conversion shall be issued, and shall be
accompanied by transfer or similar taxes, if required pursuant to Section 16.07.
In order to exercise the conversion privilege with respect to any
interest in a Global Note, the beneficial holder 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 Note, furnish appropriate
endorsements and transfer documents if required by the Company or the Trustee or
conversion agent, and pay the funds, if any, required by this Section 16.02 and
any transfer taxes if required pursuant to Section 16.07.
Promptly (but not later than two Business Days) after satisfaction of
the requirements for conversion set forth above, subject to compliance with any
restrictions on transfer if shares issuable on conversion are to be issued in a
name other than that of the Noteholder (as if such transfer were a transfer of
the Note or Notes (or portion thereof) so converted), the Company shall issue
and shall deliver to such Noteholder at the office or agency maintained, or
cause to be maintained, by the Company for such purpose pursuant to Section
6.02, a certificate or certificates for the number of shares of Common Stock
issuable upon the conversion of such Note or portion thereof as determined by
the Company in accordance with the provisions of this Article 16 and a check or
cash in respect of any fractional interest in respect of a share of Common Stock
arising upon such conversion, calculated by the Company as provided in Section
16.03. In case any Note of a denomination greater than $1,000 shall be
surrendered for partial conversion, and subject to Section 2.03, the Company
shall execute and the Trustee shall authenticate and deliver to the holder of
the Note so surrendered, without charge to him, a new Note or Notes in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected as to any such
Note (or portion thereof) on the date (the "CONVERSION DATE") on which the
requirements set forth above in this Section 16.02 have been satisfied as to
such Note (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 the Conversion Date the holder of record of
61
the shares represented thereby; PROVIDED 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 Note shall be surrendered.
If any Note (or portion thereof) is converted into Common Stock during
the period after a Record Date for the payment of interest to, but excluding,
the next succeeding interest payment date and such Note (or portion thereof) has
been tendered for repurchase on a Designated Event Repurchase Date that occurs
during such period, the Company shall pay the full amount of interest on such
interest payment date in respect of any such Note (or portion thereof) to the
holder of such Notes registered as such at the close of business on the
applicable Record Date. Any Note 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 preceding the
immediately following interest payment date 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 that no such payment need be made
(1) if the Company has specified a Designated Event Repurchase Date following a
Designated Event that is after a Record Date and on or prior to the next
interest payment date or (2) to the extent of any overdue interest, if any
overdue interest exists at the time of conversion with respect to such Note.
Except as provided above in this Section 16.02, no payment or other adjustment
shall be made for interest accrued and unpaid on any Note converted or for
dividends on any shares issued upon the conversion of such Note as provided in
this Article 16.
Upon the conversion of an interest in a Global Note, the Trustee (or
other conversion agent appointed by the Company), or the Custodian at the
direction of the Trustee (or other conversion agent appointed by the Company),
shall make a notation on such Global Note as to the reduction in the principal
amount represented thereby. The Company shall notify the Trustee in writing of
any conversions of Notes effected through any conversion agent other than the
Trustee.
Upon the conversion of a Note, that portion of the accrued but unpaid
interest, including Liquidated Damages, if any, attributable to the period from
the issue date of the Note to the Conversion Date, with respect to the converted
Note 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 Note being converted pursuant to the provisions hereof; and the
Fair Market Value of such Common Stock (together with any such cash payment in
lieu of fractional shares) shall be treated as issued, to the extent thereof,
first in exchange for and in satisfaction of the Company's obligation to pay the
principal amount of the
62
converted Note, the accrued but unpaid interest, including Liquidated Damages,
if any, through the Conversion Date from the issue date, and the balance, if
any, of such Fair Market Value of such Common Stock (and any such cash payment)
shall be treated as issued in exchange for and in satisfaction of the right to
convert the Note being converted pursuant to the provisions hereof.
SECTION 16.03. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES. In
connection with the conversion of the Notes, no fractional shares of Common
Stock shall be issued upon conversion of Notes. If more than one Note shall be
surrendered for conversion at one time by the same holder, the number of full
shares that shall be issuable upon conversion shall be computed on the basis of
the aggregate principal amount of the Notes (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional share of stock
would be issuable upon the conversion of any Note or Notes, the Company shall
make an adjustment and payment therefor in cash at the current market price
thereof to the holder of Notes. The current market price of a share of Common
Stock shall be the Closing Price on the Trading Day immediately preceding the
Conversion Date.
SECTION 16.04. CONVERSION RATE. Each $1,000 principal amount of the
Notes shall be convertible into the number of shares of Common Stock specified
in the form of Note (herein called the "CONVERSION RATE") attached as Exhibit A
hereto, subject to adjustment as provided in this Article 16.
SECTION 16.05. ADJUSTMENT OF CONVERSION RATE. The Conversion Rate shall
be adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in Common Stock, the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution by a
fraction,
(i) the numerator of which shall be the sum of the number
of shares of Common Stock outstanding at the close of business on the
date fixed for the determination of stockholders entitled to receive
such dividend or other distribution PLUS the total number of shares
Common Stock constituting such dividend or other distribution; and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding at the close of business on the date
fixed for such determination,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. If any dividend or
distribution of the type described in this Section 16.05(a) is declared but not
so
63
paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate
that would then be in effect if such dividend or distribution had not been
declared.
(b) In case the Company shall issue rights or warrants to all
holders of its outstanding shares of Common Stock entitling them (for a period
expiring within forty-five (45) calendar days after the date fixed for
determination of stockholders entitled to receive such rights or warrants) to
subscribe for or purchase shares of Common Stock at a price per share less than
the average of the Closing Prices of the Common Stock for the ten (10)
consecutive Trading Days immediately preceding the declaration date for such
distribution, the Conversion Rate shall be increased so that the same shall
equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the date fixed for determination of stockholders entitled
to receive such rights or warrants by a fraction,
(i) the numerator of which shall be the number of shares
of Common Stock outstanding at the close of business on the date fixed
for determination of stockholders entitled to receive such rights or
warrants plus the total number of additional shares of Common Stock
offered for subscription or purchase, and
(ii) the denominator of which shall be the sum of the
number of shares of Common Stock outstanding at the close of business
on the date fixed for determination of stockholders entitled to receive
such rights or warrants PLUS the number of shares of Common Stock that
the aggregate offering price of the total number of shares so offered
would purchase at a price equal to the average of the Closing Prices of
the Common Stock for the ten (10) consecutive Trading Days immediately
preceding the declaration date for such distribution.
