EXHIBIT 4.2
JAKKS PACIFIC, INC.
CONVERTIBLE SENIOR NOTE DUE 2023
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN 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 NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) UNLESS SUCH OFFER, SALE OR OTHER TRANSFER IS (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON THE HOLDER 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 WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT 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,
SUBJECT TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY
BEING COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER OF THIS SECURITY AFTER THE RESALE
RESTRICTION TERMINATION DATE.
THE COMPANY AGREES, AND BY ACCEPTANCE OF BENEFICIAL OWNERSHIP INTEREST IN THE
SECURITIES EACH BENEFICIAL HOLDER OF SUCH SECURITIES WILL BE DEEMED TO HAVE
AGREED, FOR UNITED STATES FEDERAL INCOME TAX PURPOSES (1) TO TREAT THE
SECURITIES OF THIS SERIES AS INDEBTEDNESS THAT IS SUBJECT TO TREAS. REG. SEC.
1.1275-4 (THE "CONTINGENT PAYMENT REGULATIONS") AND, FOR PURPOSES OF THE
CONTINGENT PAYMENT REGULATIONS, TO TREAT THE FAIR MARKET VALUE OF ANY STOCK
BENEFICIALLY RECEIVED BY A BENEFICIAL HOLDER UPON ANY CONVERSION OR REPURCHASE
OF SUCH SECURITIES AS A CONTINGENT PAYMENT AND (2) TO BE BOUND BY THE COMPANY'S
DETERMINATION OF THE "COMPARABLE YIELD" AND "PROJECTED PAYMENT SCHEDULE," WITHIN
THE MEANING OF THE CONTINGENT PAYMENT REGULATIONS, WITH RESPECT TO THE
SECURITIES OF THIS SERIES. A HOLDER OF SECURITIES OF THIS SERIES MAY OBTAIN THE
ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, YIELD TO
MATURITY, COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE FOR SUCH SECURITIES BY
SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE COMPANY AT THE
FOLLOWING ADDRESS: JAKKS PACIFIC, INC., 22619 PACIFIC COAST HIGHWAY, MALIBU,
CALIFORNIA, 90265-5080, ATTENTION: CHIEF FINANCIAL OFFICER.
JAKKS PACIFIC, INC.
CONVERTIBLE SENIOR NOTE DUE 2023
Cusip No.:47012EAA4 No: 1 $98,000,000
JAKKS PACIFIC, INC., a corporation duly existing and qualified under
the laws of the State of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assigns, on
June 15, 2023, the Accreted Principal Amount of this Security on such date, plus
accrued and unpaid interest (including Contingent Interest and Additional
Amounts), if any. For the sake of clarity, the Accreted Principal Amount of this
Security on June 15, 2023 will be $1,811.95 for every $1,000 of Principal Amount
at Issuance of this Security, which, assuming that the aggregate Principal
Amount at Issuance of this Security is $98,000,000, is $177,571,100. The
Principal Amount at Issuance of this Security is $98,000,000.
In addition, for value received, the Company hereby promises to pay to
Cede & Co., or registered assigns, (i) from June 9, 2003, or from the most
recent Interest Payment Date to which interest has been paid or provided for,
to, but not including June 15, 2010, cash interest at an annual rate of 4.625%
of the Principal Amount at Issuance and (ii) from and after June 15, 2010, no
cash interest shall be paid. Cash interest on this Security is payable
semi-annually in arrears on June 15 and December 15 in each year, with the first
Interest Payment Date being December 15, 2003, and will be computed on the basis
of a 360-day year comprised of twelve 30-day months. Each payment of cash
interest on this Security will include interest accrued through the day before
the applicable Interest Payment Date (or Optional Repurchase Date, Fundamental
Change Repurchase Date, Redemption Date or, in certain circumstances, Conversion
Date, as the case may be).
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
payment, which shall be the May 15 or November 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid, or duly provided for, and interest on such
Defaulted Interest at the interest rate borne by the Securities, to the extent
lawful, shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Subject to the conditions of the Indenture and the accrual and record
date provisions specified below, the Company shall pay contingent interest
("Contingent Interest") to the Holders during any six-month period from June 15
to December 14 and from December 15 to June 14, commencing with the six-month
period beginning June 15, 2010, if the average Security Price for the
Five-Trading-Day Measurement Period with respect to such six month period equals
120% or more of the Accreted Principal Amount of such Securities to, but
excluding, the day immediately preceding the first day of the relevant six month
period. Contingent Interest will be paid only in cash.
Contingent Interest, if any, will accrue from June 15 or December 15,
as applicable, and will be payable on the next succeeding Interest Payment Date.
Contingent Interest will be paid to the Person in whose name a Security is
registered on the next preceding Regular Record Date on which Contingent
Interest is payable.
