EXHIBIT 4.10
EXECUTION COPY
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ST ASSEMBLY TEST SERVICES LTD
AND
THE BANK OF NEW YORK
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INDENTURE
DATED AS OF MARCH 18, 2002
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1.75% CONVERTIBLE NOTES DUE 2007
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TABLE OF CONTENTS
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ARTICLE One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions 1
Accreted Value 2
Act 2
Additional Amounts 2
Adjustment Effective Date 2
ADRs 2
ADS Depositary 2
ADSs; American Depositary Shares 2
Affiliate 2
Agent Member 2
Authenticating Agent 2
Authorized Officer 2
Average Market Price 2
Beneficial Owner 3
Board of Directors 3
Board Resolution 3
Branch Register 3
Business Day 3
Cash Settlement Amount 3
Cash Settlement Notice 3
Cash Settlement Notice Date 3
CDP 3
Change of Control 3
Clearstream 4
Closing Date 4
Closing Price 4
Commission 4
Company 4
Company Request; Company Order 4
Conversion Agent 4
Conversion Date 4
Conversion Notice 4
Conversion Period 4
Convertible Notes 5
Corporate Trust Office 5
Corporation 5
Defaulted Interest 5
Definitive Note 5
Delisting 5
Deposit Agreement 5
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Depositary 5
DTC 5
Euroclear 5
Event of Default 5
Exchange Act 5
Extraordinary Resolution 5
Fixed Exchange Rate 5
Global Notes 5
Holder 6
Holder's Redemption Notice 6
Indenture 6
Interest Payment Date 6
International Investment Securities 6
Local Currency 6
Market Price 6
Material Subsidiary 6
Maturity 6
Nasdaq National Market 7
Officer's Certificate 7
Opinion of Counsel 7
Ordinary Shares 7
Outstanding 7
participant 8
Paying Agent 8
Person 8
Predecessor Security 8
Prevailing Exchange Rate 8
Principal Register 8
Proceeding 8
Purchase Agreement 8
QIBs 9
Redemption Date 9
Redemption Price 9
Registration Date 9
Regular Record Date 9
Regulation S 9
Regulation S Certificate 9
Reg S Global Notes 9
Repayment Acceptance Notice 9
Repurchase Date 9
Repurchase Event 9
Repayment Price 9
Responsible Officer 9
Restricted Definitive Note 9
Restricted Global Notes 9
Restricted Securities 9
Restrictive Legends 10
Rule 144A 10
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Rule 144A Certificate 10
S$ 10
Securities Act 10
Security Register; Security Registrar 10
Share Conversion Price 10
Singapore 10
Singapore Exchange 10
Special Record Date 10
Stated Maturity 10
Subsidiary 10
Trading Day 10
Transfer Restrictions 10
Trustee 10
Trust Indenture Act 11
Vice President 11
Volume-Weighted Average Prices 11
SECTION 102. Compliance Certificates and Opinions 11
SECTION 103. Form of Documents Delivered to Trustee 11
SECTION 104. Acts of Holders; Record Dates 12
SECTION 105. Notices, Etc., to Trustee and Company 13
SECTION 106. Notice to Holders; Waiver 13
SECTION 107. Effect of Headings and Table of Contents 14
SECTION 108. Successors and Assigns 14
SECTION 109. Separability Clause 14
SECTION 110. Benefits of Indenture 14
SECTION 111. Governing Law and Jurisdiction 14
SECTION 112. Legal Holidays 15
SECTION 113. Waiver of Jury Trial 15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally 16
SECTION 202. Form of Face of Security 17
SECTION 203. Form of Reverse of Security 24
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SECTION 204. Form of Trustee's Certificate of Authentication 30
SECTION 205. Form of Holder's Redemption Notice 30
SECTION 206. Form of Conversion Notice 31
SECTION 207. Form of Holder's Repayment Acceptance Notice 34
SECTION 208. Form of Cash Settlement Notice 34
ARTICLE THREE
THE CONVERTIBLE NOTES
SECTION 301. Title and Terms 35
SECTION 302. Denominations 36
SECTION 303. Execution, Authentication, Delivery and Dating 36
SECTION 304. Temporary Convertible Notes 36
SECTION 305. Registration, Registration of Transfer and
Exchange 37
SECTION 306. Mutilated, Destroyed, Lost and Stolen Convertible
Notes 43
SECTION 307. Payment of Interest; Interest Rights Preserved 44
SECTION 308. Persons Deemed Owners 45
SECTION 309. Cancellation 46
SECTION 310. Computation of Interest 46
SECTION 311. CUSIP Numbers 46
SECTION 312. Certification Form 46
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture 47
SECTION 402. Application of Trust Money 48
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default 48
SECTION 502. Acceleration of Maturity; Rescission and Annulment 50
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SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee 51
SECTION 504. Trustee May File Proofs of Claim 51
SECTION 505. Trustee May Enforce Claims Without Possession of
Convertible Notes 52
SECTION 506. Application of Money Collected 52
SECTION 507. Limitation on Suits 52
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Convert 53
SECTION 509. Restoration of Rights and Remedies 53
SECTION 510. Rights and Remedies Cumulative 53
SECTION 511. Delay or Omission Not Waiver 53
SECTION 512. Control by Holders 54
SECTION 513. Waiver of Past Defaults 54
SECTION 514. Undertaking for Costs 54
SECTION 515. Waiver of Stay or Extension Laws 55
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities 55
SECTION 602. Notice of Defaults 56
SECTION 603. Certain Rights of Trustee 56
SECTION 604. Not Responsible for Recitals or Issuance of
Convertible Notes 58
SECTION 605. May Hold Convertible Notes 58
SECTION 606. Money Held in Trust 58
SECTION 607. Compensation and Reimbursement 58
SECTION 608. Disqualification; Conflicting Interests 59
SECTION 609. Corporate Trustee Required; Eligibility 59
SECTION 610. Resignation and Removal; Appointment of Successor 59
SECTION 611. Acceptance of Appointment by Successor 61
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SECTION 612. Merger, Conversion, Consolidation or Succession to
Business 61
SECTION 613. Preferential Collection of Claims Against Company 61
SECTION 614. Appointment of Authenticating Agent 61
SECTION 615. Appointment of Co-Trustee 63
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders 64
SECTION 702. Preservation of Information; Communications to
Holders 64
SECTION 703. Reports by Trustee 65
SECTION 704. Reports by Company 65
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms 66
SECTION 802. Successor Person Substituted 67
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders 67
SECTION 902. Supplemental Indentures with Consent of Holders 68
SECTION 903. Execution of Supplemental Indentures 69
SECTION 904. Effect of Supplemental Indentures 69
SECTION 905. Reference in Convertible Notes to Supplemental
Indentures 69
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest 69
SECTION 1002. Maintenance of Office or Agency 69
SECTION 1003. Money for Security Payments to Be Held in Trust 70
SECTION 1004. Statement by Officers as to Compliance 71
SECTION 1005. Existence 71
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SECTION 1006. Maintenance of Properties 71
SECTION 1007. Payment of Taxes and Other Claims 72
SECTION 1008. Restriction on Liens 72
SECTION 1009. Payment of Additional Amounts 73
ARTICLE ELEVEN
REDEMPTION OF CONVERTIBLE NOTES
SECTION 1101. Right of Redemption 74
SECTION 1102. Applicability of Article 75
SECTION 1103. Election to Redeem; Notice to Trustee 75
SECTION 1104. Selection by Trustee of Convertible Notes to Be
Redeemed 76
SECTION 1105. Notice of Redemption 77
SECTION 1106. Deposit of Redemption Price 78
SECTION 1107. Convertible Notes Payable on Repayment Date 78
SECTION 1108. Convertible Notes Redeemed in Part 78
ARTICLE TWELVE
REPAYMENT AT OPTION OF HOLDERS
SECTION 1201. Repayment at Option of Holders 79
SECTION 1202. Notice of Repayment Event 79
SECTION 1203. Notice to Trustee 80
SECTION 1204. Deposit of Repayment Price 80
SECTION 1205. Convertible Notes Payable on Repurchase Date 80
SECTION 1206. Convertible Notes Repaid in Part 81
SECTION 1207. Tender Offer 81
ARTICLE THIRTEEN
[RESERVED]
ARTICLE FOURTEEN
CONVERSION OF CONVERTIBLE NOTES
SECTION 1401. Conversion Right 81
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SECTION 1402. Exercise of Conversion Right 83
SECTION 1403. Fractions of Shares 85
SECTION 1404. Cash Settlement 85
SECTION 1405. Adjustment of Share Conversion Price 86
SECTION 1406. Notice of Adjustments of Share Conversion Price 92
SECTION 1407. Notice of Certain Corporate Action 93
SECTION 1408. Taxes and Expenses on Conversions 94
SECTION 1409. Covenants Relating to Conversion 95
SECTION 1410. Cancellation of Converted Convertible Notes 96
SECTION 1411. Trustee Adjustment Disclaimer 96
ANNEX A
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED
GLOBAL CONVERTIBLE NOTE TO REG S GLOBAL NOTE A-1
ANNEX B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM REG S NOTE
TO RESTRICTED GLOBAL NOTE B-1
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INDENTURE, dated as of March 18, 2002, between ST Assembly Test Services
Ltd, a corporation duly organized and existing under the laws of Singapore
(herein called the "Company"), having its principal office at 5 Yishun
Street 23, Singapore 768442, and The Bank of New York, a New York banking
corporation duly organized and existing under the laws of the State of New York
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 1.75%
Convertible Notes Due 2007 (herein called the "Convertible Notes") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Convertible Notes, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase and acceptance of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders from time to time of the Convertible Notes,
as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
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(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Accreted Value" means, with respect to a Convertible Note, as of any date
of determination, the principal amount of such Convertible Note together with
such premium that would provide to the Holder of such Convertible Note an annual
yield from March 18, 2002 to (but excluding) the date of determination, of 4.91%
per annum, computed on a semi-annual internal rate of return bond equivalent
basis, on the principal amount of such Convertible Note, taking into account all
interest paid on such Convertible Note and treating as having been paid when due
all interest accrued and unpaid on such Convertible Note to the date of
determination.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104(a).
"Additional Amounts" means any additional amounts which are required
hereby, under circumstances specified in this Indenture, to be paid by the
Company in respect of certain taxes imposed on Holders and which are owing to
such Holders.
"Adjustment Effective Date" means the date on which an adjustment to the
Share Conversion Price takes effect with respect to the Convertible Notes.
"ADRs" means American depositary receipts issued from time to time under
the Deposit Agreement.
"ADS Depositary" means Citibank, N.A., as depositary, appointed pursuant to
the Deposit Agreement or such other depositary appointed by the Company with
respect to the ADSs from time to time.
"ADSs" or "American Depositary Shares" means American depositary shares
evidenced by the ADRs.
"Affiliate" has the meaning specified in Rule 12b-2 under the Exchange Act.
"Agent Member" with respect to any Global Note means a member of or
participant in the Depositary for such Global Note.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Convertible
Notes.
"Authorized Officer" means the Chairman of the Board of Directors, the
Deputy Chairman of the Board of Directors, the Chief Executive Officer or the
Chief Financial Officer of the Company or other officers of the Company duly
authorized pursuant to a Board Resolution, a power of attorney or other
available means to act on behalf of the Company.
"Average Market Price" has the meaning specified in Section 1405(g)(i).
2
"Beneficial Owner" will be determined in accordance with Rules 13d-3 and
13d-5 under the Exchange Act.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by an Authorized
Officer of the Company or the Company Secretary or Assistant Company Secretary
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Branch Register" has the meaning specified in Section 305.
"Business Day" means, in any location, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in such
location are authorized or obligated by law or executive order to close. Unless
stated otherwise, Business Day shall mean a Business Day in The City of New York
and Singapore.
"Cash Settlement Amount" means:
(i) in the event that a Holder has chosen to convert Convertible Notes into
Ordinary Shares, the product of (x) the number of Ordinary Shares deliverable
upon exercise of the conversion right in respect of a Convertible Note but not
delivered by the Company, and (y) the arithmetic average of the Volume-Weighted
Average Prices (in Singapore dollars) of the Company's Ordinary Shares on the
Singapore Exchange for each day during the five Trading Days immediately
following the Cash Settlement Notice Date converted into US dollars at the
Prevailing Exchange Rate; and
(ii) in the event that a Holder has chosen to convert Convertible Notes
into ADSs, the product of (x) the number of ADSs deliverable upon exercise of
the conversion right in respect of a Convertible Note but not delivered by the
Company, and (y) the arithmetic average of the Volume-Weighted Average Prices
(in US dollars) of the Company's ADSs on the Nasdaq National Market for each day
during the five Trading Days immediately following the Cash Settlement Notice
Date.
"Cash Settlement Notice" has the meaning specified in Section 1404.
"Cash Settlement Notice Date" has the meaning specified in Section 1404.
"CDP" means The Central Depository (Pte) Limited.
"Change of Control" means the occurrence of any of the following events:
(i) other than Singapore Technologies Pte Ltd and its Affiliates, any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the Beneficial Owner, directly or indirectly, of
more than 50% of the total voting power of the then outstanding securities
entitled to vote generally in elections of directors of the Company;
3
(ii) the Company consolidates with or merges into any other Person, or any
other Person merges into the Company, and, in the case of any such transaction,
the outstanding Ordinary Shares of the Company are reclassified into or
exchanged for any other property or securities, unless the shareholders of the
Company immediately before such transaction own, directly or indirectly
immediately following such transaction, at least a majority of the combined
voting power of then outstanding voting securities entitled to vote generally in
elections of directors of the corporation resulting from such transaction; or
(iii) the Company and its Subsidiaries, taken as a whole, sell, assign,
convey, transfer or lease all or substantially all assets of the Company and its
Subsidiaries, taken as a whole, (other than to one or more wholly-owned
Subsidiaries of the Company).
"Clearstream" means Clearstream Banking, societe anonyme (or any successor
securities clearing agency).
"Closing Date" means March 18, 2002.
"Closing Price" means for any Trading Day the last reported transaction
price or, if no transaction takes place on such day, the average of the closing
bid and asked prices of Ordinary Shares for such day as furnished by a leading
independent securities firm licensed to trade on the Singapore Exchange selected
from time to time by the Company for such purpose.
"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 instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board of Directors or
the Chief Executive Officer of the Company or by any other Authorized Officer
and delivered to the Trustee.
"Conversion Agent" means any Person authorized by the Company to accept the
presentation of Convertible Notes by Holders for conversion. The Company has
initially appointed the Trustee as its Conversion Agent in the Borough of
Manhattan, The City of New York.
"Conversion Date" has the meaning specified in Section 1402.
"Conversion Notice" has the meaning specified in Section 203, a form of
which is provided in Section 206.
"Conversion Period" has the meaning specified in Section 1401.
4
"Convertible Notes" has the meaning specified in the first Recital of this
Indenture comprising the US$175,000,000 aggregate principal amount of the
Convertible Notes issued, authenticated and delivered under this Indenture as of
the date hereof and any additional Convertible Notes of up to US$25,000,000 in
aggregate principal amount which may be issued pursuant to this Indenture on or
before April 17, 2002 and for the time being outstanding or, as the context may
require, a specific number or principal amount of them.
"Corporate Trust Office" means the principal office of the Trustee at 101
Barclay Street, Floor 21W, New York, New York 10286, at which at any particular
time its corporate trust business shall be principally administered, or such
other address as the Trustee (or successor trustee) may designate from time to
time by notice to the Holders and the Company.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Definitive Note" has the meaning specified in Section 305(d)(v).
"Delisting" means the Ordinary Shares are not listed on the Singapore
Exchange (or its successor).
"Deposit Agreement" means the Deposit Agreement, dated as of February 8,
2000, by and among the Company, the ADS Depositary, and all holders and
beneficial owners from time to time of the ADSs issued thereunder, as the same
may be amended and/or supplemented from time to time in accordance with its
terms.
"Depositary" means a clearing agency registered under the Exchange Act that
is designated to act as Depositary for the Convertible Notes as contemplated by
Section 301.
"DTC" has the meaning specified in Section 201.
"Euroclear" means Euroclear Bank S.V./N.V., as operator of the Euroclear
System (or any successor securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the U.S. Securities Exchange Act of 1934 and any
statute successors thereto, in each case as amended from time to time.
"Extraordinary Resolution" means a resolution approved by the Holders of
not less than 66 2/3% in principal amount of the Outstanding Convertible Notes.
"Fixed Exchange Rate" means the exchange rate of US$1.00=S$1.8215.
"Global Notes" means the Restricted Global Notes or the Reg S Global Notes,
as the case may be, and "Global Securities" means all of such securities.
5
"Holder" means a Person in whose name a Convertible Note is registered in
the Security Register.
"Holder's Redemption Notice" has the meaning specified in Section 1105, a
form of which is provided in Section 205.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Convertible Notes.
"International Investment Securities" means any bonds, notes, debentures,
debenture stocks, loan stocks, certificates or other instruments evidencing
indebtedness (excluding, for the avoidance of any doubt, any loans from banks or
other financial institutions or lenders) with a maturity of greater than one
year and which (1) are, or are intended to be, listed, quoted or traded on any
stock exchange or in any securities market (including, without limitation, any
over-the-counter market) and (2) either (A) are by their terms payable, or
confer a right to receive payment, in any currency other than a Local Currency
or (B) are denominated in a Local Currency and more than 50% of the aggregate
principal amount of the offering of such International Investment Securities is
initially distributed outside the jurisdiction using such Local Currency as its
form of legal tender by or with the consent of the Company.
"Local Currency" means the Singapore dollar and the currency of any
jurisdiction (other than the United States) in which any Material Subsidiary is
organized and principally operating; provided that such Material Subsidiary was
not organized in such jurisdiction in contemplation of or in connection with the
issuance of any international investment securities.
"Market Price" means for any Trading Day with respect to the Ordinary
Shares, the closing sales price of the Ordinary Shares on the Singapore Exchange
on such day or, if no reported sales take place on such day, the average of the
reported closing bid and offered prices, in either case as reported by the
Singapore Exchange for such day as furnished by a leading independent securities
firm in Singapore selected from time to time by the Company and approved by the
Trustee for this purpose.
"Material Subsidiary" means any subsidiary of the Company whose
consolidated net revenues or consolidated net assets as shown on its most recent
audited consolidated financial statements represents 10% or more of the
Company's consolidated net revenues or consolidated net assets, as shown on the
Company's most recent audited consolidated financial statements.
"Maturity", when used with respect to any Convertible Note, means the date
on which the principal of such Convertible Note or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, repurchase or
otherwise.
6
"Nasdaq National Market" means the Nasdaq National Market System.
"Officer's Certificate" means a certificate signed by the Chairman of the
Board or by any other Authorized Officer of the Company, and delivered to the
Trustee. The officer signing an Officer's Certificate given pursuant to Section
1004 shall be the principal executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Ordinary Shares" includes any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which is not subject to redemption by the Company. However, subject to the
provisions of Section 801, shares issuable on conversion of Convertible Notes
shall include only shares of the class designated as Ordinary Shares of the
Company at the date of this instrument or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
(except for any right the record date for which precedes the Conversion Date for
such Convertible Notes; with respect to preemptive rights in connection with
rights issues and rights to dividends, except in the case where the record date
for closure of the Company's register of shareholders for a shareholders'
meeting precedes such Conversion Date; and except for any other right excluded
by mandatory provisions of applicable law) and which 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 shall
be substantially in the proportion which the total number of shares of such
class resulting from all such reclassifications bears to the total number of
shares of all such classes resulting from all such reclassifications.
