UNITED
STATES |
SECURITIES AND
EXCHANGE COMMISSION |
Washington, D.C.
20549 |
|
|
FORM 8-K |
CURRENT
REPORT
Pursuant To Section 13 or
15(d) of the Securities Exchange Act Of 1934
Date of report (Date of
earliest event
reported) January 22, 2015
PHOTRONICS, INC. |
(Exact name of registrant as specified in
its charter) |
Connecticut |
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000-15451 |
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06-0854886 |
(State or
other jurisdiction |
|
(Commission |
|
(IRS
Employer |
of
incorporation) |
|
File
Number) |
|
Identification
Number) |
15 Secor Road, Brookfield, CT |
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06804 |
(Address of Principal Executive
Offices) |
|
(Zip
Code) |
Registrants Telephone
Number, including area
code (203) 775-9000
|
(Former name
or former address, if changed since last report) |
|
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing
obligation of the registrant under any of the following provisions:
☐ |
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425) |
☐ |
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12) |
☐ |
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry Into a
Material Definitive Agreement.
On January 22, 2015,
Photronics, Inc. (the Company), executed an Indenture with the Bank of New
York Mellon Trust Company, N.A., as trustee (the Indenture) to issue $57.5
million principal amount of its 3.25 % Senior Convertible Notes due 2019 (the
New Notes), a form of which is filed as Exhibit 4.1, in privately negotiated
exchanges with certain holders of its 3.25% Senior Convertible Notes due 2016
(the Old Notes), which were issued in 2011. The New Notes were issued to
"accredited investors" and qualified institutional buyers as such terms are
defined in rules under the Securities Act of 1933, as amended.
The New Notes mature on April
1, 2019. Interest on the New Notes accrues from January 22, 2015 and will be
payable semi-annually, in arrears, on April 1 and October 1, beginning April 1,
2015. Interest will be computed on the New Notes on the basis of a 360-day year
of twelve 30-day months.
The New Notes may be converted
into shares of the Companys common stock, par value $0.01 per share (Common
Stock), at an initial conversion rate of 96.3879 shares of Common Stock per
$1,000 principal amount of New Notes (approximately $10.37 per share of Common
Stock), subject to adjustment as described in the Indenture.
If the Company undergoes
certain types of fundamental changes prior to maturity, holders of the New Notes
will have the right, at their option, to require the Company to purchase for
cash all or part of their New Notes at a repurchase price equal to 100% of the
principal amount of the New Notes to be purchased, plus accrued and unpaid
interest to, but excluding, the fundamental change purchase date.
The Indenture provides for
customary events of default which include (subject in certain cases to customary
grace and cure periods), among others: nonpayment of principal or interest;
breach of covenants or other agreements in the Indenture; defaults in failure to
pay certain other indebtedness; and certain events of bankruptcy or insolvency.
Generally, if an event of default occurs and is continuing under the Indenture,
the Trustee or the holders of at least 25% in principal amount of the
outstanding New Notes may declare the entire principal amount of and accrued and
unpaid interest on all the New Notes to be immediately due and
payable.
The Indenture does not limit
the aggregate principal amount of debt securities that may be issued thereunder
and provides that debt securities may be issued thereunder from time to time in
one or more additional series. The Indenture does not limit the Companys
ability to incur additional indebtedness.
The New Notes are senior
unsecured obligations of the Company, ranking equally with its other unsecured
and unsubordinated obligations. The New Notes are effectively subordinated to
all liabilities of the Companys subsidiaries, including trade
payables.
The foregoing descriptions of
the New Notes and the Indenture are only summaries and are qualified in their
entirety by reference to the full text of the form of New Notes and the
Indenture, which are filed as Exhibit 4.1 and Exhibit 4.2, respectively, to this
Current Report on Form 8-K, and each of which is incorporated herein by
reference.
2
Item 9.01. Financial
Statements and Exhibits.
(d) Exhibits.
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4.1 |
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Form of
3.25% Senior Convertible Notes due 2019 |
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4.2 |
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Indenture,
dated January 22, 2015, by and between the Company and The Bank of New
York Mellon Trust Company, N.A., as trustee |
3
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Registrant has duly caused this
report to be signed on its behalf by the undersigned hereunto duly authorized.
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PHOTRONICS, INC. |
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(Registrant) |
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DATE |
January 28,
2015 |
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BY |
/s/ Richelle E. Burr |
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Richelle E. Burr |
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Vice
President, General Counsel |
Exhibit |
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Description |
4.1 |
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Form of 3.25% Senior Convertible
Notes due 2019 |
4.2 |
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Indenture, dated January 22, 2015, by and between the Company
and The Bank of New York Mellon Trust Company, N.A., as
trustee |
4
FORM OF FACE OF NOTE
[INCLUDE FOLLOWING LEGEND IF
A GLOBAL NOTE]
[UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
[INCLUDE FOLLOWING LEGEND ON
ORIGINALLY ISSUED PHYSICAL NOTES AND
ON ANY RESTRICTED SECURITY]
[THIS SECURITY AND THE COMMON
STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY
ACCOUNT FOR WHICH IT IS ACTING IS EITHER A QUALIFIED INSTITUTIONAL BUYER
(WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) OR AN ACCREDITED
INVESTOR (WITHIN THE MEANING OF REGULATION D UNDER THE SECURITIES ACT) AND THAT
IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE BENEFIT OF
THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS
SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE TIME THIS SECURITY IS
EXCHANGED FOR AN INTEREST IN A GLOBAL NOTE, EXCEPT:
(A) TO PHOTRONICS, INC. (THE
COMPANY) OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
OR
(D) PURSUANT TO AN EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.]
Photronics, Inc.
3.25% Convertible Senior
Note due 2019
No.
[__] |
[Initially]1
$[_________] |
CUSIP No. [___]
Photronics, Inc., a
corporation duly organized and validly existing under the laws of the State of
Connecticut (the Company, which term
includes any successor corporation or other entity under the Indenture referred
to on the reverse hereof), for value received hereby promises to pay to [CEDE
& CO.]2 [_______]3, or registered assigns, the
principal sum [as set forth in the Schedule of Exchanges of Notes attached
hereto]4 [of $[_______]]5, which amount, taken together
with the principal amounts of all other outstanding Notes, shall not, unless
permitted by the Indenture, exceed $57,500,000 in aggregate at any time, in
accordance with the rules and procedures of the Depositary, on January 22, 2015,
and interest thereon as set forth below. Capitalized terms used herein but not
defined herein have the meanings ascribed to such terms in the Indenture dated
January 22, 2015 by and between the Company and The Bank of New York Mellon
Trust Company, N.A.
This Note shall bear interest
at the rate of 3.25% per year from January 22, 2015, or from the most recent
date to which interest had been paid or provided for to, but excluding, the next
scheduled Interest Payment Date until April 1, 2019. Accrued interest on this
Note shall be computed on the basis of a 360-day year composed of twelve 30-day
months. Interest is payable semi-annually in arrears on each October 1 and April
1, commencing on April 1, 2015, to Holders of record at the close of business on
the preceding September 15 and March 15 (whether or not such day is a Business
Day), respectively. Additional Interest will be payable as set forth in
Section 6.03 of the within-mentioned
Indenture, and any reference to interest on, or in respect of, any Note therein
shall be deemed to include Additional Interest if, in such context, Additional
Interest is, was or would be payable pursuant to Section 6.03 and any express mention of the payment of
Additional Interest in any provision therein shall not be construed as excluding
Additional Interest in those provisions thereof where such express mention is
not made.
Any Defaulted Amounts shall
accrue interest per annum at the rate borne by the Notes, subject to the
enforceability thereof under applicable law, from, and including, the relevant
payment date to, but excluding, the date on which such Defaulted Amounts shall
have been paid by the Company, at its election, in accordance with
Section 2.03(c) of the Indenture.
The Company shall pay the
principal of and interest on this Note, so long as such Note is a Global Note,
in immediately available funds to the Depositary or its nominee, as the case may
be, as the registered Holder of such Note. As provided in and subject to the
provisions of the Indenture, the Company shall pay the principal of any Notes
(other than Notes that are Global Notes) at the office or agency designated by
the Company for that purpose. The Company has initially designated the Trustee
as its Paying Agent and Note Registrar in respect of the Notes and its agency in
New York, New York as a place where Notes may be presented for payment or for
registration of transfer.
____________________
1 Include if a
global note.
2 Include if a global note.
3 Include
if a physical note.
4 Include if a global note.
5
Include if a physical note.
Reference is made to the
further provisions of this Note set forth on the reverse hereof, including,
without limitation, provisions giving the Holder of this Note the right to
convert this Note into shares of Common Stock on the terms and subject to the
limitations set forth in the Indenture. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note, and any claim,
controversy or dispute arising under or related to this Note, shall be construed
in accordance with and governed by the laws of the State of New York (without
regard to principles of conflict of laws that would result in the application of
the laws of any other jurisdiction).
In the case of any conflict
between this Note and the Indenture, the provisions of the Indenture shall
control and govern.
This Note shall not be valid
or become obligatory for any purpose until the certificate of authentication
hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.
[Remainder of page
intentionally left blank]
IN WITNESS WHEREOF, the
Company has caused this Note to be duly executed.
Photronics, Inc. |
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By: |
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Name: |
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Title: |
Dated:
TRUSTEES CERTIFICATE OF
AUTHENTICATION
The Bank of New York Mellon Trust Company, N.A. as Trustee,
certifies that this is one of the Notes described in the within-named Indenture.
FORM OF REVERSE OF NOTE
Photronics, Inc.
3.25% Convertible Senior Note due
2019
This Note is one of a duly
authorized issue of Notes of the Company, designated as its 3.25% Convertible
Senior Notes due 2019 (the Notes), limited to the
aggregate principal amount of $57,500,000 all issued or to be issued under and
pursuant to an Indenture dated as of January 22, 2015 (the Indenture), between the Company and The Bank of New York Mellon Trust Company,
N.A. (the Trustee), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Conversion Agent, the Company and the Holders of the Notes.
Additional Notes may be issued in an unlimited aggregate principal amount,
subject to certain conditions specified in the Indenture.
In case an Event of Default,
as defined in the Indenture, shall have occurred and be continuing, the
principal of, and interest on, all Notes may be declared, by either the Trustee
or Holders of at least 25% in aggregate principal amount of Notes then
outstanding, and upon said declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions and certain exceptions set
forth in the Indenture.
Subject to the terms and
conditions of the Indenture, the Company will make all payments and deliveries
in respect of the Fundamental Change Repurchase Price and the principal amount
on the Maturity Date, as the case may be, to the Holder who surrenders a Note to
a Paying Agent to collect such payments in respect of the Note. The Company will
pay cash amounts in money of the United States that at the time of payment is
legal tender for payment of public and private debts.
The Indenture contains
provisions permitting the Company and the Trustee in certain circumstances,
without the consent of the Holders of the Notes, and in certain other
circumstances, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding, evidenced as in
the Indenture provided, to execute supplemental indentures modifying the terms
of the Indenture and the Notes as described therein. It is also provided in the
Indenture that, subject to certain exceptions, the Holders of a majority in
aggregate principal amount of the Notes at the time outstanding may on behalf of
the Holders of all of the Notes waive any past Default or Event of Default under
the Indenture and its consequences.
No reference herein to the
Indenture and no provision of this Note or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal (including the Fundamental Change Repurchase Price, if
applicable) of and accrued and unpaid interest on this Note at the place, at the
respective times, at the rate and in the lawful money herein prescribed.
The Notes are issuable in
registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof. At the office or agency of the Company referred to
on the face hereof, and in the manner and subject to the limitations provided in
the Indenture, Notes may be exchanged
for a like aggregate principal amount of Notes of other authorized
denominations, without payment of any service charge but, if required by the
Company or Trustee, with payment of a sum sufficient to cover any transfer or
similar tax that may be imposed in connection therewith as a result of the name
of the Holder of the new Notes issued upon such exchange of Notes being
different from the name of the Holder of the old Notes surrendered for such
exchange.
The Notes are not subject to
redemption through the operation of any sinking fund or otherwise.
Upon the occurrence of a
Fundamental Change, the Holder has the right, at such Holders option, to
require the Company to repurchase for cash all of such Holders Notes or any
portion thereof (in principal amounts of $1,000 or integral multiples thereof)
on the Fundamental Change Repurchase Date at a price equal to the Fundamental
Change Repurchase Price.
Subject to the provisions of
the Indenture, the Holder hereof has the right, at its option, during certain
periods and upon the occurrence of certain conditions specified in the
Indenture, prior to the close of business on the second Scheduled Trading Day
immediately preceding the Maturity Date, to convert any Notes or portion thereof
that is $1,000 or an integral multiple thereof, into shares of Common Stock at
the Conversion Rate specified in the Indenture, as adjusted from time to time as
provided in the Indenture.
Terms used in this Note and
defined in the Indenture are used herein as therein defined.
ABBREVIATIONS
The following abbreviations,
when used in the inscription of the face of this Note, shall be construed as
though they were written out in full according to applicable laws or
regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform
Gifts to Minors Act
CUST = Custodian
TEN ENT = as tenants by the
entireties
JT TEN = joint tenants with
right of survivorship and not as tenants in common
Additional abbreviations may
also be used though not in the above list.
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Photronics,
Inc.
AND
The Bank of New York
Mellon Trust Company, N.A.
as Trustee
INDENTURE
Dated as of January
22, 2015
3.25% Convertible
Senior Notes due 2019
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Page |
ARTICLE 1 Definitions |
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Section |
1.01. |
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Definitions |
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1 |
Section |
1.02. |
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References to Interest |
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10 |
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ARTICLE 2 Issue, Description, Execution,
Registration and Exchange of Notes |
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Section |
2.01. |
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Designation and
Amount |
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10 |
Section |
2.02. |
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Form of Notes |
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10 |
Section |
2.03. |
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Date and Denomination of Notes;
Payments of Interest and Defaulted |
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Amounts |
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11 |
Section |
2.04. |
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Execution, Authentication and Delivery of
Notes |
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12 |
Section |
2.05. |
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Exchange and Registration of
Transfer of Notes; Restrictions on Transfer; |
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Depositary |
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13 |
Section |
2.06. |
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Mutilated, Destroyed, Lost or Stolen Notes |
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17 |
Section |
2.07. |
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Temporary Notes |
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17 |
Section |
2.08. |
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Cancellation of Notes Paid, Converted, Etc |
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18 |
Section |
2.09. |
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CUSIP Numbers |
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18 |
Section |
2.10. |
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Additional Notes; Repurchases |
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18 |
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ARTICLE 3 Satisfaction and
Discharge |
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Section |
3.01. |
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Satisfaction and
Discharge |
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19 |
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ARTICLE 4 Particular Covenants of the
Company |
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Section |
4.01. |
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Payment of Principal and
Interest |
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19 |
Section |
4.02. |
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Maintenance of Office or Agency |
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19 |
Section |
4.03. |
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Appointments to Fill Vacancies
in Trustees Office |
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20 |
Section |
4.04. |
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Provisions as to Paying Agent |
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20 |
Section |
4.05. |
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Existence |
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21 |
Section |
4.06. |
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Annual Reports |
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21 |
Section |
4.07. |
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Stay, Extension and Usury
Laws |
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22 |
Section |
4.08. |
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Compliance Certificate; Statements as to
Defaults |
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22 |
Section |
4.09. |
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Further Instruments and
Acts |
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22 |
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ARTICLE 5 Lists of Holders and Reports
by the Company and the Trustee |
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Section |
5.01. |
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Lists of Holders |
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22 |
Section |
5.02. |
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Preservation and Disclosure of Lists |
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23 |
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ARTICLE 6 Defaults and
Remedies |
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Section |
6.01. |
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Events of Default |
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23 |
Section |
6.02. |
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Acceleration; Rescission and Annulment |
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24 |
Section |
6.03. |
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Additional
Interest |
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25 |
Section |
6.04. |
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Payments of Notes on Default; Suit Therefor |
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26 |
Section |
6.05. |
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Application of Monies Collected
by Trustee |
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27 |
Section |
6.06. |
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Proceedings by Holders |
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28 |
Section |
6.07. |
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Proceedings by
Trustee |
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29 |
Section |
6.08. |
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Remedies Cumulative and Continuing |
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29 |
Section |
6.09. |
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Direction of Proceedings and
Waiver of Defaults by Majority of Holders |
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29 |
Section |
6.10. |
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Notice of Defaults |
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30 |
Section |
6.11. |
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Undertaking to Pay
Costs |
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30 |
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ARTICLE 7 Concerning the
Trustee |
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Section |
7.01. |
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Duties and Responsibilities of
Trustee |
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30 |
Section |
7.02. |
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Reliance on Documents, Opinions, Etc |
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32 |
Section |
7.03. |
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No Responsibility for Recitals,
Etc |
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33 |
Section |
7.04. |
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Trustee, Paying Agents, Conversion Agents or Note Registrar
May Own |
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Notes |
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34 |
Section |
7.05. |
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Monies and Shares of Common
Stock to Be Held in Trust |
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34 |
Section |
7.06. |
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Compensation and Expenses of Trustee |
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34 |
Section |
7.07. |
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Officers Certificate as
Evidence |
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35 |
Section |
7.08. |
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Eligibility of Trustee |
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35 |
Section |
7.09. |
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Resignation or Removal of
Trustee |
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35 |
Section |
7.10. |
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Acceptance by Successor Trustee |
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36 |
Section |
7.11. |
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Succession by Merger,
Etc |
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37 |
Section |
7.12. |
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Trustees Application for Instructions from the
Company |
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38 |
Section |
7.13. |
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Preferential Collection of
Claims |
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38 |
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ARTICLE 8 Concerning the
Holders |
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Section |
8.01. |
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Action by Holders |
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38 |
Section |
8.02. |
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Proof of Execution by Holders |
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38 |
Section |
8.03. |
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Who Are Deemed Absolute
Owners |
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38 |
Section |
8.04. |
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Company-Owned Notes Disregarded |
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39 |
Section |
8.05. |
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Revocation of Consents; Future
Holders Bound |
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39 |
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ARTICLE 9 Holders Meetings
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Section |
9.01. |
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Purpose of
Meetings |
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Section |
9.02. |
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Call of Meetings by Trustee |
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40 |
Section |
9.03. |
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Call of Meetings by Company or
Holders |
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40 |
Section |
9.04. |
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Qualifications for Voting |
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40 |
Section |
9.05. |
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Regulations |
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41 |
Section |
9.06. |
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Voting |
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41 |
Section |
9.07. |
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No Delay of Rights by
Meeting |
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42 |
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ARTICLE 10 Supplemental
Indentures |
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Section |
10.01. |
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Supplemental Indentures Without
Consent of Holders |
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42 |
Section |
10.02. |
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Supplemental Indentures with Consent of
Holders |
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43 |
Section |
10.03. |
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Effect of Supplemental
Indentures |
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44 |
Section |
10.04. |
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Notation on Notes |
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44 |
Section |
10.05. |
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Evidence of Compliance of
Supplemental Indenture to Be Furnished Trustee |
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44 |
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ARTICLE 11 Consolidation, Merger, Sale,
Conveyance and Lease |
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Section |
11.01. |
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Company May Consolidate, Etc. on
Certain Terms |
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44 |
Section |
11.02. |
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Successor Corporation to Be Substituted |
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45 |
Section |
11.03. |
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Opinion of Counsel to Be Given
to Trustee |
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45 |
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ARTICLE 12 Immunity of Incorporators,
Shareholders, Officers and Directors |
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Section |
12.01. |
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Indenture and Notes Solely
Corporate Obligations |
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46 |
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ARTICLE 13 Intentionally
Omitted
ARTICLE 14 Conversion of
Notes |
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Section |
14.01. |
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Conversion
Privilege |
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46 |
Section |
14.02. |
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Conversion Procedure; Settlement Upon
Conversion |
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46 |
Section |
14.03. |
|
Increased Conversion Rate
Applicable to Certain Notes Surrendered in |
|
|
|
|
|
Connection with Make-Whole
Fundamental Changes |
|
48 |
Section |
14.04. |
|
Adjustment of Conversion Rate |
|
50 |
Section |
14.05. |
|
Adjustments of
Prices |
|
59 |
Section |
14.06. |
|
Shares to Be Fully Paid |
|
59 |
Section |
14.07. |
|
Effect of Recapitalizations,
Reclassifications and Changes of the Common |
|
|
|
|
|
Stock |
|
59 |
iii
Section |
14.08. |
|
Certain Covenants |
|
61 |
Section |
14.09. |
|
Responsibility of Trustee |
|
61 |
Section |
14.10. |
|
Notice to Holders Prior to
Certain Actions |
|
62 |
Section |
14.11. |
|
Shareholder Rights Plans |
|
62 |
|
|
|
|
|
|
ARTICLE 15 Repurchase of Notes at Option
of Holders |
|
|
|
|
|
|
Section |
15.01. |
|
Intentionally
Omitted |
|
63 |
Section |
15.02. |
|
Repurchase at Option of Holders Upon a Fundamental
Change |
|
63 |
Section |
15.03. |
|
Withdrawal of Fundamental Change
Repurchase Notice |
|
65 |
Section |
15.04. |
|
Deposit of Fundamental Change Repurchase
Price |
|
66 |
Section |
15.05. |
|
Covenant to Comply with
Applicable Laws Upon Repurchase of Notes |
|
66 |
|
|
|
|
|
|
ARTICLE 16 No
Redemption |
|
|
|
|
|
|
Section |
16.01. |
|
No Redemption |
|
67 |
|
|
|
|
|
|
ARTICLE 17 Miscellaneous
Provisions |
|
|
|
|
|
|
Section |
17.01. |
|
Provisions Binding on Companys
and Trustees Successors |
|
67 |
Section |
17.02. |
|
Official Acts by Successor Corporation |
|
67 |
Section |
17.03. |
|
Addresses for Notices,
Etc |
|
67 |
Section |
17.04. |
|
Governing Law |
|
68 |
Section |
17.05. |
|
Evidence of Compliance with
Conditions Precedent; Certificates and |
|
|
|
|
|
Opinions of Counsel to
Trustee |
|
68 |
Section |
17.06. |
|
Legal Holidays |
|
69 |
Section |
17.07. |
|
No Security Interest
Created |
|
69 |
Section |
17.08. |
|
Benefits of Indenture |
|
69 |
Section |
17.09. |
|
Table of Contents, Headings,
Etc |
|
69 |
Section |
17.10. |
|
Authenticating Agent |
|
69 |
Section |
17.11. |
|
Execution in
Counterparts |
|
70 |
Section |
17.12. |
|
Severability |
|
70 |
Section |
17.13. |
|
Waiver of Jury
Trial |
|
70 |
Section |
17.14. |
|
Force Majeure |
|
71 |
Section |
17.15. |
|
Calculations |
|
71 |
Section |
17.16. |
|
No
Adverse Interpretation Of Other Agreements |
|
71 |
Section |
17.17. |
|
FATCA |
|
71 |
|
|
|
|
|
|
EXHIBIT |
|
|
|
|
|
|
Exhibit A |
|
Form of Note |
|
A-1 |
Exhibit B |
|
Form of Certificate of Exchange |
|
B-1 |
iv
INDENTURE dated as of January
22, 2015 between Photronics, Inc., a Connecticut corporation, as issuer (the
Company, as more fully set forth in Section 1.01) and
The Bank of New York Mellon Trust Company, N.A., a national banking association
organized under the laws of the United States, as trustee (the Trustee, as more fully set forth in Section 1.01).