Such adjustment shall be successively made whenever any such rights or
warrants are issued, and shall become effective immediately after the opening of
business on the day following the date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares of Common
Stock are not delivered after the expiration of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate that would then be in
effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of delivery of only the number of shares of Common Stock
actually delivered. If such rights or warrants are not so issued, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such date fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In determining whether any
rights or warrants entitle the holders to subscribe for or purchase shares of
Common Stock at a price less than the average of the Closing Prices of the
Common Stock for the ten (10) consecutive Trading Days immediately preceding the
declaration date for such distribution, and in determining the aggregate
offering price of such Common Stock, there shall be taken into account any
consideration received by
64
the Company for such rights or warrants and any amount payable on exercise or
conversion thereof, the value of such consideration, if other than cash, to be
determined by the Board of Directors.
(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 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 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 shares of Common Stock shares of any class of
capital stock of the Company or evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
Section 16.05(b), and excluding any dividend or distribution (x) paid
exclusively in cash or (y) referred to in Section 16.05(a)) (any of the
foregoing hereinafter in this Section 16.05(d), called the "DISTRIBUTED
PROPERTY"), then, in each such case, the Conversion Rate shall be increased so
that the same shall be equal to the rate determined by multiplying the
Conversion Rate in effect immediately prior to the close of business on the
Record Date with respect to such distribution by a fraction,
(i) the numerator of which shall be the Current Market
Price of the Common Stock on such Record Date; and
(ii) the denominator of which shall be the Current Market
Price of the Common Stock on such Record Date less the Fair Market
Value (as determined by the Board of Directors, whose determination
shall be conclusive, and described in a resolution of the Board of
Directors) on the Record Date of the portion of the Distributed
Property so distributed applicable to one share of Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; PROVIDED that if the then Fair Market
Value (as so determined) of the portion of the Distributed Property so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder shall have
the right to receive on the date of such dividend or distribution the amount of
Distributed Property such holder would have received had such holder converted
each Note on the Record Date. If such dividend or distribution is not so paid or
made, the Conversion Rate shall again be adjusted to be the Conversion Rate that
would then be in effect if
65
such dividend or distribution had not been declared. If the Board of Directors
determines the Fair Market Value of any distribution for purposes of this
Section 16.05(d) by reference to the actual or when issued trading market for
any securities, it must in doing so consider the prices in such market over the
same period used in computing the Current Market Price on the applicable Record
Date.
Notwithstanding the foregoing, if the Distributed Property distributed
by the Company to all holders of its Common Stock consist of capital stock of,
or similar equity interests in, a Subsidiary or other business unit (unless such
capital stock or similar equity interests are distributed to the Noteholders in
such distribution as if such holders had converted their Notes into Common
Stock), the Conversion Rate shall be increased so that the same shall be equal
to the rate determined by multiplying the Conversion Rate in effect immediately
prior to the close of business on the Record Date with respect to such
distribution by a fraction,
(i) the numerator of which shall be the sum of (A) the
average of the Closing Prices of the Common Stock for the ten (10)
consecutive Trading Days commencing on and including the fifth Trading
Day after the date on which "ex-dividend trading" commences for such
dividend or distribution on the New York Stock Exchange, Nasdaq or such
other national or regional exchange or market on which such securities
are then listed or quoted (the "EX-DIVIDEND DATE") plus (B) the average
of the Closing Prices of the securities distributed in respect of each
share of Common Stock for the ten (10) consecutive Trading Days
commencing on and including the fifth Trading Day after the Ex-Dividend
Date; and
(ii) the denominator of which shall be the average of the
Closing Prices of the Common Stock for the ten (10) consecutive Trading
Days commencing on and including the fifth Trading Day after the
Ex-Dividend Date,
such adjustment to become effective ten (10) Trading Days after the effective
date of such distribution of capital stock of, or similar equity interests in, a
Subsidiary or other business unit; PROVIDED that if (x) the average of the
Closing Prices of the Common Stock for the ten (10) consecutive Trading Days
commencing on and including the fifth Trading Day after the Ex-Dividend Date
minus (y) the average of the Closing Prices of the securities distributed in
respect of each share of Common Stock for the ten (10) consecutive Trading Days
commencing on and including the fifth Trading Day after the Ex-Dividend Date is
less than $1.00, then the adjustment provided by for by this paragraph shall not
be made and in lieu thereof the provisions of the first paragraph of this
Section 16.05(d) shall apply to such distribution. In any case in which this
paragraph is applicable, Section 16.05(a), Section 16.05(b) and the first
paragraph of this Section 16.05(d) shall not be applicable.
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Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
Company's capital stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("TRIGGER EVENT"): (i) are deemed to be transferred with such Common Stock; (ii)
are not exercisable; and (iii) are also issued in respect of future issuances of
Common Stock, shall be deemed not to have been distributed for purposes of this
Section 16.05 (and no adjustment to the Conversion Rate under this Section 16.05
will be required) until the occurrence of the earliest Trigger Event, whereupon
such rights and warrants shall be deemed to have been distributed and an
appropriate adjustment (if any is required) to the Conversion Rate shall be made
under this Section 16.05(d). If any such right or warrant, including any such
existing rights or warrants distributed prior to the date of this Indenture, are
subject to events, upon the occurrence of which such rights or warrants become
exercisable to purchase different securities, evidences of indebtedness or other
assets, then the date of the occurrence of any and each such event shall be
deemed to be the date of distribution and Record Date with respect to new rights
or warrants with such rights (and a termination or expiration of the existing
rights or warrants without exercise by any of the holders thereof). In addition,
in the event of any distribution (or deemed distribution) of rights or warrants,
or any Trigger Event or other event of the type described in the preceding
sentence with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Rate under this
Section 16.05 was made, (1) in the case of any such rights or warrants that
shall all have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case may
be, as though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder or holders of Common Stock with respect to
such rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Stock as of the date of such redemption
or repurchase, and (2) in the case of such rights or warrants that shall have
expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights and warrants had not been
issued.
For purposes of this Section 16.05(d) and Section 16.05(a) and (b), any
dividend or distribution to which this Section 16.05(d) is applicable that also
includes Common Stock, or rights or warrants to subscribe for or purchase Common
Stock (or both), shall be deemed instead to be (1) a dividend or distribution of
the evidences of indebtedness, assets or shares of capital stock other than such
Common Stock or rights or warrants (and any Conversion Rate adjustment required
by this Section 16.05(d) with respect to such dividend or distribution shall
then be made) immediately followed by (2) a dividend or distribution of such
Common Stock or such rights or warrants (and any further Conversion Rate
adjustment required by Sections 16.05(a) and 16.05(b) with respect to such
dividend or distribution shall then be made), except (A) the Record Date of such
dividend or distribution shall be substituted as "the date
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fixed for the determination of stockholders entitled to receive such dividend or
other distribution", "the date fixed for the determination of stockholders
entitled to receive such rights or warrants" and "the date fixed for such
determination" within the meaning of Section 16.05(a) and 16.05(b) and (B) any
Common Stock included in such dividend or distribution shall not be deemed
"outstanding at the close of business on the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution" or
"outstanding at the close of business on the date fixed for such determination"
within the meaning of Section 16.05(a).