The amount of Contingent Interest payable per Security in respect of
any six-month period will equal 0.375% per annum of the average Security Price
for the Five-Trading-Day Measurement Period.
The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated as of June 9, 2003, between the Company and
the Initial Purchaser, including
the provisions contained therein regarding the payment of Additional Amounts (as
defined therein). Any Additional Amounts due pursuant to the Registration Rights
Agreement will be payable in cash on the Interest Payment Dates related to the
Securities. The Additional Amounts will be determined by multiplying the
applicable Additional Amounts rate by the Accreted Principal Amount of the
Securities, multiplied by a fraction the numerator of which is the number of
days such Additional Amounts rate was applicable during the period, and the
denominator of which is 360.
Payment of the Accreted Principal Amount and interest (including
Contingent Interest and Additional Amounts) on this Security will be made at the
office or agency of the Company maintained for that purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Security Register. If any of the Securities are held by the Depositary, payments
of interest (including Contingent Interest and Additional Amounts) to the
Depositary may be made by wire transfer to the Depositary.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
All references in this Security or in the Indenture to "interest" or
"accrued and unpaid interest" shall be deemed to include, to the extent
applicable, a reference to Additional Amounts and Contingent Interest.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers.
Dated: June 9, 2003 JAKKS PACIFIC, INC.
By:_____________________________
Chairman and Chief Executive Officer
Attest:
By:_______________________
Assistant Secretary
[TRUSTEE'S CERTIFICATE OF AUTHORIZATION FOLLOWS]
TRUSTEE'S CERTIFICATE OF AUTHENTIFICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
WELLS FARGO BANK,
NATIONAL ASSOCIATION, As Trustee
By:___________________________________________
Frank McDonald
Dated: June 9, 2003
JAKKS PACIFIC, INC.
CONVERTIBLE SENIOR NOTE DUE 2023
1. Indenture.
This Security is one of a duly authorized issue of Securities of the
Company designated as its Convertible Senior Notes due 2023 (herein called the
"Securities"), limited in Principal Amount at Issuance to $98,000,000 which may
be issued under an indenture (herein called the "Indenture"), dated as of June
9, 2003, between the Company and Wells Fargo Bank, National Association, as
trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The Indenture does
not limit other Indebtedness of the Company or its Subsidiaries, secured or
unsecured.
2. Ranking.
This Security constitutes a senior unsecured general obligation of the
Company, ranking equally with other existing and future senior unsecured
Indebtedness the Company has incurred or may incur, ranking senior in right of
payment to any future Indebtedness that is expressly made subordinate to the
Securities and ranking subordinate to secured Indebtedness the Company has
incurred.
3. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities are
subject to redemption for cash in whole or from time to time in part on or after
June 15, 2010, at the option of the Company, on not less than 30 nor more than
60 days' prior notice by first-class mail at a redemption price equal to the
Accreted Principal Amount of the Security so redeemed plus accrued and unpaid
interest (including Contingent Interest and Additional Amounts), if any, to but
excluding the Redemption Date.
The Redemption Prices on June 15, 2010 and on each subsequent December
15 and June 15 thereafter prior to June 15, 2023 and on June 15, 2023 are set
forth in the table below. In addition to the Redemption Prices set forth on such
table, the Redemption Price on any Redemption Date that falls between the dates
listed would be the Accreted Principal Amount as of such Redemption Date plus
accrued and unpaid interest (including Contingent Interest and Additional
Amounts) to but excluding the Redemption Date (subject to the right of Holders
of record on relevant Interest Payment Dates to receive interest due on an
Interest Payment Date) that has accrued on a Security since the immediately
preceding date on which interest was paid.