"Outstanding", when used with respect to Convertible Notes, means, as of
the date of determination, all Convertible Notes theretofore authenticated and
delivered under this Indenture, except:
(i) Convertible Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation including those surrendered for
payment, conversion, redemption or repayment;
(ii) Convertible Notes for whose payment, redemption or repurchase
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Convertible Notes; provided that, if
such Convertible Notes are to be redeemed, notice of such redemption or
repurchase has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Convertible Notes in respect of which the Conversion Right has
been duly exercised and discharged; and
7
(iv) Convertible Notes which have been paid pursuant to Section 402 or
in exchange for or in lieu of which other Convertible Notes have been
authenticated and delivered pursuant to this Indenture, other than any such
Convertible Notes in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Convertible Notes are held
by a bona fide purchaser in whose hands such Convertible Notes are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Convertible Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Convertible Notes owned by the Company or any other obligor upon the Convertible
Notes or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Convertible Notes
which the Trustee knows to be so owned shall be so disregarded. Convertible
Notes so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Convertible Notes and that the
pledgee is not the Company or any other obligor upon the Convertible Notes or
any Affiliate of the Company or of such other obligor.
"participant" has the meaning specified in Section 305(c).
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Convertible Notes on
behalf of the Company. The Company has initially appointed the Trustee as its
Paying Agent in the Borough of Manhattan, The City of New York.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Convertible Note" of any particular Convertible Note means
every previous security evidencing all or a portion of the same debt as that
evidenced by such particular Convertible Note; and, for the purposes of this
definition, any Convertible Note authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Convertible
Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Convertible Note.
"Prevailing Exchange Rate" means, on any date of determination, the noon
buying rate in New York City for cable transfers in Singapore dollars, as
certified for customs purposes by the Federal Reserve Bank in New York on such
date.
"Principal Register" has the meaning specified in Section 305.
"Proceeding" has the meaning specified in Section 111.
"Purchase Agreement" means the purchase agreement, dated March 13, 2002,
between the Company and the several initial purchasers thereto, in relation to
the offering of the Convertible Notes.
8
"QIBs" has the meaning specified in Section 201.
"Redemption Date", when used with respect to any Convertible Note to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Convertible Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Date" has the meaning specified in Section 203
"Regular Record Date" for the interest payable on any Interest Payment Date
means March 3 and September 3 of each year (whether or not a Business Day), as
the case may be, immediately preceding such Interest Payment Date.
"Regulation S" means Regulation S promulgated under the Securities Act, or
any successor provision thereto.
"Regulation S Certificate" has the meaning specified in Section 305(d)(i).
"Reg S Global Notes" has the meaning specified in Section 201.
"Repayment Acceptance Notice" has the meaning specified in Section 1202, a
form of which is provided in Section 207.
"Repayment Date", when used with respect to any Convertible Note to be
repaid at the option of the Holder, means the date fixed for such repayment
pursuant to this Indenture.
"Repayment Event" means the occurrence of a Change of Control or a
Delisting.
"Repayment Price", when used with respect to any Convertible Note to be
repaid at the option of the Holder, means the price at which it is to be repaid
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Office of the Trustee having direct
responsibility for the administration of this Indenture, including without
limitation any vice president, assistant vice president, assistant treasurer,
corporate trust officer, assistant corporate trust officer or other employee of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge and familiarity with the particular subject.
"Restricted Definitive Note" has the meaning specified in Section
305(d)(v)(4).
"Restricted Global Notes" has the meaning specified in Section 201.
"Restricted Securities" has the meaning specified in Section 201.
9
"Restrictive Legends" has the meaning specified in Section 305(b).
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Certificate" has the meaning specified in Section 305(d)(ii).
"S$" means Singapore dollar.
"Securities Act" means the U.S. Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305(a).
"Share Conversion Price" is initially S$3.408 per Ordinary Share, subject
to adjustments from time to time as specified in Section 1405.
"Singapore" means the Republic of Singapore.
"Singapore Exchange" means the Singapore Exchange Securities Trading
Limited.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Company pursuant to Section 307.
"Stated Maturity", when used with respect to any Convertible Note or any
installment of interest thereon, means the date specified in such Convertible
Note as the fixed date on which the principal of such Convertible Note, any
premium on such Convertible Note or such installment of interest is due and
payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trading Day" means, with respect to a stock exchange, a day when such
stock exchange is open for business, provided, however, that if no transaction
price or closing bid and offered prices are reported by such exchange in respect
of the relevant security for one or more Trading Days, such day or days will be
disregarded in any relevant calculation relating to a period of consecutive
Trading Days.
"Transfer Restrictions" has the meaning specified in Section 305(b).
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
10
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Trustee, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
"Volume-Weighted Average Prices" mean the volume-weighted average prices of
the Ordinary Shares or ADSs, as the case may be, quoted on Bloomberg under the
"AQR" function.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required hereunder. Each such
certificate or opinion, and any certificate evidencing a determination required
to be made by the Company under this Indenture, shall be given in the form of an
Officer's Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements set forth hereunder.
Every certificate or opinion with respect to compliance by or on behalf of
the Company with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
11
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 104.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The Company may fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, election, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by Holders.
If not set by the Company prior to the first solicitation of a Holder made by
any Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to
be provided pursuant to Section 701) prior to such first solicitation or vote,
as the case may be. With regard to any record date, only the Holders at
12
the close of business in Singapore on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Convertible Notes shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of the Holder of any Convertible Note shall bind
every future Holder of the same Convertible Note and the Holder of every
Convertible Note issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Convertible Note.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, election,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Global
Finance Unit, with a copy to the Trustee at its Singapore branch at One
Temasek Avenue, 02-01 Millenia Tower, 039192, Singapore; Attention: Global
Trust Services, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
When this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if (i) in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice and (ii) published in English
in London in the Financial Times, in Singapore in a leading daily newspaper
(which is expected to be The Business Times) and in New York in The Wall Street
Journal, provided that for so long as any Convertible Notes are represented by
Global Notes notices may be given by delivery of the relevant notice to DTC,
Euroclear and Clearstream, for communication by them to their respective
participants in substitution for publication in any such newspaper. If at any
time publication in any such newspaper is not practicable, notices will be valid
if published in an English language newspaper selected by the Company with
general circulation in the respective market regions. Any such notice shall be
deemed to have been given on the date of such publication or, if published more
than once on different dates, on the first date on which publication is made.
13
In any case where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
Convertible Notes by mail, then such notification to such Holders as shall be
given with the approval of the Trustee shall constitute a sufficient notice to
such Holders for every purpose hereunder.
In case by reason of any other cause it shall be impracticable to publish
any notice to Holders of Convertible Notes as provided in this Section 106, then
such notification to such Holders as shall be given with the approval of the
Trustee shall constitute sufficient notice to such Holders for every purpose
hereunder.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Convertible Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Convertible Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Convertible Notes, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law and Jurisdiction.
THIS INDENTURE AND THE CONVERTIBLE NOTES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES
14
THEREOF. IF ANY SUIT, ACTION OR PROCEEDING SHALL BE BROUGHTIN ORDER TO ENFORCE
ANY RIGHT OR REMEDY UNDER THE INDENTURE OR UNDER THE CONVERTIBLE NOTES (A
"PROCEEDING"), EACH OF THE PARTIES HEREBY, WITH RESPECT TO ANY SUCH PROCEEDING,
CONSENTS AND IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS
OF THE CITY OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW
YORK, OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF
NEW YORK, STATE OF NEW YORK, AND IRREVOCABLY AGREES THAT ALL CLAIMS WITH
RESPECT TO SUCH PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR
FEDERAL COURT. THE COMPANY IRREVOCABLY WAIVES TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH PROCEEDING AND ANY OBJECTION TO SUCH PROCEEDING WHETHER ON THE GROUNDS OF
VENUE, RESIDENCE OR DOMICILE. The Company irrevocably appoints CT Corporation
System at its office at 111 8th Avenue, New York, U.S.A., as its authorized
agent for service of process to serve in such capacity so long as any of the
Convertible Notes are outstanding. If for any reason such person shall cease to
be such agent for service of process, the Company shall forthwith appoint a new
agent for service of process in the State of New York and deliver to the Trustee
a copy of the new agent's acceptance of that appointment within 30 days of such
appointment. The Company agrees that service of process upon such agent and
written notice of such service mailed or delivered to the Company shall to the
extent permitted by law be deemed in every respect effective service of process
upon the Company in any Proceeding. Nothing herein shall affect the right to
serve process in any other manner permitted by law.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date or Stated Maturity of any Convertible Note or the last day of the
Conversion Period shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Convertible Notes) payment of interest or
principal (and premium, if any) or conversion of the Convertible Notes need not
be made on such date, but may be made on the next succeeding Business Day (and,
in the case of the last day of the Conversion Period, the next succeeding
Business Day) with the same force and effect as if made on the Interest Payment
Date, Redemption Date or Repayment Date, at the Stated Maturity or on such last
day of the Conversion Period, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or last day of the Conversion Period, as the case may be.
SECTION 113. Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
CONVERTIBLE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
15
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Convertible Notes, the Conversion Notice, the Holder's Redemption
Notice, the Holder's Repayment Acceptance Notice, the Cash Settlement Notice and
the Trustee's certificates of authentication shall be in substantially the forms
set forth in this Article Two, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Convertible Notes, as evidenced by
their execution of the Convertible Notes.
The Convertible Notes shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Convertible Notes may be listed, all as determined by the officers
executing such Convertible Notes, as evidenced by their execution of such
Convertible Notes.
The Trustee's certificate of authentication shall be in substantially the
form set forth in Section 204.
Convertible Notes offered and sold as part of their initial distribution in
reliance on Regulation S under the Securities Act shall be represented by
beneficial interests in a global certificate in definitive, fully registered
form, substantially in the form set forth herein, with such applicable legends
as are provided for in Section 202. Such global certificate, duly executed and
authenticated by the Trustee as herein provided, shall be deposited with the
Trustee, as custodian for, and registered in the name of, Cede & Co. (or its
successor nominee), as nominee for The Depository Trust Company ("DTC"), for the
accounts of Euroclear and Clearstream. Such global certificate shall be referred
to herein as the "Reg S Global Note". The aggregate principal amount of the Reg
S Global Note may from time to time be increased or decreased by adjustments
made on the records of the Trustee, at its Corporate Trust Office as custodian
for DTC for such Global Note, as provided in Section 305.
Convertible Notes offered and sold as part of their initial distribution in
reliance on Rule 144A under the Securities Act ("Restricted Securities") to
Persons who are "qualified institutional buyers", as defined in Rule 144A under
the Securities Act ("QIBs"), shall be represented by beneficial interests in a
global certificate (the "Restricted Global Note") in definitive, fully
registered form, substantially in the form set forth herein, with such
applicable legends as are provided for in Section 202. The Restricted Global
Note, duly executed by the Company and authenticated by the Trustee as
hereinafter provided, shall be deposited with the Trustee, at its Corporate
Trust Office, as custodian for DTC and registered in the name of Cede & Co. (or
its successor nominee), as nominee for DTC. The aggregate principal amount of
the Restricted Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC for such
Global Note, as provided in Section 305.
16
For all purposes of this Indenture, the term "Restricted Securities" shall
include all Convertible Notes issued upon registration of transfer of, exchange
for or in lieu of Restricted Securities except as otherwise provided in Section
305.
SECTION 202. Form of Face of Security.
(a) Form of Face of Restricted Global Notes.
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE OR ANY AGENT
THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES. THIS GLOBAL NOTE
MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS GLOBAL NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES SET FORTH IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS
CERTIFICATE OR ANY PORTION HEREOF IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (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 OTHER THAN
DTC OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
THE RESTRICTED SECURITIES EVIDENCED HEREBY AND THE ORDINARY SHARES OF ST
ASSEMBLY TEST SERVICES LTD (THE "COMPANY") ISSUABLE UPON CONVERSION THEREOF HAVE
NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (1) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT IS (A) A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR A
PURCHASER THAT THE SELLER AND ANY PERSON ACTING ON THE SELLER'S BEHALF
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE PURCHASING
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, AND (B) AWARE THAT THE
OFFER, SALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(2) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER
THE SECURITIES ACT TO A PERSON OTHER THAN A U.S. PERSON (AS
17
DEFINED IN REGULATION S), (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, OR (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS. EACH HOLDER AND BENEFICIAL OWNER,
BY ITS ACCEPTANCE OF THE RESTRICTED SECURITIES, REPRESENTS THAT IT UNDERSTANDS
AND AGREES FOR THE BENEFIT OF THE COMPANY TO THE FOREGOING RESTRICTIONS AND
THAT NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION
PROVIDED BY RULE 144 FOR RESALES OF THE RESTRICTED SECURITIES AND THE
ORDINARY SHARES.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
RESTRICTED SECURITIES EVIDENCED HEREBY PURSUANT TO CLAUSE (3) ABOVE, OR THE
LATER OF THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE
RESTRICTED SECURITIES EVIDENCED HEREBY OR AT SUCH TIME THE RESTRICTED SECURITIES
ARE NO LONGER "RESTRICTED SECURITIES" UNDER THE SECURITIES ACT.
THE SECURITIES HAVE BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
UNITED STATES FEDERAL INCOME TAX PURPOSES. UPON WRITTEN REQUEST, A
REPRESENTATIVE OF THE COMPANY WILL, BEGINNING NO LATER THAN 10 DAYS AFTER THE
CLOSING DATE, PROMPTLY INFORM A HOLDER OF THE AMOUNT OF OID AS WELL AS THE ISSUE
PRICE, THE ISSUE DATE AND THE YIELD TO MATURITY OF THE SECURITIES. HOLDERS MAY
CONTACT A REPRESENTATIVE OF THE COMPANY (INITIALLY THE CHIEF FINANCIAL OFFICER)
AT 5 YISHUN STREET 23, SINGAPORE 768442.
18
RESTRICTED GLOBAL NOTE
ST ASSEMBLY TEST SERVICES LTD
1.75% CONVERTIBLE NOTE DUE 2007
No. US$
CUSIP No.
ISIN No.
Common Code
ST Assembly Test Services Ltd, a corporation duly organized and existing
under the laws of the Republic of Singapore (herein called the "Company", which
term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to , or
registered assigns, 117.665% of the principal sum of
on March 18, 2007, and to pay interest thereon in arrears
from March 18, 2002, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for on the basis of a 360-day year of
twelve 30-day months, semi-annually on September 18 and March 18 in each year,
commencing September 18, 2002 at the rate of 1.75% per annum, until the
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Convertible
Note (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be March 3 or
September 3 of each year (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Convertible Note (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 Convertible Notes not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Convertible Notes may
be listed, and upon such notice as may be required by such exchange, all as more
fully provided in such Indenture. Payment of the principal of (and premium, if
any) and interest on this Convertible Note will be made at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, The City
of New York or at such other office or agency of the Company as may be
maintained for such 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 (i) by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register or (ii) by
transfer to an account maintained by the payee located in the United States.
The statements set forth in the legends set forth above are an integral
part of the terms of this Global Note and by acceptance hereof each holder of
this Global Note agrees to be subject to and bound by the terms and provisions
set forth in such legends.
19
Reference is hereby made to the further provisions of this Convertible Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Convertible
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
ST ASSEMBLY TEST SERVICES LTD
By:
------------------------------------------------
Name:
Title:
Certificate of Authentication
This is one of the 1.75% Convertible Notes Due 2007 of ST Assembly Test
Services Ltd referred to in the within-mentioned Indenture.
Dated:
The Bank of New York
as Trustee
By:
------------------------------------------------
Authorized Signatory
20
(b) Form of Face of Reg S Global Notes.
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE OR ANY AGENT
THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES. THIS GLOBAL NOTE
MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS GLOBAL NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES SET FORTH IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS
CERTIFICATE OR ANY PORTION HEREOF IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (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 OTHER THAN
DTC OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
NONE OF THE CONVERTIBLE NOTES IN RESPECT OF WHICH THIS CERTIFICATE IS
ISSUED NOR THE ORDINARY SHARES OF THE COMPANY ISSUABLE UPON CONVERSION THEREOF
HAVE BEEN OR WILL BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR WITH ANY REGULATORY AUTHORITY OF ANY STATE
OR OTHER JURISDICTION OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD OR
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR, THE ACCOUNT
OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE
LAWS. TERMS USED ABOVE HAVE THE MEANING GIVEN TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.
THE CONVERTIBLE NOTES HAVE BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID")
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. UPON WRITTEN REQUEST, A
REPRESENTATIVE OF THE COMPANY WILL, BEGINNING NO LATER THAN 10 DAYS AFTER THE
CLOSING DATE, PROMPTLY INFORM A HOLDER OF THE AMOUNT OF OID AS WELL AS THE ISSUE
PRICE, THE ISSUE DATE AND THE YIELD TO MATURITY OF THE CONVERTIBLE NOTES.
HOLDERS MAY CONTACT A REPRESENTATIVE OF THE COMPANY (INITIALLY THE CHIEF
FINANCIAL OFFICER) AT 5 YISHUN STREET 23, SINGAPORE 768442.
21
REG S GLOBAL NOTE
ST ASSEMBLY TEST SERVICES LTD
1.75% CONVERTIBLE NOTE DUE 2007
No. US$
CUSIP No.
ISIN No.
Common Code
ST Assembly Test Services Ltd, a corporation duly organized and existing
under the laws of the Republic of Singapore (herein called the "Company", which
term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to , or
registered assigns, 117.665% of the principal sum of
on March 18, 2007, and to pay
interest thereon in arrears from March 18, 2002, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for on
the basis of a 360-day year of twelve 30-day months, semi-annually on September
18 and March 18 in each year, commencing September 18, 2002 at the rate of 1.75%
per annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Convertible Note (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be March 3 or September 3 of each year (whether or not a Business Day), as
the case may be, immediately preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Convertible Note (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 Convertible Notes not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Convertible Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in such Indenture. Payment
of the principal of (and premium, if any) and interest on this Convertible Note
will be made at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York or at such other office or
agency of the Company as may be maintained for such 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 (i) by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Security Register or (ii) by transfer to an account maintained by the payee
located in the United States.
The statements set forth in the legends set forth above are an integral
part of the terms of this Global Note and by acceptance hereof each holder of
this Global Note agrees to be subject to and bound by the terms and provisions
set forth in such legends.
22
Reference is hereby made to the further provisions of this Convertible Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Convertible
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
ST ASSEMBLY TEST SERVICES LTD
By:
------------------------------------------------
Name:
Title:
Certificate of Authentication
This is one of the 1.75% Convertible Notes Due 2007 of ST ASSEMBLY TEST
SERVICES LTD referred to in the within-mentioned Indenture.
Dated:
The Bank of New York
as Trustee
By:
------------------------------------------------
Authorized Signatory
23
SECTION 203. Form of Reverse of Security.
This Convertible Note is one of a duly authorized issue of Convertible
Notes of the Company designated as its 1.75% Convertible Note Due 2007 (herein
called the "Convertible Notes"), unlimited in principal amount, to be issued
under an Indenture, dated as of March 18, 2002 (herein called the "Indenture"),
between the Company and The Bank of New York, as Trustee (herein called the
"Trustee"), which term includes any successor trustee under the Indenture), to
which the Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Convertible Notes and of the terms upon which the Convertible Notes are, and are
to be, authenticated and delivered.
This Convertible Note is redeemable at the option of the Company, as a
whole but not in part, on any date at a Redemption Price equal to the Accreted
Value, plus any accrued and unpaid interest to the Redemption Date, if the
Company determines that, as a result of any change in or amendment to the laws
or any regulations or rulings promulgated thereunder of Singapore or any
official or judicial authority thereof or therein having power to tax, or any
change in the general application or official or judicial interpretation of such
laws, regulations or rulings, or any change in the official application or
interpretation of, or any execution or amendment to, any treaty or treaties
affecting taxation to which Singapore is a party, which change, execution or
amendment becomes effective on or after the original issue date of the
Convertible Notes, the Company has been or shall be required to pay Additional
Amounts with respect to the Convertible Notes.