W I T N E S S E T
H:
WHEREAS, for its lawful
corporate purposes, the Company has duly authorized the issuance of its 3.25%
Convertible Senior Notes due 2019 (the Notes), initially in an
aggregate principal amount not to exceed $57,500,000, and in order to provide
the terms and conditions upon which the Notes are to be authenticated, issued
and delivered, the Company has duly authorized the execution and delivery of
this Indenture; and
WHEREAS, the Form of Note, the
certificate of authentication to be borne by each Note, the Form of Notice of
Conversion, the Form of Fundamental Change Repurchase Notice and the Form of
Assignment and Transfer to be borne by the Notes are to be substantially in the
forms hereinafter provided; and
WHEREAS, all acts and things
necessary to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee or a duly authorized authenticating agent, as provided
in this Indenture, the valid, binding and legal obligations of the Company, and
this Indenture a valid agreement according to its terms, have been done and
performed, and the execution of this Indenture and the issue hereunder of the
Notes have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
That in order to declare the
terms and conditions upon which the Notes are, and are to be, authenticated,
issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Notes by the Holders thereof, the Company covenants and
agrees with the Trustee for the equal and proportionate benefit of the
respective Holders from time to time of the Notes (except as otherwise provided
below), as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. The terms defined in this Section 1.01 (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. The words
herein, hereof, hereunder, and words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article include the plural as well as the
singular. All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, shall have the meanings assigned
to them in the Trust Indenture Act.
Additional Interest means all amounts, if any, payable pursuant to
Section 6.03.
Additional Shares shall have the meaning specified in Section
14.03(a).
Affiliate of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, control, when used
with respect to any specified Person means the power to direct or cause the
direction of the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms controlling and controlled have meanings correlative to the
foregoing.
Board of Directors means the board of directors of the Company or a
committee of such board duly authorized to act for it hereunder.
Board Resolution means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
Business Day means, with respect to any Note, any day other
than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York
is authorized or required by law or executive order to close or be
closed.
Capital Stock means, for any entity, any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that entity.
Certificate of Exchange means a certificate in the form attached hereto
as Exhibit B.
Clause A
Distribution shall have the
meaning specified in Section 14.04(c).
Clause B Distribution
shall have the meaning specified in Section 14.04(c).
Clause C Distribution shall have the meaning specified in Section
14.04(c).
close of
business means 5:00 p.m. (New
York City time).
Commission means the U.S.
Securities and Exchange Commission.
Common Equity of any Person means Capital Stock of such Person
that is generally entitled (a) to vote in the election of directors of such
Person or (b) if such Person is not a corporation, to vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management or policies of such Person.
Common Stock means the common stock of the Company, par value
$0.01 per share, at the date of this Indenture, subject to Section 14.07.
2
Company shall have the meaning specified in the first paragraph of this
Indenture, and subject to the provisions of Article 11, shall include its
successors and assigns.
Company Order means a written order of the Company, signed by
any Officer, and delivered to the Trustee.
Conversion Agent shall have the meaning specified in Section
4.02. The Company initially appoints the Trustee as Conversion Agent. The
Company may terminate the appointment of any Conversion Agent at any time or
appoint additional Conversion Agents.
Conversion Date shall have the meaning specified in Section
14.02(c).
Conversion Obligation shall have the meaning specified in Section
14.01.
Conversion Price means as of any date, $1,000, divided by the Conversion Rate as of such date.
Conversion Rate shall have the meaning specified in Section
14.01.
Corporate Trust Office means the designated office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 525 William Penn Place, 38th
Floor, Pittsburgh, PA 15259, Attention: Corporate Trust Administration, or such
other address as the Trustee may designate from time to time by notice to the
Holders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as such successor Trustee may designate
from time to time by notice to the Holders and the Company).
Custodian means the Trustee, as custodian for The Depository Trust Company, with
respect to the Global Notes, or any successor entity thereto.
Daily VWAP means, for any VWAP Trading Day, the per share volume-weighted average
price as displayed under the heading Bloomberg VWAP on Bloomberg page PLAB
<equity> AQR (or its equivalent successor if such page is not available)
in respect of the period from the scheduled open of trading until the scheduled
close of trading of the primary trading session on such VWAP Trading Day (or if
such volume-weighted average price is unavailable, the market value of one share
of the Common Stock on such VWAP Trading Day determined, using a volume-weighted
average method, by a nationally recognized independent investment banking firm
retained by the Company for this purpose). Daily VWAP shall be determined
without regard to after-hours trading or any other trading outside of regular
trading session trading hours.
Default means any event that is, or after notice or passage of time, or both,
would be, an Event of Default.
Defaulted Amounts means any amounts on any Note (including,
without limitation, the Fundamental Change Repurchase Price, principal and
interest) that are payable but are not punctually paid or duly provided for.
3
Depositary means, with respect to each Global Note, the Person specified in
Section 2.05(c) as the Depositary with respect to such Notes, until a successor
shall have been appointed and become such pursuant to the applicable provisions
of this Indenture, and thereafter, Depositary shall mean or
include such successor.
Distributed Property shall have the meaning specified in Section
14.04(c).
Effective
Date shall have the meaning
specified in Section 14.03(c).
Event of Default shall
have the meaning specified in Section 6.01.
Ex-Dividend Date means the first date on which shares of the
Common Stock trade on the applicable exchange or in the applicable market,
regular way, without the right to receive the issuance, dividend or distribution
in question, from the Company or, if applicable, from the seller of Common Stock
on such exchange or market (in the form of due bills or otherwise) as determined
by such exchange or market.
Exchange Act means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
Form of Assignment and Transfer shall mean the Form of Assignment and Transfer
attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.
Form of Fundamental Change Repurchase
Notice shall mean the Form of Fundamental Change Repurchase
Notice attached as Attachment 2 to the Form of Note attached hereto as Exhibit
A.
Form of Notice of Conversion shall mean the Form of Notice of Conversion
attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.
Fundamental Change shall be deemed to have occurred at such time
after the Notes are originally issued if any of the following occurs:
(a) a person or group
within the meaning of Section 13(d) of the Exchange Act, other than the Company,
its Subsidiaries or the employee benefit plans of the Company or its
Subsidiaries, has become the direct or indirect beneficial owner, as defined
in Rule 13d-3 under the Exchange Act, of the Companys Common Equity
representing more than 50% of the voting power of the Companys Common
Equity;
(b) the consummation of (A)
any recapitalization, reclassification or change of the Common Stock (other than
changes resulting from a subdivision or combination) as a result of which the
Common Stock would be converted into, or exchanged for, stock, other securities,
other property or assets; (B) any share exchange, consolidation or merger of the
Company pursuant to which the Common Stock will be converted into cash,
securities or other property; or (C) any sale, lease or other transfer in one
transaction or a series of transactions of the consolidated assets of the
Company and its Subsidiaries, taken as a whole, substantially as an entirety to
any Person other than one of the Companys Subsidiaries; provided, however, that neither (i) a transaction described in
clause (B) in which the holders of all classes of the Companys Common Equity
immediately prior to such transaction own, directly or indirectly, more than 50%
of all classes of Common Equity of the continuing or surviving corporation or
transferee or the parent thereof immediately after such transaction in
substantially the same proportions as such ownership immediately prior to such
transaction nor (ii) any merger primarily for the purpose of changing the
Companys jurisdiction of incorporation and resulting in a reclassification,
conversion or exchange of outstanding shares of the Common Stock solely into
shares of Common Stock of the surviving entity shall be a Fundamental Change
pursuant to this clause (b);
4
(c) the shareholders of the
Company approve any plan or proposal for the liquidation or dissolution of the
Company; or
(d) the Common Stock (or other
common stock into which the Notes are then convertible) ceases to be listed or
quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or
The NASDAQ Global Market (or any of their respective successors);
provided, however, that a
transaction or transactions described in clauses (a) or (b) above shall not
constitute a Fundamental Change, if at least 90% of the consideration received
or to be received by the common shareholders of the Company, excluding cash
payments for fractional shares, in connection with such transaction or
transactions consists of shares of Publicly Traded Securities, and as a result
of such transaction or transactions the Notes become convertible into such
Publicly Traded Securities, excluding cash payments for fractional shares
(subject to the provisions of Section 14.02(a)).
Fundamental Change Company Notice shall have the meaning specified in Section
15.02(c).
Fundamental Change Repurchase Date shall have the meaning specified in Section
15.02(a).
Fundamental Change Repurchase
Notice shall have the meaning
specified in Section 15.02(b)(i).
Fundamental Change Repurchase
Price shall have the meaning
specified in Section 15.02(a).
Global Note means a Note in global form without interest coupons.
Holder, as applied to any Note, or other similar terms (but excluding the term
beneficial holder), shall mean any person in whose name at the time a
particular Note is registered on the Note Register.
Indenture means this instrument as originally executed or, if amended or
supplemented as herein provided, as so amended or supplemented.
5
Interest Payment Date means each April 1 and October 1 of each year,
beginning on April 1, 2015.
Last Reported Sale Price of the Common Stock on any date means the
closing sale price per share (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 that date as reported
in composite transactions for the principal U.S. national or regional securities
exchange on which the Common Stock is traded. If the Common Stock is not listed
for trading on a U.S. national or regional securities exchange on the relevant
date, the Last Reported Sale
Price shall be the last quoted
bid price for the Common Stock in the over-the-counter market on the relevant
date as reported by OTC Markets Group Inc. or a similar organization. If the
Common Stock is not so quoted, the Last Reported Sale Price
shall be the average of the mid-point of the last bid and ask prices for the
Common Stock on the relevant date from each of at least three nationally
recognized independent investment banking firms selected by the Company for this
purpose. The Last Reported Sale
Price shall be determined
without regard to after-hours trading or any trading outside of regular trading
session hours.
Make-Whole Fundamental Change means any transaction or event that constitutes
a Fundamental Change under clauses (a) or (b) of the definition thereof
(determined after giving effect to any exceptions to or exclusions from such
definition, but without regard to subclause (i) of the proviso in clause (b) of the definition thereof).
Make-Whole Fundamental
Change Company Notice shall have
the meaning specified in Section 14.03(b).
Market Disruption Event means (i) a failure by the primary U.S. national
or regional securities exchange or market on which the Common Stock is listed or
admitted for trading to open for trading during its regular trading session or
(ii) the occurrence or existence prior to 1:00 p.m., New York City time, on any
Scheduled Trading Day for the Common Stock for more than one half-hour period in
the aggregate during regular trading hours of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted
by the relevant stock exchange or otherwise) in the Common Stock or in any
options contracts or futures contracts relating to the Common Stock.
Maturity Date means April 1, 2019.
Merger Event shall have the meaning specified in Section
14.07(a).
Note or Notes shall have the meaning specified in the first
paragraph of the recitals of this Indenture.
Note Register shall have the meaning specified in Section
2.05(a).
Note Registrar shall have the meaning specified in Section
2.05(a).
Notice of Conversion shall have the meaning specified in Section
14.02(b).
6
Offering Memorandum means the preliminary exchange offer memorandum
dated January 13, 2015, as supplemented by the pricing term sheet dated January
16, 2015, relating to the offering and exchange of the Notes.
Officer means, with respect to the Company, the President, the Chief Executive
Officer, the Chief Financial Officer, the Treasurer, any Executive or Senior
Vice President or any Vice President (whether or not designated by a number or
numbers or word or words added before or after the title Vice President).
Officers Certificate, when used with respect to the Company, means a
certificate that is delivered to the Trustee and that is signed by (a) two
Officers of the Company or (b) one Officer of the Company and one of the
Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary or
the Controller of the Company. Each such certificate shall include the
statements provided for in Section 17.05 if and to the extent required by the
provisions of such Section. One of the Officers giving an Officers Certificate
pursuant to Section 4.08 shall be the principal executive, financial or
accounting officer of the Company.
open of business means 9:00 a.m. (New York City time).
Opinion of Counsel means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or other counsel
acceptable to the Trustee, that is delivered to the Trustee. Each such opinion
shall include the statements provided for in Section 17.05 if and to the extent
required by the provisions of such Section 17.05.
outstanding, when used with reference to Notes, shall, subject to the provisions of
Section 8.04, mean, as of any particular time, all Notes authenticated and
delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled
by the Trustee or accepted by the Trustee for cancellation;
(b) Notes, or portions
thereof, that have become due and payable and in respect of which monies in the
necessary amount shall have been deposited in trust with the Trustee or with any
Paying Agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent);
(c) Notes that have been paid
pursuant to Section 2.06 or Notes in lieu of which, or in substitution for
which, other Notes shall have been authenticated and delivered pursuant to the
terms of Section 2.06 unless proof satisfactory to the Trustee is presented that
any such Notes are held by protected purchasers in due course;
(d) Notes converted pursuant
to Article 14 and required to be cancelled pursuant to Section 2.08; and
(e) Notes repurchased by the
Company pursuant to the penultimate sentence of Section 2.10.
7
Paying Agent shall have the meaning specified in Section
4.02.
Person means an individual, a corporation, a limited liability company, an
association, a partnership, a joint venture, a joint stock company, a trust, an
unincorporated organization or a government or an agency or a political
subdivision thereof.
Physical Notes means certificated Notes in registered form
issued in denominations of $1,000 principal amount and multiples thereof.
Predecessor Note of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.06 in lieu of or in exchange for a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note that it replaces.
Publicly Traded Securities means shares of common stock that are listed or
quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or
The NASDAQ Global Market (or any of their respective successors) or will be so
listed or quoted when issued or exchanged in connection with a Fundamental
Change described in clause (b) of the definition thereof.
Record Date means, with respect to any dividend, distribution or other transaction
or event in which the holders of Common Stock (or other security) have the right
to receive any cash, securities or other property or in which the Common Stock
(or other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed for
determination of shareholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors, by statute, by
contract or otherwise).
Reference Property shall have the meaning specified in Section
14.07(a).
Regular Record Date, with respect to any Interest Payment Date,
shall mean the March 15 or September 15 (whether or not such day is a Business
Day) immediately preceding the applicable April 1 or October 1 Interest Payment
Date, respectively.
Responsible Officer means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
Restricted Security means a Note that constitutes a restricted
security within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee
shall be entitled to request, and conclusively rely on, an Opinion of Counsel
with respect to whether any Note constitutes a Restricted Security.
8
Rule 144A means Rule 144A as promulgated under the Securities Act.
Scheduled Trading Day means a day that is scheduled to be a Trading
Day on the principal U.S. national or regional securities exchange or market on
which the Common Stock is listed or admitted for trading. If the Common Stock is
not so listed or admitted for trading, Scheduled Trading
Day means a Business Day.
Securities Act means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
Significant Subsidiary means a Subsidiary of the Company that meets the
definition of significant subsidiary in Article 1, Rule 1-02(w) of Regulation
S-X under the Exchange Act.
Spin-Off shall have the meaning specified in Section 14.04(c).
Stock Price shall have the meaning specified in Section 14.03(c).
Subsidiary means, with respect to any Person, any corporation, association,
limited liability company, partnership or other business entity of which more
than 50% of the total voting power of shares of Capital Stock or other interests
(including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers, general
partners or trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of
such Person; or (iii) one or more Subsidiaries of such Person.
Successor Company shall have the meaning specified in Section
11.01(a).