(e) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon an
event to which Section 16.06 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be the
"Record Date" within the meaning of Section 16.05(d)), and (b) a subdivision or
combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective,"
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of Section 16.05(c)).
(f) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any dividend or
distribution in connection with the liquidation, dissolution or winding up of
the Company, whether voluntary or involuntary), then, in such case, the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to the
close of business on such Record Date by a fraction,
(i) the numerator of which shall be the Current Market
Price on such Record Date; and
(ii) the denominator of which shall be the Current Market
Price on such Record Date less the amount of cash so distributed
applicable to one share of Common Stock,
such adjustment to be effective immediately prior to the opening of business on
the day following the Record DATE; PROVIDED that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder shall have
the right to receive on the date of such dividend or distribution the amount of
cash such holder would have received had such holder converted each Note on the
Record Date. If such dividend or distribution is not so paid or made, the
Conversion Rate
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shall again be adjusted to be the Conversion Rate that would then be in effect
if such dividend or distribution had not been declared.
(g) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended up to the expiration thereof) shall require
the payment to stockholders of consideration per share of Common Stock having a
Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors)
that as of the last time (the "EXPIRATION TIME") tenders or exchanges may be
made pursuant to such tender or exchange offer (as it may be amended) exceeds
the Closing Price of a share of Common Stock on the Trading Day next succeeding
the Expiration Time, the Conversion Rate shall be increased so that the same
shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the Expiration Time by a fraction,
(i) the numerator of which shall be the sum of (x) the
Fair Market Value (determined as aforesaid) of the aggregate
consideration 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 (y) the product of the
number of shares of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the Closing Price of a share of
Common Stock on the Trading Day next succeeding the Expiration Time,
and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multiplied by the Closing Price of a
share of Common Stock on the Trading Day next succeeding the Expiration
Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. If the Company is obligated to
purchase shares pursuant to any such tender or exchange offer, but the Company
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted to
be the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made.
(h) In case of a tender or exchange offer made by a Person other
than the Company or any Subsidiary for an amount that increases the offeror's
ownership of Common Stock to more than twenty-five percent (25%) of the Common
Stock outstanding and shall involve the payment by such Person of consideration
per share of Common Stock having a Fair Market Value (as determined by the Board
of Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) that as of the Expiration
69
Time exceeds the Closing Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, and in which, as of the Expiration Time, the
Board of Directors is not recommending rejection of the offer, the Conversion
Rate shall be adjusted so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the Expiration
Time by a fraction,
(i) the numerator of which shall be the sum of (x) the
Fair Market Value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to
any maximum specified in the terms of the tender or exchange offer) of
the Purchased Shares and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) at the Expiration
Time and the Closing Price of a share of Common Stock on the Trading
Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multiplied by the Closing Price of the
Common Stock on the Trading Day next succeeding the Expiration Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. In the event that such Person is
obligated to purchase shares pursuant to any such tender or exchange offer, but
such Person is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such
tender or exchange offer had not been made. Notwithstanding the foregoing, the
adjustment described in this Section 16.05(h) shall not be made if, as of the
Expiration Time, the offering documents with respect to such offer disclose a
plan or intention to cause the Company to engage in a consolidation or merger or
a sale of substantially all of its assets.
(i) For purposes of this Section 16.05, the following terms shall
have the meaning indicated:
(i) "CURRENT MARKET PRICE" shall mean the average of the
daily Closing Prices per share of Common Stock for the ten (10)
consecutive Trading Days ending on the earlier of the date of
determination and the day before the "ex date" with respect to the
issuance, distribution, subdivision or combination requiring such
computation. For purposes of this paragraph, the term "EX DATE" (1)
when used with respect to any issuance or distribution, means the first
date on which the Common Stock trades, regular way, on the relevant
exchange or in the relevant market from which the Closing Price was
obtained without the right to receive such issuance or distribution,
and (2) when used with respect to any subdivision or combination of
Common Stock, means the
70
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.
If another issuance, distribution, subdivision or combination to which
Section 16.05 applies occurs during the period applicable for
calculating "CURRENT MARKET PRICE" pursuant to the definition in the
preceding paragraph, "CURRENT MARKET PRICE" shall be calculated for
such period in a manner determined by the Board of Directors to reflect
the impact of such issuance, distribution, subdivision or combination
on the Closing Price of the Common Stock during such period.
(ii) "FAIR MARKET VALUE" shall mean the amount which a
willing buyer would pay a willing seller in an arm's-length
transaction.
(iii) "RECORD DATE" shall mean, with respect to any
dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to receive any cash, securities
or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash,
securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(iv) "TRADING DAY" means, for any security means (x) if
the applicable security is listed or admitted for trading on the New
York Stock Exchange or another national securities exchange, a day on
which the New York Stock Exchange or other national securities exchange
is open for business, or (y) if the applicable security is quoted on
Nasdaq, a day on which trades may be made thereon, or (z) if the
applicable security is not so listed, admitted for trading or quoted,
any day other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by
law or executive order to close.
(j) To the extent permitted by applicable law (including
applicable Nasdaq Marketplace Rules), the Company from time to time may increase
the Conversion Rate by any amount if 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 mail to holders
of record of the Notes and file with the Trustee and any conversion agents other
than the Trustee a notice of the increase, and such notice shall state the
increased Conversion Rate and the period during which it will be in effect.
(k) All calculations under this Article 16 shall be made by the
Company and shall be made to the nearest cent or to the nearest one-ten
thousandth
71
(1/10,000) of a share (or if there is not a nearest one-ten thousandth of a
share, to the next lower one-ten thousandth of a share), as the case may be.
(l) No adjustment need be made:
(1) upon the issuance of Common Stock pursuant to any
present or future plan providing for the reinvestment of dividends or
interest payable on securities of the Company and the investment of
additional optional amounts in Common Stock under any plan;
(2) upon the issuance of Common Stock or options or
rights to purchase those shares pursuant to any present or future
employee, director or consultant benefit plan or program of or assumed
by the Company or any Subsidiary;
(3) upon the issuance of Common Stock pursuant to any
option, warrant, right, or exercisable, exchangeable or convertible
security not described in (2) above and outstanding as of the date the
Notes were first issued;
(4) for a change in the par value of the Common Stock;
(5) any repurchases by the Company of the Common Stock
not expressly described in this Section 16.05; or
(6) for accrued and unpaid interest.
To the extent the Notes become convertible into cash, assets, property
or securities (other than capital stock of the Company or any other Person), no
adjustment need be made thereafter as to the cash, assets, property or
securities. Interest will not accrue on any cash into which the Notes are
convertible.