(3)
(1) (2) Accreted
Principal Amount Accrued Principal Principal Amount
Redemption Date at Issuance Accretion (1)+(2)
June 15, 2010 $1,000.00 $ 0.00 $1,000.00
December 15, 2010 $1,000.00 $ 23.13 $1,023.13
June 15, 2011 $1,000.00 $ 46.78 $1,046.78
December 15, 2011 $1,000.00 $ 70.99 $1,070.99
June 15, 2012 $1,000.00 $ 95.76 $1,095.76
December 15, 2012 $1,000.00 $121.10 $1,121.10
June 15, 2013 $1,000.00 $147.02 $1,147.02
December 15, 2013 $1,000.00 $173.55 $1,173.55
June 15, 2014 $1,000.00 $200.69 $1,200.69
December 15, 2014 $1,000.00 $228.45 $1,228.45
June 15, 2015 $1,000.00 $256.86 $1,256.86
December 15, 2015 $1,000.00 $285.93 $1,285.93
June 15, 2016 $1,000.00 $315.66 $1,315.66
December 15, 2016 $1,000.00 $346.09 $1,346.09
June 15, 2017 $1,000.00 $377.22 $1,377.22
December 15, 2017 $1,000.00 $409.06 $1,409.06
June 15, 2018 $1,000.00 $441.65 $1,441.65
December 15, 2018 $1,000.00 $474.99 $1,474.99
June 15, 2019 $1,000.00 $509.09 $1,509.09
December 15, 2019 $1,000.00 $543.99 $1,543.99
June 15, 2020 $1,000.00 $579.70 $1,579.70
December 15, 2020 $1,000.00 $616.23 $1,616.23
June 15, 2021 $1,000.00 $653.60 $1,653.60
December 15, 2021 $1,000.00 $691.84 $1,691.84
June 15, 2022 $1,000.00 $730.97 $1,730.97
December 15, 2022 $1,000.00 $771.00 $1,771.00
June 15, 2023 $1,000.00 $811.95 $1,811.95
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities or portions thereof to be redeemed by lot, or in its
discretion, on a pro rata basis or by any other method the Trustee shall deem
fair and reasonable. If any Security is to be redeemed in part only, a new
Security in Principal Amount at Issuance equal to the unredeemed portion of
Principal Amount at Issuance will be issued. If a portion of a Holder's
Securities is selected for partial redemption and such Holder converts a portion
of its Securities, the converted portion will be deemed to be of the portion
selected for redemption.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities of record as of the close of business on the
relevant record date referred to on the face hereof. Securities (or portions
thereof) whose redemption and payment is made in accordance with the Indenture
shall cease to bear interest from and after the date of redemption.
4. Repurchase by the Company at the Option of the Holder.
Each Holder may require the Company to repurchase on June 15, 2010,
June 15, 2013 and June 15, 2018, all or a portion of such Holder's Securities,
at a repurchase price equal to 100% of the principal amount plus any accrued and
unpaid interest (including Contingent Interest and Additional Amounts) to but
excluding the Optional Repurchase Date. Any Securities purchased on June 15,
2010 will be paid for in cash. Securities purchased on June 15, 2013 and June
15, 2018 may be purchased in cash, shares of Common Stock or a combination of
cash and shares of Common Stock at the Company's option, provided, however that
any accrued and unpaid interest (including Contingent Interest and Additional
Amounts) will be paid in cash.
In addition, upon the occurrence of a Fundamental Change, each Holder
may require the Company to repurchase for cash all or a portion of such Holder's
Securities, at a purchase price in cash equal to the Accreted Principal Amount
on the date of repurchase plus any accrued and unpaid interest (including
Contingent Interest and Additional Amounts), if any, to, but excluding, the date
of repurchase. Securities submitted for repurchase must have a Principal Amount
at Issuance equal to $1,000 or multiples of $1,000.
Holders have the right to withdraw any Optional Repurchase Notice or
Fundamental Change Repurchase Notice, as the case may be, by delivering to the
Paying Agent a written notice of withdrawal in accordance with the provisions of
the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
5. Conversion.
Under the circumstances provided for in, and subject to compliance with
the provisions of, the Indenture, a Holder of a Security may, at such Holder's
option, convert such Security (or any portion thereof equal to $1,000 Principal
Amount at Issuance or multiples of $1,000 in excess thereof) into shares of
Common Stock at the Conversion Rate in effect at the time of conversion;
provided, however, that if the Security is called for redemption pursuant to
Article Eleven of the Indenture or is submitted or presented for repurchase
pursuant to Articles Fourteen or Fifteen of the Indenture, the conversion right
will terminate at the close of business on the second Business Day immediately
preceding the Redemption Date, Optional Repurchase Date or the Fundamental
Change Repurchase Date, as the case may be, for such Security or such earlier
date as the Holder presents such Security for redemption or repurchase (unless
the Company shall default in paying the redemption payment, Optional Repurchase
Price or Fundamental Change Repurchase Price, as the case may be, when due, in
which case the conversion right shall terminate at the close of business on the
date such default is cured and such Security is redeemed or purchased, as the
case may be).
The Company will notify Holders of any event triggering the right to
convert the Security as specified above in accordance with the Indenture.
A Security in respect of which a Holder has delivered an Optional
Repurchase Notice or a Fundamental Change Repurchase Notice exercising the
option of such Holder to require the
Company to repurchase such Security may be converted only if such notice is
withdrawn in accordance with the terms of the Indenture.
The initial Conversion Rate is fifty (50) shares of Common Stock per
$1,000 Principal Amount at Issuance (with no effect given to any accretion on
such amount from and after June 15, 2010), subject to adjustment under certain
circumstances. No fractional shares will be issued upon conversion; in lieu
thereof, an amount will be paid in cash based upon the Sale Price of the Common
Stock on the Trading Day immediately prior to the Conversion Date.
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice set forth below and deliver such notice to a Conversion Agent,
(b) surrender the Security to a Conversion Agent, (c) furnish appropriate
endorsements and transfer documents if required by a Registrar or a Conversion
Agent, and (d) pay any transfer or similar tax, if required. The Conversion
Agent may assume that any Holder that delivers a conversion notice is entitled
to convert this Security without independent verification.