Trading Day means a day on which (i) trading in the Common Stock generally occurs
on The NASDAQ Global Select Market or, if the Common Stock is not then listed on
The NASDAQ Global Select Market, on the principal other U.S. national or
regional securities exchange on which the Common Stock is then listed or, if the
Common Stock is not then listed on a U.S. national or regional securities
exchange, on the principal other market on which the Common Stock is then traded
and (ii) a Last Reported Sale Price for the Common Stock is available on such
securities exchange or market; provided that if the
Common Stock (or other security for which a closing sale price must be
determined) is not so listed or traded, Trading Day means a
Business Day.
transfer shall have the meaning specified in Section 2.05(c).
Trigger Event shall have the meaning specified in Section
14.04(c).
Trust Indenture Act means the Trust Indenture Act of 1939, as
amended, as it was in force at the date of execution of this Indenture;
provided, however, that in the event
the Trust Indenture Act of 1939 is amended after the date hereof, the term
Trust Indenture Act shall mean, to the extent required by such amendment, the
Trust Indenture Act of 1939, as so amended.
Trustee means the Person named as the Trustee in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter Trustee shall mean or
include each Person who is then a Trustee hereunder.
9
unit of Reference Property shall have the meaning specified in Section
14.07(a).
Valuation Period shall have the meaning specified in Section
14.04(c).
VWAP Trading Day means a day on which (i) there is no Market
Disruption Event and (ii) trading in the Common Stock generally occurs on The
NASDAQ Global Select Market or, if the Common Stock is not then listed on The
NASDAQ Global Select Market, on the principal other U.S. national or regional
securities exchange on which the Common Stock is then listed or, if the Common
Stock is not then listed on a U.S. national or regional securities exchange, on
the principal other market on which the Common Stock is then listed or admitted
for trading. If the Common Stock is not so listed or admitted for trading,
VWAP Trading Day means a Business Day.
Section 1.02. References to Interest. Unless the context otherwise requires, any
reference to interest on, or in respect of, any Note in this Indenture shall be
deemed to include Additional Interest if, in such context, Additional Interest
is, was or would be payable pursuant to Section 6.03. Unless the context
otherwise requires, any express mention of Additional Interest in any provision
hereof shall not be construed as excluding Additional Interest in those
provisions hereof where such express mention is not made.
ARTICLE 2
Issue, Description, Execution, Registration and Exchange of
Notes
Section 2.01. Designation and Amount. The Notes shall be designated as the 3.25%
Convertible Senior Notes due 2019. The aggregate principal amount of Notes that
may be authenticated and delivered under this Indenture is initially limited to
$57,500,000, subject to Section 2.10 and except for Notes authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of
other Notes pursuant to Section 2.05, Section 2.06, Section 2.07, Section 10.04,
Section 14.02 and Section 15.04.
Section 2.02. Form of Notes. The Notes and the Trustees certificate of
authentication to be borne by such Notes shall be substantially in the
respective forms set forth in Exhibit A, the terms and provisions of which shall
constitute, and are hereby expressly incorporated in and made a part of this
Indenture. To the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Any Global Note may be
endorsed with or have incorporated in the text thereof such legends or recitals
or changes not inconsistent with the provisions of this Indenture as may be
required by the Custodian or the Depositary, or as may be required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange or automated quotation system upon which
the Notes may be listed or traded or designated for issuance or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Notes are subject.
10
Any of the Notes may have such
letters, numbers or other marks of identification and such notations, legends or
endorsements as the Officers executing the same may approve (execution thereof
to be conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange or automated quotation system on which the Notes may
be listed or designated for issuance, or to conform to usage or to indicate any
special limitations or restrictions to which any particular Notes are subject.
Each Global Note shall
represent such principal amount of the outstanding Notes as shall be specified
therein and shall provide that it shall represent the aggregate principal amount
of outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be increased or reduced to reflect repurchases, conversions, transfers or
exchanges permitted hereby. Any endorsement of the Global Note to reflect the
amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in such manner and upon instructions given by the
Holder of such Notes in accordance with this Indenture. Payment of principal
(including the Fundamental Change Repurchase Price, if applicable) of, and
accrued and unpaid interest on, the Global Note shall be made to the Holder of
such Note on the date of payment, unless a record date or other means of
determining Holders eligible to receive payment is provided for herein.
Section 2.03. Date and Denomination of Notes; Payments of
Interest and Defaulted Amounts. (a) The Notes shall be issuable in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof. Each
Note shall be dated the date of its authentication and shall bear interest from
the date specified on the face of the form of Note attached as Exhibit A hereto.
Accrued interest on the Notes shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
(b) The
Person in whose name any Note (or its Predecessor Note) is registered on the
Note Register at the close of business on any Regular Record Date with respect
to any Interest Payment Date shall be entitled to receive the interest payable
on such Interest Payment Date. Interest shall be payable at the office or agency
of the Company maintained by the Company for such purposes, which shall
initially be the Corporate Trust Office. The Company shall pay interest (i) on
any Physical Notes (A) to Holders having an aggregate principal amount of
$5,000,000 or less, by check mailed to the Holders of these Notes at their
address as it appears in the Note Register and (B) to Holders having an
aggregate principal amount of more than $5,000,000, either by check mailed to
the Holders of these Notes or upon application by a Holder to the Note Registrar
not later than the relevant Regular Record Date, by wire transfer in immediately
available funds to that Holders account within the United States, which
application shall remain in effect until the Holder notifies, in writing, the
Note Registrar to the contrary or (ii) on any Global Note by wire transfer of
immediately available funds to the account of the Depositary or its
nominee.
11
(c) Any
Defaulted Amounts shall forthwith cease to be payable to the Holder on the
relevant payment date by virtue of its having been such Holder but shall accrue
interest per annum at the rate borne by the Notes, from, and including, such
relevant payment date to, but excluding, the date on which such Defaulted
Amounts shall have been paid by the Company, at its election in each case, as
follows:
The
Company may elect to make payment of any Defaulted Amounts to the Persons in
whose names the Notes (or their respective Predecessor Notes) are registered at
the close of business on a special record date for the payment of such Defaulted
Amounts, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of the Defaulted Amounts proposed to be
paid on each Note and the date of the proposed payment (which shall be not less
than 25 days after the receipt by the Trustee of such notice, unless the Trustee
shall consent to an earlier date), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount to be
paid in respect of such Defaulted Amounts or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Amounts as in this clause provided.
Thereupon the Company shall fix a special record date for the payment of such
Defaulted Amounts 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, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Amounts and the special record date therefor to be
mailed, first-class postage prepaid, to each Holder at its address as it appears
in the Note Register, not less than 10 days prior to such special record date.
Notice of the proposed payment of such Defaulted Amounts and the special record
date therefor having been so mailed, such Defaulted Amounts shall be paid to the
Persons in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on such special record date and shall no
longer be payable pursuant to this Section 2.03.
Section 2.04. Execution, Authentication and Delivery of Notes.
The Notes shall be signed in the
name and on behalf of the Company by the manual or facsimile signature of any of
its Officers.
At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Notes executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Notes, and the Trustee
in accordance with such Company Order shall authenticate and deliver such Notes,
without any further action by the Company hereunder.
12
On the date of this Indenture,
upon receipt of a Company Order, the Trustee shall authenticate Notes for
original issue in the form of (i) one or more temporary Physical Notes, each
bearing the restrictive legend set forth in Section 2.05(c), in the aggregate
principal amount of $57,500,000, and (ii) one Global Note, not bearing the
restrictive legend set forth in Section 2.05(c), in the aggregate principal
amount of $0. The Trustee shall deliver such Physical Notes to the Company on
behalf of the Holders and shall hold such Global Note as Custodian. The Company
shall thereafter provide to the Trustee an Opinion of Counsel stating that such
Physical Notes do not constitute Restricted Securities and providing that the
restrictive legend on such Physical Notes may be removed. Upon delivery of such
Opinion of Counsel, the Company, on behalf of the Holders, shall deliver such
Holders Physical Notes and such Holders Certificates of Exchange to the
Trustee and shall direct the Trustee to accept the deposit instructions
submitted by the Holders through DTCs DWAC program, whereupon the Trustee shall
exchange such Physical Notes for interests in the originally issued Global Note.
The aggregate principal amount of such Global Note shall be increased by
adjustments made on the records of the Trustee, and the Trustee shall make
corresponding entries on the Schedule of Exchanges of Notes attached thereto.
The Trustee shall thereupon cancel the temporary Physical Notes in accordance
with Section 2.08.
Attached hereto as Exhibit C
is a schedule showing (i) the names of the Holders, (ii) the aggregate principal
amount of the temporary Physical Note to be delivered to the Company on each
Holders behalf and (iii) the DTC Number of the relevant DTC
participant.
Only such Notes as shall bear
thereon a certificate of authentication substantially in the form set forth on
the form of Note attached as Exhibit A hereto, executed manually or by facsimile
by an authorized officer of the Trustee (or an authenticating agent appointed by
the Trustee as provided by Section 17.10), shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee (or such an authenticating agent) upon any Note executed by the
Company shall be conclusive evidence that the Note so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to
the benefits of this Indenture.
In case any Officer of the
Company who shall have signed any of the Notes shall cease to be such Officer
before the Notes so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Notes nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Notes had not ceased to be such Officer of the Company; and any Note may be
signed on behalf of the Company by such persons as, at the actual date of the
execution of such Note, shall be the Officers of the Company, although at the
date of the execution of this Indenture any such Person was not such an Officer.
Section 2.05. Exchange and Registration of Transfer of Notes;
Restrictions on Transfer; Depositary. (a) The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office or in any other office or
agency of the Company designated pursuant to Section 4.02, the Note Register) in which, subject to such reasonable
regulations or procedures as it may prescribe, the Company shall provide for the
registration of Notes and transfers of Notes. Such register shall be in written
form or in any form capable of being converted into written form within a
reasonable period of time. The Trustee is hereby appointed the Note Registrar for the purpose of registering Notes and
transfers of Notes as herein provided. The Company may appoint one or more
co-Note Registrars in accordance with Section 4.02.
13
Upon surrender for
registration of transfer of any Note to the Note Registrar or any co-registrar,
and satisfaction of the requirements for such transfer set forth in this Section
2.05, the Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new Notes
of any authorized denominations and of a like aggregate principal amount and
bearing such restrictive legends as may be required by this Indenture.
Notes may be exchanged for
other Notes of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes that the Holder making the exchange is
entitled to receive, bearing registration numbers not contemporaneously
outstanding.
All Notes presented or
surrendered for registration of transfer or for exchange, repurchase or
conversion shall (if so required by the Company, the Trustee, the Note Registrar
or any co-Note Registrar) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
duly executed, by the Holder thereof or its attorney-in-fact duly authorized in
writing.
No service charge shall be
charged to the Holder for any exchange or registration of transfer of Notes, but
the Company or the Trustee may require a Holder to pay a sum sufficient to cover
any tax or other similar governmental charge required by law or permitted
pursuant to Section 14.02(e).
None of the Company, the
Trustee, the Note Registrar or any co-registrar shall be required to exchange or
register a transfer of (i) any Notes surrendered for conversion or, if a portion
of any Note is surrendered for conversion, such portion thereof surrendered for
conversion or (ii) any Notes, or a portion of any Note, surrendered for
repurchase (and not withdrawn) in accordance with Article 15.
All Notes issued upon any
registration of transfer or exchange of Notes in accordance with this Indenture
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture as the Notes surrendered upon
such registration of transfer or exchange.
(b) Each
Global Note shall be registered in the name of the Depositary or the nominee of
the Depositary. Subject to Section 2.04, the transfer and exchange of beneficial
interests in a Global Note that does not involve the issuance of a Physical
Note, shall be effected through the Depositary (but not the Trustee or the
Custodian) in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depositary therefor.
(c) Every
Restricted Security shall be subject to the restrictions on transfer set forth
in this Section 2.05(c) (including the legend set forth below), unless such
restrictions on transfer shall be eliminated or otherwise waived by written
consent of the Company, and the Holder of each such Restricted Security, by such
Holders acceptance thereof, agrees to be bound by all such restrictions on
transfer. As used in this Section 2.05(c), the term transfer encompasses any sale, pledge, transfer or other disposition whatsoever
of any Restricted Security.
14
Until the temporary Physical
Notes are exchanged for interests in a Global Note in accordance with Section
2.04, such Physical Notes shall bear a legend in substantially the following
form:
THIS SECURITY AND THE COMMON
STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1)
REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS EITHER A QUALIFIED
INSTITUTIONAL BUYER (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT)
OR AN ACCREDITED INVESTOR (WITHIN
THE MEANING OF REGULATION D UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE
INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2)
AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE
TIME THIS SECURITY IS EXCHANGED FOR AN INTEREST IN A GLOBAL NOTE, EXCEPT:
(A)
TO PHOTRONICS, INC. (THE COMPANY) OR ANY
SUBSIDIARY THEREOF, OR
(B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR
(C)
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
Notwithstanding any other
provisions of this Indenture (other than the provisions set forth in this
Section 2.05(c)), a Global Note may not be transferred as a whole or in part
except (i) by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary and (ii) for transfers of portions of a Global Note in
certificated form made upon request of a member of, or a participant in, the
Depositary (for itself or on behalf of a beneficial owner) by written notice
given to the Trustee by or on behalf of the Depositary in accordance with
customary procedures of the Depositary and in compliance with this Section
2.05(c).
15
The Depositary shall be a
clearing agency registered under the Exchange Act. The Company initially
appoints The Depository Trust Company to act as Depositary with respect to each
Global Note. Initially, each Global Note shall be issued to the Depositary,
registered in the name of Cede & Co., as the nominee of the Depositary, and
deposited with the Trustee as custodian for Cede & Co.
If (i) the Depositary notifies
the Company at any time that the Depositary is unwilling or unable to continue
as depositary for the Global Notes and a successor depositary is not appointed
within 90 days, (ii) the Depositary ceases to be registered as a clearing agency
under the Exchange Act and a successor depositary is not appointed within 90
days or (iii) an Event of Default with respect to the Notes has occurred and is
continuing and a beneficial owner of the Notes requests that its Notes be issued
as Physical Notes, the Company will execute, and the Trustee, upon receipt of an
Officers Certificate and a Company Order for the authentication and delivery of
Notes, will authenticate and deliver Physical Notes to each such beneficial
owner of the related Notes (or a portion thereof) in an aggregate principal
amount equal to the principal amount of such Global Note, in exchange for such
Global Note, and upon delivery of the Global Note to the Trustee such Global
Note shall be canceled.
Physical Notes issued in
exchange for all or a part of the Global Note pursuant to this Section 2.05(c)
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. Upon execution and authentication, the
Trustee shall deliver such Physical Notes to the Persons in whose names such
Physical Notes are so registered.
At such time as all interests
in a Global Note have been converted, canceled, repurchased or transferred, such
Global Note shall be, upon receipt thereof, canceled by the Trustee in
accordance with standing procedures and existing instructions between the
Depositary and the Custodian. At any time prior to such cancellation, if any
interest in a Global Note is exchanged for Physical Notes, converted, canceled,
repurchased or transferred to a transferee who receives Physical Notes therefor
or any Physical Note is exchanged or transferred for part of such Global Note,
the principal amount of such Global Note shall, in accordance with the standing
procedures and instructions existing between the Depositary and the Custodian,
be appropriately reduced or increased, as the case may be, and an endorsement
shall be made on such Global Note, by the Trustee or the Custodian, at the
direction of the Trustee, to reflect such reduction or increase.
Neither the Company, the
Trustee nor any agent of the Company or the Trustee shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Note or
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
(d) Any
Note or Common Stock issued upon the conversion or exchange of a Note that is
repurchased or owned by the Company or any Affiliate thereof may not be resold
by the Company or such Affiliate unless registered under the Securities Act or
resold pursuant to an exemption from the registration requirements of the
Securities Act in a transaction that results in such Notes or Common Stock, as
the case may be, no longer being restricted securities (as defined under Rule
144 under the Securities Act).
16
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes.
In case any Note shall become
mutilated or be destroyed, lost or stolen, the Company in its discretion may
execute, and upon its written request the Trustee or an authenticating agent
appointed by the Trustee shall authenticate and deliver, a new Note, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen. In every case the applicant for a substituted Note shall furnish
to the Company, to the Trustee and, if applicable, to such authenticating agent
such security or indemnity as may be required by them to save each of them
harmless from any loss, liability, cost or expense caused by or connected with
such substitution, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company, to the Trustee and, if applicable,
to such authenticating agent evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.
The Trustee or such
authenticating agent may authenticate any such substituted Note and deliver the
same upon the receipt of such security or indemnity as the Trustee, the Company
and, if applicable, such authenticating agent may require. Upon the issuance of
any substitute Note, the Company or the Trustee may require the payment by the
Holder of a sum sufficient to cover any tax, assessment or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith. In case any Note that has matured or is about to mature or has been
surrendered for required repurchase or is about to be converted in accordance
with Article 14 shall become mutilated or be destroyed, lost or stolen, the
Company may, in its sole discretion, instead of issuing a substitute Note, pay
or authorize the payment of or convert or authorize the conversion of the same
(without surrender thereof except in the case of a mutilated Note), as the case
may be, if the applicant for such payment or conversion shall furnish to the
Company, to the Trustee and, if applicable, to such authenticating agent such
security or indemnity as may be required by them to save each of them harmless
for any loss, liability, cost or expense caused by or connected with such
substitution, and, in every case of destruction, loss or theft, evidence
satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or
Conversion Agent evidence of their satisfaction of the destruction, loss or
theft of such Note and of the ownership thereof.
Every substitute Note issued
pursuant to the provisions of this Section 2.06 by virtue of the fact that any
Note is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note
shall be found at any time, and shall be entitled to all the benefits of (but
shall be subject to all the limitations set forth in) this Indenture equally and
proportionately with any and all other Notes duly issued hereunder. To the
extent permitted by law, all Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment or conversion or repurchase of mutilated, destroyed, lost
or stolen Notes and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment or conversion of negotiable
instruments or other securities without their surrender.
Section 2.07. Temporary Notes. Pending the preparation of permanent Physical
Notes, the Company may execute and the Trustee or an authenticating agent
appointed by the Trustee shall, upon written request of the Company,
authenticate and deliver temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in the form of the permanent
Physical Notes but with such omissions, insertions and variations as may be
appropriate for temporary Notes, all as may be determined by the Company. Every
such temporary Note shall be executed by the Company and authenticated by the
Trustee or such authenticating agent upon the same conditions and in
substantially the same manner, and with the same effect, as the permanent
Physical Notes. Without unreasonable delay, the Company will execute and deliver to the Trustee or
such authenticating agent permanent Physical Notes (other than any Global Note)
and thereupon any or all temporary Notes (other than any Global Note) may be
surrendered in exchange therefor, at each office or agency maintained by the
Company pursuant to Section 4.02 and the Trustee or such authenticating agent
shall authenticate and deliver in exchange for such temporary Notes an equal
aggregate principal amount of permanent Physical Notes. Such exchange shall be
made by the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits and subject to the same limitations under this Indenture as permanent
Physical Notes authenticated and delivered hereunder.
17
Section 2.08. Cancellation of Notes Paid, Converted, Etc.
The Company shall cause all Notes
surrendered for the purpose of payment, repurchase, registration of transfer or
exchange or conversion, if surrendered to any Person other than the Trustee
(including any of the Companys Agents, Subsidiaries or Affiliates), to be
surrendered to the Trustee for cancellation. All Notes delivered to the Trustee
shall be canceled promptly by it, and no Notes shall be authenticated in
exchange thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of canceled Notes in accordance with its
customary procedures and, after such disposition, shall deliver a certificate of
such disposition to the Company, at the Companys written request in a Company
Order. If the Company or any of its Subsidiaries shall acquire any of the Notes,
such acquisition shall not operate as a redemption, repurchase or satisfaction
of the indebtedness represented by such Notes unless and until the same are
delivered to the Trustee for cancellation.