(m) Whenever the Conversion Rate is adjusted as herein provided,
the Company shall promptly file with the Trustee and any conversion agent other
than the Trustee an Officer's Certificate setting forth the Conversion Rate
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment. Unless and until a Responsible Officer of the Trustee shall
have received such Officer's Certificate, the Trustee shall not be deemed to
have knowledge of any adjustment of the Conversion Rate and may assume that the
last Conversion Rate of which it has knowledge is still in effect. Promptly
after delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and
the date on which each adjustment becomes effective and shall promptly mail such
notice of such adjustment of the Conversion Rate to each Noteholder at its last
address appearing on the Note Register provided for in Section 2.05 of this
Indenture. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
72
(n) In any case in which this Section 16.05 provides that an
adjustment shall become effective immediately after (1) a Record Date for an
event, (2) the date fixed for the determination of stockholders entitled to
receive a dividend or distribution pursuant to Section 16.05(a), (3) a date
fixed for the determination of stockholders entitled to receive rights or
warrants pursuant to Section 16.05(b), or (4) the Expiration Time for any tender
or exchange offer pursuant to Section 16.05(g), (each a "DETERMINATION DATE"),
the Company may elect to defer until the occurrence of the applicable Adjustment
Event (as hereinafter defined) (x) issuing to the holder of any Note converted
after such Determination Date and before the occurrence of such Adjustment Event
the additional shares of Common Stock or other securities issuable upon such
conversion by reason of the adjustment required by such Adjustment Event over
and above the shares of Common Stock issuable upon such conversion before giving
effect to such adjustment and (y) paying to such holder any amount in cash in
lieu of any fraction pursuant to Section 16.03. For purposes of this Section
16.05(n), the term "ADJUSTMENT EVENT" shall mean:
(i) in any case referred to in clause (1) hereof, the
occurrence of such event,
(ii) in any case referred to in clause (2) hereof, the
date any such dividend or distribution is paid or made,
(iii) in any case referred to in clause (3) hereof, the
date of expiration of such rights or warrants, and
(iv) in any case referred to in clause (4) hereof, the
date a sale or exchange of Common Stock pursuant to such tender or
exchange offer is consummated and becomes irrevocable.
(o) For purposes of this Section 16.05, the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractional of shares of Common Stock. The Company
will not pay any dividend or make any distribution on Common Stock held in the
treasury of the Company.
SECTION 16.06. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If any of the following events occur, namely (i) any reclassification or
change of the outstanding Common Stock (other than a change in par value or as a
result of a subdivision or combination to which Section 16.05(c) applies), (ii)
any consolidation, merger or combination of the Company with another Person as a
result of which holders of Common Stock shall be entitled to receive stock,
other securities or other property or assets (including cash) with respect to or
in exchange for such Common Stock, or (iii) any sale or conveyance of all or
substantially all of the properties and assets of the Company to any other
Person as a result of which holders of Common Stock shall be entitled to receive
stock,
73
other securities or other property or assets (including cash) with respect to or
in exchange for such Common Stock, then the Company or the successor or
purchasing Person, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture) providing that
each Note shall be convertible into the kind and amount of shares of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination, sale or
conveyance by a holder of a number of shares of Common Stock issuable upon
conversion of such Notes (assuming, for such purposes, a sufficient number of
authorized shares of Common Stock are available to convert all such Notes)
immediately prior to such reclassification, change, consolidation, merger,
combination, sale or conveyance assuming such holder of Common Stock did not
exercise his rights of election, if any, as to the kind or amount of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination, sale or
conveyance (PROVIDED that, if the kind or amount of stock, other securities or
other property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance is not the same
for each share of Common Stock in respect of which such rights of election shall
not have been exercised ("NON-ELECTING SHARE"), then for the purposes of this
Section 16.06 the kind and amount of stock, other securities or other property
or assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance for each Non-Electing
Share shall be deemed to be the kind and amount so receivable per share by a
plurality of the Non-Electing Shares). Such supplemental indenture shall provide
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 16.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes, at its address appearing on the
Note Register provided for in Section 2.05 of this Indenture, within twenty (20)
calendar days after execution thereof. Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 16.06 applies to any event or occurrence, Section 16.05
shall not apply.
SECTION 16.07. TAXES ON SHARES ISSUED. The issue of stock certificates
on conversions of Notes shall be made without charge to the converting
Noteholder for any documentary, stamp or similar issue or transfer tax in
respect of the issue thereof. The Company shall not, however, be required to pay
any such tax which may be payable in respect of any transfer involved in the
issue and delivery of
74
stock in any name other than that of the holder of any Note converted, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the Person or Persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
Section 16.08. RESERVATION OF SHARES, SHARES TO BE FULLY PAID;
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS; LISTING OF COMMON STOCK. The Company
shall:
(i) at all times reserve and keep available, free from
preemptive rights, for issuance upon the conversion of the Notes such
number of its authorized but unissued shares of Common Stock as shall
from time to time be sufficient to permit the conversion of all
Outstanding Notes;
(ii) ensure that all Common Stock delivered upon
conversion of the Notes, upon delivery, be duly and validly issued and
fully paid and nonassessable, free of all liens and charges and not
subject to any preemptive rights.
Before taking any action which would cause an adjustment increasing the
Conversion Rate to an amount that would cause the Conversion Price to be reduced
below the then par value, if any, of the Common Stock issuable upon conversion
of the Notes, the Company will take all corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and
legally issue shares of such Common Stock at such adjusted Conversion Rate.
The Company covenants that all Common Stock that may be issued upon
conversion of Notes will upon issue be fully paid and non-assessable by the
Company and free from all taxes, liens and charges with respect to the issue
thereof.
The Company covenants that, if any Common Stock to be provided for the
purpose of conversion of Notes hereunder requires 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 will in good faith and as
expeditiously as possible, to the extent then permitted by the rules and
interpretations of the Commission (or any successor thereto), endeavor to secure
such registration or approval, as the case may be.
The Company further covenants that, if at any time the Common Stock
shall be listed on Nasdaq or any national securities exchange or other automated
quotation system, the Company will, if permitted by the rules of such exchange
or automated quotation system, list and keep listed, so long as the Common Stock
shall be so listed on such exchange or automated quotation system, all shares of
Common Stock issuable upon conversion of the Notes; PROVIDED that if the rules
75
of such exchange or automated quotation system permit the Company to defer the
listing of such Common Stock until the first conversion of the Notes into Common
Stock in accordance with the provisions of this Indenture, the Company covenants
to list such Common Stock issuable upon conversion of the Notes in accordance
with the requirements of such exchange or automated quotation system at such
time.