This Convertible Note is redeemable at the option of the Company, in whole
or in part, at any time on or after March 18, 2004, at a Redemption Price equal
to the Accreted Value, plus any accrued and unpaid interest to the Redemption
Date; provided, however, that no such redemption may be made unless the Closing
Price per Ordinary Share on the Singapore Exchange (translated into U.S. dollars
at the Prevailing Exchange Rate on such Trading Day) or the ADSs on the Nasdaq
National Market for any 20 Trading Days in a 30 consecutive Trading Day period
ending not more than five days prior to the date on which notice of such
redemption is given, is at least 125% of the Share Conversion Price (translated
into U.S. dollars at the Fixed Exchange Rate) or of the Share Conversion Price
per ADS (translated into U.S. dollars at the Fixed Exchange Rate and taking into
account the current 10:1 Ordinary Share-to-ADS ratio), in each case as adjusted
through, and effective on, such notice date.
Notwithstanding the foregoing, the Company may redeem all of the
Outstanding Convertible Notes, including this Convertible Note, at a Redemption
Price equal to the Accreted Value, plus any accrued and unpaid interest to the
Redemption Date if at any time the aggregate principal amount of the Convertible
Notes Outstanding is less than 5% of the aggregate principal amount of the
Convertible Notes issued pursuant to the Indenture.
This Convertible Note, or a portion thereof equal to US$1,000 or any
integral multiple thereof, may be redeemed at the option of the Holder hereof,
unless notice of redemption of all or any portion this Convertible Note shall
have been given by the Company on or prior to the date of deposit of a demand of
redemption by the Holder hereof under this paragraph, on March 18, 2005 at a
Redemption Price equal to 110.081% of the principal amount
24
being redeemed, plus accrued and unpaid interest to the Redemption Date by
completing, signing and depositing at the specified office of the Paying Agent a
demand of redemption not less than 60 or more than 75 days prior to March 18,
2005.
This Convertible Note, or a portion thereof equal to US$1,000 or any
integral multiple thereof, is subject to repayment by the Company at the option
of the Holder hereof upon the occurrence of certain Repayment Events described
in the Indenture (including events relating to a Change of Control of the
Company or a Delisting of the Ordinary Shares), at a Repayment Price equal to
the Accreted Value, plus any accrued and unpaid interest to the Repayment Date.
In order to be repaid at the option of the Holder, this Convertible Note, with
the "Repayment Acceptance Notice" form duly completed by the Holder hereof (or
the Holder's attorney duly authorized in writing), must be received by the
Company during normal business hours at its office or agency maintained for that
purpose in the Borough of Manhattan, The City of New York or Singapore, not
later than the date specified by the Company in its notice of the Repayment
Event in accordance with Section 1202 of the Indenture. Exercise of such option
by the Holder of this Convertible Note shall be irrevocable unless waived by the
Company.
In the case of any redemption or repayment of Convertible Notes, interest
installments whose Stated Maturity is on or prior to the Redemption Date or
Repayment Date will be payable to the Holders of such Convertible Notes, or one
or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Date referred to on the face hereof, as provided in
Section 1107 and Section 1205 of the Indenture. Convertible Notes (or portions
thereof) for whose redemption or repayment provision is made in accordance with
the Indenture shall cease to bear interest from and after the Redemption Date or
Repayment Date (as applicable).
This Convertible Note is convertible into Ordinary Shares of the Company
or, subject to the limitations set forth below, ADSs at any time on or after
April 17, 2002 and before the close of business on the seventh day preceding the
earlier of March 18, 2007 and the Redemption Date fixed for any early
redemption, at the Share Conversion Price then in effect; provided, however,
that, if this Convertible Note is called for redemption pursuant to Section 1101
of the Indenture, such conversion right shall terminate at the close of business
on the seventh day preceding the Redemption Date for this Convertible Note
(unless the Company shall default in making the redemption payment when due, in
which case the conversion right shall terminate at the close of business on the
date such default is cured and such Convertible Note is redeemed). A Holder may
convert a portion of this Convertible Note equal to US$1,000 or any integral
multiple thereof.
The number of Ordinary Shares issuable upon conversion of this Convertible
Note (or a portion hereof equal to US$1,000 or any integral multiple thereof)
shall be determined by dividing the principal amount (translated into Singapore
dollars at the Fixed Exchange Rate specified in the Indenture) of this
Convertible Note or portion hereof surrendered for conversion by the Share
Conversion Price per Ordinary Share in effect on the Conversion Date. The
initial Share Conversion Price is S$3.408 per Ordinary Share, subject to
adjustment for certain anti-dilution events as provided in Section 1405 of the
Indenture. The Ordinary Shares issuable upon conversion will be duly authorized,
validly issued, fully paid and nonassessable and will rank equally with all
other Ordinary Shares.
25
No Holder will be entitled to receive physical share certificates in
respect of the Ordinary Shares arising from the conversion of the Convertible
Notes. Delivery of the Ordinary Shares shall be made by crediting such Ordinary
Shares to a Holder's securities account or the securities account of a Holder's
depository agent with CDP. The Company shall allot and issue the Ordinary Shares
arising from the conversion of the Convertible Notes in accordance with
instructions as set out in the Conversion Notice and shall deliver to CDP the
share certificate(s) relating to such Ordinary Shares in the name of CDP for the
credit of the Holder's securities account or the securities account of Holder's
depository agent as specified in the Conversion Notice as soon as practicable,
and in any event not later than 14 days, after the Conversion Date, subject to
all applicable laws and in accordance with the Indenture. The Company will
register the Person or Persons designated for the purpose in the Conversion
Notice as Holder(s) of the relevant number of Ordinary Shares in its share
register. The Person or Persons specified for that purpose will become the
Holder of record of the number of Ordinary Shares issuable upon conversion with
effect from the date he is or they are registered as such in the Company's share
register (the "Registration Date").
Subject to the limitations set out in the Indenture and the ability to
provide the representations and agreements set out in the Conversion Notice, the
form of which set forth in Section 206 of the Indenture, a Holder may elect to
receive Ordinary Shares upon conversion in the form of ADSs. In such event, the
Company agrees to, on behalf of such Holder, as soon as practicable, deliver to
and deposit with the ADS Depositary or its custodian, in accordance with the
terms of the ADS Deposit Agreement, such number of Ordinary Shares as the Holder
would have received upon conversion had he not elected to receive such Ordinary
Shares in the form of ADSs. Such Ordinary Shares will be registered in the name
of the ADS Depositary or its nominee. Subject to compliance with the terms of
the ADS Deposit Agreement, including payment of the fees and expenses of the ADS
Depositary by such Holder, the ADS Depositary will issue such number of ADSs
representing the deposited Ordinary Shares to such Holder based on the
applicable Ordinary Share-to-ADS ratio then in effect.
All calculations relating to redemption and conversion, including
adjustment of the Share Conversion Price, will be made to the nearest 0.01 of an
Ordinary Share or other property or the nearest cent. However, fractions of
Ordinary Shares will not be issued on conversion or deposited with the ADS
Depositary, and no cash adjustments will be made in respect of any such
fraction. Under the ADS Deposit Agreement, the ADS Depositary will not issue
fractions of ADSs.
To convert this Convertible Note, a Holder must, during the normal business
hours at the office of the Conversion Agent, in the Borough of Manhattan, The
City of New York, (a) complete and manually sign a "Conversion Notice"
substantially in the form included herein, including an election on whether to
receive Ordinary Shares or ADSs upon conversion, and deliver such notice to the
Conversion Agent, and (b) surrender this Convertible Note to the Conversion
Agent duly endorsed or assigned to the Company or in blank (such date of receipt
by the Conversion Agent, the "Conversion Notice Date); provided, that
appropriate endorsements and transfer documents, if any, required by the
Registrar or the Conversion Agent must be furnished and any required transfer or
similar tax and other required payments must be paid.
26
The Indenture contains various provisions concerning circumstances where
the record date set for a dividend on the Ordinary Shares or an Adjustment
Effective Date for the adjustment of the Share Conversion Price falls between
the Conversion Date and the Registration Date.
Notwithstanding the conversion rights referred to above, at any time when a
Conversion Notice has been properly deposited with the Conversion Agent, the
Company shall have the option to pay to the relevant Holder an amount of cash in
US dollars equal to the Cash Settlement Amount in order to satisfy such
conversion right in full. The Company is required to provide notice of its
exercise of the cash settlement option in the form provided in the Indenture
(the "Cash Settlement Notice") to the relevant Holder as soon as practicable but
no later than the fifth Business Day following the Conversion Notice Date (the
"Cash Settlement Notice Date"). The Cash Settlement Notice must specify the
number of Ordinary Shares or ADSs in respect of which the Company will make such
a cash payment. The Company will pay the Cash Settlement Amount not less than
five Trading Days but no later than the tenth Trading Day following the Cash
Settlement Notice Date.
No payment or adjustment will be made for accrued and unpaid interest on
this Convertible Note when delivered for conversion. The delivery of the fixed
number of Ordinary Shares or ADSs upon conversion will be deemed to satisfy the
Company's obligation to apply the principal amount and any accrued and unpaid
premium and interest on this Convertible Note from the Interest Payment Date
immediately preceding the Conversion Date to the Conversion Date.
If the Holder hereof surrenders this Convertible Note for conversion after
the close of business on the Regular Record Date for the payment of an
installment of interest and before the opening of business on the related
Interest Payment Date, then, notwithstanding such conversion, the interest
payable on such Interest Payment Date shall be paid to the Holder of this
Convertible Note on such Regular Record Date. In such event, unless this
Convertible Note has been called for redemption on a Redemption Date prior to
that Interest Payment Date, this Convertible Note, when surrendered for
conversion, must be accompanied by delivery of a check or draft payable to the
Company in an amount equal to the interest payable on such Interest Payment Date
on the portion so converted. If such payment does not accompany this Convertible
Note, this Convertible Note shall not be converted.
A Conversion Notice once given will be irrevocable and may not be withdrawn
without the prior written consent of the Company. The Company or the Conversion
Agent on its behalf may reject any incomplete or incorrect Conversion Notice.
All costs and expenses incurred by an incomplete or incorrect Conversion Notice
will be for the account of the relevant Holder.
As conditions precedent to conversion, the Holder must pay to the
Conversion Agent any taxes and capital, stamp, issue and registration duties
arising on conversion, other than any taxes or capital or stamp duties payable
in Singapore in respect of the allotment and issuance of the Ordinary Shares and
listing of the Ordinary Shares upon conversion. In addition, the Holder will be
required to pay any tax or duty relating to any disposal or any deemed disposal
relating to conversion and transfer involved in the issue or delivery of the
Ordinary Shares upon
27
conversion in a name other than such Holder's. The Company will pay all other
expenses arising on the issue, allotment and delivery of the Ordinary Shares
issuable upon conversion. The Holder will be required to pay applicable fees and
expenses of the Depositary upon conversion to ADSs.
In the event of conversion or repayment of this Convertible Note in part
only, a new Convertible Note or Convertible Notes for the unpaid portion hereof
shall be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of all
the Convertible Notes may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Convertible Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Convertible Notes at the time
Outstanding, on behalf of the Holders of all the Convertible Notes, 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 Convertible Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Convertible Note and of any Convertible Note 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 Convertible Note.
As provided in and subject to the provisions of the Indenture, the Holder
of this Convertible Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Convertible Notes, the Holders of not less than 25% in principal amount of the
Convertible Notes at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee indemnity, and the Trustee shall not have received from
the Holders of a majority in principal amount of Convertible Notes at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Convertible Note for the enforcement of any payment of
principal hereof or interest hereon on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of this Convertible
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Convertible Note at the times, place, and rate, and in the coin or
currency, herein prescribed.
28
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Convertible Note is registrable in the Security
Register, upon surrender of this Convertible Note for registration of transfer
at the office or agency of the Company in New York and Singapore, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Convertible
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Convertible Notes are issuable only in registered form without coupons
in denominations of US$1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Convertible
Notes are exchangeable for a like aggregate principal amount of Convertible
Notes of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Convertible Note 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 Convertible Note is registered as the
owner hereof for all purposes, whether or not this Convertible Note be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All capitalized terms used but not defined in this Convertible Note shall
have the meanings assigned to them in the Indenture.
29
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES
The following exchanges of a part of this Global Note for Definitive Notes
have been made:
Principal Amount of
Amount of decrease Amount of increase in this Global Note Signature of
in Principal Amount Principal Amount of following such authorized officer
Date of Exchange of this Global Note this Global Note decrease (or increase) of Trustee
- ---------------- ------------------- --------------------- ---------------------- ------------------
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the 1.75% Convertible Notes Due 2007 of ST Assembly Test
Services Ltd referred to in the within-mentioned Indenture.
Dated:
---------------
The Bank of New York, as Trustee
By
-----------------------------
Authorized Signatory
SECTION 205. Form of Holder's Redemption Notice
HOLDER'S REDEMPTION NOTICE
1. Pursuant to Section 1101(c) of the Indenture, the undersigned hereby
elects to have this Convertible Note, or any portion of the principal amount
hereof (which is US$1,000 or any integral multiple thereof, provided that the
unredeemed portion of such principal amount is US$1,000 or any integral multiple
thereof) redeemed by the Company.
2. The undersigned hereby directs the Paying Agent or the Company to pay it
or ____________ an amount in cash equal to the Redemption Price as provided in
the Indenture.
[set forth payment instructions]
Dated:
-----------------------------
-----------------------------
Signature
30
Principal amount to be redeemed
(US$1,000 or any integral multiple thereof):
-------------------------
Remaining principal amount following
such redemption (US$1,000 or any integral multiple
thereof):
-------------------------
NOTICE: The signature to the foregoing Holder's Redemption Notice must
correspond to the Name as written upon the face of this Convertible Note in
every particular, without alteration or any change whatsoever.
SECTION 206. Form of Conversion Notice.
CONVERSION NOTICE
The undersigned registered Holder of the within Convertible Note hereby
irrevocably exercises the option to convert this Convertible Note (or the
portion thereof specified below) into Ordinary Shares of the Company and elects
to receive such Ordinary Shares in the form of:
[ ] Ordinary Shares, for the principal amount of the Convertible Note of
US$__________, or
[ ] ADSs, for the principal amount of the Convertible Note of
US$__________,
pursuant to the terms of the Indenture referred to in this Convertible Note, and
directs that Ordinary Shares or ADSs, as the case may be, issuable upon
conversion and any Convertible Note representing any unconverted principal
amount hereof, be issued and delivered to the registered Holder hereof unless a
different name has been provided below:
-----------------------------------------------------
(Name, Address and Taxpayer Identification Number.)
If Ordinary Shares are to be issued upon conversion of this Convertible
Note, the details of the Holder's securities account, or the securities account
of the Holder's depository agent, with The Central Depository (Pte) Limited is
as follows:
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
31
If ADSs are to be issued upon conversion of this Convertible Note, the
details of the Holder's participant account, or the participant account of the
Holder's agent, with The Depository Trust Company is as follows:
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
If less than the entire principal amount of this Convertible Note is to be
converted, specify the denomination(s) of the Convertible Note(s) to be issued
for the unconverted amount (US$1,000 or any integral multiple of US$1,000):
US$__________.
If Ordinary Shares or any portion of this Convertible Note not converted
are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto and is
delivering herewith a certificate in proper form certifying that the applicable
restrictions on transfer have been complied with.
The undersigned hereby acknowledges that fractions of Ordinary Shares will
not be issued on conversion and no cash adjustments will be made in respect of
any such fraction. The undersigned hereby agrees that, promptly after request of
the Company or the Conversion Agent, it will furnish such proof in support of
this certificate as the Company or the Conversion Agent may request.
As of the time of signing and delivery of this Conversion Notice, the
Holder hereby certifies for the benefit of the Company, the Trustee, the
Conversion Agent and the ADS Depositary that:
[check one of (a), (b) or (c) only if applicable]
[ ] (a) In the case of conversion to Ordinary Shares or ADSs by the
Holder of a beneficial interest in the Reg S Global Notes,
the undersigned represents and agrees for the benefit of the
Company, the Trustee, the Conversion Agent and the ADS
Depositary (i) that it or the Person who has a beneficial
interest in the Convertible Notes is not a U.S. Person and
is located outside the United States (within the meaning of
Regulation S under the Securities Act) and that it or the
Person who has a beneficial interest in the Convertible Note
purchased such Convertible Note in an offshore transaction
made in accordance with Rule 903 or Rule 904 of Regulation
S, or (ii) if it or the Person who has a beneficial interest
in the Convertible Notes is a U.S. Person, that the relevant
Convertible Notes and the Ordinary Shares or ADSs issued
upon conversion
32
are not subject to the registration requirements of the
Securities Act.
[ ] (b) In the case of conversion to Ordinary Shares by the Holder of the
beneficial interest in the Restricted Global Notes, the
undersigned represents and agrees for the benefit of the Company,
the Trustee, the Conversion Agent and the ADS Depositary that it
or the Person who has a beneficial interest in the Convertible
Notes (I) will not offer or sell, pledge or otherwise transfer
any of the Ordinary Shares to be delivered upon conversion except
(i) pursuant to Rule 144A under the Securities Act to a Person it
or the beneficial owner reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A under the
Securities Act, purchasing of its own account or for the account
of a qualified institutional buyer in a transaction meeting the
requirements of Rule 144A, (ii) in an offshore transaction in
accordance with Regulation S under the Securities Act, (iii)
pursuant to an effective registration statement under the
Securities Act or (iv) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 thereunder (if
available) and (II) will not deposit the Ordinary Shares received
upon conversion with the ADS Depositary in exchange for ADSs for
so long as the Ordinary Shares are "restricted securities" within
the meaning of Rule 144 under the Securities Act.
[ ] (c) In the case of conversion to ADSs by the Holder of a beneficial
interest in the Restricted Global Notes, the undersigned
represents and agrees for the benefit of the Company, the
Trustee, the Conversion Agent and the ADS Depositary that it or
the person who has a beneficial interest in the Convertible Notes
has satisfied the holding period for restricted securities and
other criteria provided by Rule 144 under the Securities Act such
that none of the Ordinary Shares deposited with the ADS
Depositary in exchange for ADSs upon conversion of the Restricted
Global Notes will be "restricted securities" under the Securities
Act.
Terms used and not defined in this Conversion Notice are used with the same
meanings ascribed thereto in the Indenture pursuant to which the attached
Convertible Note is issued.
Dated:
By:
-------------------------------------
Signature of Registered Holder
For Conversion Agent's Use only:
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(A) Conversion Date: _______________
(B) Conversion Price on Conversion Date: ________________
(C) Number of Ordinary Shares or ADSs (as applicable) issuable:________
SECTION 207. Form of Holder's Repayment Acceptance Notice.
HOLDER'S REPAYMENT ACCEPTANCE NOTICE
1. Pursuant to Section 1201 of the Indenture, the undersigned hereby elects
to have this Convertible Note, or any portion of the principal amount hereof
(which is US$1,000 or any integral multiple thereof, provided that the portion
not so repurchased of such principal amount is US$1,000 or any integral multiple
thereof) repurchased by the Company.
2. The undersigned hereby directs the Trustee or the Company to pay it or
____________ an amount in cash equal to the Redemption Price as provided in the
Indenture.
[set forth payment instructions]
Dated;
-------------------------------------
-------------------------------------
Signature
Principal amount to be repurchased
(US$1,000 or any integral multiple thereof):
-----------------------------
Remaining principal amount following
such repayment (US$1,000 or any integral multiple
thereof): -----------------------------
SECTION 208. Form of Cash Settlement Notice.
CASH SETTLEMENT NOTICE
Pursuant to Section 1404 of the Indenture, we hereby acknowledge receipt of
your Conversion Notice and notify you of our exercise of our cash settlement
option with respect to your conversion. The number of Ordinary Shares or ADSs
which you are entitled to receive and in respect of which we shall provide you
with the Cash Settlement Amount in order to satisfy such conversion right is set
forth below. Please use the form below to provide us with your payment
instructions if you have not done so already.
Dated:
---------------------------------------
34
---------------------------------------
Signature
Number of Ordinary Shares:
--------------------------
Number of ADSs:
--------------------------
The undersigned hereby directs the Trustee or the Company to pay it or
____________ the Cash Settlement Amount as provided in the Indenture.
[set forth payment instructions]
Dated:
----------------------------------------
----------------------------------------
Signature
ARTICLE THREE
The Convertible Notes
SECTION 301. Title and Terms.