A Holder may convert a portion of the Securities of this series only if
the principal amount of such portion is $1,000 or an integral multiple of
$1,000. No payment or adjustment shall be made for dividends on the Common Stock
except as provided in the Indenture. On conversion of Securities of this series,
that portion of accrued and unpaid interest, including Contingent Interest and
Additional Amounts on such Securities attributable to the period from the most
recent Interest Payment Date (or, if no Interest Payment Date has occurred, from
the Original Issue Date) through the Conversion Date and Tax Original Issue
Discount accrued through the Conversion Date with respect to such converted
Securities 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 any cash payment in lieu of fractional shares) in
exchange for such Securities being converted pursuant to the provisions hereof,
and the fair market value of such shares of 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 accrued and unpaid interest (including
Contingent Interest and Additional Amounts) and Tax Original Issue Discount
accrued through the Conversion 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 the Principal Amount at Issuance of such Securities being
converted pursuant to the provisions hereof.
6. Calculations.
The Company will be responsible for making all calculations called for
under this Security. These calculations include, but are not limited to,
determinations of accrued interest, including Contingent Interest and Additional
Amounts, the Redemption Price, the Conversion Price, the Optional Repurchase
Price, the Fundamental Change Repurchase Price, the Sale Price of the Company's
Common Stock and other calculations related to a Holder's conversion rights. The
Company will make these calculations in good faith and, absent manifest error,
the calculations will be final and binding on any Holder of this Security. The
Company will provide a schedule of its calculations to each of the Trustee and
the Conversion Agent, and each of the Trustee and the Conversion Agent is
entitled to rely upon the accuracy of such calculations with
independent verification. The Trustee may forward the Company's calculations to
any Holder of this Security upon request.
7. Events of Default.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
8. Transfer; Exchange; Registration.
If this Security is in certificated form, then as provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable on the Security Register of the Company, upon
surrender of this Security for registration of transfer at the office or agency
of the Company maintained for such purpose, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 of the Principal Amount at Issuance and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Securities are exchangeable for a like
aggregate Principal Amount at Issuance of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to and at the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes (subject to provisions with respect to record
dates for the payment of interest), whether or not this Security is overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
If this Security is a Global Security, except as described below, it is
not exchangeable for a Security or Securities in certificated form. The
Securities will be delivered in certificated form if (i) the Depositary ceases
to be registered as a clearing agency under the Exchange Act or is no longer
willing or able to provide securities depository services with respect to the
Securities, (ii) the Company so determines or (iii) there shall have occurred an
Event of Default or an event which, with the giving of notice or lapse of time
or both, would constitute an Event of Default with respect to the Securities
represented by such Global Security and such Event of Default or event continues
for a period of 90 days. Upon any such issuance, the Trustee is required to
register such certificated Security in the name of, and cause the same to be
delivered to, such Person or Persons (or the nominee of any thereof).
At any time when the Company is not subject to Sections 13 or 15(d) of
the Exchange Act, upon the written request of a Holder of a Security, the
Company will promptly furnish or cause to be furnished Rule 144A Information to
such Holder or to a prospective purchaser of such Security who such Holder
informs the Company is reasonably believed to be a QIB, as the case may be, in
order to permit compliance by such Holder with Rule 144A under the Securities
Act.
9. Amendment.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a specified
percentage of the Principal Amount at Issuance of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages of the Principal Amount at Issuance of the Securities at
the time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Security.
10. No Impairment of Obligations.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company or any
other obligor upon the Securities (in the event such other obligor is obligated
to make payments in respect of the Securities), which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
11. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PRINCIPLES THEREOF).
12. Defined Terms.
All terms used in this Security which are defined in the Indenture and
not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Article Fourteen (Fundamental Change Notice) or Article Fifteen (Optional
Repurchase Notice), as applicable, of the Indenture, check the Box: Article
Fourteen [ ] Article Fifteen [ ].
If you wish to have a portion of this Security purchased by the Company
pursuant to Article Fourteen or Article Fifteen, as applicable, of the
Indenture, state the amount (in Principal Amount at Issuance): $_______________.
If certificated, the certificate numbers of the Securities to be
delivered for repurchase are ________________.
Date: ___________________ Your Signature: _____________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: __________________________________
Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15.
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box: [ ]
To convert only part of this Security, state the Principal Amount at Issuance to
be converted (which must be $1,000 or an integral multiple of $1,000): _________
If you want the stock certificate made out in another person's name, fill in the
form below:
_______________________________________________________________________
(insert other person's name)
_______________________________________________________________________
(insert other person's social security or tax identification number)
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(insert other person's address and zip code)
Date: ______________________
Signature: ___________________