Section 2.09. CUSIP Numbers. The Company in issuing the Notes may use CUSIP
numbers (if then generally in use), and, if so, the Trustee shall use CUSIP
numbers in all notices issued to Holders as a convenience to such Holders;
provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or on such notice and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company will promptly notify
the Trustee in writing of any change in the CUSIP numbers.
Section 2.10. Additional Notes; Repurchases. The Company may, without the consent of the
Holders and notwithstanding Section 2.01, reopen this Indenture and issue
additional Notes hereunder with the same terms as the Notes initially issued
hereunder (except for any difference in issue price and interest accrued, if
any) in an unlimited aggregate principal amount; provided that if any additional Notes subsequently issued are not fungible with
the Notes initially issued hereunder for U.S. federal income tax purposes and
securities law purposes, such additional Notes shall have a separate CUSIP
number. Prior to the issuance of any such additional Notes, the Company shall
deliver to the Trustee a Company Order, an Officers Certificate and an Opinion
of Counsel, such Officers Certificate and Opinion of Counsel to cover such
matters, in addition to those required by Section 17.05, as the Trustee shall
reasonably request. In addition, the Company may, to the extent permitted by
law, and directly or indirectly
(regardless of whether such Notes are surrendered to the Company), repurchase
Notes in the open market or otherwise, whether by the Company or its
Subsidiaries or through a private or public tender or exchange offer or through
counterparties to private agreements, including by cash-settled swaps or other
derivatives. Any Notes repurchased by the Company may, at the option of the
Company be surrendered to the Trustee for cancellation in accordance with
Section 2.08 but shall not be reissued or resold by the Company.
18
ARTICLE 3
Satisfaction and Discharge
Section 3.01. Satisfaction and Discharge. This Indenture shall upon request of the Company
contained in an Officers Certificate cease to be of further effect, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when (a) (i) all
Notes theretofore authenticated and delivered have been delivered to the Trustee
for cancellation (other than (x) Notes which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.06 and (y) 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 4.04(d)); or (ii) the Company
has deposited with the Trustee or delivered to Holders, as applicable, after the
Notes have become due and payable, whether at the Maturity Date, any Fundamental
Change Repurchase Date, upon conversion or otherwise, cash or cash and shares of
Common Stock, if any (solely to satisfy the Companys Conversion Obligation, if
applicable), sufficient to pay all of the outstanding Notes and all other sums
due and payable under this Indenture by the Company; and (b) the Company has
delivered to the Trustee an Officers Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein 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 7.06 shall survive.
ARTICLE 4
Particular Covenants of the Company
Section 4.01. Payment of Principal and Interest.
The Company covenants and agrees
that it will cause to be paid the principal (including the Fundamental Change
Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of
the Notes at the places, at the respective times and in the manner provided
herein and in the Notes.
Section 4.02. Maintenance of Office or Agency.
The Company will maintain in the
Borough of Manhattan, The City of New York, an office or agency where the Notes
may be surrendered for registration of transfer or exchange or for presentation
for payment or repurchase (Paying Agent) or for conversion (Conversion Agent) and where notices and demands to or upon the
Company in respect of the Notes and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. 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 or the office or
agency of the Trustee in the Borough of Manhattan, The City of New York. The
Paying Agent, as directed by the Company and upon receipt of funds from the
Company for the same, shall make the payments provided for hereunder as agent on
behalf of the Company.
19
The Company may also from time
to time designate as co-Note Registrars one or more other offices or agencies
where the Notes may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided 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 of any such designation or rescission and of any
change in the location of any such other office or agency. The terms
Paying Agent and Conversion Agent include
any such additional or other offices or agencies, as applicable.
The Company hereby initially
designates the Trustee as the Paying Agent, Note Registrar, Custodian and
Conversion Agent and the Corporate Trust Office and the office or agency of the
Trustee in the Borough of Manhattan, The City of New York, each shall be
considered as one such office or agency of the Company for each of the aforesaid
purposes.
Section 4.03. Appointments to Fill Vacancies in Trustees
Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 7.09, a Trustee, so that there shall at all times
be a Trustee hereunder.
Section 4.04. Provisions as to Paying Agent. (a) If the Company shall appoint a Paying Agent
other than the Trustee, the Company will cause such Paying Agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 4.04:
(i) that
it will hold all sums held by it as such agent for the payment of the principal
(including the Fundamental Change Repurchase Price, if applicable) of, and
accrued and unpaid interest on, the Notes in trust for the benefit of the
Holders of the Notes;
(ii) that
it will give the Trustee prompt notice of any failure by the Company to make any
payment of the principal (including the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, the Notes when the same
shall be due and payable; and
(iii) that
at any time during the continuance of an Event of Default, upon request of the
Trustee, it will forthwith pay to the Trustee all sums so held in trust.
The Company shall, on or
before each due date of the principal (including the Fundamental Change Repurchase
Price, if applicable) of, or accrued and unpaid interest on, the Notes, deposit
with the Paying Agent a sum sufficient to pay such principal (including the
Fundamental Change Repurchase Price, if applicable) or accrued and unpaid
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of any failure to take such action; provided that if such deposit is made on the due date, such deposit must be
received by the Paying Agent by 11:00 a.m., New York City time, on such date.
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(b) If the
Company shall act as its own Paying Agent, it will, on or before each due date
of the principal (including the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, the Notes, set aside,
segregate and hold in trust for the benefit of the Holders of the Notes a sum
sufficient to pay such principal (including the Fundamental Change Repurchase
Price, if applicable) and accrued and unpaid interest so becoming due and will
promptly notify the Trustee in writing of any failure to take such action and of
any failure by the Company to make any payment of the principal (including the
Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid
interest on, the Notes when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay, cause to be paid or
deliver to the Trustee all sums or amounts held in trust by the Company or any
Paying Agent hereunder as required by this Section 4.04, such sums or amounts to
be held by the Trustee upon the trusts herein contained and upon such payment or
delivery by the Company or any Paying Agent to the Trustee, the Company or such
Paying Agent shall be released from all further liability but only with respect
to such sums or amounts.
(d) Any
money and shares of Common Stock deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal
(including the Fundamental Change Repurchase Price, if applicable) of, and
accrued and unpaid interest on, any Note and remaining unclaimed for two years
after such principal (including the Fundamental Change Repurchase Price, if
applicable) or interest has become due and payable shall be paid to the Company
on request of the Company contained in an Officers Certificate, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
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 shares of Common Stock, 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 a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in The Borough of Manhattan, The City of New York, notice
that such money and shares of Common Stock 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 and shares of Common Stock
then remaining will be repaid or delivered to the Company.
Section 4.05. Existence. Subject to Article 11, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence.
Section 4.06. Annual Reports. (a) The Company shall file with the Trustee within
15 days after the same are required to be filed with the Commission, copies of
any documents or reports that the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to
any grace period provided by Rule 12b-25 under the Exchange Act). Any such
document or report that the Company files with the Commission via the Commissions EDGAR system shall be deemed to
be filed with the Trustee for purposes of this Section 4.06(a) as of the time
such documents are filed via the EDGAR system.
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(b) Delivery of the reports and documents described in subsection (a) above
to the Trustee is for informational purposes only, and the Trustees receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Companys compliance with any of its covenants hereunder (as to which the
Trustee is entitled to conclusively rely on an Officers Certificate).
Section 4.07. Stay, Extension and Usury Laws. The Company covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 4.08. Compliance Certificate; Statements as to
Defaults. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company (beginning with the fiscal year ending on November 1, 2015) an Officers
Certificate indicating whether or not the signers thereof have knowledge of any
failure by the Company to comply with all conditions and covenants then required
to be performed under this Indenture and, if so, specifying each such failure
and the nature thereof.
In addition, the Company shall
deliver to the Trustee, as soon as possible, and in any event within 30 days
after the Company becomes aware of the occurrence of any Event of Default or
Default, an Officers Certificate setting forth the details of such Event of
Default or Default, its status and the action that the Company is taking or
proposes to take with respect thereto.
Section 4.09. Further Instruments and Acts. Upon request of the Trustee, the Company will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
ARTICLE 5
Lists of Holders and Reports by the Company and the
Trustee
Section 5.01. Lists of Holders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee, semi-annually, not more than 15
days after each September 15 and March 15 in each year beginning with March 15,
2015, and at such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request (or such lesser time as
the Trustee may reasonably request in order to enable it to timely provide any
notice to be provided by it hereunder), a list in such form as the Trustee may
reasonably require of the names and
addresses of the Holders as of a date not more than 15 days (or such other date
as the Trustee may reasonably request in order to so provide any such notices)
prior to the time such information is furnished, except that no such list need
be furnished so long as the Trustee is acting as Note Registrar.
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Section 5.02. Preservation and Disclosure of Lists.
The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names and
addresses of the Holders contained in the most recent list furnished to it as
provided in Section 5.01 or maintained by the Trustee in its capacity as Note
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
ARTICLE 6
Defaults and Remedies
Section 6.01. Events of Default. The following events shall be Events of Default with respect to the Notes:
(a) default in any payment of interest on any Note when due and payable, and
the default continues for a period of 30 days;
(b) default in the payment of principal of any Note when due and payable on
the Maturity Date, upon any required repurchase, upon declaration of
acceleration or otherwise;
(c) failure by the Company to comply with its obligation to convert the Notes
in accordance with this Indenture upon exercise of a Holders conversion right
and such failure continues for five days following the scheduled settlement
date;
(d) failure by the Company to issue a Fundamental Change Company Notice in
accordance with Section 15.02(c) or a Make-Whole Fundamental Change Company
Notice in accordance with Section 14.03(b), in each case when due;
(e) failure by the Company to comply with its obligations under Article 11;
(f) failure by the Company for 60 days after written notice from the Trustee
or the Holders of at least 25% in principal amount of the Notes then outstanding
has been received by the Company to comply with any of its other agreements
contained in the Notes or this Indenture;
(g) default by the Company or any Significant Subsidiary of the Company with
respect to any mortgage, agreement or other instrument under which there may be
outstanding, or by which there may be secured or evidenced, any indebtedness for
money borrowed having a principal amount in excess of $10 million in the
aggregate of the Company and/or any such Significant Subsidiary, whether such
indebtedness now exists or shall hereafter be created (i) resulting in such
indebtedness becoming or being declared due and payable or (ii) constituting a
failure to pay the principal or interest of any such debt when due and payable
at its stated maturity, upon required repurchase, upon declaration of
acceleration or otherwise; provided that any such Event of Default shall be
deemed cured and not continuing upon payment of such indebtedness or rescission
of such declaration;
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(h) a
final judgment for the payment of $10 million or more (excluding any amounts
covered by insurance) rendered against the Company or any Significant Subsidiary
of the Company, which judgment is not discharged or stayed within 60 days after
(i) the date on which the right to appeal thereof has expired if no such appeal
has commenced, or (ii) the date on which all rights to appeal have been
extinguished;
(i) the
Company or any Significant Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
the Company or any such Significant Subsidiary or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of the Company or any such Significant Subsidiary or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or the Company shall make any admission in writing of
its inability to pay its debts generally as they become due; or
(j) an
involuntary case or other proceeding shall be commenced against the Company or
any Significant Subsidiary seeking liquidation, reorganization or other relief
with respect to the Company or such Significant Subsidiary or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of the Company or such Significant Subsidiary or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 30 consecutive days.
Section 6.02. Acceleration; Rescission and
Annulment. If one or more Events
of Default shall have occurred and be continuing (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body), then,
and in each and every such case (other than an Event of Default specified in
Section 6.01(i) or Section 6.01(j) with respect to the Company), unless the
principal of all of the Notes shall have already become due and payable, either
the Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding determined in accordance with Section 8.04, by notice in
writing to the Company (and to the Trustee if given by Holders), may declare
100% of the principal of, and accrued and unpaid interest, if any, on, all the
Notes to be due and payable immediately, and upon any such declaration the same
shall become and shall automatically be immediately due and payable, anything in
this Indenture or in the Notes contained to the contrary notwithstanding. If an
Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to
the Company, but not any of its Significant Subsidiaries, occurs and is
continuing, 100% of the principal of, and accrued and unpaid interest on, all
Notes shall be automatically and immediately due and payable.
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This provision, however, is
subject to the conditions that if, at any time after the principal of the Notes
shall have been so declared due and payable, and before any judgment or decree
for the payment of the monies due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay installments of accrued and unpaid interest upon all Notes
and the principal of any and all Notes that shall have become due otherwise than
by acceleration (with interest on overdue installments of accrued and unpaid
interest, and on such principal at the rate borne by the Notes) and amounts due
to the Trustee pursuant to Section 7.06, and if (1) rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and
(2) any and all existing Events of Default under this Indenture, other than the
nonpayment of the principal of and accrued and unpaid interest, if any, on Notes
that shall have become due solely by such acceleration, shall have been cured or
waived or otherwise remedied pursuant to Section 6.09, then and in every such
case (except as provided in the immediately succeeding sentence) the Holders of
a majority in aggregate principal amount of the Notes then outstanding, by
written notice to the Company and to the Trustee, may waive all Defaults or
Events of Default with respect to the Notes and rescind and annul such
declaration and its consequences and 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 or rescission and annulment shall
extend to or shall affect any subsequent Default or Event of Default, or shall
impair any right consequent thereon. Notwithstanding anything to the contrary herein, no such waiver or
rescission and annulment shall extend to or shall affect any Default or Event of
Default resulting from (i) the nonpayment of the principal of, or accrued and
unpaid interest on, any Notes, (ii) a failure to repurchase any Notes when
required or (iii) a failure to pay or deliver, as the case may be, the
consideration due upon conversion of the Notes.
Section 6.03. Additional Interest. Notwithstanding anything in this Indenture or in
the Notes to the contrary, to the extent the Company elects, the sole remedy for
an Event of Default relating to the Companys failure to comply with its
obligations as set forth in Section 4.06(a) shall, for the first 180 days after
the occurrence of such an Event of Default, consist exclusively of the right to
receive Additional Interest on the Notes at a rate equal to 0.25% per annum of
the principal amount of the Notes outstanding for each day during the first 90
days after the occurrence of such Event of Default and 0.50% per annum of the
principal amount of the Notes outstanding from the 91st day until the 180th day
following the occurrence of such an Event of Default during which such Event of
Default is continuing beginning on, and including, the date on which such an
Event of Default first occurs. If the Company so elects, such Additional
Interest shall be payable in the same manner and on the same dates as regular
interest on the Notes. On the 181st day after such Event of Default (if the
Event of Default relating to the Companys failure to file is not cured or
waived prior to such 181st day), the Notes will be subject to acceleration as
provided in Section 6.02. If the Company does not elect to pay Additional
Interest following an Event of Default in accordance with this Section 6.03 or
the Company elects to make such payment but does not pay the Additional Interest
when due, the Notes shall be immediately subject to acceleration as provided in
Section 6.02.
In order to elect to pay
Additional Interest as the sole remedy during the first 180 days after the
occurrence of any Event of Default described in the immediately preceding
paragraph, the Company must notify all Holders of the Notes, the Trustee and the
Paying Agent of such election prior to the beginning of such 180-day period.
Upon the failure to timely give such notice, the Notes shall be immediately
subject to acceleration as provided in Section 6.02.
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Section 6.04. Payments of Notes on Default; Suit Therefor.
If an Event of Default described
in clause (a) or (b) of Section 6.01 shall have occurred, the Company shall,
upon demand of the Trustee, pay to it, for the benefit of the Holders of the
Notes, the whole amount then due and payable on the Notes for principal and
interest, if any, with interest on any overdue principal and interest, if any,
at the rate borne by the Notes at such time, and, in addition thereto, such
further amount as shall be sufficient to cover any amounts due to the Trustee
under Section 7.06. If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes and
collect the monies adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If there shall be pending
proceedings for the bankruptcy or for the reorganization of the Company or any
other obligor on the Notes under title 11 of the United States Code, or any
other applicable law, or in case a receiver, assignee or trustee in bankruptcy
or reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or such other obligor, the
property of the Company or such other obligor, or in the event of any other
judicial proceedings relative to the Company or such other obligor upon the
Notes, or to the creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the provisions of
this Section 6.04, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and accrued and unpaid interest, if any, in respect of the
Notes, and, in case of any judicial proceedings, to file such proofs of claim
and other papers or documents and to take such other actions as it may deem
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceedings relative to the Company or any other obligor on the Notes, its or
their creditors, or its or their property, and to collect and receive any monies
or other property payable or deliverable on any such claims, and to distribute
the same after the deduction of any amounts due the Trustee under Section 7.06;
and any receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, custodian or similar official is hereby authorized by each of the
Holders to make such payments to the Trustee, as administrative expenses, and,
if the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for reasonable compensation,
expenses, advances and disbursements, including agents and counsel fees, and
including any other amounts due to the Trustee under Section 7.06, incurred by
it up to the date of such distribution. To the extent that such payment of
reasonable compensation, expenses, advances and disbursements out of the estate
in any such proceedings shall be denied for any reason, payment of the same
shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, monies, securities and other property that the Holders
of the Notes may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
26
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Holder 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.
All rights of action and of
asserting claims under this Indenture, or under any of the Notes, may be
enforced by the Trustee without the possession of any of the Notes, or the
production thereof at any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes.
In any proceedings brought by
the Trustee (and in any proceedings involving the interpretation of any
provision of this Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the Holders of the Notes, and it shall not be
necessary to make any Holders of the Notes parties to any such
proceedings.
In case the Trustee shall have
proceeded to enforce any right under this Indenture and such proceedings shall
have been discontinued or abandoned because of such waiver or rescission and
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company, the Holders, and the Trustee
shall, subject to any determination in such proceeding, be restored respectively
to their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the Holders, and the Trustee shall continue as though no
such proceeding had been instituted.
Section 6.05. Application of Monies Collected by Trustee.
Any monies collected by the
Trustee pursuant to this Article 6 with respect to the Notes shall be applied,
subject to applicable law, in the following order, at the date or dates fixed by
the Trustee for the distribution of such monies, upon presentation of the
several Notes, and stamping thereon the payment, if only partially paid, and
upon surrender thereof, if fully paid:
First, to the payment of all
amounts due the Trustee under Section 7.06;
Second, in case the principal
of the outstanding Notes shall not have become due and be unpaid, to the payment
of interest on, and any cash due upon conversion of, the Notes in default in the
order of the date due of the payments of such interest and cash due upon
conversion, as the case may be, with interest (to the extent that such interest
has been collected by the Trustee) upon such overdue payments at the rate borne
by the Notes at such time, such payments to be made ratably to the Persons
entitled thereto;
Third, in case the principal
of the outstanding Notes shall have become due, by declaration or otherwise, and
be unpaid to the payment of the whole amount (including, if applicable, the
payment of the Fundamental Change Repurchase Price and any cash due upon
conversion) then owing and unpaid upon the Notes for principal and interest, if
any, with interest on the overdue principal and, to the extent that such
interest has been collected by the Trustee, upon overdue installments of
interest at the rate borne by the Notes at such time, and in case such monies
shall be insufficient to pay in full the whole amounts so due and unpaid upon
the Notes, then to the payment of such principal (including, if applicable, the
Fundamental Change Repurchase Price and the cash due upon conversion) and
interest without preference or priority of principal over interest, or of
interest over principal or of any installment of interest over any other
installment of interest, or of any Note over any other Note, ratably to the
aggregate of such principal (including, if applicable, the Fundamental Change
Repurchase Price and any cash due upon conversion) and accrued and unpaid
interest; and
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Fourth, to the payment of the
remainder, if any, to the Company.