US$175,000,000 aggregate principal amount of Convertible Notes was issued,
authenticated and delivered under this Indenture as of the date hereof. An
additional US$25,000,000 aggregate principal amount of Convertible Notes may be
issued under this Indenture on or before April 17, 2002. In addition, the
Company shall be permitted to issue additional notes that are fully fungible
with the Convertible Notes including in respect of their principal amount,
interest rate, redemption dates and terms and conditions of redemption and
conversion without the consent of the Holders. In the event that the Company
does so issue such additional notes, provided that the terms and conditions of
such additional notes so allow, the Company may consolidate all such additional
notes with the Convertible Notes, for purposes of redemptions and conversions,
so that redemptions and conversions would be made without any distinction in
respect of the Convertible Notes and all such additional Convertible Notes
subsequently issued. In the event of such consolidation, the Holders and the
holders of such additional notes would be deemed to be, and treated as though
they were, members of a single class.
The Convertible Notes shall be known and designated as the "1.75%
Convertible Notes Due 2007" of the Company. Their Stated Maturity shall be March
18, 2007, and they shall bear interest at the rate of 1.75% per annum, from
March 18, 2002 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, as the case may be, payable semi-annually on
March 18 and September 18 of each year, commencing September 18, 2002 until the
principal thereof is paid or made available for payment.
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The principal of (and premium, if any) and interest on the Convertible
Notes shall be payable at the office or agency of the Company in The Borough of
Manhattan, The City of New York, maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Convertible Notes shall be redeemable or may be repurchased as provided
in Article Eleven and Article Twelve, respectively.
The Convertible Notes shall be convertible as provided in Article Fourteen.
SECTION 302. Denominations.
The Convertible Notes shall be issuable only in registered form and only in
denominations of US$1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Convertible Notes shall be executed on behalf of the Company by its
Chairman of the Board, its Deputy Chairman of the Board, its Chief Executive
Officer or its Chief Financial Officer. The signature of any of these officers
on the Convertible Notes may be manual or facsimile.
Convertible Notes bearing the manual or facsimile signatures of individuals
who were at the time of execution proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Convertible
Notes or did not hold such offices at the date of such Convertible Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Convertible Notes executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Convertible Note shall be dated the date of its authentication.
No Convertible Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Convertible Note a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Convertible Note shall be conclusive evidence, and the only
evidence, that such Convertible Note has been duly authenticated and delivered
thereunder.
SECTION 304. Temporary Convertible Notes.
Pending the preparation of definitive Convertible Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary
36
Convertible Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Convertible Notes in lieu of which they are issued and with
such appropriate insertion, omissions, substitutions and other variations as the
officers executing such Convertible Notes may determine, as evidenced by their
execution of such Convertible Notes.
If temporary Convertible Notes are issued, the Company will cause
definitive Convertible Notes to be prepared without unreasonable delay. After
the preparation of definitive Convertible Notes, the temporary Convertible Notes
shall be exchangeable for definitive Convertible Notes upon surrender of the
temporary Convertible Notes at any office or agency of the Company designated
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Convertible Notes the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Convertible Notes of authorized
denominations. Until so exchanged the temporary Convertible Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Convertible Notes.
SECTION 305. Registration, Registration of Transfer and Exchange.
(a) General
The Company shall cause to be kept at an office of the Trustee in Singapore
a principal register (the "Principal Register") and may also keep a branch
register (the "Branch Register") in any other office or agency designated
pursuant to Section 1002, such Principal Register and Branch Register being
herein sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Convertible Notes and of transfers of
Convertible Notes. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Convertible Notes and transfers of Convertible Notes as
herein provided.
The Security Register shall contain the names and addresses of Holders of
Convertible Notes and the principal amounts of each such Convertible Note. The
Security Register shall be open to inspection by Holders and any holders of
Ordinary Shares.
Within 7 days after the Principal Register in Singapore is kept at a place
other than the registered office of the Company, the Company shall lodge with
the Registrar of Companies and Businesses in Singapore notice of the place where
the Principal Register is kept. The Company shall also within 7 days lodge with
the Registrar of Companies and Businesses in Singapore notice of any change in
the place in Singapore at which the Principal Register is kept. The Company
shall lodge with the Registrar of Companies and Businesses in Singapore notice
of the opening of any Branch Register, any change in its situation, and of any
discontinuance, within one month of the opening of the Branch Register or of the
change or discontinuance, as the case may be.
Upon surrender for registration of transfer of any Convertible Note at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated
37
transferee or transferees, one or more new Convertible Notes of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Convertible Notes may be exchanged for other
Convertible Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Convertible Notes to be exchanged at
such office or agency. Whenever any Convertible Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Convertible Notes which the Holder making the exchange is entitled
to receive.
Upon the exchange of a Global Note for fully registered Convertible Notes
in definitive form, such Global Note shall be cancelled by the Trustee.
Convertible Notes issued in exchange for a Global Note pursuant to this
Indenture shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants, shall instruct the Trustee. The Trustee shall deliver such
Convertible Notes to the Persons in whose names such Convertible Notes are so
registered.
All Convertible Notes issued upon any registration of transfer or exchange
of Convertible Notes shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Convertible Notes surrendered upon such registration of transfer or exchange.
Every Convertible Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Convertible Notes, but the Company may require payment by the Holder
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Convertible Notes, other than exchanges pursuant to Section 304, 1108 or 1402
not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Convertible Note during a period beginning at the opening of
business 15 days before the day of the mailing of a Holder's Redemption Notice
of Convertible Notes selected for redemption under Section 1105 or a Repayment
Acceptance Notice of Convertible Notes under Section 1202 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer
of or exchange any Convertible Note so selected for redemption in whole or in
part, except the unredeemed portion of any Convertible Note being redeemed in
part.
Notwithstanding the foregoing, any Global Note shall be exchangeable
pursuant to this Section 305 for Convertible Notes registered in the names of
Persons other than the Depositary or its nominee only if (i) such Depositary
notified the Company that it is unwilling or unable to continue as Depositary or
if at any time such Depositary ceases to be a clearing agency registered under
the Exchange Act or if at any time it is no longer eligible to act as such, and
the
38
Company is unable to locate a qualified successor within 90 days of receiving
notice or becoming aware of such ineligibility on the part of the Depositary, or
(ii) there shall have occurred and be continuing an Event of Default with
respect to the Convertible Notes. Any Global Note that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Convertible Notes registered
in such names as the Depositary shall direct.
Notwithstanding any other provision in this Indenture, a Global Note may
not be transferred except as a whole by the Depositary to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
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 Convertible Note 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 substantial compliance as to form with the express
requirements hereof.
(b) Restricted Securities
Restricted Securities shall be subject to the restrictions on transfer (the
"Transfer Restrictions") provided in the applicable legend(s) (the "Restrictive
Legends") required to be set forth on the face of the Restricted Global Notes
pursuant to Section 202, and each Holder of the Restricted Securities, by its
acceptance thereof, agrees to be bound by, and to comply with, the Transfer
Restrictions, in each case unless compliance with the Transfer Restrictions
shall be waived by the Company in writing delivered to the Trustee.
The Transfer Restrictions shall cease and terminate with respect to any
particular Restricted Security upon receipt by the Company of evidence
satisfactory to it (which may include an opinion of independent counsel
experienced in matters of United States federal securities law) that, as of the
date of determination, such Restricted Security (i) could be transferred by the
Holder thereof pursuant to Rule 144(k) promulgated under the Securities Act,
(ii) has been sold pursuant to an effective registration statement under the
Securities Act, or (iii) has been transferred pursuant to Rule 144 under the
Securities Act, and receipt by the Trustee of an Officer's Certificate
certifying that the Company has received such evidence and that the Transfer
Restrictions have ceased and terminated with respect to such Convertible Note.
All references in the preceding sentence to any Regulation, Rule or provision
thereof shall be deemed also to refer to any successor provisions thereof. In
addition, the Company may terminate the Transfer Restrictions with respect to
any particular Restricted Security in such other circumstances as it determines
are appropriate for this purpose and shall deliver to the Trustee and an
Officer's Certificate certifying that the Transfer Restrictions have ceased and
terminated with respect to such Convertible Note.
At the request of the Holder and upon the surrender of such Restricted
Security to the Trustee or Security Registrar for exchange in accordance with
the provisions of this Section 305, any Restricted Security as to which the
Transfer Restrictions shall have terminated in
39
accordance with the preceding paragraph shall be exchanged for a new Convertible
Note of like tenor and aggregate principal amount, but without the Restrictive
Legends. Any Restricted Security as to which the Restrictive Legends shall have
been removed pursuant to this paragraph (and any Convertible Notes issued upon
registration of transfer of, exchange for or in lieu of such Restricted
Security) shall thereupon cease to be "Restricted Securities" for all purposes
of this Indenture.
The Company shall notify the Trustee of the effective date of any
registration statement registering any Restricted Securities under the
Securities Act and shall ensure that any opinion of counsel received by it in
connection with the removal of any Restrictive Legends is also addressed to the
Trustee.
As used in this Section 305(b), the term "transfer" encompasses any sale,
pledge, transfer or other disposition of any Convertible Notes referred to
herein.
(c) Global Notes
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 Convertible Note for all purposes of this Indenture.
Ownership of beneficial interests in the Convertible Notes will be limited
to persons who have accounts with the Depositary ("participants") or persons who
hold interests through participants. Upon the issuance of Global Note, the
Depositary or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Note to the accounts of its participants. The accounts to be credited
will be designated by the underwriter or any dealers or agents participating in
the distribution of the Convertible Notes. Ownership of beneficial interests in
a Global Note shall be shown only on, and the transfer of such ownership
interest shall be effected only though, records maintained by the Depositary or
its nominee (with respect to interests of participants) or by any such
participant (with respect to interests of persons held by such participants on
their behalf). Payments, transfers, exchanges and other matters relating to
beneficial interests in a Global Note may be subject to various policies and
procedures adopted by the Depositary from time to time. None of the Company, the
Trustee or any of their agents shall have any responsibility or liability for
any aspect of the Depositary's or any participant's records, policies or
procedures relating to, or for payments made on account of, beneficial interests
in a Global Note or for any other aspect of the relationship between the
Depositary and its participants, or for maintaining, supervising or reviewing
any records relating to such beneficial interests.
As long as the Depositary, or its nominee, is the registered Holder of a
Global Note, the Depositary or such nominee, as the case may be, shall be
considered the sole owner and Holder of such Global Note (and of the Convertible
Notes represented thereby) for all purposes under the Indenture and the
Convertible Notes. Except in the circumstances described in this Indenture,
owners of beneficial interests in a Global Note shall not be entitled to have
such Global Note or any Convertible Notes represented thereby registered in
their names, shall not receive or be entitled to receive physical delivery of
certificated Convertible Notes in
40
exchange therefor and shall not be considered the owners or Holders of such
Global Note (or any Convertible Notes represented thereby) for any purpose under
the Indenture or the Convertible Notes. In addition, no Beneficial Owner of an
interest in a Global Note shall be able to transfer the interest except in
accordance with the Depositary's applicable procedures (in addition to those
under the Indenture referred to herein and, if applicable, those of Euroclear
and Clearstream). All payments of interest on, principal of, or Additional
Amounts on, a Global Note shall be made to the Depositary or its nominee, as the
case may be, as the Holder thereof.
Every Convertible Note authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Section, Section 304, 306, 1108, 1206 or 1402
or otherwise, shall be authenticated and delivered in the form of, and shall be,
a Global Note, unless such Convertible Note is registered in the name of a
Person other than the Depositary or a nominee thereof.
(d) Transfers or Exchange Between Global Notes
(i) Transfers or Exchange of Interests in the Restricted Global Notes
for Interests in the Reg S Global Notes. If an owner of an interest in the
Restricted Global Notes deposited with the Depository wishes to exchange
its interest in such Restricted Global Notes for an interest in the Reg S
Global Notes, or to transfer its interest in the Restricted Global Notes to
a person who wishes to take delivery of it in the form of an interest in
the Reg S Global Notes, such owner may, subject to the rules and procedures
of the Depositary, exchange or cause the exchange or transfer of such
interest for an equivalent beneficial interest in the Reg S Global Notes.
On receipt by the Security Registrar as custodian (or any Agent Member
which shall forward such instructions, orders or certificate to the
Security Registrar) of (A) written instructions given in accordance with
the Depositary's procedures from a participant directing the Security
Registrar to approve the credit of an interest in the Reg S Global Notes in
an amount equal to the interest in the Restricted Global Notes to be
exchanged or transferred, (B) a written order given in accordance with the
Depositary's procedures containing information regarding the participant's
account with the Depositary and, in the case of a transfer pursuant to and
in accordance with Regulation S under the Securities Act, Euroclear or
Clearstream account to be credited with such increase and (C) a duly
completed certificate substantially in the form of Annex A hereto (the
"Regulation S Certificate"), the Security Registrar shall instruct the
custodian to reduce the Restricted Global Notes by the aggregate principal
amount of the interest in the Restricted Global Notes to be so exchanged or
transferred and the Security Registrar shall instruct the custodian,
concurrently with such reduction, to increase the principal amount of the
interest in the Reg S Global Notes by the aggregate principal amount of the
interest in the Restricted Global Notes to be so exchanged or transferred,
and to approve the credit to the account of the person specified in such
instructions of an interest in the Reg S Global Notes equal to the
reduction in the principal amount of the Restricted Global Notes.
(ii) Transfer or Exchange of Interests in the Reg S Global Notes for
Interests in the Restricted Global Notes. If an owner of an interest in the
Reg S Global Notes deposited with the Depositary wishes to exchange its
interest in the Reg S Global Notes for an interest in the Restricted Global
Notes, or to transfer its interest in the Reg S
41
Global Notes to a person who wishes to take delivery of it in the form of
an interest in the Restricted Global Notes, such owner may, subject to the
rules and procedures of Euroclear or Clearstream and the Depositary, as the
case may be, exchange or cause the exchange or transfer or cause the
transfer of such interest for an equivalent interest in the Restricted
Global Notes. On receipt by the Security Registrar as custodian (or any
Agent Member which shall forward such instructions or certificate to the
Security Registrar) of (A) written instructions from the Depositary
directing the Security Registrar to approve the credit of an interest in
the Restricted Global Notes equal to the interest in the Reg S Global Notes
to be exchanged or transferred, such instructions to contain information
regarding the participant's account with the Depositary to be credited with
such increase, and information regarding the participant's account with the
Depositary to be debited with such decrease, and (B) a duly completed
certificate substantially in the form of Annex B hereto (the "Rule 144A
Certificate"), the Security Registrar shall instruct the custodian to
reduce the Reg S Global Notes, by the aggregate principal amount of the
interest in the Reg S Global Notes to be exchanged or transferred, and the
Security Registrar shall instruct the custodian, concurrently with such
reduction, to increase the principal amount of the Restricted Global Notes
by the aggregate principal amount of the interest in the Reg S Global
Notes, as the case may be, to be so exchanged or transferred, and to
approve the credit to the account of the person specified in such
instructions of an interest in the Restricted Global Notes equal to the
reduction in the principal amount of the Reg S Global Notes.
(iii) Transfers or Exchange of Interests in the Global Note for or in
the form of Interests in the same Global Note. No restrictions shall apply
to the transfer or exchange of (A) an interest in the Restricted Global
Notes for or in the form of an interest in the Restricted Global Notes or
(B) an interest in the Reg S Global Notes for or in the form of an interest
in the Reg S Global Notes. Such transfer or exchange shall be effected in
accordance with the rules of the Depositary, Euroclear or Clearstream, as
applicable.
(iv) Transfers or Exchange of Definitive Certificates. Subject to this
Section 305 and Section 201, the holder of any Definitive Note may transfer
or exchange its interest in the same in whole or in part (in any authorized
denomination). The Security Registrar shall register the transfer of an
Definitive Note bearing the Restrictive Legends if the requested transfer
is (1) to the Company (including its Affiliates), (2) being made by a
transferee who has provided the Agent Member with a Rule 144A Certificate
or (3) being made by a person who has provided the Agent Member with a
Regulation S Certificate. No restrictions shall apply to a transfer of an
Definitive Note not bearing the Restrictive Legends.
(v) Exchange of Interests in the Global Note for Definitive
Certificates.
(1) if (1) The Depositary notifies the Company that it is no
longer willing or able to discharge properly its responsibilities as
depositary with respect to the Global Note or ceases to be a clearing
agency registered under the Exchange Act, or if at any time it is no
longer eligible to act as such, and the Company is unable to locate a
qualified successor within 90 days of receiving notice or becoming
aware of such ineligibility on the part of the Depositary or (2) there
shall have
42
occurred and be continuing an Event of Default, the Company will cause
Definitive Notes in definitive registered form (each an "Definitive
Note") to be executed and delivered to the Security Registrar in
sufficient quantities and authenticated by the Security Registrar to
deliver to individual Holders (in an amount equal to the principal
amount of Convertible Note held by the respective Holder) in
accordance with Section 201. The Company may, at any time and in its
sole discretion, determine not to have any of the Convertible Notes
represented by one or more Global Notes and, in such event, the
Company will issue Definitive Notes in exchange for the Global Notes.
The Definitive Notes issued by the Company will be registered in such
name or names as the DTC shall instruct the Trustee, which
instructions are expected to be based on directions received by the
DTC from participants with respect to the Convertible Notes and will
not be issued in bearer form.
(2) A person having an interest in a Global Note will provide the
Security Registrar with: (1) a written order containing instructions
and such other information as the Company and the Security Registrar
may require to complete, execute and deliver such Definitive Note with
respect thereto; and (2) in the case of the Restricted Global Notes
only, fully completed, signed certification substantially to the
effect that the exchanging holder is not transferring its interest at
the time of such exchange or, in the case of a simultaneous transfer,
the Rule 144A Certificate or the Regulation S Certificate.
(3) On the receipt of the documents referred to in Section
305(d)(iv)(1) above and, if required, Section 305(d)(iv)(B) above, the
Security Registrar shall arrange for the execution and delivery to a
person having an interest in a Global Note, or on the order of such
person, the person or persons named in such order, of an Definitive
Note with respect to such Convertible Note in an authorized
denomination and duly executed and authenticated and registered in the
name or names requested by such person or persons and shall alter the
entries in the Security Register in respect of the Global Note
accordingly.
(4) Subject to this Section 305 and Section 201, (1) Definitive
Notes issued in exchange for interests in the Restricted Global Notes
(a "Restricted Definitive Note") shall bear the Restrictive Legends
and (2) Definitive Notes issued in exchange for interests in the Reg S
Global Notes (a "Reg S Definitive Note") shall not bear the
Restrictive Legends.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Convertible Notes.
If any mutilated Convertible Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Convertible Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Convertible Note and
(ii) such security or
43
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Convertible Note has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Convertible Note, a new Convertible
Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Convertible Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Convertible Note, pay such Convertible Note.
Upon the issuance of any new Convertible Note under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Convertible Note issued pursuant to this Section 306 in lieu of
any destroyed, lost or stolen Convertible Note shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Convertible Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Convertible Notes duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Convertible Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Convertible Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Convertible Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Convertible Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such overdue interest and (to the extent lawful) interest on such overdue
interest at the rate borne by the Convertible Notes (such overdue interest and
interest thereon herein collectively called "Defaulted Interest") may 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 Convertible Notes (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Convertible Note and the date of the proposed payment, and at the same time
the Company shall deposit
44
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause (1) provided. Thereupon the Company shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Company shall promptly notify the Trustee of such
Special Record Date and the Trustee shall, in the name and at the expense
of the Company, cause notice, in the form received from the Company, 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 Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Convertible Notes (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
Convertible Notes exchange on which the Convertible Notes may be listed,
and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 307, each Convertible
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Convertible Note shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Convertible Note.
In the case of any Convertible Note which is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date (other
than any Convertible Note whose Maturity is prior to such Interest Payment
Date), interest whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion, and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the Person in whose name that Convertible Note (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding sentence, in
the case of any Convertible Note which is converted, interest whose Stated
Maturity is after the date of conversion of such Convertible Note shall not be
payable.