SECTION 16.09. RESPONSIBILITY OF TRUSTEE. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any holder of Notes to determine the Conversion Rate or whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee and any other
conversion agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any Common Stock, or of any securities or property,
which may at any time be issued or delivered upon the conversion of any Note;
and the Trustee and any other conversion agent make no representations with
respect thereto. Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
Common Stock or stock certificates or other securities or property or cash upon
the surrender of any Note for the purpose of conversion or to comply with any of
the duties, responsibilities or covenants of the Company contained in this
Article 16. Without limiting the generality of the foregoing, neither the
Trustee nor any conversion agent shall be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
entered into pursuant to Section 16.06 relating either to the kind or amount of
shares of stock or securities or property (including cash) receivable by
Noteholders upon the conversion of their Notes after any event referred to in
such Section 16.06 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 9.01, may accept as conclusive evidence of
the correctness of any such provisions, and shall be protected in relying upon,
any Officer's Certificate (which the Company shall be obligated to file with the
Trustee prior to the execution of any such supplemental indenture) with respect
thereto.
Section 16.10. NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock that would require an adjustment in the
Conversion Rate pursuant to Section 16.05; or
(b) the Company shall authorize the granting to the holders of all
or substantially all of its Common Stock of rights or warrants to subscribe for
or purchase any share of any class or any other rights or warrants; or
(c) of any reclassification or reorganization of the Common Stock
of the Company (other than a subdivision or combination of its outstanding
Common
76
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value), 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;
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note Register provided for in
Section 2.05 of this Indenture, as promptly as possible but in any event at
least ten (10) calendar days prior to the applicable 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 rights or warrants, or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights 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 or occur,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
SECTION 16.11. SHAREHOLDER RIGHTS PLANS. Each share of Common Stock
issued upon conversion of Notes shall be entitled to receive the appropriate
number of common stock or preferred stock purchase rights, as the case may be,
including without limitation, the rights under the Rights Agreement
(collectively, the "RIGHTS"), if any, that shares of Common Stock are entitled
to receive and the certificates representing the Common Stock issued upon such
conversion shall bear such legends, if any, in each case as may be provided by
the terms of any shareholder rights agreement adopted by the Company, as the
same may be amended from time to time (in each case, a "RIGHTS PLAN"). Provided
that such Rights Plan requires that each share Common Stock issued upon
conversion of Notes at any time prior to the distribution of separate
certificates representing the Rights be entitled to receive such Rights, then,
notwithstanding anything else to the contrary in this Subdivision, there shall
not be any adjustment to the conversion privilege or Conversion Rate as a result
of the issuance of Rights, but an adjustment to the Conversion Rate shall be
made pursuant to Section 16.05(d) upon the separation of the Rights from the
Common Stock.
Section 16.12. ISSUER DETERMINATION FINAL. Any determination that the
Company or Board of Directors of the Company must make pursuant to Section
16.01, Section 16.02, Section 16.03, Section 16.04, Section 16.05 or Section
16.06 shall, absent manifest error, be conclusive.
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ARTICLE 17
MISCELLANEOUS PROVISIONS
SECTION 17.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the
covenants, stipulations, promises and agreements by the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.
SECTION 17.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any Person that shall at the time be the lawful sole successor of the
Company.
SECTION 17.03. ADDRESSES FOR NOTICES, ETC. Any notice or demand which
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Notes on the Company shall be deemed
to have been sufficiently given or made, for all purposes, if given or served by
being deposited postage prepaid by registered or certified mail in a post office
letter box or sent by telecopier transmission addressed as follows: to
ANADIGICS, Inc., 141 Mt. Bethel Road, Warren, New Jersey 07059, Telephone No.:
908-668-5000, Attention: Chief Financial Officer. Any notice, direction, request
or demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being
deposited, postage prepaid, by registered or certified mail in a post office
letter box or sent by telecopier transmission addressed as follows: U.S. Bank
Trust National Association, 100 Wall Street - Suite 1600, New York, NY 10005,
Facsimile No.: 212-361-6153, Attention: Corporate Trust Services.
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first class mail, postage prepaid, at his address as it appears on the
Note Register and shall be sufficiently given to him if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect
in it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 17.04. GOVERNING LAW. This Indenture and each Note shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of laws principles thereof.
78
SECTION 17.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT,
CERTIFICATES TO TRUSTEE. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and,with the exception of the initial
issuance of the Notes, an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with; PROVIDED,
that with respect to matters of fact, an Opinion of Counsel may rely on an
Officer's Certificate or certificate of public officials.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include: (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 17.06. LEGAL HOLIDAYS. In any case in which the date of
maturity of interest on or principal of the Notes will not be a Business Day,
then payment of such interest on or principal of the Notes need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date of maturity, and no interest shall
accrue for the period from and after such date.
SECTION 17.07. TRUST INDENTURE ACT. This Indenture is hereby made
subject to, and shall be governed by, the provisions of the Trust Indenture Act
required to be part of and to govern indentures qualified under the Trust
Indenture Act; PROVIDED that, unless otherwise required by law, notwithstanding
the foregoing, this Indenture and the Notes issued hereunder shall not be
subject to the provisions of subsections (a)(1), (a)(2), and (a)(3) of Section
314 of the Trust Indenture Act as now in effect or as hereafter amended or
modified; and PROVIDED further that this Section 17.07 shall not require this
Indenture or the Trustee to be qualified under the Trust Indenture Act prior to
the time such qualification is in fact required under the terms of the Trust
Indenture Act, nor shall it constitute any admission or acknowledgment by any
party to the Indenture that any such qualification is required prior to the time
such qualification is in fact required under the terms of the Trust Indenture
Act. If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in an indenture qualified
under the Trust Indenture Act, such required provision shall control.
79
SECTION 17.08. NO SECURITY INTEREST CREATED. Nothing in this Indenture
or in the Notes, expressed or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar legislation, as
now or hereafter enacted and in effect, in any jurisdiction in which property of
the Company or its subsidiaries is located.
SECTION 17.09. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto, any paying agent, any authenticating agent, any Note Registrar and their
successors hereunder and the holders of Notes any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 17.10. TABLE OF CONTENTS, HEADINGS, ETC. The table of contents
and the titles and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 17.11. AUTHENTICATING AGENT. The Trustee may appoint an
authenticating agent that shall be authorized to act on its behalf, and subject
to its direction, in the authentication and delivery of Notes in connection with
the original issuance thereof and transfers and exchanges of Notes hereunder,
including under Sections 2.04, 2.05, 2.06, 2.07 and 3.05, as fully to all
intents and purposes as though the authenticating agent had been expressly
authorized by this Indenture and those Sections to authenticate and deliver
Notes. For all purposes of this Indenture, the authentication and delivery of
Notes by the authenticating agent shall be deemed to be authentication and
delivery of such Notes "by the Trustee" and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to
satisfy any requirement hereunder or in the Notes for the Trustee's certificate
of authentication. Such authenticating agent shall at all times be a Person
eligible to serve as trustee hereunder pursuant to Section 9.09.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 17.11, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any authenticating agent by giving written notice
of termination to such authenticating agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any
80
authenticating agent shall cease to be eligible under this Section, the Trustee
shall either promptly appoint a successor authenticating agent or itself assume
the duties and obligations of the former authenticating agent under this
Indenture and, upon such appointment of a successor authenticating agent, if
made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of
a successor authenticating agent to all holders of Notes as the names and
addresses of such holders appear on the Note Register.