Section 6.06. Proceedings by Holders. Except to enforce the right to receive payment of
principal (including, if applicable, the Fundamental Change Repurchase Price) or
interest when due, or the right to receive payment or delivery of the
consideration due upon conversion, no Holder of any Note shall have any right by
virtue of or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Indenture, or for the appointment of a receiver, trustee, liquidator,
custodian or other similar official, or for any other remedy hereunder,
unless:
(a) such Holder previously shall
have given to the Trustee written notice of an Event of Default and of the
continuance thereof, as hereinbefore provided;
(b) Holders of at least 25% in
aggregate principal amount of the Notes then outstanding shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder;
(c) such Holders shall have
offered to the Trustee such security or indemnity reasonably satisfactory to it
against any loss, liability or expense to be incurred therein or thereby;
(d) the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding; and
(e) no direction that, in the
opinion of the Trustee, is inconsistent with such written request shall have
been given to the Trustee by the Holders of a majority in principal amount of
the Notes outstanding within such 60-day period pursuant to Section
6.09,
it being understood and
intended, and being expressly covenanted by the taker and Holder of every Note
with every other taker and Holder and the Trustee that no one or more Holders
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 Holder, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders (except as otherwise provided herein). For the protection and
enforcement of this Section 6.06, each and every Holder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
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Notwithstanding any other
provision of this Indenture and any provision of any Note, the right of any
Holder to receive payment or delivery, as the case may be, of (x) the principal
(including the Fundamental Change
Repurchase Price, if applicable) of, (y) accrued and unpaid interest on, and (z)
the consideration due upon conversion of, such Note, on or after the respective
due dates expressed or provided for in such Note or in this Indenture, or to
institute suit for the enforcement of any such payment or deliver, as the case
may be, on or after such respective dates against the Company shall not be
impaired or affected without the consent of such Holder.
Section 6.07. Proceedings by Trustee. If an Event of Default shall occur and be
continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as are necessary to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Section 6.08. Remedies Cumulative and Continuing.
Except as provided in the last
paragraph of Section 2.06, all powers and remedies given by this Article 6 to
the Trustee or to the Holders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Holders of the Notes, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder of any of the Notes to exercise any right or power accruing
upon any Default or Event of Default shall impair any such right or power, or
shall be construed to be a waiver of any such Default or Event of Default or any
acquiescence therein; and, subject to the provisions of Section 6.06, every
power and remedy given by this Article 6 or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.
Section 6.09. Direction of Proceedings and Waiver of Defaults
by Majority of Holders. The
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 8.04 shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to Notes; provided, however, that (a) such direction shall not be in conflict with any rule of law
or with this Indenture, and (b) the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. The Trustee
may refuse to follow any direction that it determines is unduly prejudicial to
the rights of any other Holder or that would involve the Trustee in personal
liability. The Holders of a majority in aggregate principal amount of the Notes
at the time outstanding determined in accordance with Section 8.04 may on behalf
of the Holders of all of the Notes waive any past Default or Event of Default
hereunder and its consequences except (i) a default in the payment of accrued
and unpaid interest, if any, on, or the principal (including any Fundamental
Change Repurchase Price) of, the Notes when due that has not been cured pursuant
to the provisions of Section 6.01, (ii) a failure by the Company to deliver the
consideration due upon conversion of the Notes or (iii) a default in respect of
a covenant or provision hereof which under Article 10 cannot be modified or
amended without the consent of each Holder of an outstanding Note affected. Upon
any such waiver the Company, the Trustee and the Holders of the Notes shall be
restored to their former positions and rights hereunder; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon. Whenever any Default or Event of Default hereunder
shall have been waived as permitted by this Section 6.09, said Default or Event
of Default shall for all purposes of the Notes and this Indenture be deemed to
have been cured and to be not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
29
Section 6.10. Notice of Defaults. The Trustee shall, within 90 days after the
occurrence and continuance of a Default of which a Responsible Officer has
actual knowledge, send to all Holders as the names and addresses of such Holders
appear upon the Note Register, notice of all Defaults known to a Responsible
Officer, unless such Defaults shall have been cured or waived before the giving
of such notice; provided that, except in
the case of a Default in the payment of the principal of (including the
Fundamental Change Repurchase Price, if applicable), or accrued and unpaid
interest on, any of the Notes or a Default in the payment or delivery of the
consideration due upon conversion, the Trustee shall be protected in withholding
such notice if and so long as a committee of Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the interests
of the Holders.
Section 6.11. Undertaking to Pay Costs. All parties to this Indenture agree, and each
Holder of any Note by its acceptance thereof shall be deemed to have agreed,
that any court may, in its discretion, require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; provided that the
provisions of this Section 6.11 (to the extent permitted by law) shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Notes at the time outstanding determined in accordance with Section 8.04, or
to any suit instituted by any Holder for the enforcement of the payment of the
principal of or accrued and unpaid interest, if any, on any Note (including, but
not limited to, the Fundamental Change Repurchase Price with respect to the
Notes being repurchased as provided in this Indenture) on or after the due date
expressed or provided for in such Note or to any suit for the enforcement of the
right to convert any Note in accordance with the provisions of Article 14.
ARTICLE 7
Concerning the
Trustee
Section 7.01. Duties and Responsibilities of Trustee.
The Trustee, prior to the
occurrence of an Event of Default and after the curing or waiver of all Events
of Default that may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. If an Event of
Default shall have occurred that has not been cured or waived the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such persons own
affairs; provided that if an Event of Default occurs and is
continuing, the Trustee will be under no obligation to exercise any of the
rights or powers under this Indenture at the request or direction of any of the
Holders unless such Holders have offered to the Trustee indemnity or security
satisfactory to the Trustee against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or direction.
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No provision of this Indenture
shall be construed to relieve the Trustee from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misconduct, except that:
(a) prior to the occurrence of an
Event of Default and after the curing or waiving of all Events of Default that
may have occurred:
(i) the duties and obligations of
the Trustee shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but, in the case of any such certificates or
opinions that by any provisions hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of any mathematical calculations or
other facts stated therein);
(b) the Trustee shall not be
liable for any error of judgment made in good faith by a Responsible Officer or
Officers of the Trustee, unless it shall be proved that the Trustee was grossly
negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less than a
majority in principal amount of the Notes at the time outstanding determined as
provided in Section 8.04 relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture;
(d) whether or not therein
provided, every provision of this Indenture relating to the conduct or affecting
the liability of, or affording protection to, the Trustee shall be subject to
the provisions of this Section 7.01;
(e) the Trustee shall not be
liable in respect of any payment (as to the correctness of amount, entitlement
to receive or any other matters relating to payment) or notice effected by the
Company or any Paying Agent or any records maintained by any co-Note Registrar
with respect to the Notes;
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(f) if any party fails to deliver
a notice relating to an event the fact of which, pursuant to this Indenture,
requires notice to be sent to the Trustee, the Trustee may conclusively rely on
its failure to receive such notice as reason to act as if no such event
occurred;
(g) in the absence of written
investment direction from the Company, all cash received by the Trustee shall be
placed in a non-interest bearing trust account, and in no event shall the
Trustee be liable for the selection of investments or for investment losses
incurred thereon or for losses incurred as a result of the liquidation of any
such investment prior to its maturity date or the failure of the party directing
such investments prior to its maturity date or the failure of the party
directing such investment to provide timely written investment direction, and
the Trustee shall have no obligation to invest or reinvest any amounts held
hereunder in the absence of such written investment direction from the
Company;
(h) 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; and
(i) the Trustee shall not be
required to give any bond or surety in respect of the performance of its power
and duties hereunder.
None of the provisions
contained in this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers.
Section 7.02. Reliance on Documents, Opinions, Etc.
Except as otherwise provided in
Section 7.01:
(a) the Trustee may conclusively
rely and shall be fully protected in acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
Note, coupon or other paper or document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order
or demand of the Company mentioned herein shall be sufficiently evidenced by an
Officers Certificate (unless other evidence in respect thereof be herein
specifically prescribed);
(c) the Trustee may consult with
counsel of its selection and require an Opinion of Counsel and any advice of
such counsel or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in reliance thereon;
(d) the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney at the expense of the Company and shall incur no
liability of any kind by reason of such inquiry or investigation;
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(e) the Trustee shall have no
duty to inquire as to the performance of the Company's covenants herein;
(f) the Trustee may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees or attorneys and the
Trustee shall not be responsible for any misconduct or negligence on the part of
any agent, custodian, nominee or attorney appointed by it with due care
hereunder;
(g) the permissive rights of the
Trustee enumerated herein shall not be construed as duties;
(h) the Trustee may request that
the Company deliver an Officers' 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 Officers' Certificate may be signed by
any person authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered and not
superseded;
(i) 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 Officers Certificate; and
(j) the Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
In no event shall the Trustee
be liable for any consequential loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action. The
Trustee shall not be charged with knowledge of any Default or Event of Default
with respect to the Notes, unless either (1) a Responsible Officer shall have
actual knowledge of such Default or Event of Default or (2) written notice of
such Default or Event of Default shall have been given to the Trustee by the
Company or by any Holder of the Notes.
Section 7.03. No Responsibility for Recitals, Etc.
The recitals contained herein and
in the Notes (except in the Trustees certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with the provisions of this Indenture.
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Section 7.04. Trustee, Paying Agents, Conversion Agents or
Note Registrar May Own Notes. The
Trustee, any Paying Agent, any Conversion Agent or Note Registrar, in its
individual or any other capacity, may become the owner or pledgee of Notes with
the same rights it would have if it were not the Trustee, Paying Agent,
Conversion Agent or Note Registrar.
Section 7.05. Monies and Shares of Common Stock to Be Held in
Trust. All monies and shares of
Common Stock received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received. Money
and shares of Common Stock 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 or shares of Common Stock
received by it hereunder except as may be agreed from time to time by the
Company and the Trustee.
Section 7.06. Compensation and Expenses of Trustee.
The Company covenants and agrees
to pay to the Trustee from time to time, and the Trustee shall be entitled to,
such compensation for all services rendered by it hereunder in any capacity
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) as mutually agreed to in writing
between the Trustee and the Company, and the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in accordance with any of the
provisions of this Indenture in any capacity thereunder (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as shall have been caused by its gross negligence,
willful misconduct or bad faith. The Company also covenants to indemnify the
Trustee or any predecessor Trustee in any capacity under this Indenture and any
other document or transaction entered into in connection herewith and its agents
and any authenticating agent for, and to hold them harmless against, any loss,
claim, damage, liability or expense incurred without gross negligence, willful
misconduct or bad faith on the part of the Trustee, its officers, directors,
agents or employees, or such agent or authenticating agent, as the case may be,
and arising out of or in connection with the acceptance or administration of
this Indenture or in any other capacity hereunder, including the costs and
expenses of defending themselves against any claim of liability in the premises
or any claim (whether asserted by the Company, or any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, or in connection with enforcing the provisions
of this Section. The obligations of the Company under this Section 7.06 to
compensate or indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall be secured by a senior claim to which
the Notes are hereby made subordinate on all money or property held or collected
by the Trustee, except, subject to the effect of Section 6.05, funds held in
trust herewith for the benefit of the Holders of particular Notes. The Trustees
right to receive payment of any amounts due under this Section 7.06 shall not be
subordinate to any other liability or indebtedness of the Company. The
obligation of the Company under this Section 7.06 shall survive the satisfaction
and discharge of this Indenture, final payment of the Notes and the earlier
resignation or removal or the Trustee. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld. The indemnification provided in this Section 7.06 shall extend to the
officers, directors, agents and employees of the Trustee.
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Without prejudice to any other
rights available to the Trustee under applicable law, when the Trustee and its
agents and any authenticating agent incur expenses or render services after an
Event of Default specified in Section 6.01(i) or Section 6.01(j) occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy, insolvency or similar
laws.
Section 7.07. Officers Certificate as Evidence.
Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of gross negligence, willful misconduct, or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers Certificate delivered to the Trustee, and such Officers Certificate,
in the absence of gross negligence, willful misconduct, or bad faith on the part
of the Trustee, shall be full warrant to the Trustee for any action taken or
omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08. Eligibility of Trustee. There shall at all times be a Trustee hereunder
which shall be a Person that is eligible pursuant to the Trust Indenture Act to
act as such and, together with its parent, has a combined capital and surplus of
at least $50,000,000. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 7.08, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article 7.
Section 7.09. Resignation or Removal of Trustee.
(a) The Trustee may at any time
resign by giving written notice of such resignation to the Company and by
mailing notice thereof to the Holders at their addresses as they shall appear on
the Note Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 60 days after the mailing of such notice of resignation to the Holders,
the resigning Trustee may, upon ten Business Days notice to the Company and the
Holders, petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder who has been a bona fide holder of a Note or
Notes for at least six months may, subject to the provisions of Section 6.11, on
behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
35
(b)
If at any time any of the following
shall occur:
(i) the Trustee shall cease to be
eligible in accordance with the provisions of Section 7.08 and shall fail to
resign after written request therefor by the Company or by any such Holder, or
(ii) 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 either case, the
Company may by a Board Resolution remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 6.11, any Holder who has been a bona fide holder of a Note or Notes 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. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in
aggregate principal amount of the Notes at the time outstanding, as determined
in accordance with Section 8.04, may at any time remove the Trustee and nominate
a successor trustee that shall be deemed appointed as successor trustee unless
within ten days after notice to the Company of such nomination the Company
objects thereto, in which case the Trustee so removed or any Holder, upon the
terms and conditions and otherwise as in Section 7.09(a) provided, may petition
any court of competent jurisdiction for an appointment of a successor trustee.
(d) The Trustee may be removed at
any time with respect to the Notes by the Company, by an Officers Certificate
delivered to the Trustee, provided that contemporaneously therewith (x) the
Company immediately appoints a successor Trustee with respect to the Notes
meeting the requirements of Section 7.08 hereof and (y) the terms of Section
7.10 hereof are complied with in respect of such appointment (the Trustee being
removed hereby agreeing to execute the instrument contemplated by Section 7.10
hereof, if applicable, under such circumstances) and provided further that no
Default or Event of Default with respect to the Notes shall have occurred and
then be continuing at such time.
(e) Any resignation or removal of
the Trustee and appointment of a successor trustee pursuant to any of the
provisions of this Section 7.09 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.10.
Section 7.10. Acceptance by Successor Trustee.
Any successor trustee appointed
as provided in Section 7.09 shall execute, acknowledge and deliver to the
Company and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written request of the
Company or of the successor trustee, the predecessor trustee shall, upon payment
of any amounts then due it pursuant to the provisions of Section 7.06, execute
and deliver an instrument transferring to such successor trustee all the rights
and powers of the trustee so ceasing to act. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
senior claim to which the Notes are hereby made subordinate on all money or
property held or collected by such trustee as such, except for funds held in
trust for the benefit of Holders of particular Notes, to secure any amounts then
due it pursuant to the provisions of Section 7.06.
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No successor trustee shall
accept appointment as provided in this Section 7.10 unless at the time of such
acceptance such successor trustee shall be eligible under the provisions of
Section 7.08.
Upon acceptance of appointment
by a successor trustee as provided in this Section 7.10, each of the Company and
the successor trustee, at the written direction and at the expense of the
Company shall mail or cause to be mailed notice of the succession of such
trustee hereunder to the Holders at their addresses as they shall appear on the
Note Register. If the Company fails to mail such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Company.
Section 7.11. Succession by Merger, Etc. Any corporation or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation or other entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or other
entity succeeding to all or substantially all of the corporate trust business of
the Trustee (including the administration of this Indenture), shall be the
successor to the Trustee hereunder without the execution or filing of any paper
or any further act on the part of any of the parties hereto; provided that in the case of any corporation or other entity succeeding to all or
substantially all of the corporate trust business of the Trustee such
corporation or other entity shall be eligible under the provisions of Section
7.08.
If at the time such successor
to the Trustee shall succeed to the trusts created by this Indenture, any of the
Notes shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee
or authenticating agent appointed by such predecessor trustee, and deliver such
Notes so authenticated; and if at that time any of the Notes shall not have been
authenticated, any successor to the Trustee or an authenticating agent appointed
by such successor trustee may authenticate such Notes either in the name of any
predecessor trustee hereunder or in the name of the successor trustee; and in
all such cases such certificates of authentication shall have the full force as
provided anywhere in the Notes or in this Indenture that the certificate of
authentication of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
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Section 7.12. Trustees Application for Instructions from the
Company. Any application by the
Trustee for written instructions from the Company (other than with regard to any
action proposed to be taken or omitted to be taken by the Trustee that affects
the rights of the Holders of
the Notes under this Indenture) may, at the option of the Trustee, set forth in
writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on or after which such action shall be taken or such
omission shall be effective. The Trustee shall not be liable for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any Officer actually
receives such application, unless any such officer shall have consented in
writing to any earlier date), unless, prior to taking any such action (or the
effective date in the case of any omission), the Trustee shall have received
written instructions in accordance with this Indenture in response to such
application specifying the action to be taken or omitted.
Section 7.13. Preferential Collection of Claims.
If and when the Trustee shall be
or become a creditor of the Company (or any other obligor upon the Notes), the
Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Company (or any such other
obligor).
ARTICLE 8
Concerning the
Holders
Section 8.01. Action by Holders. Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the Notes may
take any action (including the making of any demand or request, the giving of
any notice, consent or waiver or the taking of any other action), the fact that
at the time of taking any such action, the Holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of the Holders voting in favor
thereof at any meeting of Holders duly called and held in accordance with the
provisions of Article 9, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders. Whenever the
Company or the Trustee solicits the taking of any action by the Holders of the
Notes, the Company or the Trustee may fix, but shall not be required to, in
advance of such solicitation, a date as the record date for determining Holders
entitled to take such action. The record date if one is selected shall be not
more than fifteen days prior to the date of commencement of solicitation of such
action.
Section 8.02. Proof of Execution by Holders. Subject to the provisions of Section 7.01, Section
7.02 and Section 9.05, proof of the execution of any instrument by a Holder or
its agent or proxy shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee. The
holding of Notes shall be proved by the Note Register or by a certificate of the
Note Registrar. The record of any Holders meeting shall be proved in the manner
provided in Section 9.06.
Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating
agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem
the Person in whose name a Note shall be registered upon the Note Register to
be, and may treat it as, the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by any Person other than the Company or any Note Registrar)
for the purpose of receiving payment of or on account of the principal of and
(subject to Section 2.03) accrued and unpaid interest on such Note, for
conversion of such Note and for all other purposes; and neither the Company nor
the Trustee nor any Paying Agent nor any Conversion Agent nor any Note Registrar
shall be affected by any notice to the contrary. All such payments so made to
any Holder for the time being, or upon its order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Note. Notwithstanding anything to the
contrary in this Indenture or the Notes following an Event of Default, any
Holder of a beneficial interest in a Global Note may directly enforce against
the Company, without the consent, solicitation, proxy, authorization or any
other action of the Depositary or any other Person, such Holders right to
exchange such beneficial interest for a Note in certificated form in accordance
with the provisions of this Indenture.