SECTION 308. Persons Deemed Owners.
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Prior to due presentment of a Convertible Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Convertible Note is registered as the
owner of such Convertible Note for the purpose of receiving payment of principal
of (and premium, if any) and (subject to Section 307 above) interest on such
Convertible Note and for all other purposes whatsoever, whether or not such
Convertible Note be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Convertible Notes surrendered for payment, redemption, registration of
transfer or exchange or conversion shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Convertible Notes previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Convertible Notes so
delivered shall be promptly cancelled by the Trustee. No Convertible Notes shall
be authenticated in lieu of or in exchange for any Convertible Notes cancelled
as provided in this Section 309, except as expressly permitted by this
Indenture. All cancelled Convertible Notes held by the Trustee shall be disposed
of as directed by a Company Order; provided, however, that the Trustee shall not
be required to destroy cancelled Convertible Notes.
SECTION 310. Computation of Interest.
Interest on the Convertible Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Convertible Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that the Trustee
shall assume no responsibility for the accuracy of such numbers and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
SECTION 312. Certification Form.
(a) Whenever any certification is required to be given pursuant to Section
305(d)(i) of this Indenture in connection with the transfer of a beneficial
interest in the Restricted Global Notes to a person who wishes to take delivery
thereof in the from of a beneficial interest in the Reg S Global Notes, such
certification shall be provided substantially in the form of Annex A to this
Indenture, with only such changes as shall be approved in writing by the
Company.
(b) Whenever any certifications are required to be given pursuant to
Section 305(d)(ii) of this Indenture in connection with the transfer of a
beneficial interest in the Reg S Global Notes to a person who wishes to take
delivery thereof in the form of a beneficial interest in the Restricted Global
Notes, such certifications shall be provided substantially in the form of
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Annex B to this Indenture, with only such changes as shall be approved in
writing by the Company.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of
Convertible Notes herein expressly provided for), and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either:
(A) all Convertible Notes theretofore authenticated and delivered
(other than (i) Convertible Notes which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and (ii)
Convertible Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all such Convertible Notes not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of a (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Convertible Notes not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to the date
of such deposit (in the case of Convertible Notes which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to Section 401(1)(B) above, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Convertible Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All moneys deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Convertible Notes subsequently
converted shall be returned to the Company upon Company Request.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default, 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, and whether or not a notice of redemption
shall have been given with respect to all or any portion of the Convertible
Notes or all or any portion of the Convertible Notes shall have been redeemed):
(1) a default in the payment of the principal on any Convertible Notes
after the date the same is due and payable;
(2) a default for more than 30 days in the payment of the premium, if
any, or interest with respect to any Convertible Note after the date the
same is due and payable;
(3) a default by the Company in the performance or observance of any
covenant, condition or provision contained in this Indenture or in the
Convertible Note on its part to be performed or observed (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with) which default continues
for a period of 60 days following
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the date on which a written notice requiring such default to be remedied is
delivered by the Trustee to the Company or by the Holders of not less than
25% in principal amount of the Convertible Notes then Outstanding to the
Company, with a copy to the Trustee;
(4) any failure to pay when due, after expiration of any applicable
grace periods upon final maturity the principal of, or acceleration of, any
indebtedness having an aggregated principal amount of at least
US$30,000,000 (or its equivalent in any other currency) of the Company or
any Material Subsidiary if such debt is not discharged, or such
acceleration is not annulled, within 30 days following the date on which a
written notice requiring such default to be remedied is delivered by the
Trustee to the Company or by the Holders of not less than 25% in principal
amount of the Convertible Notes then Outstanding to the Company, with a
copy to the Trustee;
(5) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company or any Material Subsidiary
bankrupt or insolvent, or approving a petition seeking reorganization of
the Company or any Material Subsidiary under any applicable bankruptcy,
insolvency or reorganization law, or for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the
Company or any Subsidiary or of all or substantially all of the business or
assets, or for the winding up or liquidation of the affairs, of the Company
or any Material Subsidiary (other than such winding up or liquidation for
the purposes of effecting a reconstruction, amalgamation, merger,
consolidation or reorganization that is subject to and in accordance with
Section 801);
(6) the Company or any Material Subsidiary shall institute proceedings
to be adjudicated a voluntary bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or
consent seeking reorganization or arrangement under any applicable
bankruptcy, insolvency or reorganization law, or shall consent to the
filing of any such petition, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of it or of all or substantially all of its business or assets, or shall
make an assignment for the benefit of its creditors, or shall admit in
writing its inability to pay its debts generally as they become due, or
corporate action shall be taken by the Company or any Material Subsidiary
in furtherance of any of the aforesaid purposes (other than for the
purposes of effecting a reconstruction, amalgamation, merger, consolidation
or reorganization that is subject to or in accordance with Section 801); or
(7) proceedings shall have been initiated against the Company or any
Material Subsidiary under any applicable bankruptcy, insolvency or
reorganization law and such proceedings shall not have been discharged or
stayed within a period of 60 days.
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For the purposes of Clause (4) above, any indebtedness which is in a
currency other than U.S. dollars shall be translated into U.S. dollars at the
spot rate for the sale of U.S. dollars against the purchase of the relevant
currency quoted by any leading bank in the relevant market selected by the
Trustee on any day when the Trustee requests such a quotation for such purposes.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Convertible Notes may declare the Accreted Value (calculated on the
basis of a date of determination of March 18, 2007) of all the Convertible Notes
plus all accrued and unpaid interest to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such Accreted Value plus all accrued and unpaid
interest shall become immediately due and payable; provided, however, that if an
Event of Default results from an event specified in Section 501(5), (6) or (7),
the Accreted Value (calculated on the basis of a date of determination of March
18, 2007) plus all accrued and unpaid interest, shall become, without any
declaration or other act by the Trustee or any holder of any outstanding debt
securities, including the Convertible Notes, immediately due and payable.
At any time after such declaration of acceleration has been made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Convertible Notes, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding Convertible Notes that has
become due otherwise than by such declaration of acceleration,
(B) the principal of (and premium, if any, on) any Convertible Notes
which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by the Convertible Notes,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate borne by the Convertible Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel; and
(2) all Events of Default, other than the non-payment of the principal
of (and premium, if any, on) the Convertible Notes which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
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No such rescission shall affect any default or impair any right consequent
thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Convertible
Note when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Convertible Note at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Convertible Notes, (i) the whole amount then due and payable on
such Convertible Notes for principal (and premium, if any) and interest, (ii)
Redemption Price on the due date for repayment, and (iii) to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate borne
by the Convertible Notes, and (iv) in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Convertible Notes), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Convertible
Notes or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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SECTION 505. Trustee May Enforce Claims Without Possession of Convertible Notes.
All rights of action and claims under this Indenture or the Convertible
Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Convertible Notes or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Convertible Notes
in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article Five shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Convertible Notes and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Convertible Notes in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Convertible Notes for principal (and
premium, if any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Convertible Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Convertible Notes shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity to its satisfaction against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Convertible Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of any
Convertible Notes shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Convertible Note on the respective Stated
Maturities expressed in such Convertible Note (or, in the case of redemption, on
the Redemption Date) and to convert such Convertible Note in accordance with
Article Fourteen and to institute suit for the enforcement of any such payment
and right to convert, and such rights shall not be impaired without the consent
of such Holder. Claims in respect of payment of principal of, and interest on,
the Convertible Notes will be prescribed unless made within a period of ten
years, in the case of principal and premium, and five years, in the case of
interest, from the date when the relevant principal, premium or interest becomes
due and payable.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Convertible Notes in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
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No delay or omission of the Trustee or of any Holder of any Convertible
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
Five or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Convertible Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Convertible Notes may on behalf of the Holders of all the
Convertible Notes waive any past default hereunder and its consequences, except
a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Convertible Note, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Convertible Notes affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, including reasonable
attorney's fees and expenses, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided, that neither this Section nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Trustee or in any
54
suit for the enforcement of the right to convert any Convertible Note in
accordance with Article Fourteen.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) The Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but not to confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent actions, its own negligent failure
to act, or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the effect of
paragraph (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Convertible Notes 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; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder as and
to the extent provided by the Trust Indenture Act; provided, however, that in
the case of any default of the character specified in Section 501(4), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. The Trustee may withhold notice to the Holders of any default (except
in respect of payment on any Convertible Notes) if the corporate trust committee
or a committee of Responsible Officers of the Trustee determines in good faith
that withholding notice is in the best interests of the Holders. For the purpose
of this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its choice and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless the Trustee shall
have received from such Holders security or indemnity satisfactory to the
Trustee against any loss, liability or expense which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine in good faith and with cause 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 at
the sole cost of the Company and the Trustee shall incur no liability or
additional liability of any kind by reason of such inquiry investigation;
provided, that such investigation is conducted at location specified by the
Company during the business hours of the Company and the Company receives
prior written notice of such investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee shall have actual
knowledge thereof. For purposes of this paragraph, a Responsible Officer
shall be deemed to have actual knowledge of the contents of any notice
which has been properly addressed to such Responsible Officer and sent via
facsimile or prepaid registered mail, return receipt requested, and, in
either case, for which the sender has received confirmation of receipt;
(i) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended 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;
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(j) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture; and
(k) 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.
SECTION 604. Not Responsible for Recitals or Issuance of Convertible Notes.
The recitals contained herein and in the Convertible Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee make no representations as to the validity or sufficiency of this
Indenture or of the Convertible Notes. The Trustee shall not be accountable for
the use or application by the Company of Convertible Notes or the proceeds
thereof.
SECTION 605. May Hold Convertible Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Convertible Notes and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
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(3) to indemnify each of the Trustee or any predecessor Trustee and
their agents for, and to hold them harmless against, any loss, liability,
damages, claims or expense, including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee), incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Convertible Notes as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for payment of principal of (and premium if any) or interest on
particular Convertible Notes.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the reasonable
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services actually rendered are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least US$50,000,000 and its Corporate Trust
Office in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such 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 609, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
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(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation or removal, the retiring Trustee may, at the expense of
the Company, petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Convertible Notes, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Convertible Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Convertible Note for at least six 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.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Convertible Notes delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Convertible Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
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SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; provided, however, that on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Convertible Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Convertible Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Convertible Notes.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Convertible Notes), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Convertible Notes
issued upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption or pursuant to Section 306, and Convertible
Notes so authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Whenever reference is made in this Indenture to the
authentication and delivery of Convertible Notes by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
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Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than US$50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Convertible Notes
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the 1.75% Convertible Notes Due 2007 of ST Assembly Test
Services Ltd referred to in the within-mentioned Indenture.
Dated: ____________________
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The Bank of New York, as Trustee
By
------------------------------------------
As Authenticating Agent
By
------------------------------------------
Authorized Signatory
SECTION 615. Appointment of Co-Trustee.
It is the purpose of this Indenture that there shall be no violation of any
law of any jurisdiction (including particularly the law of the State) denying or
restricting the right of banking corporations or associations to transact
business as trustee in such jurisdiction. It is recognized that in case of
litigation under this Indenture, and in particular in case of the enforcement
thereof on default, or in the case the Trustee deems that by reason of any
present of future law of any jurisdiction it may not exercise any of the powers,
rights or remedies herein granted to the Trustee of hold title to the
properties, in trust, as herein granted or take any action which may be
desirable or necessary in connection therewith, it may be necessary that the
Trustee appoint and the Trustee may appoint an individual or institution as a
separate or co-trustee in accordance with this Section 615. The following
provisions of this Section are adopted to these ends.
In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate or co-trustee but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies, and only to
the extent that the Trustee by the laws of any jurisdiction (including
particularly the State) is incapable of exercising such powers, rights and
remedies and every covenant and obligation necessary to the exercise thereof by
such separate or co-trustee shall run to and be enforceable by either of them.
No separate or co-trustee may be appointed by the Trustee under this
Section 615 without the prior written consent of the Company, which may not
unreasonably be withheld; provided that, if an Event of Default shall have
occurred and be continuing, the Trustee shall be empowered to appoint a separate
or co-trustee without the consent of the Company. Any separate or co-trustee
appointed hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 610 and notice to Holders of the appointment of
any separate or co-trustee shall be required under Section 610 hereof.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees as
effectively as if given to each of them. Every instrument appointing any
separate or co-trustee shall refer to this Indenture and the conditions of this
Article Six. Each separate trustee and co-trustee, upon its acceptance of the
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appointment, shall be vested with the estates of property specified in its
instrument of appointment, either jointly with the Trustee or separately, as may
be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Should any instrument in writing from the Company be required by the
separate or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts,
duties and obligations, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Company at the expense
of the Company; provided, that if an Event of Default shall have occurred and be
continuing, if the Company does not execute any such instrument within fifteen
(15) days after request therefor, the Trustee shall be empowered as an
attorney-in-fact for the Company to execute any such instrument in the Company's
name and stead. In case any separate or co-trustee or a successor to either
shall die, become incapable of acting, resign or be removed, all the estates,
properties, rights, powers, trusts, duties and obligations of such separate or
co-trustee, so far as permitted by law, shall vest in and be exercised by the
Trustee until the appointment of a new trustee or successor to such separate or
co-trustee.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) annually, not more than 15 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Convertible Notes, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Convertible Notes, 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 made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Convertible Notes are listed, with the Commission and with the Company. The
Company will notify the Trustee in writing when the Convertible Notes are listed
on any stock exchange.
SECTION 704. Reports by Company.
(a) So long as the Convertible Notes or Ordinary Shares deliverable upon
conversion of the Convertible Notes remain outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) of the Securities Act, the
Company will furnish, upon the request of any Holder of a beneficial interest in
the Convertible Notes such information as is specified in paragraph (d)(4) of
Rule 144A, to such Holder of beneficial owner or to a perspective purchaser of
the Convertible Notes or interest therein who is a qualified institutional buyer
within the meaning of Rule 144A, in order to permit compliance by such Holder or
beneficial owner with Rule 144A in connection with the resale of the Convertible
Note or beneficial interest therein in reliance on Rule 144A unless, at the time
of such request, the Company is subject to the reporting requirements in Section
13 or 15(d) of the Exchange Act, or is included in the list of foreign private
issuers that claim exemption from the registration requirements of Section 12(g)
of the Exchange Act (and therefore are required to furnish the SEC certain
information pursuant to Rule 12G3-2(b) under the Exchange Act).
(b) To the extent not provided pursuant to paragraph (a) above, the Company
shall file with the Trustee a copy, translation or substantially similar
version, in each case in the English language, of all notices, statements and
documents which are issued to the holders of the Ordinary Shares or which are
required to be issued to the Holders by the Singapore Exchange as soon as
practicable (but not later than 30 days after the date of issue thereof) and
make available to the Trustee as many further copies, translations or versions,
as the case may be, as the Trustee may reasonably require in order to satisfy
requests from Holders for the same.
(c) 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,
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including the Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officer's Certificates).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
(a) The Company shall not consolidate with or merge into any other
corporation or, together with or through one or more of its Subsidiaries,
convey, transfer or lease all or substantially all of the properties and assets
of the Company and its Subsidiaries on a consolidated basis to any Person,
unless:
(1) (A) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety (a) shall be a corporation, partnership or trust or other
entity organized and validly existing under the laws of Singapore or the
United States and (b) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in a form satisfactory to
the Trustee, the Company's obligation for the due and punctual payment of
the principal of, and premium and interest, on all the Convertible Notes
and the performance and observance of every covenant of this Indenture on
the part of the Company to be performed or observed , and (B) such
supplemental indenture shall (a) provide that the Holder of each
Convertible Note then Outstanding will have the rights, during the
Conversion Period, to convert the Convertible Note into the kind and amount
of Ordinary Shares, other securities, cash or other assets (with the Share
Conversion Price appropriately allocated to such Ordinary Shares, other
securities, cash or other assets) receivable upon the consolidation,
merger, sale or similar event by a Holder of the number of Ordinary Shares
into which the Convertible Note might have been converted immediately prior
to that consolidation, merger, sale, transfer or similar events, and (b)
provide for adjustments to Share Conversion Price which, for events
subsequent to the effective date of such supplemental indenture, shall be
as nearly equivalent as may be practicable to the adjustments provided for
under Section 1405;
(2) immediately after giving effect to such transaction, no Event of
Default and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) the Company or such Person shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with the relevant terms and conditions of this Indenture
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
(b) This Section 801 shall only apply to a merger or consolidation in which
the Company is not the surviving corporation and to conveyances, leases and
transfers by the Company as transferor or lessor.
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SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other entity or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety to any Person in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and in the event of any
such conveyance or transfer, the Company (which term shall for this purpose mean
the Person named as the "Company" in the first paragraph of this Indenture or
any successor Person which shall theretofore become such in the manner described
in Section 801), except in the case of a lease, shall be discharged of all
obligations and covenants under this Indenture and the Convertible Notes and may
be dissolved and liquidated.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Convertible Notes;
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company;
(3) to secure the Convertible Notes pursuant to the requirements of
Section 1008 or otherwise;
(4) to make provision with respect to the conversion rights of Holders
pursuant to the requirements of Section 801;
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided that such action pursuant to this Clause (5) shall
not adversely affect the interests of the Holders in any material respect;
(6) to create a depositary receipt facility into which Ordinary Shares
issuable upon conversion of the Convertible Notes may be deposited; or
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(7) to make any other modifications to the Convertible Notes or this
Indenture of a formal, minor or technical nature or necessary to correct a
manifest error or upon Opinion of Counsel to comply with mandatory
provisions of the law of Singapore so long as such modification does not
adversely affect the rights of any Holder in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Convertible Notes, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Convertible Note affected thereby,
(1) change the amount of Convertible Notes whose Holders must consent
to an amendment, supplement or waiver to the provisions of this Indenture;
(2) reduce the rate of or extend the time for payment of interest
(including default interest) on any Convertible Note;
(3) reduce the principal of, or premium or interest on, or change the
Stated Maturity of any Convertible Note or reduce the amount of, or
postpone the date fixed for, the payment of any Additional Amounts;
(4) change the provisions of Article Eleven or Article Twelve with
respect to any Convertible Note in a manner adverse to the Holder thereof;
(5) waive a Default in the payment of the principal of, or premium or
interest on, any Convertible Notes (except a rescission of acceleration of
the Convertible Notes by the Holders of at least a majority in principal
amount of the Outstanding Convertible Notes and a waiver of the payment
default that resulted from such acceleration);
(6) change the currency or place of payment of principal of, or
premium or interest, on any Convertible Note or the method of calculating
any such payment;
(7) make any change in Sections 507, 508, 513 or 902 (this Section);
or
(8) waive a redemption payment with respect to any Convertible Note or
change any of the provisions with respect to the redemption of the
Convertible Notes.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Convertible Notes therefore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Reference in Convertible Notes to Supplemental Indentures.
Convertible Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Convertible Notes so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Convertible Notes.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and premium, if
any) and interest on the Convertible Notes in accordance with the terms of the
Convertible Notes and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New York
an office or agency where Convertible Notes may be presented or surrendered for
payment, where Convertible Notes may be surrendered for registration of transfer
or exchange, where Convertible Notes may be surrendered for conversion,
redemption or repayment and where notices and demands to or upon the Company in
respect of the Convertible Notes and this
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Indenture may be served. In addition, at any time that the Convertible Notes
shall be issued in definitive form the Company will maintain in Singapore an
office or agency where securities may be surrendered for conversion, redemption
or repayment. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Convertible Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company will
give prompt written notice to the Trustee and the Holders (in accordance with
Section 105 and Section 106) of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of (and premium, if any) or interest on
any of the Convertible Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of (and premium, if any) or interest on any
Convertible Notes, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held in trust for the benefit of the Persons entitled to
such principal or any premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee in writing of its action
or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will (i) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Convertible Notes in trust for the benefit of
the Person entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, (ii) give the Trustee notice of any
default by the Company in the making of any payment of principal, premium, if
any, or interest on the Convertible Notes and (iii) during the continuance of
any default by the Company (or any other obligor upon the Convertible Notes) in
the making of any payment in respect of the Convertible Notes, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent as such.