The Company agrees to pay to the authenticating agent from time to time
such reasonable compensation for its services as shall be agreed upon in writing
between the Company and the authenticating agent.
The provisions of Sections 9.02, 9.03, 9.04 and 10.03 and this Section
17.11 shall be applicable to any authenticating agent.
SECTION 17.12. EXECUTION IN COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
SECTION 17.13. SEVERABILITY. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, then (to the extent
permitted by law) the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
U.S. Bank Trust National Association hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions herein above set
forth.
[The remainder of this page is intentionally left blank]
81
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed.
ANADIGICS, INC.
By:
---------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By:
---------------------------------
Name:
Title:
EXHIBIT A
[Include the following legend only for Global Notes]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
"DEPOSITARY", WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE CERTIFICATES)
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 REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[Include the following legend only for Notes that are Restricted Securities]
THIS SECURITY AND THE SHARES OF ANADIGICS, INC. (THE "COMPANY") COMMON STOCK
("COMMON STOCK") ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LAST DATE ON WHICH THE 5.00%
CONVERTIBLE SENIOR NOTES DUE 2009 OF THE COMPANY WERE ORIGINALLY ISSUED ONLY (A)
TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE RIGHTS OF THE COMPANY AND THE WITHIN
MENTIONED TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES
WHERE REGISTRATION OR TRANSFER OF THIS SECURITY IS REQUIRED, A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED AFTER
THE RESALE RESTRICTION TERMINATION DATE UPON THE REQUEST OF THE HOLDER AND THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY.
A-2
ANADIGICS, INC.
5.00% CONVERTIBLE SENIOR NOTE DUE 2009
CUSIP: 032515 AC 2
No. __ $_____________
ANADIGICS, Inc., a corporation duly organized and validly existing
under the laws of the State of Delaware (herein called the "COMPANY", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to [Cede & Co. or its
registered assigns](1), the principal sum of ____________ MILLION DOLLARS or
such lesser amount as set forth on Schedule I hereto on the Maturity Date at the
office or agency of the Company maintained for that purpose in accordance with
the terms of the Indenture, 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, semiannually on April 15 and
October 15 of each year, commencing April 15, 2005, on said principal sum at
said office or agency, in like coin or currency, at the rate per annum of 5.00%,
from the April 15 or October 15, as the case may be, next preceding the date of
this Note to which interest has been paid or duly provided for, unless no
interest has been paid or duly provided for on the Notes, in which case from
September 24, 2004, until payment of said principal sum has been made or duly
provided for. Notwithstanding the foregoing, if the Company shall default in the
payment of interest due on any April 15 or October 15, then this Note shall bear
interest from the next preceding April 15 or October 15 to which interest has
been paid or duly provided for or, if no interest has been paid or duly provided
for on such Note, from September 24, 2004. Except as otherwise provided in the
Indenture, the interest payable on the Note pursuant to the Indenture on any
April 15 or October 15 will be paid to the Person entitled thereto as it appears
in the Note Register at the close of business on the Record Date, which shall be
the April 1 or October 1 (whether or not a Business Day) next preceding such
April 15 or October 15, as provided in the Indenture; PROVIDED that any such
interest not punctually paid or duly provided for shall be payable as provided
in the Indenture. The Company shall pay interest (i) on any Notes in
certificated form by check mailed to the address of the Person entitled thereto
as it appears in the Note Register (PROVIDED that the holder of Notes with an
aggregate principal amount in excess of $2,000,000 shall, at the written
election of such holder, be paid by wire transfer of immediately available
funds) or (ii) on any Global Note by wire transfer of immediately available
funds to the account of the Depositary or its nominee.
- --------------------------------------
(1) Include in a Global Note.
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The Company promises to pay interest on overdue principal, and (to the
extent that payment of such interest is enforceable under applicable law)
interest at the rate of 6.00% per annum.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, including, without limitation, provisions giving the holder
of this Note the right to convert this Note into Common Stock of the Company and
the provisions giving the holder the right to cause the Company to purchase this
Note upon the occurrence of a Designated Event, each on the terms and subject to
the limitations referred to on the reverse hereof and as more fully specified in
the Indenture. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in accordance with
and governed by the laws of the State of New York, without regard to conflicts
of laws principles thereof.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the Indenture.
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IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
ANADIGICS, INC.
By:
---------------------------------
Name:
Title:
Dated:
A-5
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
U.S. Bank Trust National Association,
as Trustee
By:
---------------------------------------
Authorized Signatory
, or
By:
---------------------------------------
As Authenticating Agent
(if different from Trustee)
By:
-----------------------------------
Authorized Signatory
A-6
REVERSE OF NOTE
ANADIGICS, INC.
5.00% CONVERTIBLE SENIOR NOTE DUE 2009
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 5.00% Convertible Senior Note Due 2009 (herein called the
"NOTES"), limited in aggregate principal amount to $__________, issued and to be
issued under and pursuant to an Indenture dated as of September 24, 2004 (herein
called the "INDENTURE"), between the Company and U.S. Bank Trust National
Association, as trustee (herein called the "TRUSTEE"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Notes.
Subject to certain exceptions, in case an Event of Default shall have
occurred and be continuing, the principal of and accrued and unpaid interest on
all Notes may be declared by either the Trustee or the holders of not less than
twenty-five percent (25%) in aggregate principal amount of the Notes then
Outstanding, and upon said declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of at least a majority in aggregate
principal amount of the Notes at the time Outstanding, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or any supplemental indenture or of modifying
in any manner the rights of the holders of the Notes; PROVIDED that no such
supplemental indenture shall (i) extend the fixed maturity of any Note, (ii)
reduce the rate or extend the time of payment of interest thereon, including
Liquidated Damages, if any, (iii) reduce the principal amount thereof, (iv)
reduce any amount payable on repurchase thereof in connection with a Designated
Event, (v) change the obligation of the Company to repurchase any Note upon the
happening of a Designated Event in a manner adverse to the holders of Notes,
(vi) impair the right of any Noteholder to institute suit for the payment on any
Note, (vii) make the principal thereof or interest payable in any coin or
currency other than that provided in the Notes, (viii) reduce the amount of the
Make Whole Premium or otherwise impair the right of a holder to receive the Make
Whole Premium due on any note, (ix) impair the right to convert the Notes into
Common Stock or reduce the number of shares of Common Stock or any other
property receivable by a Noteholder upon conversion subject to the terms set
forth therein, including Section 16.06 thereof, in each case, without the
consent of the holder of each Note so affected, (x) modify any of the provisions
of Section 12.02 or Section 8.07 thereof, except to increase any such percentage
or to provide that certain other provisions of the Indenture cannot be modified
or waived without the consent of the holder of each Note so affected, (xi)
reduce the quorum or voting
A-7
requirements set forth in Article 11 or (xii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental
indenture, without the consent of the holder of each Outstanding Note affected
thereby.