38
Section 8.04. Company-Owned Notes Disregarded.
In determining whether the
Holders of the requisite aggregate principal amount of Notes have concurred in
any direction, consent, waiver or other action under this Indenture, Notes that
are owned by the Company or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company shall
be disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, consent, waiver or other action only Notes that a Responsible
Officer actually knows are so owned shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as outstanding for the purposes
of this Section 8.04 if the pledgee shall establish to the satisfaction of the
Trustee the pledgees right to so act with respect to such Notes and that the
pledgee is not the Company or a Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. In
the case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee. Upon request of
the Trustee, the Company shall furnish to the Trustee promptly an Officers
Certificate listing and identifying all Notes, if any, known by the Company to
be owned or held by or for the account of any of the above described Persons;
and, subject to Section 7.01, the Trustee shall be entitled to accept such
Officers Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Notes not listed therein are outstanding for the purpose of
any such determination.
Section 8.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 8.01, of the taking
of any action by the Holders of the percentage in aggregate principal amount of
the Notes specified in this Indenture in connection with such action, any Holder
of a Note that is shown by the evidence to be included in the Notes the Holders
of which have consented to such action may, by filing written notice with the
Trustee at its Corporate Trust Office and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such Note. Except as
aforesaid, any such action taken by the Holder of any Note shall be conclusive
and binding upon such Holder and upon all future Holders and owners of such Note
and of any Notes issued in exchange or substitution therefor or upon
registration of transfer thereof, irrespective of whether any notation in regard
thereto is made upon such Note or any Note issued in exchange or substitution
therefor or upon registration of transfer thereof.
39
ARTICLE 9
Holders
Meetings
Section 9.01. Purpose of Meetings. A meeting of Holders may be called at any time and
from time to time pursuant to the provisions of this Article 9 for any of the
following purposes:
(a) to give any notice to the
Company or to the Trustee or to give any directions to the Trustee permitted
under this Indenture, or to consent to the waiving of any Default or Event of
Default hereunder and its consequences, or to take any other action authorized
to be taken by Holders pursuant to any of the provisions of Article 6;
(b) to remove the Trustee and
nominate a successor trustee pursuant to the provisions of Article 7;
(c) to consent to the execution
of an indenture or indentures supplemental hereto pursuant to the provisions of
Section 10.02; or
(d) to take any other action
authorized to be taken by or on behalf of the Holders of any specified aggregate
principal amount of the Notes under any other provision of this Indenture or
under applicable law.
Section 9.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of
Holders to take any action specified in Section 9.01, to be held at such time
and at such place as the Trustee shall determine. Notice of every meeting of the
Holders, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting and the establishment of
any record date pursuant to Section 8.01, shall be sent to Holders of such Notes
at their addresses as they shall appear on the Note Register. Such notice shall
also be sent to the Company. Such notices shall be sent not less than twenty nor
more than ninety days prior to the date fixed for the meeting.
Any meeting of Holders shall
be valid without notice if the Holders of all Notes then outstanding are present
in person or by proxy or if notice is waived before or after the meeting by the
Holders of all Notes outstanding, and if the Company and the Trustee are either
present by duly authorized representatives or have, before or after the meeting,
waived notice.
Section 9.03. Call of Meetings by Company or Holders.
In case at any time the Company,
pursuant to a Board Resolution, or the Holders of at least 10% in aggregate
principal amount of the Notes then outstanding, shall have requested the Trustee
to call a meeting of Holders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have sent the notice of such meeting within 20 days after receipt of such
request, then the Company or such Holders may determine the time and the place
for such meeting and may call such meeting to take any action authorized in
Section 9.01, by sent notice thereof as provided in Section 9.02.
Section 9.04. Qualifications for Voting. To be entitled to vote at any meeting of Holders a
Person shall (a) be a Holder of one or more Notes on the record date pertaining
to such meeting or (b) be a Person appointed by an instrument in writing as
proxy by a Holder of one or more Notes on the record date pertaining to such
meeting. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
40
Section 9.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders, in regard to proof of the holding of Notes
and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an
instrument in writing, appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders as provided in
Section 9.03, in which case the Company or the Holders calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Holders of a majority in principal amount of the Notes represented at the
meeting and entitled to vote at the meeting.
Subject to the provisions of
Section 8.04, at any meeting of Holders each Holder or proxyholder shall be
entitled to one vote for each $1,000 principal amount of Notes held or
represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any
Note challenged as not outstanding and ruled by the chairman of the meeting to
be not outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Notes held by it or instruments in writing as aforesaid
duly designating it as the proxy to vote on behalf of other Holders. Any meeting
of Holders duly called pursuant to the provisions of Section 9.02 or Section
9.03 may be adjourned from time to time by the Holders of a majority of the
aggregate principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 9.06. Voting. The vote upon any resolution submitted to any meeting of Holders shall be
by written ballot on which shall be subscribed the signatures of the Holders or
of their representatives by proxy and the outstanding principal amount of the
Notes held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more Persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 9.02. The record shall show the
principal amount of the Notes voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
41
Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
Section 9.07. No Delay of Rights by Meeting. Nothing contained in this Article 9 shall be
deemed or construed to authorize or permit, by reason of any call of a meeting
of Holders or any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights conferred
upon or reserved to the Trustee or to the Holders under any of the provisions of
this Indenture or of the Notes.
ARTICLE 10
Supplemental
Indentures
Section 10.01. Supplemental Indentures Without Consent of
Holders. The Company, when
authorized by the resolutions of the Board of Directors and the Trustee, at the
Companys expense, may from time to time and at any time enter into an indenture
or indentures supplemental hereto for one or more of the following purposes:
(a) to cure any ambiguity,
omission, defect or inconsistency that does not adversely affect Holders of the
Notes;
(b) to provide for the assumption
by a Successor Company of the obligations of the Company under this Indenture
pursuant to Article 11;
(c) to add guarantees with
respect to the Notes;
(d) to secure the Notes;
(e) to add to the covenants or to
the Events of Default for the benefit of the Holders or surrender any right or
power conferred upon the Company;
(f) to evidence and provide for
the appointment under this Indenture of a successor Trustee;
(g) to make any change that does
not adversely affect the rights of any Holder; or
(h) to conform the provisions of
this Indenture or the Notes to the Description of 2019 Notes section of the
Offering Memorandum.
Upon the written request of
the Company, the Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to, but may in its discretion, enter into any supplemental
indenture that affects the Trustees own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section 10.01 may be executed by the
Company and the Trustee without the consent of the Holders of any of the Notes
at the time outstanding, notwithstanding any of the provisions of Section 10.02.
42
Section 10.02. Supplemental Indentures with Consent of Holders.
With the consent (evidenced as
provided in Article 8) of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding (determined in accordance with
Article 8 and including, without limitation, consents obtained in connection
with a repurchase of, or tender or exchange offer for, Notes), the Company, when
authorized by the resolutions of the Board of Directors and the Trustee, at the
Companys expense, may from time to time and at any time enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
any supplemental indenture or of modifying in any manner the rights of the
Holders; provided, however, that, without the
consent of each Holder of an outstanding Note affected, no such supplemental
indenture shall:
(a) reduce the amount of Notes
whose Holders must consent to an amendment;
(b) reduce the rate of or extend
the stated time for payment of interest on any Note;
(c) reduce the principal of or
extend the Maturity Date of any Note;
(d) make any change that
adversely affects the conversion rights of any Notes;
(e) reduce the Fundamental Change
Repurchase Price of any Note or amend or modify in any manner adverse to the
Holders the Companys obligation to make such payments, whether through an
amendment or waiver of provisions in the covenants, definitions or
otherwise;
(f) make any Note payable in a
currency other than that stated in the Note;
(g) change the ranking of the
Notes in any manner adverse to the Holders;
(h) impair the right of any
Holder to receive payment of principal of and interest, on such Holders Notes
on or after the due dates therefor or to institute suit for the enforcement of
any payment on or with respect to such Holders Note; or
(i) make any change in this
Article 10 that requires each Holders consent or in the waiver provisions in
Section 6.01 or Section 6.09.
Upon the written request of
the Company, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid and subject to Section 10.05, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustees own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
Holders do not need under this
Section 10.02 to approve the particular form of any proposed supplemental
indenture. It shall be sufficient if such Holders approve the substance thereof.
After any such supplemental indenture becomes effective, the Company shall send
to the Holders a notice briefly describing such supplemental indenture. However,
the failure to give such notice to all the Holders, or any defect in the notice,
will not impair or affect the validity of the supplemental indenture.
43
Section 10.03. Effect of Supplemental Indentures.
Upon the execution of any
supplemental indenture pursuant to the provisions of this Article 10, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 10.04. Notation on Notes. Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article 10 may, at the Companys expense, bear a notation in form approved by
the Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Notes so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may, at the
Companys expense, be prepared and executed by the Company, authenticated by the
Trustee (or an authenticating agent duly appointed by the Trustee pursuant to
Section 17.10) and delivered in exchange for the Notes then outstanding, upon
surrender of such Notes then outstanding.
Section 10.05. Evidence of Compliance of Supplemental Indenture
to Be Furnished Trustee. In
addition to the documents required by Section 17.05, the Trustee shall receive
an Officers Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with the
requirements of this Article 10 and is permitted or authorized by this
Indenture.
ARTICLE 11
Consolidation,
Merger, Sale, Conveyance and Lease
Section 11.01. Company May Consolidate, Etc. on Certain Terms.
Subject to the provisions of
Section 11.02, the Company shall not consolidate with, merge with or into, or
sell, convey, transfer or lease all of its properties and assets substantially
as an entirety to another Person, unless:
(a) the resulting, surviving or
transferee Person (the Successor
Company), if not the Company,
shall be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia, and the
Successor Company (if not the Company) shall expressly assume, by supplemental
indenture all of the obligations of the Company under the Notes and this
Indenture; and
(b) immediately after giving
effect to such transaction, no Default or Event of Default shall have occurred
and be continuing under this Indenture.
For purposes of this Section
11.01, the sale, conveyance, transfer or lease of all of the properties and
assets of one or more Subsidiaries of the Company substantially as an entirety
to another Person, which properties and assets, if held by the Company instead
of such Subsidiaries, would constitute all of the properties and assets of the
Company substantially as an entirety on a consolidated basis, shall be deemed to
be the sale, conveyance, transfer or lease of all of the properties and assets
of the Company substantially as an entirety to another Person.
44
Section 11.02. Successor Corporation to Be Substituted.
In case of any such
consolidation, merger, sale, conveyance, transfer or lease and upon the
assumption by the Successor Company, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and accrued and unpaid interest on all of
the Notes, the due and punctual delivery or payment, as the case may be, of any
consideration due upon conversion of the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Company, such Successor Company shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the party of the first part, except in the case of a lease of all of the
Companys properties and assets substantially as an entirety. Such Successor
Company thereupon may cause to be signed, and may issue either in its own name
or in the name of the Company any or all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such Successor Company instead of the Company
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver, or cause to be
authenticated and delivered, any Notes that previously shall have been signed
and delivered by the Officers of the Company to the Trustee for authentication,
and any Notes that such Successor Company thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Notes so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Notes had been issued at the date of the
execution hereof. In the event of any such consolidation, merger, sale,
conveyance or transfer (but not in the case of a lease), upon compliance with
this Article 11 the Person named as the Company in the first paragraph of this
Indenture (or any successor that shall thereafter have become such in the manner
prescribed in this Article 11) may be dissolved, wound up and liquidated at any
time thereafter and, except in the case of a lease, such Person shall be
released from its liabilities as obligor and maker of the Notes and from its
obligations under this Indenture.
In case of any such
consolidation, merger, sale, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Notes thereafter
to be issued as may be appropriate.
Section 11.03. Opinion of Counsel to Be Given to Trustee.
No consolidation, merger, sale,
conveyance, transfer or lease shall be effective unless the Trustee shall
receive an Officers Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
lease and any such assumption complies with the provisions of this Article 11
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with the provisions of this
Article 11 and Article 10.
45
ARTICLE 12
Immunity of
Incorporators, Shareholders, Officers and Directors
Section 12.01. Indenture and Notes Solely Corporate
Obligations. No recourse for the
payment of the principal of or accrued and unpaid interest on any Note, nor for
any claim based thereon or otherwise in respect thereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in this Indenture
or in any supplemental indenture or in any Note, nor because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
shareholder, employee, agent, officer or director, Affiliate or Subsidiary, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.
ARTICLE 13
Intentionally
Omitted
ARTICLE 14
Conversion of
Notes
Section 14.01. Conversion Privilege. Subject to and upon compliance with the
provisions of this Article 14, each Holder of a Note shall have the right, at
such Holders option, to convert all or any portion (if the portion to be
converted is $1,000 principal amount or an integral multiple thereof) of such
Note at any time prior to the close of business on the second Scheduled Trading
Day immediately preceding the Maturity Date at an initial conversion rate of
96.3879 shares of Common Stock (subject to adjustment as provided in Section
14.04, the Conversion
Rate) per $1,000 principal
amount of Notes (subject to the settlement provisions of Section 14.02, the
Conversion
Obligation).
Section 14.02. Conversion Procedure; Settlement Upon
Conversion.
(a) Upon conversion of any Note,
the Company shall deliver to the converting Holder, in respect of each $1,000
principal amount of Notes being converted, a number of shares of Common Stock
equal to the Conversion Rate, together with a cash payment, if applicable, in
lieu of any fractional share of Common Stock in accordance with subsection (j)
of this Section 14.02, on the third Business Day immediately following the
relevant Conversion Date.
46
(b)
Subject to Section 14.02(e), before
any Holder of a Note shall be entitled to convert a Note as set forth above,
such Holder shall (i) in the case of a Global Note, comply with the procedures
of the Depositary in effect at that time and, if required, pay funds equal to
interest payable on the next Interest Payment Date to which such Holder is not
entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical
Note (1) complete, manually sign and deliver an irrevocable notice to the
Conversion Agent as set forth in the Form of Notice of Conversion
(or a facsimile thereof) (a
Notice of
Conversion) at the office of the
Conversion Agent and state in writing therein the principal amount of Notes to
be converted and the name or names (with addresses) in which such Holder wishes
the certificate or certificates for any shares of Common Stock to be delivered
upon settlement of the Conversion Obligation to be registered, (2) surrender
such Notes, duly endorsed to the Company or in blank (and accompanied by
appropriate endorsement and transfer documents), at the office of the Conversion
Agent, (3) if required, furnish appropriate endorsements and transfer documents
and (4) if required, pay funds equal to interest payable on the next Interest
Payment Date to which such Holder is not entitled as set forth in Section
14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the
Company of any conversion pursuant to this Article 14 on the Conversion Date for
such conversion. No Notice of Conversion with respect to any Notes may be
surrendered by a Holder thereof if such Holder has also delivered a Fundamental
Change Repurchase Notice to the Company in respect of such Notes and not validly
withdrawn such Fundamental Change Repurchase Notice in accordance with Section
15.03.
If more than one Note shall be
surrendered for conversion at one time by the same Holder, the Conversion
Obligation with respect to such Notes shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof to the
extent permitted thereby) so surrendered.
(c) A Note shall be deemed to
have been converted immediately prior to the close of business on the date (the
Conversion Date) that the Holder has complied with the
requirements set forth in subsection (b) above. The Company shall issue or cause
to be issued, and deliver to the Conversion Agent or to such Holder, or such
Holders nominee or nominees, certificates or a book-entry transfer through the
Depositary for the full number of shares of Common Stock to which such Holder
shall be entitled in satisfaction of the Companys Conversion Obligation.
(d) If any Note shall be
surrendered for partial conversion, the Company shall execute and the Trustee
shall authenticate and deliver to or upon the written order of the Holder of the
Note so surrendered a new Note or Notes in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Note, without payment of any service charge by the converting Holder but, if
required by the Company or Trustee, with payment by the converting Holder of a
sum sufficient to cover any transfer tax or similar governmental charge required
by law or that may be imposed in connection therewith as a result of the name of
the Holder of the new Notes issued upon such conversion being different from the
name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note
for conversion, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of the shares of Common Stock upon conversion,
unless such tax is due because the Holder requests such shares to be issued in a
name other than the Holders name, in which case the Holder shall pay such tax.
The Conversion Agent may refuse to deliver the certificates representing the
shares of Common Stock being issued in a name other than the Holders name until
the Trustee receives a sum sufficient to pay any tax that is due by such Holder
in accordance with the immediately preceding sentence.
47
(f) Except as provided in Section
14.04, no adjustment shall be made for dividends on any shares issued upon the
conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an
interest in a Global Note, the Trustee, or the Custodian at the direction of the
Trustee, shall make a notation on such Global Note as to the reduction in the
principal amount represented thereby. The Company shall notify the Trustee in
writing of any conversion of Notes effected through any Conversion Agent other
than the Trustee.
(h) Upon conversion, a Holder
shall not receive any separate cash payment for accrued and unpaid interest, if
any, except as set forth below. The Companys settlement of the Conversion Obligation shall be deemed to satisfy
in full its obligation to pay the principal amount of the Note and accrued and
unpaid interest, if any, to, but not including, the Conversion Date. As a
result, accrued and unpaid interest, if any, to, but not including, the
Conversion Date shall be deemed to be paid in full rather than cancelled,
extinguished or forfeited. Notwithstanding the foregoing,
if Notes are converted after the close of business on a Regular Record Date,
Holders of such Notes as of the close of business on such Regular Record Date
will receive the full amount of interest payable on such Notes on the
corresponding Interest Payment Date notwithstanding the conversion. Notes
surrendered for conversion during the period from the close of business on any
Regular Record Date to the open of business on the immediately following
Interest Payment Date must be accompanied by funds equal to the amount of
interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the
Regular Record Date immediately preceding the Maturity Date; (2) if the Company
has specified a Fundamental Change Repurchase Date that is after a Regular
Record Date and on or prior to the corresponding Interest Payment Date; or (3)
to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the
time of conversion with respect to such Note.
(i) The Person in whose name the
certificate for any shares of Common Stock delivered upon conversion is
registered shall be treated as a shareholder of record as of the close of
business on the relevant Conversion Date. Upon a conversion of Notes, such
Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue
any fractional share of Common Stock upon conversion of the Notes and shall
instead pay cash in lieu of any fractional share of Common Stock issuable upon
conversion based on the Last Reported Sale Price of the Common Stock on the
relevant Conversion Date.
Section 14.03. Increased Conversion Rate Applicable to Certain
Notes Surrendered in Connection with Make-Whole Fundamental Changes.
(a) If a Make-Whole Fundamental
Change occurs and a Holder elects to convert its Notes in connection with such
Make-Whole Fundamental Change, the Company shall, under the circumstances
described below, increase the Conversion Rate for the Notes so surrendered for
conversion by a number of additional shares of Common Stock (the
Additional Shares), as described below. A conversion of Notes
shall be deemed for these purposes to be in connection with such Make-Whole
Fundamental Change if the relevant Notice of Conversion is received by the
Conversion Agent from, and including, the Effective Date of the Make-Whole
Fundamental Change up to, and including, the Business Day immediately prior to
the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole
Fundamental Change that would have been a Fundamental Change but for subclause
(i) of the proviso in clause (b) of the definition thereof, the 35th
Trading Day immediately following the Effective Date of such Make-Whole
Fundamental Change).