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The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Convertible Note and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Convertible
Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in accordance with the first
paragraph of Section 106, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Statement by Officers as to Compliance.
The Company will deliver to the Trustee, within 90 days after the end of
each fiscal year of the Company ending after the date hereof, an Officer's
Certificate, stating whether or not to the best knowledge of the signer thereof
the Company is in compliance with 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 not be in compliance, specifying
all such defaults and the nature and status thereof of which they may have
knowledge.
The Company shall deliver to the Trustee, as soon as possible and in any
event within five (5) Business Days after the Chief Executive Officer or Chief
Financial Officer of the Company becomes aware of the occurrence of any Event of
Default, an Officer's Certificate setting forth the details of such Event of
Default.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
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The Company will cause all properties used or useful in the conduct of its
business or the business of any Material Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Material Subsidiary and not disadvantageous
in any material respect to the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Material Subsidiary; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Restriction on Liens.
So long as any Convertible Note remains Outstanding, the Company shall not,
and shall procure that none of its Material Subsidiaries shall, create or permit
to subsist any security interest upon the whole or any part of any present or
future property or assets to secure the repayment of, or any guarantee or
indemnity in respect of, any International Investment Securities without (i) at
the same time or prior thereto securing the Convertible Notes equally and
ratably with such securities or otherwise as may be approved by an Extraordinary
Resolution or (ii) providing such other security for the Convertible Notes as
may be approved by an Extraordinary Resolution.
The foregoing restriction shall not apply to (a) any security interest upon
the whole or a part of any property or assets of a Subsidiary existing at such
time the Subsidiary becomes a Material Subsidiary, provided that such security
interest shall not have been created in contemplation of or in connection with
such entity becoming a Material Subsidiary, (b) any security interest upon the
whole or part of any property or assets of the Company or any of its Material
Subsidiaries, which security interest is:
(i) to secure any Indebtedness evidenced by International Investment
Securities issued by the Company or by any of its Material Subsidiaries in each
case solely for the purposes of financing the cost of the purchase, development,
construction, equipping, alteration, repair or improvement of any property or
assets acquired by the Company or by any of its Material Subsidiaries after
March 18, 2002; provided that (A) the security interest is confined to such
property or assets, (B) the principal amount of the International Investment
Securities secured by such security interest shall not exceed such cost and (C)
the security interest attaches to such
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property or assets concurrently with or within 120 days of the time of the
acquisition of such property or assets or the completion of the activity being
financed;
(ii) to secure any Indebtedness evidenced by International Investment
Securities existing on (A) any property or asset of any entity at the time the
Company or one of its Subsidiaries acquire such entity after March 18, 2002,
whether by merger, consolidation or otherwise or (B) any property or asset at
the time it is acquired by the Company or one of its Subsidiaries after March
18, 2002; provided that in each case such security interest shall not have been
created in contemplation of or in connection with such acquisition; or
(c) a renewal, extension or replacement (in whole or in part) of any security
interest permitted in subsections (a) and (b) above of this Section 1008.
The Company shall give written notice to the Trustee and the Holders (in
accordance with Sections 105 and 106) of the issuance of any International
Investment Securities the terms or manner of issuance of which requires security
to be granted to the Holders pursuant to this Section.
SECTION 1009. Payment of Additional Amounts.
All payments of, or in respect of, principal of, premium and interest on,
the Convertible Notes will be made without withholding or deduction for, or on
account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of Singapore or any
authority thereof or therein having power to tax unless these taxes, duties,
assessments or governmental charges are required to be withheld or deducted. In
that event, the Company agrees to pay by way of additional interest such
additional amounts of, or in respect of, principal, premium and interest as will
result (after deduction of such taxes, duties, assessments or governmental
charges and any additional taxes, duties, assessments or governmental charges of
Singapore) in the payment to each Holder of a Convertible Note of the amounts
that would have been payable in respect of such Convertible Notes had no
withholding or deduction been required, except that no Additional Amounts shall
be payable for or on account of:
(a) any tax, duty, assessment or other governmental charge that would not
have been imposed but for the fact that such Holder:
(1) was for Singapore tax purposes treated as a resident of Singapore
or who is otherwise subject to such taxes, duties, assessments or
governmental charges by reason of his being connected with Singapore other
than the mere ownership of, or receipt of payment under, such Convertible
Note; or
(2) presented such Convertible Note more than 30 days after the date
on which the payment in respect of such Convertible Note first became due
and payable or provided for, whichever is later, except to the extent that
the Holder would have been entitled to such Additional Amounts if it had
presented such Convertible Note for payment on any day within such period
of 30 days;
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(b) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge which is payable
otherwise than by deduction or withholding from payment of principal of or
premium or interest on the Convertible Notes;
(d) any tax, duty, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the Beneficial
Owner of a Convertible Note with a request by the Company addressed to the
Holder (A) to provide information concerning the nationality, residence or
identity of the Holder or such Beneficial Owner or (B) to make any declaration
or other similar claim or satisfy any information or reporting requirement,
which, in the case of (A) and (B), is required or imposed by a statute, treaty,
regulation or administrative practice of the taxing jurisdiction as a
precondition to exemption from all or part of such tax, duty, assessment or
other governmental charge; or
(e) any combination of the items listed above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of or premium or interest on any Convertible Note to any Holder who is
a fiduciary or partnership or other than the sole Beneficial Owner of the
payment to the extent that payment would be required by the laws of Singapore to
be included in income for tax purposes of the fiduciary if the Beneficial Owner
would not otherwise have been entitled to the Additional Amounts.
Any reference herein to the payment of the principal of or interest on any
Convertible Note shall be deemed to include the payment of Additional Amounts
provided for in this Indenture to the extent that, in such context, Additional
Amounts are, were or would be payable under this Indenture.
ARTICLE ELEVEN
Redemption of Convertible Notes
SECTION 1101. Right of Redemption.
(a) The Convertible Notes are redeemable at the option of the Company, in
whole or in part, at any time on or after March 18, 2004, at a Redemption Price
equal to the Accreted Value, plus any accrued and unpaid interest to the
Redemption Date (subject to the right of Holders of record of the Convertible
Notes on the relevant Regular Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date); provided, however,
that no such redemption may be made unless the Closing Price per Ordinary Share
on the Singapore Exchange (translated into U.S. dollars at the Prevailing
Exchange Rate on such Trading Day), or per ADS on the Nasdaq National Market,
for any 20 Trading Days in a 30 consecutive Trading Day period ending not more
than five days prior to the date on which notice of such redemption is given, is
at least 125% of the Share Conversion Price (translated into U.S. dollars at the
Fixed Exchange Rate) or of the Share Conversion Price per ADS (translated into
U.S. dollars at the Fixed Exchange Rate and taking into account the current 10:1
Ordinary Share-to-ADS ratio), in each case as adjusted through, and effective
on, such notice date.
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Notwithstanding the foregoing, the Company may redeem the Convertible Notes in
whole but not in part, at a Redemption Price equal to the Accreted Value, plus
accrued and unpaid interest to the Redemption Date if at any time the aggregate
principal amount of the Convertible Notes Outstanding is less than 5% of the
aggregate principal amount of the Convertible Notes issued hereunder.
(b) The Convertible Notes are redeemable at the option of the Company, in
whole but not in part, on any date at a Redemption Price equal to the Accreted
Value, plus any accrued and unpaid interest to the Redemption Date if the
Company determines that, as a result of any change in or amendment to the laws
or any regulations or rulings promulgated thereunder of Singapore or any
authority thereof or therein having the power to tax, or any change in the
general application or official or judicial interpretation of such laws,
regulations or rulings, or any change in the general application or official or
judicial interpretation of, or any execution or amendment to, any treaty or
treaties affecting taxation to which Singapore is a party, which change,
execution or amendment becomes effective on or after the original issue date of
the Convertible Notes, the Company has been or will be required to pay
Additional Amounts with respect to the Convertible Notes.
(c) The Convertible Notes are redeemable at the option of a Holder, in
whole or in part, unless notice of redemption of all or any portion of the
Convertible Notes (which Convertible Notes include the Convertible Notes which
such Holder could otherwise require the Company to redeem pursuant to this
Section 1101(c)) pursuant to Section 1101(a) or (b) shall have been given by the
Company on or prior to the date of deposit of a demand of redemption under this
Section 1101(c), by completing, signing and depositing at the specified office
of the Paying Agent during normal business hours of such Paying Agent not less
than 60 or more than 75 days prior to March 18, 2005 a demand of redemption in
the form obtainable from the Paying Agent, requiring the Company to redeem on
March 18, 2005 all or any portion (being US$1,000 in principal amount or an
integral multiple thereof) of the Convertible Notes held by such holder at a
Redemption Price equal to 110.081% of the principal amount of the Convertible
Notes or portion of the Convertible Notes being redeemed, plus any accrued and
unpaid interest accrued to the Redemption Date. No such demand of redemption
will be valid unless completed in its entirety.
Any such demand of redemption will be irrevocable and will bind us, upon
surrender by the Holder of the certificates in respect of the relevant
Convertible Note or Convertible Notes at the specified office of the Paying
Agent.
SECTION 1102. Applicability of Article.
Redemption of Convertible Notes at the election of the Company or at the
election of the Holders, as permitted or required by any provision of this
Indenture or of the Convertible Notes, shall be made in accordance with such
provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Convertible Notes pursuant to
Sections 1101(a) and (b) shall be evidenced by a Board Resolution. In the case
of any
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redemption pursuant to Section 1101(a) of less than all the Convertible Notes,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the principal amount of
Convertible Notes to be redeemed. Prior to any redemption pursuant to Section
1101(b) the Company agrees to provide the Trustee with an Opinion of Counsel
that the conditions precedent to such redemption have occurred. Prior to any
redemption pursuant to Section 1101(a), the Company agrees to provide the
Trustee with an Officer's Certificate setting forth the relevant Closing Prices
or the amount of Convertible Notes Outstanding and the amount originally issued
and its conclusion that the conditions precedent to such redemption have
occurred.
SECTION 1104. Selection by Trustee of Convertible Notes to Be Redeemed.
If less than all the Convertible Notes are to be redeemed, the Trustee
shall select the Convertible Notes to be redeemed in principal amounts of
US$1,000 or integral multiples of US$1,000, on a pro rata basis, by lot or by
such other method as the Trustee considers fair and appropriate. The Trustee
shall make the selection not more than 60 days and not less than 30 days before
the redemption date from Convertible Notes Outstanding not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Convertible Notes that have denominations larger than US$1,000. Convertible
Notes and portions of them it selects shall be in principal amounts of US$1,000
or integral multiples of US$1,000. Provisions of this Indenture that apply to
Convertible Notes called for redemption also apply to Convertible Notes that are
called for partial redemption.
If any Convertible Note selected for partial redemption is converted by the
Holder in part after such selection, the partially converted portion of such
Convertible Note shall be deemed (so far as may be) to have been redeemed for
such purpose. Upon any redemption of less than all the Convertible Notes, the
Company and the Trustee may treat as Outstanding any Convertible Notes
surrendered for conversion during the period 15 days immediately preceding the
mailing of a notice of redemption and need not treat as Outstanding any new
Convertible Note authenticated and delivered during such period in exchange for
the unconverted portion of any Convertible Note converted in part during such
period.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Convertible Notes selected for redemption and, in the case of
any Convertible Notes selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Convertible Notes shall relate, in
the case of any Convertible Notes redeemed or to be redeemed only in part, to
the portion of the principal amount of such Convertible Notes which has been or
is to be redeemed.
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SECTION 1105. Notice of Redemption.
Notice of redemption at the election of the Company shall be given in
accordance with Section 106, mailed and published not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of Convertible Notes to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) the Share Conversion Price as of the date of such notice,
(4) the Closing Price of the Ordinary Shares and the ADSs, as the case
may be,
(5) the aggregate principal amount of the Outstanding Convertible
Notes as of the latest practicable date prior to the publication of such
notice,
(6) if less than all the Outstanding Convertible Notes are to be
redeemed, the list identifying (and, in the case of partial redemption of
any Convertible Notes, the principal amounts) the particular Convertible
Notes to be redeemed,
(7) that on the Redemption Date the Redemption Price will become due
and payable upon each such Convertible Note to be redeemed and that
interest thereon will cease to accrue on and after said date,
(8) that the Convertible Notes being redeemed may be converted at any
time during the Conversion Period (unless the Company defaults in making
the payment in full due upon redemption), the Share Conversion Price the
date on which the Conversion Period for the Convertible Notes being
redeemed will terminate and the place or places where such Convertible
Notes may be surrendered for conversion,
(9) the place or places where such Convertible Notes are to be
surrendered for payment of the Redemption Price, and
(10) the CUSIP number.
Notice of redemption of Convertible Notes to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Notice of redemption of Convertible Notes to be redeemed at the election of
a Holder shall be given by a Holder in the form of a notice (the "Holder's
Redemption Notice") as set forth in Section 205 or in such other form as may be
approved by the Trustee and, in any case, in the manner specified in the form of
Convertible Notes hereinbefore set forth.
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SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Convertible
Notes which are to be redeemed on that date other than any Convertible Notes
called for redemption on that date which have been converted prior to the date
of such deposit.
If any Convertible Note called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Convertible Note shall (subject to any right of
the Holder of such Convertible Note or any Predecessor Convertible Note to
receive interest as provided in the last paragraph of Section 307) be paid to
the Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 1107. Convertible Notes Payable on Repayment Date.
Notice of redemption having been given as aforesaid, the Convertible Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price from and after such date (unless the Company shall default in
the payment of the Redemption Price) such Convertible Notes shall cease to bear
interest. Upon surrender of any such Convertible Note for redemption in
accordance with said notice, such Convertible Note shall be paid by the Company
at the Redemption Price, provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Convertible Notes, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 307.
If any Convertible Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Convertible Note.
SECTION 1108. Convertible Notes Redeemed in Part.
Any Convertible Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Convertible Note, at the
expense of the Company, a new Convertible Note or Convertible Notes, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Convertible Note so surrendered.
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ARTICLE TWELVE
Repayment At Option Of Holders
SECTION 1201. Repayment at Option of Holders.
Upon the occurrence of a Repayment Event, each Holder of the Convertible
Notes shall have the right to require repayment by the Company for all (or any
portion equal to US$1,000 or any integral multiple thereof) of such Holder's
Convertible Notes in cash at the Accreted Value, plus accrued and unpaid
interest to the Repayment Date (subject to the right of Holders of record of the
Convertible Notes on the relevant Regular Record Date to receive interest due on
an Interest Payment Date that is on or prior to the Repayment Date) in
accordance with the provisions of this Article Twelve.
To exercise the right of repayment provided in this Section 1201, a holder
must complete and manually sign a Repayment Acceptance Notice in substantially
the form set forth in Section 207 and deliver such notice together with the
Convertible Note to the Company during normal business hours at the office or
agency designated pursuant to Section 1002 not later than the date specified by
the Company in the Company's notice of a Repayment Event in accordance with
Section 1202.
A Repayment Acceptance Notice once given will be irrevocable and may not be
withdrawn without the prior written consent of the Company. The Company may
reject any incomplete or incorrect Repayment Acceptance Notice. All costs and
expenses incurred by the Company as a result of an incomplete or incorrect
Repayment Acceptance Notice will be for the account of the relevant Holder.
SECTION 1202. Notice of Repayment Event.
Notice of a Repayment Event shall be given in the manner provided for in
Sections 105 and 106 as soon as practicable, but in no event later than five
Business Days after the Company becomes aware of the occurrence of such event,
to the Trustee and each Holder of Convertible Notes.
All notices of a Repayment Event shall identify the nature of such
Repayment Event and its date of occurrence and state:
(1) the Repayment Date, which shall be the date that is 45 days from the
notice day (or, if not a Business Day, the next succeeding Business Day
thereafter), and the latest date by which the Repayment Acceptance Notice (as
defined below), specifying the principal amount of Convertible Notes submitted
for repayment, must be received, which shall be the date that is 10 days prior
to the Repayment Date (or, if not a Business Day, the next succeeding Business
Day thereafter);
(2) the Repayment Price and the amount of accrued and unpaid interest to
the Repayment Date payable as provided in Section 1201, if any;
(3) that on the Repayment Date, the Repayment Price (and accrued and unpaid
interest, if any, to the Repayment Date payable as provided in Section 1201)
will become
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due and payable upon each such Convertible Note in relation to which a valid
Repayment Acceptance Notice has been received by the Company, and that interest
thereon will cease to accrue on and after said date with respect to such
Convertible Note; and
(4) the place or places where such Convertible Notes are to be surrendered
for payment of the Repayment Price and accrued and unpaid interest, if any.
Notice of any Repayment Event shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company,
in which case the Trustee shall provide the Company with a notice stating the
date on which such notice was mailed to Holders and/or proof that such notice
was published, in each case in accordance with Section 106. The Notice of any
Repayment Event shall also include the form of a notice (the "Repayment
Acceptance Notice") as set forth in Section 207 to be completed by any Holder
electing to have all or a portion of such Holder's Convertible Notes repaid by
the Company as provided in Section 1201.
SECTION 1203. Notice to Trustee.
The Company shall furnish the Trustee with an Officer's Certificate setting
forth the calculation of the Repayment Amount.
SECTION 1204. Deposit of Repayment Price.
Prior to any Repayment Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Repayment Price of all the Convertible Notes which are to
be repurchased on that date other than any Convertible Notes to be repurchased
on that date which have been converted prior to the date of such repurchase.
If any Convertible Note to be repurchased is converted prior to the date of
such repurchase, any money deposited with the Trustee or with any Paying Agent
or so segregated and held in trust for the repurchase of such Convertible Note
shall (subject to any right of the Holder of such Convertible Note or any
Predecessor Convertible Note to receive interest as provided in the last
paragraph of Section 307) be paid to the Company upon Company Request or, if
then held by the Company, shall be discharged from such trust.
SECTION 1205. Convertible Notes Payable on Repurchase Date.
Any Convertible Notes surrendered for repayment as provided in this Article
shall become due and payable and shall be paid by the Company on the Repayment
Date therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Convertible Notes on such Repayment Date)
such Convertible Notes shall cease to bear interest. Upon surrender of any such
Convertible Note for repayment in accordance with such provisions the Repayment
Price of such Convertible Note to be repaid shall be paid by the Company,
together with accrued interest, if any, to the Repayment Date; provided,
however, that installments of interest whose Stated Maturity is on or prior to
the Repayment Date shall be payable to the Holders of such Convertible Notes, or
one or more Predecessor Securities,
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registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If the Repayment Price of any Convertible Note surrendered for repayment
shall not be so paid upon surrender thereof, such Repayment Price (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest borne by the
Convertible Notes.
SECTION 1206. Convertible Notes Repaid in Part.
Subject to Section 305 in the case of Global Notes, upon surrender of any
Convertible Note which is to be repaid in part only, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of such Convertible
Note, without service charge and at the expense of the Company, a new
Convertible Note or Convertible Notes of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Convertible Note so
surrendered which is not to be repaid.
SECTION 1207. Tender Offer.
If a Holder exercises its right to require the Company to repurchase the
Convertible Notes, and the repurchase constitutes a "tender offer" for purposes
of Rule 14e-1 under the Exchange Act, the Company will comply with the
requirements of Rule 14e-1 as then in effect with respect to any repurchase.
ARTICLE THIRTEEN
[Reserved]
ARTICLE FOURTEEN
Conversion of Convertible Notes
SECTION 1401. Conversion Right.