Subject to the provisions of the Indenture, the holders of a majority
in aggregate principal amount of the Notes at the time Outstanding may on behalf
of the holders of all of the Notes waive any past default or Event of Default
under the Indenture and its consequences except (A) a default in the payment of
interest of, Liquidated Damages, if any, on, the principal on or the Make Whole
Premium, if any, payable on, the Notes, (B) a failure by the Company to convert
any Notes into Common Stock of the Company, (C) a default in the payment of the
Designated Event Repurchase Price pursuant to Article 3 of the Indenture, or (E)
a default in respect of a covenant or provisions of the Indenture that under
Article 12 of the Indenture cannot be modified or amended without the consent of
the holders of each or all Notes then Outstanding or affected thereby. Any such
consent or waiver by the holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
holders and owners of this Note and any Notes which may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Notes.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
The Notes are issuable in fully registered form, without coupons, in
denominations of $1,000 principal amount and any multiple of $1,000. At the
office or agency of the Company referred to on the face hereof, and in the
manner and subject to the limitations provided in the Indenture, without payment
of any service charge but with payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with
any registration or exchange of Notes, Notes may be exchanged for a like
aggregate principal amount of Notes of any other authorized denominations.
If a Designated Event occurs at any time prior to maturity of the
Notes, the Company shall become obligated to purchase, at the option of the
holder, all or any portion of the Notes held by such holder on a date not less
than twenty (20) nor more than thirty-five (35) Business Days after notice
thereof at a repurchase price of one-hundred percent (100%) of the principal
amount, together with accrued and unpaid interest and Liquidated Damages, if
any, on such Note up to, but excluding, the Designated Event Repurchase Date
(the "DESIGNATED EVENT REPURCHASE PRICE," such Designated Event Repurchase Price
to be paid in Cash), PLUS the Make Whole Premium, if any, as determined in
accordance with the terms of the Indenture; PROVIDED that if the Designated
Event Repurchase Date falls after a Record Date and on or prior the
corresponding interest payment date, then the full amount of interest and
Liquidated Damages, if any, payable on such interest payment date shall be paid
to the holders of record of such Notes on the
A-8
applicable Record Date instead of the holders surrendering such Notes for
repurchase on such date. The Notes will be subject to repurchase in multiples of
$1,000 principal amount. The Company shall mail to all holders of record of the
Notes a notice of the occurrence of a Designated Event and of the repurchase
right arising as a result thereof on or before the 15th calendar day after the
effective date of such Designated Event. To exercise such right, a holder shall
deliver to the Company such Note with the form entitled "DESIGNATED EVENT
REPURCHASE NOTICE" on the reverse thereof duly completed, together with the
Note, duly endorsed for transfer, at any time prior to the close of business on
the Designated Event Repurchase Date, and shall deliver the Notes to the Trustee
(or other paying agent appointed by the Company) as set forth in the Indenture.
Holders have the right to withdraw any Designated Event Repurchase
Notice by delivering to the Trustee (or other paying agent appointed by the
Company) a written notice of withdrawal any time prior to the close of business
on the Designated Event Repurchase Date, all as provided in the Indenture.
If cash sufficient to pay the Designated Event Repurchase Price of all
Notes or portions thereof to be purchased as of the Designated Event Repurchase
Date is deposited with the Trustee (or other paying agent appointed by the
Company) on the Business Day immediately following the Designated Event
Repurchase Date, interest will cease to accrue on such Notes (or portions
thereof) as of such Designated Event Repurchase Date, and the holder thereof
shall have no other rights as such other than the right to receive the
Designated Event Repurchase Price upon surrender of such Note.
If a Designated Event that is also a Fundamental Change occurs prior to
July 15, 2009, the Company shall pay a Make Whole Premium as described in the
Indenture upon the repurchase of the Notes in connection with such Fundamental
Change.
Prior to the close of business on the Business Day immediately
preceding the Maturity Date, the holder hereof has the right, at its option, to
convert each $1,000 principal amount of the Notes into 200 shares of the
Company's Common Stock (the "CONVERSION RATE") (corresponding to a "CONVERSION
PRICE" of $5.00 per share), as such shares shall be constituted on the
Conversion Date and subject to adjustment from time to time as provided in the
Indenture, upon surrender of this Note, duly endorsed for transfer, with the
form entitled "CONVERSION NOTICE" on the reverse thereof duly completed and
manually signed, to the Company at the office or agency of the Company
maintained for that purpose in accordance with the terms of the Indenture, or at
the option of such holder, the Corporate Trust Office, and, unless the shares
issuable on conversion are to be issued in the same name as this Note, duly
endorsed by, or accompanied by instruments of transfer in form satisfactory to
the Company duly executed by, the holder or by his duly authorized attorney.
A-9
In connection with any Fundamental Change that occurs on or prior to
July 15, 2009, if a holder converts Notes at any time beginning on the date on
which the Company gives notice to the holders of Notes of the anticipated
Effective Date of such Fundamental Change (such notice to be given to holders at
least ten (10) Trading Days prior to such anticipated Effective Date) and ending
at the close of business on the relevant Designated Event Repurchase Date, such
holder shall receive:
(i) the Make Whole Premium, if any, which shall be in an amount
and form determined as set forth in the Indenture; PLUS
(ii) the number of shares of Common Stock into which such holder's
Notes are convertible (if such Notes are surrendered for
conversion prior to the record date for receiving
distributions in connection with the Fundamental Change or, if
earlier, the effective date of the Fundamental Change) or the
kind and amount of cash, securities and other assets or
property that such holder would have received if it had held
the number of shares of Common Stock into which such Notes
were convertible immediately prior to the transaction or event
constituting a Fundamental Change (if such Notes are
surrendered for conversion after such record date or effective
date, as the case may be); PLUS
(iii) accrued but unpaid interest on such Notes, if any, to, but
excluding the Conversion Date, which interest shall be payable
in Cash.
No adjustment in respect of interest on any Note converted or dividends
on any shares issued upon conversion of such Note will be made upon any
conversion except as set forth in the next sentence. If this Note (or portion
hereof) is surrendered for conversion during the period from the close of
business on any Record Date for the payment of interest to the close of business
on the Business Day preceding the immediately following interest payment date,
this Note (or portion hereof being converted) must 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 that no such payment shall be
required (1) if the Company has specified a Designated Event Repurchase Date
following a Designated Event that is after a Record Date and on or prior to the
next interest payment date or (2) to the extent of any overdue interest, if any
overdue interest exists at the time of conversion with respect to such Note.