48
(b) Upon surrender of Notes for
conversion in connection with a Make-Whole Fundamental Change pursuant to
Section 14.01, the Company shall deliver shares of Common Stock, including the
Additional Shares, in accordance with Section 14.02; provided, however, that if, at the effective time of a Make-Whole
Fundamental Change described in clause (b) of the definition of Fundamental
Change, the Reference Property is composed entirely of cash, for any conversion
of Notes following the Effective Date of such Make-Whole Fundamental Change, the
Conversion Obligation shall be calculated based solely on the Stock Price for
the transaction and shall be deemed to be an amount of cash per $1,000 principal
amount of converted Notes equal to the Conversion Rate (including any adjustment
for Additional Shares), multiplied
by such Stock Price. The Company
shall notify the Holders of Notes of the Effective Date of any Make-Whole
Fundamental Change and issue a press release announcing such Effective Date no
later than five Business Days after such Effective Date (the Make-Whole Fundamental Change Company
Notice).
(c) The number of Additional
Shares, if any, by which the Conversion Rate shall be increased shall be
determined by reference to the table below, based on the date on which the
Make-Whole Fundamental Change occurs or becomes effective (the Effective Date) and the price (the Stock Price) paid (or deemed to be paid) per share of the Common Stock in the
Make-Whole Fundamental Change. If the holders of the Common Stock receive only
cash in a Make-Whole Fundamental Change described in clause (b) of the
definition of Fundamental Change, the Stock Price shall be the cash amount paid
per share. Otherwise, the Stock Price shall be the average of the Last Reported
Sale Prices of the Common Stock over the five Trading Day period ending on, and
including, the Trading Day immediately preceding the Effective Date of the
Make-Whole Fundamental Change. The Board of Directors shall make appropriate
adjustments to the Stock Price, in its good faith determination, to account for
any adjustment to the Conversion Rate that becomes effective, or any event
requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of the
event occurs, during such five consecutive Trading Day period.
(d) The Stock Prices set forth in
the column headings of the table below shall be adjusted as of any date on which
the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock
Prices shall equal the Stock Prices applicable immediately prior to such
adjustment, multiplied
by a fraction, the numerator of
which is the Conversion Rate immediately prior to such adjustment giving rise to
the Stock Price adjustment and the denominator of which is the Conversion Rate
as so adjusted. The number of Additional Shares set forth in the table below
shall be adjusted in the same manner and at the same time as the Conversion Rate
as set forth in Section 14.04.
49
(e) The following table sets
forth the number of Additional Shares to be received per $1,000 principal amount
of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date
set forth below:
|
|
Stock Price |
Effective Date |
|
$8.40 |
|
$9.00 |
|
$10.38 |
|
$12.50 |
|
$15.00 |
|
$17.50 |
|
$20.00 |
|
$22.50 |
|
$25.00 |
|
$30.00 |
|
$35.00 |
|
$40.00 |
January 22, 2015 |
|
22.6597 |
|
22.6597 |
|
19.4695 |
|
13.0012 |
|
9.0121 |
|
6.8137 |
|
5.4696 |
|
4.5682 |
|
3.9176 |
|
3.0262 |
|
2.4293 |
|
1.9940 |
April 1, 2015 |
|
22.6597 |
|
22.6597 |
|
19.1365 |
|
12.6718 |
|
8.7265 |
|
6.5775 |
|
5.2724 |
|
4.4025 |
|
3.7766 |
|
2.9197 |
|
2.3455 |
|
1.9264 |
April 1, 2016 |
|
22.6597 |
|
22.6597 |
|
16.9528 |
|
10.5214 |
|
6.8919 |
|
5.0742 |
|
4.0407 |
|
3.3765 |
|
2.9061 |
|
2.2628 |
|
1.8275 |
|
1.5068 |
April 1, 2017 |
|
22.6597 |
|
22.6597 |
|
14.1480 |
|
7.8413 |
|
4.7353 |
|
3.3960 |
|
2.7072 |
|
2.2819 |
|
1.9805 |
|
1.5584 |
|
1.2653 |
|
1.0468 |
April 1, 2018 |
|
22.6597 |
|
18.8509 |
|
10.1253 |
|
4.3052 |
|
2.2534 |
|
1.6301 |
|
1.3462 |
|
1.1608 |
|
1.0189 |
|
0.8085 |
|
0.6585 |
|
0.5460 |
April 1, 2019 |
|
22.6597 |
|
14.7232 |
|
0.0000 |
|
0.0000 |
|
0.0000 |
|
0.0000 |
|
0.0000 |
|
0.0000 |
|
0.0000 |
|
0.0000 |
|
0.0000 |
|
0.0000 |
The exact Stock Prices and
Effective Dates may not be set forth in the table above, in which case:
(i) if the Stock Price is between
two Stock Prices in the table above or the Effective Date is between two
Effective Dates in the table, the number of Additional Shares shall be
determined by a straight-line interpolation between the number of Additional
Shares set forth for the higher and lower Stock Prices and the earlier and later
Effective Dates, as applicable, based on a 365-day year;
(ii) if the Stock Price is greater
than $40.00 per share (subject to adjustment in the same manner as the Stock
Prices set forth in the column headings of the table above pursuant to
subsection (d) above), no Additional Shares shall be added to the Conversion
Rate; and
(iii) if the Stock Price is less
than $8.40 per share (subject to adjustment in the same manner as the Stock
Prices set forth in the column headings of the table above pursuant to
subsection (d) above), no Additional Shares shall be added to the Conversion
Rate.
Notwithstanding the foregoing,
in no event shall the total number of shares of Common Stock issuable upon
conversion exceed 119.0476 per $1,000 principal amount of Notes, subject to
adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f) Nothing in this Section 14.03
shall prevent an adjustment to the Conversion Rate pursuant to Section 14.04 in
respect of a Make-Whole Fundamental Change.
Section 14.04. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time to
time by the Company if any of the following events occurs, except that the
Company shall not make any adjustments to the Conversion Rate if Holders of the
Notes participate (other than in the case of a share split or share
combination), at the same time and upon the same terms as holders of the Common
Stock and solely as a result of holding the Notes, in any of the transactions
described in this Section 14.04, without having to convert their Notes, as if
they held a number of shares of Common Stock equal to the Conversion Rate,
multiplied by the principal amount (expressed in thousands) of
Notes held by such Holder.
50
(a) If the Company issues shares
of Common Stock as a dividend or distribution on shares of its Common Stock, or
if the Company effects a share split or share combination, the Conversion Rate
shall be adjusted based on the following formula:
where,
CR0 |
= |
the Conversion Rate in effect immediately prior
to the close of business on the Record Date of such dividend or
distribution, or immediately prior to the open of business on the
effective date of such share split or share combination, as
applicable; |
|
CR' |
= |
the Conversion Rate in effect immediately after
the close of business on such Record Date or immediately after the open of
business on such effective date, as applicable; |
|
OS0 |
= |
the number of shares of Common Stock
outstanding immediately prior to the close of business on such Record Date
or immediately after the open of business on such effective date, as
applicable; and |
|
OS' |
= |
the number of shares of Common Stock
outstanding immediately after giving effect to such dividend,
distribution, share split or share
combination. |
Any adjustment made under this Section 14.04(a) shall
become effective immediately after the close of business on the Record Date for
such dividend or distribution, or immediately after the open of business on the
effective date for such share split or share combination, as applicable. If any
dividend or distribution of the type described in this Section 14.04(a) is
declared but not so paid or made, or the outstanding shares of Common Stock are
not split or combined, as the case may be, the Conversion Rate shall be
immediately readjusted, effective as of the date the Board of Directors
determines not to pay such dividend or distribution or to effect such split or
combination, to the Conversion Rate that would then be in effect if such
dividend or distribution or share split or share combination had not been
declared or announced.
(b) If the Company issues to all or substantially all holders of its Common
Stock any rights, options or warrants entitling them, for a period of not more
than 45 calendar days after the announcement date of such issuance, to subscribe
for or purchase shares of the Common Stock at a price per share that is less
than the average of the Last Reported Sale Prices of the Common Stock for the 10
consecutive Trading Day period ending on, and including, the Trading Day
immediately preceding the date of announcement of such issuance, the Conversion
Rate shall be increased based on the following formula:
CR' = CR0 × |
OS0 + X |
OS0 +
Y |
where,
51
CR0 |
= |
the Conversion
Rate in effect immediately prior to the close of business on the Record
Date for such issuance; |
|
CR' |
= |
the Conversion
Rate in effect immediately after the close of business on such Record
Date; |
|
OS0 |
= |
the number of
shares of Common Stock outstanding immediately prior to the close of
business on such Record Date; |
|
X |
= |
the total number
of shares of Common Stock issuable pursuant to such rights, options or
warrants; and |
|
Y |
= |
the number of
shares of Common Stock equal to the aggregate price payable to exercise
such rights, options or warrants, divided by the average of
the Last Reported Sale Prices of the Common Stock over the 10 consecutive
Trading Day period ending on, and including, the Trading Day immediately
preceding the date of announcement of the issuance of such rights, options
or warrants. |
Any increase made under this
Section 14.04(b) shall be made successively whenever any such rights, options or
warrants are issued and shall become effective immediately after the close of
business on the Record Date for such issuance. To the extent that shares of the
Common Stock are not delivered after the expiration of such rights, options or
warrants, the Conversion Rate shall be decreased to the Conversion Rate that
would then be in effect had the increase with respect to the issuance of such
rights, options or warrants been made on the basis of delivery of only the
number of shares of Common Stock actually delivered. If such rights, options or
warrants are not so issued, the Conversion Rate shall be decreased to the
Conversion Rate that would then be in effect if such Record Date for such
issuance had not been fixed.
For purposes of this Section
14.04(b) (including for purposes of Section 14.04(c)(i)), in determining whether
any rights, options or warrants entitle the holders to subscribe for or purchase
shares of the Common Stock at less than such average of the Last Reported Sale
Prices of the Common Stock for the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the date of announcement
for such issuance, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights, options or warrants and any amount
payable on exercise or conversion thereof, the value of such consideration, if
other than cash, to be determined by the Board of Directors.
52
(c)
If the Company distributes shares of
its Capital Stock, evidences of its indebtedness, other assets or property or
rights, options or warrants to acquire its Capital Stock or other securities, to
all or substantially all holders of the Common Stock, excluding (i) dividends,
distributions or issuances as to which an adjustment was effected pursuant to
Section 14.04(a), Section 14.04(b) or Section 14.04(e), (ii) rights issued
pursuant to a shareholder rights plan unless the rights have separated from the
Common Stock under the terms of any such plan in which case an adjustment shall
be effected pursuant to Section 14.11, (iii) dividends or distributions paid
exclusively in cash as to which an adjustment was effected pursuant to Section
14.04(d), (iv) dividends or distributions effected pursuant to a
reclassification, merger, sale or conveyance where such dividend or distribution becomes Reference Property
pursuant to Section 14.07 and (v)
Spin-Offs as to which the provisions set forth below in this Section 14.04(c)
shall apply (any of such shares of Capital Stock, evidences of indebtedness,
other assets or property or rights, options or warrants to acquire Capital Stock
or other securities of the Company, the Distributed Property),
then the Conversion Rate shall be increased based on the following formula:
CR' =
CR0 × |
SP0 |
SP0 −
FMV |
where,
CR0 |
= |
the Conversion
Rate in effect immediately prior to the close of business on the Record
Date for such distribution; |
|
CR' |
= |
the Conversion
Rate in effect immediately after the close of business on such Record
Date; |
|
SP0 |
= |
the average of
the Last Reported Sale Prices of the Common Stock over the 10 consecutive
Trading Day period ending on, and including, the Trading Day immediately
preceding the Ex-Dividend Date for such distribution; and |
|
FMV |
= |
the fair market
value (as determined by the Board of Directors) of the Distributed
Property with respect to each outstanding share of the Common Stock as of
the close of business on the Record Date for such
distribution. |
Any increase made under the
portion of this Section 14.04(c) above shall become effective immediately after
the close of business on the Record Date for such distribution. If such
distribution is not so paid or made, the Conversion Rate shall be decreased to
the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared. Notwithstanding the foregoing, if FMV (as
defined above) is equal to or greater than SP0 (as defined above), in lieu of the foregoing increase,
each Holder of a Note shall receive, in respect of each $1,000 principal amount
thereof, at the same time and upon the same terms as holders of the Common Stock
receive the Distributed Property, the amount of Distributed Property such Holder
would have received if such Holder owned a number of shares of Common Stock
equal to the Conversion Rate in effect on the Record Date for the distribution.
If the Board of Directors determines the FMV (as defined above) of any
distribution for purposes of this Section 14.04(c) by reference to the actual or
when-issued trading market for any securities, it shall in doing so consider the
prices in such market over the same period used in computing the Last Reported
Sale Prices of the Common Stock over the 10 consecutive Trading Day period
ending on, and including, the Trading Day immediately preceding the Record Date
for such distribution.
53
With respect to an adjustment
pursuant to this Section 14.04(c) where there has been a payment of a dividend
or other distribution on the Common Stock of shares of Capital Stock of any
class or series, or similar equity interest, of or relating to a Subsidiary or
other business unit of the Company, that are, or, when issued, will be, listed
or admitted for trading on a U.S. national securities exchange (a Spin-Off), the Conversion
Rate shall be increased based on the following formula:
CR' =
CR0 × |
FMV0
+ MP0 |
MP0 |
where,
CR0 |
= |
the Conversion
Rate in effect immediately prior to the end of the Valuation
Period; |
|
CR' |
= |
the Conversion
Rate in effect immediately after the end of the Valuation
Period; |
|
FMV0 |
= |
the average of
the Last Reported Sale Prices of the Capital Stock or similar equity
interest distributed to holders of the Common Stock applicable to one
share of the Common Stock (determined by reference to the definition of
Last Reported Sale Price as set forth in Section 1.01 as if references
therein to Common Stock were to such Capital Stock or similar equity
interest) over the first 10 consecutive Trading Day period after, and
including, the Ex-Dividend Date of the Spin-Off (the Valuation Period); and |
|
MP0 |
= |
the average of
the Last Reported Sale Prices of the Common Stock over the Valuation
Period. |
The adjustment to the
Conversion Rate under the preceding paragraph shall occur on the last Trading
Day of the Valuation Period; provided that in respect
of any conversion during the Valuation Period, references in the portion of this
Section 14.04(c) related to Spin-Offs to 10 Trading Days shall be deemed to be
replaced with such lesser number of Trading Days as have elapsed between the
Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the
Conversion Rate.
For purposes of this Section
14.04(c) (and subject in all respect to Section 14.11), rights, options or
warrants distributed by the Company to all holders of its Common Stock entitling
them to subscribe for or purchase shares of the Companys Capital Stock,
including Common Stock (either initially or under certain circumstances), which
rights, options or warrants, until the occurrence of a specified event or events
(Trigger Event): (i) are deemed to be transferred with such
shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued
in respect of future issuances of the Common Stock, shall be deemed not to have
been distributed for purposes of this Section 14.04(c) (and no adjustment to the
Conversion Rate under this Section 14.04(c) will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights, options or
warrants shall be deemed to have been distributed and an appropriate adjustment
(if any is required) to the Conversion Rate shall be made under this Section
14.04(c). If any such right, option or warrant, including any such existing
rights, options or warrants distributed prior to the date of this Indenture, are
subject to events, upon the occurrence of which such rights, options or warrants
become exercisable to purchase different securities, evidences of indebtedness
or other assets, then the date of the occurrence of any and each such event
shall be deemed to be the date of distribution and Record Date with respect to
new rights, options or warrants with such rights (in which case the existing
rights, options or warrants shall be deemed to terminate and expire on such date
without exercise by any of the holders thereof). In addition, in the event of
any distribution (or deemed distribution) of rights, options or warrants, or any
Trigger Event or other event (of the type described in the immediately preceding
sentence) with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Rate under this
Section 14.04(c) was made, (1) in the case of any such rights, options or
warrants that shall all have been redeemed or purchased without exercise by any
holders thereof, upon such final redemption or purchase (x) the Conversion Rate
shall be readjusted as if such rights, options or warrants had not been issued
and (y) the Conversion Rate shall then again be readjusted to give effect to
such distribution, deemed distribution or Trigger Event, as the case may be, as
though it were a cash distribution, equal to the per share redemption or
purchase price received by a holder or holders of Common Stock with respect to
such rights, options or warrants (assuming such holder had retained such rights,
options or warrants), made to all holders of Common Stock as of the date of such
redemption or purchase, and (2) in the case of such rights, options or warrants
that shall have expired or been terminated without exercise by any holders
thereof, the Conversion Rate shall be readjusted as if such rights, options and
warrants had not been issued.
54
For purposes of Section
14.04(a), Section 14.04(b) and this Section 14.04(c), any dividend or
distribution to which this Section 14.04(c) is applicable that also includes one
or both of:
(A) a dividend or distribution
of shares of Common Stock to which Section 14.04(a) is applicable (the
Clause A
Distribution); or
(B) a dividend or distribution
of rights, options or warrants to which Section 14.04(b) is applicable (the
Clause B
Distribution),
then (1) such dividend or
distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this
Section 14.04(c) is applicable (the Clause C Distribution)
and any Conversion Rate adjustment required by this Section 14.04(c) with
respect to such Clause C Distribution shall then be made, and (2) the Clause A
Distribution and Clause B Distribution shall be deemed to immediately follow the
Clause C Distribution and any Conversion Rate adjustment required by Section
14.04(a) and Section 14.04(b) with respect thereto shall then be made, except
that, if determined by the Company (I) the Record Date of the Clause A
Distribution and the Clause B Distribution shall be deemed to be the Record Date
of the Clause C Distribution and (II) any shares of Common Stock included in the
Clause A Distribution or Clause B Distribution shall be deemed not to be
outstanding immediately prior to the close of business on such Record Date or
immediately after the open of business on such effective date, as applicable
within the meaning of Section 14.04(a) or outstanding immediately prior to the
close of business on such Record Date within the meaning of Section 14.04(b).
55
(d) If any cash dividend or
distribution is made to all or substantially all holders of the Common Stock,
the Conversion Rate shall be adjusted based on the following formula:
where,
CR0 |
= |
the Conversion
Rate in effect immediately prior to the close of business on the Record
Date for such dividend or distribution; |
|
CR' |
= |
the Conversion
Rate in effect immediately after the close of business on the Record Date
for such dividend or distribution; |
|
SP0 |
= |
the Last Reported
Sale Price of the Common Stock on the Trading Day immediately preceding
the Ex-Dividend Date for such dividend or distribution; and |
|
C |
= |
the amount in
cash per share the Company distributes to holders of its Common
Stock. |
Any increase pursuant to this
Section 14.04(d) shall become effective immediately after the close of business
on the Record Date for such dividend or distribution. If such dividend or
distribution is not so paid, the Conversion Rate shall be decreased, effective
as of the date the Board of Directors determines not to make or pay such
dividend or distribution, to the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared. Notwithstanding the
foregoing, if C (as defined above) is equal to or greater than
SP0 (as defined above), in lieu of the foregoing increase, each
Holder of a Note shall receive, for each $1,000 principal amount of Notes, at
the same time and upon the same terms as holders of shares of the Common Stock,
the amount of cash that such Holder would have received if such Holder owned a
number of shares of Common Stock equal to the Conversion Rate on the Record Date
for such cash dividend or distribution.