A Holder of a Convertible Note may convert such Convertible Note (or a
portion thereof equal to US$1,000 or any integral multiple thereof) into
Ordinary Shares or, subject to the limitations set forth below, ADSs, of the
Company at any time after April 17, 2002 and before the close of business on the
seventh day preceding Maturity or the Redemption Date fixed for any early
redemption at the Share Conversion Price then in effect; provided, however,
that, if such Convertible Note is called for redemption pursuant to Sections
1101(a) or (b) of this Indenture, such conversion right shall terminate at the
close of business on the seventh day preceding the Redemption Date for such
Convertible Note (unless the Company shall default in making the redemption
payment when due, in which case the conversion right shall terminate at the
close of business on the date such default is cured and such Convertible Note is
redeemed) (such period during which the Convertible Notes are convertible, the
"Conversion Period"). The number of Ordinary Shares or ADSs issuable upon
conversion of a Convertible Note (or a portion thereof equal to US$1,000 or any
integral multiple thereof) shall be determined by
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dividing the aggregate principal amount (translated into Singapore dollars at
the Fixed Exchange Rate) of the Convertible Note or portion thereof surrendered
for conversion by the Share Conversion Price per Ordinary Share in effect on the
Conversion Date, and, in the case of conversion to ADSs, applying the ratio of
Ordinary Shares to ADSs in effect on the Conversion Date.
A Holder may, subject to the limitations set forth below, elect to receive
Ordinary Shares upon conversion in the form of ADSs.
In the case of conversion to Ordinary Shares or ADSs by the Holder of a
beneficial interest in the Reg S Global Notes, the Holder must execute a
Conversion Notice in which it represents and agrees for the benefit of the
Company, the Trustee, the Conversion Agent and the ADS Depositary (i) that at
the time of signing and delivery of the Conversion Notice that it or the Person
who has a beneficial interest in the Convertible Notes is not a U.S. Person and
is located outside the United States (within the meaning of Regulation S under
the Securities Act) and that it or the Person who has a beneficial interest in
the Convertible Note purchased such Convertible Note in an offshore transaction
made in accordance with Rule 903 or Rule 904 of Regulation S, or (ii) if it or
the Person who has a beneficial interest in the Convertible Notes is a U.S.
Person, that the relevant Convertible Notes and the Ordinary Shares or ADSs
issued upon conversion are not subject to the registration requirements of the
Securities Act.
In the case of conversion to Ordinary Shares by the Holder of the
beneficial interest in the Restricted Global Notes, the Holder must execute a
Conversion Notice in which it represents and agrees for the benefit of the
Company, the Trustee, the Conversion Agent and the ADS Depositary that at the
time of signing and delivery of the Conversion Notice, it or the Person who has
a beneficial interest in the Convertible Notes (I) will not offer or sell,
pledge or otherwise transfer any of the Ordinary Shares to be delivered upon
conversion except (i) pursuant to Rule 144A under the Securities Act to a Person
it or the Beneficial Owner reasonably believes is a QIB, purchasing of its own
account or for the account of a qualified institutional buyer in a transaction
meeting the requirements of Rule 144A, (ii) in an offshore transaction in
accordance with Regulation S under the Securities Act, (iii) pursuant to an
effective registration statement under the Securities Act or (iv) pursuant to an
exemption from registration under the Securities Act provided by Rule 144
thereunder (if available) and (II) will not deposit the Ordinary Shares received
upon conversion with the ADS Depositary in exchange for ADSs for so long as the
Ordinary Shares are "restricted securities" within the meaning of Rule 144 under
the Securities Act.
In the case of conversion to ADSs by the Holder of a beneficial interest in
the Restricted Global Notes, the Holder must execute a Conversion Notice in
which it represents and agrees for the benefit of the Company, the Trustee, the
Conversion Agent and the ADS Depositary that at the time of signing and delivery
of the Conversion Notice, it or the person who has a beneficial interest in the
Convertible Notes has satisfied the holding period for restricted securities and
other criteria provided by Rule 144 under the Securities Act such that none of
the Ordinary Shares deposited with the ADS Depositary in exchange for ADSs upon
conversion of the Restricted Global Notes will be "restricted securities" under
the Securities Act.
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Upon receipt of the Conversion Notice, the Company shall, on behalf of such
Holder, as soon as practicable, deliver to and deposit with the ADS Depositary
or its custodian, in accordance with the applicable terms and conditions of the
ADS Deposit Agreement, such number of Ordinary Shares such Holder would have
received upon conversion had such Holder not elected to receive such Ordinary
Shares in the form of ADSs. Such Ordinary Shares will be registered in the name
of the ADS Depositary or its nominee. Subject to compliance with the terms of
the ADS Deposit Agreement, including payment of the fees and expenses of the ADS
Depositary by such Holder, the ADS Depositary will issue such number of ADSs
representing the deposited Ordinary Shares to such Holder based on the
applicable share-to-ADS ratio then in effect.
A Convertible Note may not be converted if a Holder has delivered a
Repayment Acceptance Notice form in respect of such Convertible Note pursuant to
Article Twelve exercising the option of such Holder to require repayment by the
Company for such Convertible Note.
Upon conversion, with effect from the Registration Date, the person
designated in the Conversion Notice will be registered as the holder of record
of the applicable number of Ordinary Shares, but beginning on the Conversion
Date such converting Holder shall cease to have any right as a Holder with
respect to the Convertible Notes surrendered for conversion.
SECTION 1402. Exercise of Conversion Right.
To convert a Convertible Note, a Holder must (a) complete and manually sign
a Conversion Notice in substantially the form included in the form set forth in
Section 206 and deliver such notice to the Conversion Agent during normal
business hours at the offices of the Conversion Agent in the Borough of
Manhattan, The City of New York at its own expense, (b) surrender the
Convertible Note to the Conversion Agent during normal business hours at the
offices of the Conversion Agent in the Borough of Manhattan, The City of New
York, duly endorsed or assigned to the Company or in blank, (c) furnish
appropriate endorsements and transfer documents (if any) required by the
Registrar or the Conversion Agent, and (d) pay any required transfer or similar
tax and make any other required payment. The date on which the Holder satisfies
all of those requirements is the "Conversion Notice Date".
Immediately following deposit of a Convertible Note and Conversion Notice
and payment by the converting Holder of any required amount in accordance with
this Section 1402, the Conversion Agent shall (i) verify that the Conversion
Notice has been duly completed in accordance with its terms and purports to have
been signed by or on behalf of the Holder of such Convertible Note named therein
and (ii) set out in the Conversion Notice (A) the Conversion Date in respect of
the deposited Convertible Note, (B) the Share Conversion Price on Conversion
Date and (C) the number of Ordinary Shares or ADSs issuable upon conversion of
such deposited Convertible Note. The date on which the Conversion Agent
completes the matters referred to in (i) and (ii) above is the "Conversion
Date". The Conversion Agent shall reject such deposited Convertible Note if the
Conversion Notice in respect of which has not been duly completed in accordance
with its terms or does not purport to have been signed by or on behalf of the
Holder of such Convertible Note named therein. On the Conversion Date, the
Conversion Agent shall send a copy of the Conversion Notice by facsimile to the
Company, and shall send
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by post to the Company the original Conversion Notice as soon as practicable
following any such request by the Company in writing. On deposit of a
Convertible Note and a Conversion Notice (and payment by a converting Holder of
any required amount in accordance with Section 1408), the Convertible Note and
the Conversion Notice so deposited and any relevant amounts shall be deemed to
be held by the Conversion Agent as the agent of the Company.
No Holder will be entitled to receive physical share certificates in
respect of the Ordinary Shares arising from the conversion of the Convertible
Notes. Delivery of the Ordinary Shares shall be made by crediting such Ordinary
Shares to a Holder's securities account or the securities account of a Holder's
depository agent with CDP. The Company shall allot and issue the Ordinary Shares
arising from the conversion of the Convertible Notes in accordance with
instructions as set out in the Conversion Notice and shall deliver to CDP the
share certificate(s) relating to such Ordinary Shares in the name of CDP for the
credit of the Holder's securities account or the securities account of Holder's
depository agent as specified in the Conversion Notice as soon as practicable,
and in any event not later than 14 days, after the Conversion Date, subject to
all applicable laws and in accordance with this Indenture. The Company will
register the Person or Persons designated for the purpose in the Conversion
Notice as holder(s) of the relevant number of Ordinary Shares in its share
register. The Person or Persons specified for that purpose will become the
holder of record of the number of Ordinary Shares issuable upon conversion with
effect from the date he is or they are registered as such in the Company's share
register.
The Ordinary Shares issued upon conversion of the Convertible Notes will be
duly authorized, validly issued and will in all respects be fully paid and
nonassessable and rank equally with all the Ordinary Shares in issue on the
relevant Registration Date. A holder of Ordinary Shares issued on conversion of
Convertible Notes shall not be entitled to any rights of a shareholder the
record date for which precedes the relevant Registration Date.
If the record date for the payment of any dividend or other distribution in
respect of the Ordinary Shares is on or after the Conversion Date in respect of
any Convertible Notes converted, but before the Registration Date, the Company
shall pay to the converting Holder an amount equal to any such dividend or other
distribution to which he would have been entitled had he on that record date
been such a shareholder of record of such number of Ordinary Shares issued upon
conversion (disregarding any retroactive adjustment of the Share Conversion
Price pursuant to Section 1405(g)(iv)), and will make such payment at the same
time as it makes payment of the dividend or other distribution, or as soon as
practicable thereafter, but, in any event, not later than seven days thereafter.
No payment or adjustment will be made for accrued and unpaid interest on
dividends on the Ordinary Shares on a Convertible Note delivered for conversion.
The delivery to a Holder of the fixed number of Ordinary Shares or ADSs into
which the Convertible Note is convertible will be deemed to satisfy the
Company's obligation to pay the principal amount and any accrued and unpaid
premium and interest attributable to the period from the Interest Payment Date
immediately preceding the Conversion Date to the Conversion Date.
If any Holder surrenders a Convertible Note for conversion after the close
of business on the Regular Record Date relating to an Interest Payment Date but
before the opening
84
of business on the related Interest Payment Date, then, notwithstanding such
conversion, the interest payable on such Interest Payment Date shall be paid to
the Holder of such Convertible Note on such Regular Record Date. In such event,
unless such Convertible Note has been called for redemption on a Redemption Date
prior to such Interest Payment Date, such Convertible Note, when surrendered for
conversion, must be accompanied by delivery of a check or draft payable to the
Company in an amount equal to the interest payable on such Interest Payment Date
on the portion so converted. If such payment does not accompany such Convertible
Note, the Convertible Note shall not be converted. If the Company defaults in
the payment of interest payable on the Interest Payment Date, such funds shall
be repaid to the Holder.
If a Holder converts more than one Convertible Note at the same time, the
number of Ordinary Shares or ADSs issuable upon the conversion shall be based on
the aggregate principal amount of Convertible Notes converted. Upon surrender of
a Convertible Note that is converted in part, the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder, a new Convertible Note
equal in principal amount to the unconverted portion of the Convertible Note
surrendered.
A Conversion Notice once given will be irrevocable and may not be withdrawn
without the prior written consent of the Company. The Company or the Conversion
Agent on its behalf may reject any incomplete or incorrect Conversion Notice.
All costs and expenses incurred by the Company or the Conversion Agent as a
result of an incomplete or incorrect Conversion Notice will be for the account
of the relevant Holder.
SECTION 1403. Fractions of Shares.
All calculations relating to redemption and conversion, including
adjustment of the Share Conversion Price, will be made to the nearest 0.01 of an
Ordinary Share or other property or the nearest cent. Fractions of Ordinary
Shares will not be issued on conversion and will not be deposited with the ADS
Depositary, and no cash adjustments will be made in respect of any such fraction
of Ordinary Shares. Under the ADS Deposit Agreement, the ADS Depositary will not
issue fractions of ADSs. To the extent the ADS Depositary does not accept a
certain number of Ordinary Shares for deposit pursuant to the ADS Deposit
Agreement, the Company will deliver such Ordinary Shares to the Holder
notwithstanding such Holder's election to receive Ordinary Shares in the form of
ADSs.
SECTION 1404. Cash Settlement.
Notwithstanding properly deposited with the Conversion Agent as set forth
under Section 1401, the Company shall have the option to pay to the relevant
Holder an amount of cash in US dollars equal to the Cash Settlement Amount in
order to satisfy such conversion right in full. The Company is required to
provide notice of its exercise of the cash settlement option in the form
provided in Section 208 (the "Cash Settlement Notice") to the relevant Holder as
soon as practicable but no later than the fifth banking day following receipt by
the Conversion Agent of the relevant Convertible Notes and Conversion Notice
(the "Cash Settlement Notice Date"). The Cash Settlement Notice must specify the
number of Ordinary Shares or ADSs in respect of which the Company will make such
cash payment in the manner described in this Section. The
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Company will pay the Cash Settlement Amount not less than five Trading Days but
no later than the tenth Trading Day following the Cash Settlement Notice Date.
SECTION 1405. Adjustment of Share Conversion Price.
The Share Conversion Price shall be adjusted from time to time by the
Company as follows:
In each case, the adjusted Share Conversion Price is determined by
multiplying the Share Conversion Price before adjustment, denoted as "P", by an
applicable adjustment factor. The formulae for determining the adjustment
factors are set forth in the following subsections. In each case, the Share
Conversion Price will be adjusted with effect from the end of business in
Singapore on the applicable Adjustment Effective Date.
(a) If the Company:
(i) pays a dividend or makes a distribution on its Ordinary Shares
other than a cash dividend or distribution, in each case, that permits the
recipient to elect to receive Ordinary Shares instead of cash (all
reference to "dividend" in this Section 1405(a) being a dividend other than
an Extraordinary Dividend as defined below);
(ii) splits or reclassifies the outstanding Ordinary Shares into a
greater number of Ordinary Shares; or
(iii) consolidates or reclassifies the outstanding Ordinary Shares
into a lesser number of Ordinary Shares,
the Share Conversion Price will be adjusted as follows:
X
Adjusted Share Conversion Price = P x ---
Y
where:
"X" means the number of Ordinary Shares outstanding immediately prior
to the effectiveness of the relevant event giving rise to the adjustment;
and
"Y" means the number of Ordinary Shares outstanding immediately after
effectiveness of the relevant event giving rise to the adjustment.
The Adjustment Effective Date, in the case of Section 1405(a)(i)
above, shall be the record date set for the relevant dividend or
distribution giving rise to the adjustment. The Adjustment Effective Date,
in the case of Sections 1405(a)(ii) and (a)(iii) above, shall be the date
on which the relevant split, consolidation or reclassification giving rise
to the adjustment becomes effective.
86
(b) If (i) the Company issues or distributes Ordinary Shares, or any of its
Subsidiaries issues or distributes any securities or rights which are
convertible into or exchangeable for Ordinary Shares, or issues or distributes
any warrants or rights to purchase or subscribe for Ordinary Shares, in each
case, to all or substantially all holders of Ordinary Shares; and (ii) the
applicable issuance, distribution, conversion, exchange, purchase or
subscription price per Ordinary Share, after taking into account any per share
consideration received by the Company in respect of such issuance or
distribution, is below 95% of the Average Market Price as of the date of
announcement of details concerning such applicable issuance, distribution,
conversion, exchange, purchase or subscription price; provided, however, that
this Section 1405(b) shall not apply to issuances or distributions made pursuant
to Section 1405(a).
the Share Conversion Price will be adjusted as follows:
(S + f)
Adjusted Share Conversion Price = P x ---------
(S + a)
where:
"S" means the number of Ordinary Shares outstanding [at the close of
business] on the date of announcement of details concerning such applicable
issuance, distribution, conversion, exchange, purchase or subscription
price;
"f" means the number of additional Ordinary Shares which the aggregate
applicable issuance, distribution, conversion, exchange, purchase or
subscription price, reduced by any aggregate consideration received by the
Company in respect of such issuance or distribution, would purchase at the
Average Market Price as of such date of announcement; and
"a" means the number of additional Ordinary Shares which are issued or
distributed or are initially issuable or distributable pursuant to the
terms of the securities or rights issued or distributed in such issuance or
distribution.
The Adjustment Effective Date for an adjustment pursuant to this
subsection (b) shall be the record date the Company sets for such issuance
or distribution.
In case of any adjustment as a result of issuance of Ordinary Shares
by way of a rights offering to all or substantially all holders of Ordinary
Shares, the Company may elect to defer the effectiveness of that adjustment
until the subscription period applicable to such rights offering has
expired. In that case, the Share Conversion Price shall be adjusted using
elements "f" and "a" in the above formula that are calculated on the basis
of the actual number of the Ordinary Shares issued and aggregate purchase
price actually paid in the rights offering. The adjustment shall take
effect retroactively from the record date the Company sets for such rights
offering.
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(c) If the Company issues or distributes, for less than 95% of their fair
market value (as determined below), to all or substantially all holders of
Ordinary Shares, any
(i) securities other than as described in Sections 1405(a) or (b)
above or Section 1405(e) below,
(ii) assets, other than cash dividends addressed in (d) below or other
cash dividends in kind, in each case declared and paid in the ordinary
course (as described below), but, for the avoidance of doubt, including any
dividend or portion of such dividend which constitutes a redemption of
share capital as part of a reduction in par value of the Ordinary Shares,
or
(iii) rights to acquire those securities or assets described in
subsection (i) and (ii) above,
the Share Conversion Price will be adjusted as follows:
(M - d)
Adjusted Share Conversion Price = P x ------------
M
where:
"M" means the Average Market Price per Ordinary Share as of the date
of announcement of terms of such issuance or distribution; and
"d" means the fair market value of the portion of the securities,
assets or rights to acquire such securities, assets or rights per Ordinary
Share, less any per share consideration received by the Company in respect
of such portion. The fair market value will be as determined by the Board
of Directors of the Company, which determination will be conclusive and
calculated on the last Trading Day preceding such date of announcement.
For purposes of this subsection (c), dividends "in the ordinary course"
shall mean, with respect to any fiscal year, the declaration and payment by the
Company of no more than (x) an interim dividend with respect to its interim
financial results for such fiscal year and (y) a final dividend with respect to
its full year financial results for such fiscal year.
The Adjustment Effective Date, in the case of this subsection (c), shall be
the record date set for the relevant dividend or distribution giving rise to the
adjustment.
(d) If the Company issues or distributes an Extraordinary Dividend in the
form of cash (as described below), the Share Conversion Price will be adjusted
as follows:
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(M - e)
Adjusted Share Conversion Price = P x -----------
M
where:
"M" has the same meaning as in subsection (c) above; and
"e" means the amount of Extraordinary Dividend payable per
Ordinary Share.
The Extraordinary Dividend shall be, in the case of (i) above, the amount
by which the Total Current Dividend exceeds 2% of the One-Year Average Closing
Price, and in the case of (ii) above, the amount by which the Total Current
Dividend exceeds the Reference Dividend. For the avoidance of doubt, all amounts
are on a per Ordinary Share basis.
For the purposes of this subsection (d):
"Extraordinary Dividend" means, with respect of a dividend on a certain
date, a Total Current Dividend that, as of such date, equals or exceeds on a per
share basis:
(i) 2% of the One-Year Average Closing Price of the Ordinary Shares if
the Company has never declared or paid any cash dividend; or
(ii) the lower of (A) twice the Reference Dividend and (B) the
Reference Dividend plus 1% of the One-Year Average Closing Price of the
Ordinary Shares if the Company has declared and paid at least one cash
dividend.
"One-Year Average Closing Price" means the arithmetic average of the
official closing price per Ordinary Share quoted on the Singapore Exchange for
each stock exchange trading day during the 365 consecutive day period ending on
the record date set for the dividend that may result in an adjustment.
"Reference Dividend" means, at any time, the largest aggregate amount of
cash dividend(s) declared with respect to any previous fiscal year (or any
interim period of such fiscal year) on a per Ordinary Share basis.
"Total Current Dividend" means any and all cash dividends declared by the
Company on the Ordinary Shares, prior to the deduction of any withholding tax
plus any corporate tax attributable to that dividend, in the period starting
from the beginning of the fiscal year in which the record date set for the
dividend that may result in an adjustment falls and ending on and including that
record date (including the dividend that may result in an adjustment), other
than any dividend or portion thereof which previously resulted in an adjustment
under this Section 1405(d).