No fractional shares will be issued upon any conversion, but an
adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Note for conversion.
A-10
A Note in respect of which a holder is exercising its right to require
repurchase upon a Designated Event may be converted only if such holder
withdraws its election to exercise such right in accordance with the terms of
the Indenture.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company maintained for that purpose in accordance with
the terms of the Indenture, a new Note or Notes of authorized denominations for
an equal aggregate principal amount will be issued to the transferee in exchange
thereof, subject to the limitations provided in the Indenture, without charge
except for any tax, assessment or other governmental charge imposed in
connection therewith.
The Company, the Trustee, any authenticating agent, any paying agent,
any conversion agent and any Note Registrar may deem and treat the registered
holder hereof as the absolute owner of this Note (whether or not this Note shall
be overdue and notwithstanding any notation of ownership or other writing hereon
made by anyone other than the Company or any Note Registrar) for the purpose of
receiving payment hereof, or on account hereof, for the conversion hereof and
for all other purposes, and neither the Company nor the Trustee nor any other
authenticating agent nor any paying agent nor other conversion agent nor any
Note Registrar shall be affected by any notice to the contrary. All payments
made to or upon the order of such registered holder shall, to the extent of the
sum or sums paid, satisfy and discharge liability for monies payable on this
Note.
No recourse for the payment of the principal of or interest on this
Note, or for any claim based hereon or otherwise in respect hereof, and no
recourse under or upon any obligation, covenant or agreement of the Company in
the Indenture or any supplemental indenture or in any Note, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer or director or subsidiary,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
Terms used in this Note and defined in the Indenture are used herein as
therein defined.
A-11
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT -___ Custodian ___
TEN ENT - as tenant by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors Act
survivorship and not as tenants in common ____________________________
(State)
Additional abbreviations may also be used though not in the above list.
CONVERSION NOTICE
TO: ANADIGICS, INC.
U.S. Bank Trust National Association
The undersigned registered owner of this Note hereby irrevocably
exercises the option to convert this Note, or the portion thereof (which is
$1,000 or a multiple thereof) below designated, into Common Stock of ANADIGICS,
Inc. in accordance with the terms of the Indenture referred to in this Note, and
directs that the shares issuable and deliverable upon such conversion, together
with any check in payment for fractional shares, the Make Whole Premium, if any,
and any Notes representing any unconverted principal amount hereof, be issued
and delivered to the registered holder hereof unless a different name has been
indicated below. Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Indenture. If shares or any portion of
this Note not converted are to be issued in the name of a person other than the
undersigned, the undersigned will provide the appropriate information below and
pay all transfer taxes payable with respect thereto. Any amount required to be
paid by the undersigned on account of interest, accompanies this Note.
Dated: ______________________
-----------------------------------
-----------------------------------
Signature(s)
Signature(s) must be guaranteed by
an "ELIGIBLE GUARANTOR INSTITUTION"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "SIGNATURE GUARANTEE PROGRAM"
as may be determined by the Note
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
-----------------------------------
Signature Guarantee
Fill in the registration of Common Stock if to be issued, and Notes if
to be delivered, other than to and in the name of the registered holder:
- ---------------------------------
(Name)
- ---------------------------------
(Street Address)
- ---------------------------------
(City, State and Zip Code)
- ---------------------------------
Please print name and address
Principal amount to be converted
(if less than all):
$
--------------------------------
Social Security or Other Taxpayer
Identification Number:
- ---------------------------------
DESIGNATED EVENT REPURCHASE NOTICE
TO: ANADIGICS, INC.
U.S. Bank Trust National Association
The undersigned registered owner of this Note hereby irrevocably acknowledges
receipt of a notice from ANADIGICS, Inc. (the "COMPANY") regarding the right of
holders to elect to require the Company to repurchase the Notes upon the
occurrence of a Designated Event with respect to the Company and requests and
instructs the Company to repurchase for cash this Note, or the portion thereof
(which is $1,000 or an integral multiple thereof) below designated, in
accordance with the terms and conditions of the Indenture at the price of
one-hundred percent (100%) of such entire principal amount or portion thereof,
together with accrued and unpaid interest, including Liquidated Damages, if any,
to, but excluding, the Designated Event Repurchase Date (such principal and
unpaid interest, including Liquidated Damages, if any, to be paid in Cash), PLUS
the Make Whole Premium, if any, to the registered holder hereof. Capitalized
terms used herein but not defined shall have the meanings ascribed to such terms
in the Indenture.
Dated:
Signature(s):
NOTICE: The above signatures of the holder(s) hereof must correspond
with the name as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
Note Certificate Number (if applicable):
Principal amount to be repurchased (if less than all):
Social Security or Other Taxpayer Identification Number:
ASSIGNMENT
For value received ______________________________hereby sell(s)
assign(s) and transfer(s) unto ___________________________________ (Please
insert social security or other Taxpayer Identification Number of assignee) the
within Note, and hereby irrevocably constitutes and appoints
______________________________________ attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
In connection with any transfer of the Note prior to the expiration of
the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) (other than any transfer pursuant to
a registration statement that has been declared effective under the Securities
Act), the undersigned confirms that such Note is being transferred:
[ ] To ANADIGICS, Inc. or any Subsidiary thereof; or
[ ] To a "QUALIFIED INSTITUTIONAL BUYER" in compliance with Rule
144A under the Securities Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended, or any other available
exemption from the registration requirements of that Act; or
[ ] Pursuant to a Registration Statement that has been declared
effective under the Securities Act of 1933, as amended, and
that continues to be effective at the time of transfer;
and unless the Note has been transferred to ANADIGICS, Inc., the undersigned
confirms that such Note is not being transferred to an "AFFILIATE" of the
Company as defined in Rule 144 under the Securities Act of 1933, as amended.
UNLESS ONE OF THE BOXES IS CHECKED, THE TRUSTEE WILL REFUSE TO REGISTER
ANY OF THE NOTES EVIDENCED BY THIS CERTIFICATE IN THE NAME OF ANY PERSON OTHER
THAN THE REGISTERED HOLDER THEREOF.
Dated: ______________________
-----------------------------------
-----------------------------------
Signature(s)
Signature(s) must be guaranteed by
an "ELIGIBLE GUARANTOR INSTITUTION"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "SIGNATURE GUARANTEE PROGRAM"
as may be determined by the Note
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
-----------------------------------
Signature Guarantee
NOTICE: The signature on the Conversion Notice, the Designated Event Repurchase
Notice or the Assignment must correspond with the name as written upon the face
of the Note in every particular without alteration or enlargement or any change
whatever.
Schedule I
ANADIGICS, INC.
5.00% Convertible Senior Note Due 2009
No. _______
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Notation Explaining Principal Authorized Signature of
Date Principal Amount Amount Recorded Trustee or Custodian
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