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The Adjustment Effective Date, in the case of this subsection (d), shall be
the record date set for the relevant issuance or distribution giving rise to the
adjustment.
(e) If the Company pays a dividend or makes a distribution to all or
substantially all holders of its Ordinary Shares consisting of shares of any
class or series, or similar equity interests, of or relating to any of its
Subsidiaries or other business units, the Share Conversion Price will be
adjusted as follows:
(D)
Adjusted Share Conversion Price = P x ---------
(D + v)
where:
"D" means the arithmetic mean of the daily Post-Distribution Prices of
the Ordinary Shares for the 10 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 Singapore Exchange or such other
principal exchange or market of which the Ordinary Shares are then listed
or quoted (the "Ex-Dividend Date").
"v" means the fair market value of portion of the securities
distributed as is attributable to one Ordinary Share, less any
consideration received by the Company in respect of such portion.
For purposes of this subsection (e):
"fair market value" means the number of securities distributed in respect
of each Ordinary Share multiplied by the arithmetic mean of the daily
Post-Distribution Prices of those Convertible Notes distributed for the 10
Trading Days commencing on and including the fifth Trading Day after the
ex-dividend date.
"Post-Distribution Price" of Ordinary Shares or any similar equity interest
on any date means the closing per unit sale price (or, if no closing sale price
is reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and the average ask prices) on such
date for trading of such units on a "when issued" basis without due bills (or
similar concept) as reported in the composite transactions for the principal
securities exchange on which such share or equity interest is traded provided
that if on any date such units have not traded on a "when issued" basis, the
post-distribution price shall be the closing per unit sale price (or, if no
closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average ask
prices) on such date for trading of such units on a "regular way" basis without
due bills (or similar concept) as reported in the composite transactions for the
principal securities exchange on which such share or equity interest is traded.
In the absence of such quotation, the Company shall determine the
post-distribution price on the basis of such quotations which reflect the
post-distribution value of the Ordinary Shares or equity interests it consider
appropriate.
The Adjustment Effective Date, in the case of this subsection (e), shall be
the record date set for the relevant dividend or distribution giving rise to the
adjustment.
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(f) If the Company determines that any other adjustment should be made to
the Share Conversion Price, the Company will make such adjustment which is fair
and reasonable in the opinion of its Board of Directors.
(g) For purposes of subsection (a) to (f) above, as applicable:
(i) "Average Market Price" as of a date means the arithmetic mean of
the daily Closing Prices quoted for the Ordinary Shares on the Singapore
Exchange for the 10 consecutive Trading Days immediately preceding that
date.
(ii) the Company may not reduce the Share Conversion Price so that on
conversion, Ordinary Shares would be issued at a discount to their par
value.
(iii) Except in the case of a consolidation or reclassification of
Ordinary Shares pursuant to Section 1405(a), the Share Conversion Price
will not be increased as a result of any adjustment.
(iv) in case of an adjustment under Section 1405(a), (b) or (c), if
the actual amount of adjustment cannot be determined on such record date
because certain terms of issuance or distribution have not been determined,
the Company may elect to defer the effectiveness of such adjustment until
it can be determined and such adjustment will take effect retroactively
from the record date set for such issuance or distribution. In such case,
the Company shall issue additional Ordinary Shares, as a result of such
adjustment, to the Holders who surrendered for conversion between such
record date and the date on which such adjustment is determinable.
(v) if any doubt arises as to the appropriate adjustment to the Share
Conversion Price, a certificate of the Company's auditors at the time will
be conclusive and binding on all concerned except in the case of manifest
error.
(vi) no adjustment will be made to the Share Conversion Price where
the adjustment, rounded to the nearest cent as provided below, if
applicable, would be less than one percent of the Share Conversion Price
then in effect. On any adjustment, the resulting Share Conversion Price
will be rounded to the nearest cent (or the smaller of the nearest cent in
the case of two equally near cents). Any adjustment not required to be made
and any amount by which the Share Conversion Price will be rounded will be
carried forward and taken into account in any subsequent adjustment.
(vii) No adjustment will be made to the Share Conversion Price where
Ordinary Shares or other securities, options or rights to subscribe for or
purchase Ordinary Shares or other securities are issued pursuant to any
stock option or purchase programs, plans or similar arrangements approved
by the Board of Directors or the shareholders of the Company.
(viii) If a Conversion Date falls prior to the Adjustment Effective
Date of an adjustment of the Share Conversion Price in circumstances where
the
91
delivery of Ordinary Shares in respect of the exercise of relevant
conversion right falls on or after such Adjustment Effective Date, the
Company shall deliver to the relevant Holder the additional number of
Ordinary Shares to which that Holder would have been entitled had the
relevant Conversion Date fallen immediately following the Adjustment
Effective Date.
(ix) Whenever the Company plans to take action that will result in the
adjustment of the Share Conversion Price under this Section 1405 or the
Share Conversion Price has been adjusted, the Company shall promptly notify
Holders in a manner prescribed by Section 106 and file with the Trustee an
Officer's Certificate briefly stating the facts requiring the adjustment
and the manner of computing it.
(x) The Trustee has no duty to determine when an adjustment under this
Section 1405 should be made, how it should be made or what it should be.
The Trustee has no duty to determine whether a supplemental indenture need
be entered into or whether any provisions of any supplemental indenture are
correct. The Trustee shall not be accountable for and makes no
representation as to the validity or value of any Convertible Notes or
assets issued upon conversion of the Convertible Notes. The Trustee shall
not be responsible for the Company's failure to comply with this Article
Fourteen. Each Conversion Agent (other than the Company or an Affiliate of
the Company) shall have the same protection under this Section 1405 as the
Trustee.
(xi) The Company may, from time to time to the extent permitted by
applicable law, reduce the Share Conversion Price of the Convertible Notes,
at the sole discretion of the Board of Directors, by any amount for any
period of at least 20 days, in which case the Company shall give at least
15 days' notice of such decrease. The Company may, at its option, make such
reductions in the Share Conversion Price, in addition to those set forth
above, as the Board of Directors deems advisable to avoid or diminish any
income tax to holders of Ordinary Shares resulting from any dividend or
distribution of Ordinary Shares (or rights to acquire Ordinary Shares) or
from any event treated as such for income tax purposes.
SECTION 1406. Notice of Adjustments of Share Conversion Price.
Whenever the Share Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Share Conversion Price in
accordance with Section 1405 and shall prepare a certificate signed by the
Treasurer of the Company setting forth such adjusted Share Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed at each office or agency maintained
for the purpose of conversion of Convertible Notes pursuant to Section 1002; and
92
(b) a notice stating that the Share Conversion Price has been adjusted and
setting forth such adjusted Share Conversion Price, shall forthwith be required,
and as soon as practicable after it is required, such notice shall be given by
the Company to all Holders in accordance with Section 106.
SECTION 1407. Notice of Certain Corporate Action.
In case at any time after the date 20 days prior to the commencement of the
Conversion Period:
(a) the Company shall declare a dividend in or make any other
distribution on, or pay or make any cash or other distribution with respect
to its Ordinary Shares, other than a regular periodic cash dividend not
constituting an adjusted Share Conversion Price in accordance with Section
1405, or shall authorize the granting, issue or offer to the holders of
Ordinary Shares of options, rights or warrants to subscribe for or purchase
any shares or Convertible Notes (other than Ordinary Shares or any shares
or any Convertible Notes convertible into or exchangeable for Ordinary
Shares or any shares or Convertible Notes other than Ordinary Shares); or
(b) there shall be any reclassification of the Ordinary Shares
(including a subdivision or consolidation of the Company's outstanding
Ordinary Shares) or any consolidation, amalgamation or merger to which
Section 1405(a) applies or the sale or transfer of all or substantially all
of the assets of the Company; or
(c) the Company shall authorize the issue of any Convertible Notes
convertible into or exchangeable for Ordinary Shares or options, rights or
warrants to subscribe for or purchase Ordinary Shares or Convertible Notes
(other than those referred to in paragraph (a) above), or any Ordinary
Shares, which will upon issue give rise to an adjustment to the Share
Conversion Price pursuant to Section 1405; or
(d) there shall be a voluntary or involuntary dissolution, liquidation
or winding-up of the Company,
the Company shall forthwith give written notice thereof to the Trustee and, in
addition it will at least 20 days prior to the applicable (in the case of
sub-paragraph (i) below) record date or (in the case of sub-paragraph (ii)
below) record date or date of submission, whichever is earlier, or (in the case
of sub-paragraph (iii) below) date of submission or (in the case of
sub-paragraph (iv) below) date of issue or (in the case of sub-paragraph (v)
below) record date or effective date, whichever is earlier, cause such notice to
be filed at each office or agency maintained for the conversion of Convertible
Notes pursuant to Section 1002 and given to the Holders in accordance with
Section 106 stating, as the case may require:
(i) the record date for such granting, issue or offer of rights or
warrants, dividend, distribution or payment or such reclassification (and,
in the case of the granting, issue or offer of options, rights or warrants,
the period during which such rights or warrants may be exercised); or
93
(ii) the date (x) on which such reclassification, consolidation,
merger, amalgamation, sale, transfer, dissolution, liquidation or
winding-up is to be submitted to a general meeting of shareholders of the
Company for approval and (y) that is the record date for the same (if
applicable) and (z) on which such reclassification, consolidation, merger,
amalgamation, sale, transfer, dissolution, liquidation or winding-up is
expected to become effective and as of which it is expected that holders of
Ordinary Shares of record shall be entitled to exchange their Ordinary
Shares for Ordinary Shares, Convertible Notes, cash or other property
deliverable upon such reclassification, consolidation, merger,
amalgamation, sale, transfer, dissolution, liquidation or winding-up; or
(iii) (in the event of the declaration of a dividend or other
distribution referred to in paragraph (a) above, the payment of which must,
under mandatory provisions or the laws of Singapore be submitted for
approval to a general meeting of shareholders before such dividend or other
distribution may legally be paid or made) the date of such submission; or
(iv) in the event of an issue referred to in paragraph (c) above, the
date of such issue; or
(v) (in the event of a reclassification, consolidation, merger,
amalgamation, sale, transfer, dissolution, liquidation or winding-up
referred to in paragraph (b) above not being submitted to a general meeting
of shareholders of the Company for approval) (y) the record date for the
same (if applicable) and (z) the date when the same becomes effective;
provided that if the exact date or period required to be given in a notice
referred to in this Section is not known at the time of such notice to the
Trustee, such notice shall indicate the approximate date thereof and the Company
shall give a second notice to the Trustee as soon as practicable, specifying
such exact date or period of submission, and shall also cause such second notice
to be filed at each office or agency maintained for the conversion of
Convertible Notes pursuant to Section 1002 and given to all the Holders in
accordance with Section 106 as soon as practicable. Notwithstanding the
foregoing, in the case of any issue referred to in paragraph (iii) above, the
Company shall not be required to give any notice mentioned above before the date
upon which the relevant consideration per Ordinary Share for such issue is fixed
by the Company but in any such case the Company shall promptly upon the fixing
of such consideration give notice in accordance with the above provisions of
this Section 1407.
The failure to give notice required by this Section 1407 or any defect
therein shall not affect the legality or validity of any dividend, distribution,
rights, warrants, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up, or the vote on any such action.
SECTION 1408. Taxes and Expenses on Conversions.
As conditions precedent to conversion, the Holder must pay to the
Conversion Agent any taxes and capital, stamp, issue and registration duties
arising on conversion, other than
94
any taxes or capital or stamp duties payable in Singapore in respect of the
allotment, issuance and listing of the Ordinary Shares upon conversion. In
addition, the Holder will be required to pay any tax or duty relating to any
disposal or any deemed disposal relating to conversion and transfer involved in
the delivery of the Ordinary Shares deliverable upon conversion. The Company
will pay all other expenses arising on the issue, allotment and delivery of the
Ordinary Shares issuable upon conversion.
SECTION 1409. Covenants Relating to Conversion.
The Company hereby agrees that, so long as any conversion right is, or is
capable of being or becoming, exercisable, it shall:
(a) at all times reserve and keep available, free from pre-emptive
rights, out of its authorized but unissued Ordinary Shares, for the purpose
of effecting the conversion of Convertible Notes, the full number of
Ordinary Shares then issuable upon the conversion of all outstanding
Convertible Notes.
(b) cause all Ordinary Shares issued upon conversion of Convertible
Notes to be upon issuance duly and validly issued, fully paid and
nonassessable and, except as provided in Section 1408, the Company will pay
all taxes, liens and charges with respect to the issue thereof.
(c) except as required under Singapore law or the Company's Articles
of Incorporation, not close its register of shareholders or take any other
action which prevents the transfer of its Ordinary Shares generally unless,
under the laws of Singapore as then in effect, the Convertible Notes may be
converted legally and the Ordinary Shares issued upon conversion may
(subject to any limitation imposed by law) be transferred (as between
transferor and transferee although not as against the Company) at all times
during the period of such closure or while such other action is effective,
and shall not take any action which prevents the conversion of the
Convertible Notes or the issuance of Ordinary Shares with respect thereto
or the registration of the Ordinary Shares issued upon conversion of the
Convertible Notes;
(d) not take any action which would result in an adjustment of the
Share Conversion Price if, after giving effect thereto, the Share
Conversion Price would (but for the provisions of Section 1405(vii)) be
decreased to such an extent that the Ordinary Shares to be issued on
conversion of any Convertible Note could not, under any applicable law then
in effect, be legally issued;
(e) use its best efforts to obtain and maintain a listing on the
Singapore Exchange for all the issued Ordinary Shares or, if, having used
such best efforts, it is unable to obtain or maintain such listing, use its
best efforts to obtain and maintain a listing for the Ordinary Shares on
such other stock exchange or exchanges as the Company may from time to time
determine, and shall give notice of the identity of such stock exchange or
exchanges to the Holders;
(f) at any time after the commencement of the Conversion Period, not
create or issue any class of share capital other than Ordinary Shares
without giving to the Holders
95
notice at least 20 days (or, if practicable, 30 days) prior to the relevant
record date for the determination of shareholders entitled to vote at the
general meeting of shareholders at which an amendment to the Company's
Articles of Incorporation to enable the Company to create such class of
share capital is to be voted upon;
(g) if any firm public offer is made to all holders of Ordinary Shares
(or such holders other than the offeror and/or any Affiliate of the offeror
and/or persons associated or acting in concert with the offeror) to acquire
all or a portion of the Ordinary Shares and such offer comes to the
knowledge of an Authorized Officer of the Company, give notice of such
offer to the Holders in accordance with Section 106 within 15 days after
obtaining such knowledge; and
(h) cause to be filed at each office or agency maintained for the
purpose of conversion of Convertible Notes pursuant to Section 1002 and
cause to be given to all Holders in accordance with Section 106, at least
10 days prior to the commencement or termination of a Closed Period (or, in
the event the Company does not have 10 days advance knowledge of the
commencement or termination of a Closed Period, as soon as practicable
after the Company receives knowledge thereof), a notice setting forth the
dates upon which the Closed Period shall commence and shall terminate; and,
if the termination date of such Closed Period is not fixed at the time of
filing and giving such notice, such notice shall set forth an approximation
of such termination date, and the Company shall upon the fixing or
occurrence of such termination date (whichever shall occur first) file and
give in like manner another notice setting forth the termination date of
such Closed Period.
SECTION 1410. Cancellation of Converted Convertible Notes.
All Convertible Notes delivered for conversion shall be delivered to the
Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
SECTION 1411. Trustee Adjustment Disclaimer.
The Trustee has no duty to determine when an adjustment under this Article
Fourteen should be made, how it should be made or what it should be. The Trustee
has no duty to determine whether a supplemental indenture need be entered into
or whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Convertible Notes.
The Trustee shall not be responsible for the Company's failure to comply with
this Article Fourteen. Each Conversion Agent (other than the Company or an
Affiliate of the Company) shall have the same protection under this Section 1411
as the Trustee.
[The remainder of this page intentionally left blank.]
96
-------------------------
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
The Common Seal of )
ST ASSEMBLY TEST SERVICES LTD )
(COMPANY'S SEAL)
was hereunto affixed )
in the presence of: )
/s/ Harry H. Davoody Director
- -----------------------------------
/s/ Chua Su Li Director/Secretary
- -----------------------------------
THE BANK OF NEW YORK
By: /s/ Kelvyn Ee
-----------------------------------------------
Name: Kelvyn Ee
Title: AVP
97
ANNEX A
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL
CONVERTIBLE NOTE TO REG S GLOBAL NOTE
The Bank of New York,
as Trustee
101 Barclay Street
Floor 21W
New York, New York 10286
Attn: Global Finance Unit
Re: 1.75% Convertible Notes due 2007 of ST Assembly Test Services Ltd (the
"Convertible Notes")
Reference is hereby made to the Indenture, dated as of March 18, 2002 (the
"Indenture"), between ST Assembly Test Services Ltd (the "Company") and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to US$__________ principal amount of Convertible Notes
which are held in the form of a beneficial interest in the Restricted Global
Notes with the Depositary in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest for a beneficial interest in the Reg S Global Notes to be held with the
Depositary in the name of [insert name of transferee].
[NOTE: INSERT [A] IN ALL CASES UNLESS [B] IS INSERTED IN ACCORDANCE WITH THE
NEXT SENTENCE. AT THE OPTION OF THE TRANSFEROR, [B] MAY BE INSERTED IN PLACE OF
[A] ON AND AFTER THE EXPIRATION OF THE HOLDING PERIOD AND OTHER REQUIREMENTS
UNDER RULE 144 IN CASES OF TRANSFERS INTO THE UNRESTRICTED REG S GLOBAL NOTE.]
[A] In connection with such request and in respect of such Convertible
Note, the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Indenture and the
Convertible Notes and pursuant to and in accordance with Regulations
("Regulation S") under the United States Securities Act of 1933, as amended (the
"Securities Act"), and accordingly the Transferor does hereby certify that:
(1) the offer of the Convertible Notes was not made to a person in the
United States;
A-1
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its
behalf reasonably believed that the transferee was outside the United
States;]*
[(2) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was pre-arranged
with a buyer in the United States;]*
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
[B] In connection with such request and in respect of such Convertible
Notes, the Transferor does hereby certify that such transfer has been effected
in accordance with the transfer restrictions set forth in the Indenture and the
Convertible Notes, and that the Convertible Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S.
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
-----------------------------
cc: ST Assembly Test Services Ltd
- ---------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
A-2
ANNEX B
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM REG S
NOTE TO RESTRICTED GLOBAL NOTE
The Bank of New York,
as Trustee
101 Barclay Street
Floor 21W
New York, New York 10286
Attn: Global Finance Unit
Re: 1.75% Convertible Notes due 2007 of ST Assembly Test Services Ltd (the
"Convertible Notes")
Reference is hereby made to the Indenture, dated as of March 18, 2002 (the
"Indenture"), between ST Assembly Test Services Ltd (the "Company") and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to US$___________ principal amount of Convertible Notes
which are held in the form of a beneficial interest in the Reg S Global Notes
with [Euroclear] [Clearstream] through the Depositary in the name of [insert
name of transferor] (the "Transferor"). The Transferor has requested a transfer
of such beneficial interest in the Convertible Note for a beneficial interest in
the Restricted Global Notes to be held with the Depositary in the name of
[insert name of transferee].
In connection with such request, and in respect of such Convertible Notes,
the Transferor does hereby certify that such Convertible Notes are being
transferred in accordance with (i) the transfer restrictions set forth in the
Indenture and the Convertible Notes and (ii) Rule 144A under the United States
Securities Act of 1933, as amended (the "Securities Act"), to a transferee that
the Transferor reasonably believes is purchasing the Convertible Notes for its
own account or an account with respect to which the transferee exercises sole
investment discretion and the transferee and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
("Rule 144A"), and such transferee is aware that the sale to it is being made in
reliance upon Rule 144A, in each case in a transaction meeting the requirements
of Rule 144A and in accordance with any applicable securities laws of any state
of the United States or any other jurisdiction.
B-1
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
------------------------------
cc: ST Assembly Test Services Ltd
B-1