(e) If the Company or any of its
Subsidiaries make a payment in respect of a tender or exchange offer for the
Common Stock, to the extent that the cash and value of any other consideration
included in the payment per share of the Common Stock exceeds the average of the
Last Reported Sale Prices of the Common Stock over the ten consecutive Trading
Day period commencing on, and including the Trading Day next succeeding the last
date on which tenders or exchanges may be made pursuant to such tender or
exchange offer, the Conversion Rate shall be increased based on the following
formula:
CR' =
CR0 × |
AC + (SP'×OS') |
OS0×SP' |
56
where,
CR0 |
= |
the Conversion
Rate in effect immediately prior to the close of business on the 10th
Trading Day immediately following, and including, the Trading Day next
succeeding the date such tender or exchange offer expires; |
|
|
|
CR' |
= |
the Conversion
Rate in effect immediately after the close of business on the 10th Trading
Day immediately following, and including, the Trading Day next succeeding
the date such tender or exchange offer expires; |
|
AC |
= |
the aggregate
value of all cash and any other consideration (as determined by the Board
of Directors) paid or payable for shares of Common Stock purchased in such
tender or exchange offer; |
|
OS0 |
= |
the number of
shares of Common Stock outstanding immediately prior to the date such
tender or exchange offer expires (prior to giving effect to the purchase
of all shares of Common Stock accepted for purchase or exchange in such
tender or exchange offer); |
|
OS' |
= |
the number of
shares of Common Stock outstanding immediately after the date such tender
or exchange offer expires (after giving effect to the purchase of all
shares of Common Stock accepted for purchase or exchange in such tender or
exchange offer); and |
|
SP' |
= |
the average of
the Last Reported Sale Prices of the Common Stock over the 10 consecutive
Trading Day period commencing on, and including, the Trading Day next
succeeding the date such tender or exchange offer
expires. |
The adjustment to the
Conversion Rate under this Section 14.04(e) shall occur at the close of business
on the 10th Trading Day immediately following, and including, the Trading Day
next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion within the 10 Trading Days immediately
following, and including, the expiration date of any tender or exchange offer,
references in this Section 14.04(e) with respect to 10 Trading Days shall be
deemed replaced with such lesser number of Trading Days as have elapsed between
the date that such tender or exchange offer expires and the Conversion Date in
determining the Conversion Rate.
(f) If the application of the
formulas in clauses (a), (b), (c), (d) and (e) of this Section 14.04 would
result in a decrease in the Conversion Rate, no adjustment to the Conversion
Rate will be made (other than as a result of a reverse share split or share
combination). In no event will the Company adjust the Conversion Rate to the
extent that the adjustment would reduce the Conversion Price below the par value
per share of its Common Stock.
(g) Except as stated herein, the
Company shall not adjust the Conversion Rate for the issuance of shares of its
Common Stock or any securities convertible into or exchangeable for shares of
its Common Stock or the right to purchase shares of its Common Stock or such
convertible or exchangeable securities.
(h) In addition to those
adjustments required by clauses (a), (b), (c), (d) and (e) of this Section
14.04, and to the extent permitted by applicable law and subject to the
applicable rules of The NASDAQ Global Select Market, the Company from time to
time may increase the Conversion Rate by any amount for a period of at least 20
Business Days if the Board of Directors determines that such increase would be
in the Companys best interest. In addition, but subject to the same
limitations set forth in the immediately preceding sentence, the Company may
(but is not required to) increase the Conversion Rate to avoid or diminish any
income tax to holders of Common Stock or rights to purchase Common Stock in
connection with a dividend or distribution of shares (or rights to acquire
shares) or similar event. Whenever the Conversion Rate is increased pursuant to
either of the preceding two sentences, the Company shall mail to the Holder of
each Note at its last address appearing on the Note Register a notice of the
increase at least 15 days prior to the date the increased Conversion Rate takes
effect, and such notice shall state the increased Conversion Rate and the period
during which it will be in effect.
57
(i) Notwithstanding anything to the contrary in this Article 14, the
Conversion Rate shall not be adjusted:
(i) upon
the issuance of any shares of Common Stock pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on the
Companys securities and the investment of additional optional amounts in shares
of Common Stock under any plan;
(ii) upon
the issuance of any shares of Common Stock or options or rights to purchase
those shares pursuant to any present or future employee, director or consultant
benefit plan or program of or assumed by the Company or any of the Companys
Subsidiaries;
(iii) upon
the issuance of any shares of the Common Stock pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security not described in
clause (ii) of this subsection and outstanding as of the date the Notes were
first issued;
(iv) solely
for a change in the par value of the Common Stock; or
(v) for
accrued and unpaid interest, if any.
(j) All
calculations and other determinations under this Article 14 shall be made by the
Company and shall be made to the nearest one-ten thousandth (1/10,000) of a
share.
(k) The
Company will not be required to make an adjustment in the Conversion Rate unless
the adjustment would require a change of at least 1% in the Conversion Rate.
However, the Company will carry forward any adjustment that is less than 1% of
the Conversion Rate, take such carried–forward adjustments into
account in any subsequent adjustment, and make such carried forward adjustments,
regardless of whether the aggregate adjustment is less than 1%, (i) annually on
the anniversary of the first date of issue of the Notes and otherwise and
(ii)(x) on the Conversion Date for any Notes or (y) on the effective date of any
Fundamental Change or Make-Whole Fundamental Change, unless such adjustment has
already been made.
(l) Whenever the Conversion Rate is adjusted as herein provided, the Company
shall promptly file with the Trustee (and the Conversion Agent if not the
Trustee) an Officers Certificate setting forth the Conversion Rate after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officers Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the
Conversion Rate and may assume without inquiry that the last Conversion Rate of
which it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on which
each adjustment becomes effective and shall send such notice of such adjustment
of the Conversion Rate to each Holder at its last address appearing on the Note
Register of this Indenture. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.
58
(m) For
purposes of this Section 14.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so long
as the Company does not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company, but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares
of Common Stock.
(n) Notwithstanding anything to the contrary herein, in the event that an
increase in the Conversion Rate shall result in the Notes, in the aggregate,
becoming convertible into shares of the Common Stock in excess of any limitation
set by The NASDAQ Global Select Market, the Company shall, at its option, either
obtain shareholder approval of such issuances as required by The NASDAQ Global
Select Market or pay cash in lieu of delivering any shares of Common Stock
otherwise deliverable upon conversions in excess of such limitations, based on
the average of the Daily VWAP for each of the 20 VWAP Trading Days beginning on,
and including, the VWAP Trading Day immediately succeeding the Conversion
Date.
Section 14.05. Adjustments of Prices. Whenever any provision of this Indenture requires
the Company to calculate the Last Reported Sale Prices, Daily VWAP or the Stock
Price for purposes of a Make-Whole Fundamental Change over a span of multiple
days, the Board of Directors shall make appropriate adjustments to each to
account for any adjustment to the Conversion Rate that becomes effective, or any
event requiring an adjustment to the Conversion Rate where the Record Date of
the event occurs, at any time during the period when such Last Reported Sale
Prices, Daily VWAP or Stock Prices are to be calculated.
Section 14.06. Shares to Be Fully Paid. The Company shall provide, free from preemptive
rights, out of its authorized but unissued shares or shares held in treasury,
sufficient shares of Common Stock to provide for conversion of the Notes from
time to time as such Notes are presented for conversion (assuming that at the
time of computation of such number of shares, all such Notes would be converted
by a single Holder).
Section 14.07. Effect of Recapitalizations, Reclassifications
and Changes of the Common Stock.
(a) In the
case of:
(i) any
recapitalization, reclassification or change of the Common Stock (other than
changes resulting from a subdivision or combination),
(ii) any
consolidation, merger or combination involving the Company,
59
(iii) any
sale, lease or other transfer to a third party of the consolidated assets of the
Company and the Companys Subsidiaries substantially as an entirety
or
(iv) any
statutory share exchange,
in each case, as a result of
which the Common Stock would be converted into, or exchanged for, stock, other
securities, other property or assets (including cash or any combination thereof)
(any such event, a Merger
Event), then, at and after the
effective time of such Merger Event, the right to convert each $1,000 principal
amount of Notes shall be changed into a right to convert such principal amount
of Notes into the kind and amount of shares of stock, other securities or other
property or assets (including cash or any combination thereof) that a holder of
a number of shares of Common Stock equal to the Conversion Rate immediately
prior to such Merger Event would have owned or been entitled to receive (the
Reference
Property, with each
unit of Reference
Property meaning the kind and
amount of Reference Property that a holder of one share of Common Stock is
entitled to receive) upon such Merger Event and, prior to or at the effective
time of such Merger Event, the Company or the successor or purchasing Person, as
the case may be, shall execute with the Trustee a supplemental indenture
permitted under Section 10.01(f) providing for such change in the right to
convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the
Merger Event the number of shares of Common Stock otherwise deliverable upon
conversion of the Notes in accordance with Section 14.02 shall instead be
deliverable in the amount and type of Reference Property that a holder of that
number of shares of Common Stock would have received in such Merger
Event.
If the Merger Event causes the
Common Stock to be converted into, or exchanged for, the right to receive more
than a single type of consideration (determined based in part upon any form of
shareholder election), then (i) the Reference Property into which the Notes will
be convertible shall be deemed to be the weighted average of the types and
amounts of consideration received by the holders of Common Stock that
affirmatively make such an election, and (ii) the unit of Reference Property for
purposes of the immediately preceding paragraph shall refer to the consideration
referred to in clause (i) attributable to one share of Common Stock. The Company
shall notify Holders, the Trustee and the Conversion Agent (if other than the
Trustee) of such weighted average as soon as practicable after such
determination is made.
Such supplemental indenture
described in the second immediately preceding paragraph shall provide for
adjustments that shall be as nearly equivalent as is possible to the adjustments
provided for in this Article 14. If, in the case of any Merger Event, the
Reference Property includes shares of stock, securities or other property or
assets (including cash or any combination thereof) of a Person other than the
successor or purchasing corporation, as the case may be, in such Merger Event,
then such supplemental indenture shall also be executed by such other Person and
shall contain such additional provisions to protect the interests of the Holders
of the Notes as the Board of Directors shall reasonably consider necessary by
reason of the foregoing, including to the extent required by the Board of
Directors and practicable the provisions providing for the purchase rights set
forth in Article 15.
(b) If the
Company shall execute a supplemental indenture pursuant to subsection (a) of
this Section 14.07, the Company shall promptly file with the Trustee an
Officers Certificate briefly stating the reasons therefor, the kind or amount
of cash, securities or property or asset that will comprise the Reference Property after any
such Merger Event, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with, and shall promptly sent notice
thereof to all Holders. The Company shall cause notice of the execution of such
supplemental indenture to be sent to each Holder, at its address appearing on
the Note Register provided for in this Indenture, within 20 days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
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(c) The
Company shall not become a party to any Merger Event unless its terms are
consistent with this Section 14.07. None of the foregoing provisions shall
affect the right of a holder of Notes to convert its Notes into shares of Common
Stock as set forth in Section 14.01 and Section 14.02 prior to the effective
date of such Merger Event.
(d) The
above provisions of this Section shall similarly apply to successive Merger
Events.
Section 14.08. Certain Covenants. (a) The Company covenants that all shares of
Common Stock issued upon conversion of Notes will be fully paid and
non-assessable and not subject to further call or assessment by the Company and
free from all taxes, liens and charges (other than those created by the holder)
with respect to the issue thereof.
(b) The
Company covenants that, if any shares of Common Stock to be provided for the
purpose of conversion of Notes hereunder require registration with or approval
of any governmental authority under any federal or state law before such shares
may be validly issued upon conversion, the Company will, to the extent then
permitted by the rules and interpretations of the Commission, secure such
registration or approval, as the case may be.
(c) The
Company further covenants that if at any time the Common Stock shall be listed
on any national securities exchange or automated quotation system the Company
will list and keep listed, so long as the Common Stock shall be so listed on
such exchange or automated quotation system, any Common Stock issuable upon
conversion of the Notes.
Section 14.09. Responsibility of Trustee. The Trustee and any other Conversion Agent shall
not at any time be under any duty or responsibility to any Holder to determine
the Conversion Rate (or any adjustment thereto) or whether any facts exist that
may require any adjustment (including any increase) of the Conversion Rate, or
with respect to the nature or extent or calculation of any such adjustment when
made, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. The Trustee and any other
Conversion Agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock, or of any securities,
property or cash that may at any time be issued or delivered upon the conversion
of any Note; and the Trustee and any other Conversion Agent make no
representations with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Note for the purpose of conversion or
to comply with any of the duties, responsibilities or covenants of the Company
contained in this Article; nor shall either the Trustee or the Conversion Agent
be responsible for monitoring the price of the Companys stock. Without limiting
the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility
to determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 14.07 relating either to the kind or
amount of shares of stock or securities or property (including cash) receivable
by Holders upon the conversion of their Notes after any event referred to in
such Section 14.07 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 7.01, may accept (without any independent
investigation) as conclusive evidence of the correctness of any such provisions,
and shall be protected in relying upon, the Officers Certificate (which the
Company shall be obligated to file with the Trustee prior to the execution of
any such supplemental indenture) with respect thereto.
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Section 14.10. Notice to Holders Prior to Certain Actions.
In case of any:
(a) action
by the Company or one of its Subsidiaries that would require an adjustment in
the Conversion Rate pursuant to Section 14.04 or Section 14.11;
(b) Merger
Event; or
(c) voluntary or involuntary dissolution, liquidation or winding-up of the
Company or any of its Subsidiaries;
then, in each case (unless
notice of such event is otherwise required pursuant to another provision of this
Indenture), the Company shall cause to be filed with the Trustee and the
Conversion Agent (if other than the Trustee) and to be sent to each Holder at
its address appearing on the Note Register, as promptly as possible but in any
event at least 20 days prior to the applicable date hereinafter specified, a
notice stating (i) the date on which a record is to be taken for the purpose of
such action by the Company or one of its Subsidiaries or, if a record is not to
be taken, the date as of which the holders of Common Stock of record are to be
determined for the purposes of such action by the Company or one of its
Subsidiaries, or (ii) the date on which such Merger Event, dissolution,
liquidation or winding-up is expected to become effective or occur, and the date
as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such Merger Event, dissolution, liquidation or winding-up.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such action by the Company or one of its Subsidiaries,
Merger Event, dissolution, liquidation or winding-up.
Section 14.11. Shareholder Rights Plans. To the extent that the Company has a rights plan
in effect upon conversion of the Notes, each share of Common Stock issued upon
such conversion shall be entitled to receive the appropriate number of rights,
if any, and the certificates representing the Common Stock issued upon such
conversion shall bear such legends, if any, in each case as may be provided by
the terms of any such shareholder rights plan, as the same may be amended from
time to time. If at the time of conversion, however, the rights have separated
from the shares of Common Stock in accordance with the provisions of the
applicable shareholder rights plan so that the Holders would not be entitled to
receive any rights in respect of Common Stock issuable upon conversion of the
Notes, the Conversion Rate shall be adjusted at the time of separation as if the
Company distributed to all or substantially all holders of Common Stock
Distributed Property as provided in Section 14.04(c), subject to readjustment in
the event of the expiration, termination or redemption of such rights.
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ARTICLE 15
Repurchase of Notes at Option of Holders
Section 15.01. Intentionally
Omitted.
Section 15.02. Repurchase at
Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time,
each Holder shall have the right, at such Holders option, to require the
Company to repurchase for cash all of such Holders Notes, or any portion
thereof that is equal to $1,000 or an integral multiple of $1,000, on the date
(the Fundamental Change
Repurchase Date) specified by
the Company that is not less than 20 calendar days or more than 35 calendar days
following the date of the Fundamental Change Company Notice (with such
Fundamental Change Repurchase Date being subject to postponement by a number of
days by which the Fundamental Change Company Notice is delivered to Holders
beyond the deadline set forth in Section 15.02(c)) at a repurchase price equal
to 100% of the principal amount thereof, plus accrued and unpaid
interest thereon to, but excluding, the Fundamental Change Repurchase Date (the
Fundamental Change Repurchase
Price), unless the Fundamental
Change Repurchase Date falls after a Regular Record Date but on or prior to the
Interest Payment Date to which such Regular Record Date relates, in which case
the Company shall instead pay the full amount of accrued and unpaid interest to
Holders of record as of such Regular Record Date, and the Fundamental Change
Repurchase Price shall be equal to 100% of the principal amount of Notes to be
repurchased pursuant to this Article 15.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the
option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder of a duly completed notice (the
Fundamental Change Repurchase
Notice) in the form set forth in
Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are
Physical Notes, or in compliance with the Depositarys procedures for
surrendering interests in Global Notes, if the Notes are Global Notes, in each
case on or before the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying
Agent on or before the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date (together with all necessary
endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or
book-entry transfer of the Notes, if the Notes are Global Notes, in compliance
with the procedures of the Depositary, in each case such delivery being a
condition to receipt by the Holder of the Fundamental Change Repurchase Price
therefor.
The Fundamental Change
Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the
case of Physical Notes, the certificate numbers of the Notes to be delivered for
repurchase;
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(ii) the
portion of the principal amount of Notes to be repurchased, which must be $1,000
or an integral multiple thereof; and
(iii) that
the Notes are to be repurchased by the Company pursuant to the applicable
provisions of the Notes and this Indenture;
provided, however, that if the Notes
are Global Notes, the Fundamental Change Repurchase Notice must comply with
appropriate Depositary procedures.
Notwithstanding anything
herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall
have the right to withdraw, in whole or in part, such Fundamental Change
Repurchase Notice at any time prior to the close of business on the Business Day
immediately preceding the Fundamental Change Repurchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
15.03.
The Paying Agent shall
promptly notify the Company of the receipt by it of any Fundamental Change
Repurchase Notice or written notice of withdrawal thereof.
(c) On or
before the 20th calendar day after the occurrence of the effective date of a
Fundamental Change, the Company shall provide to all Holders of Notes and the
Trustee and the Paying Agent (in the case of a Paying Agent other than the
Trustee) a notice (the Fundamental Change Company Notice) of the occurrence of the effective date of the Fundamental Change and
of the repurchase right at the option of the Holders arising as a result
thereof. Such notice shall be by first class mail or, in the case of Global
Notes, in accordance with the applicable procedures of the Depositary.
Simultaneously with providing such notice, the Company shall publish a notice
containing the information set forth in the Fundamental Change Company Notice in
a newspaper of general circulation in The City of New York or publish such
information on the Companys website or through such other public medium as the
Company may use at that time. Each Fundamental Change Company Notice shall
specify:
(i) the
events causing the Fundamental Change;
(ii) the
date of the Fundamental Change;
(iii) the
last date on which a Holder may exercise the repurchase right pursuant to this
Article 15;
(iv) the
Fundamental Change Repurchase Price;
(v) the
Fundamental Change Repurchase Date;
(vi) the
name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) if
applicable, the Conversion Rate and any adjustments to the Conversion Rate;
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(viii) if
applicable, that the Notes with respect to which a Fundamental Change Repurchase
Notice has been delivered by a Holder may be converted only if the Holder
withdraws the Fundamental Change Repurchase Notice in accordance with the terms
of this Indenture;
(ix) the
procedures that Holders must follow to require the Company to repurchase their
Notes.
No failure of the Company to
give the foregoing notices and no defect therein shall limit the Holders
repurchase rights or affect the validity of the proceedings for the repurchase
of the Notes pursuant to this Section 15.02.
At the Companys request, the
Trustee shall give such notice in the Companys name and at the Companys
expense; provided,
however, that, in all cases, the
text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company
on any date at the option of the Holders upon a Fundamental Change if the
principal amount of the Notes has already been accelerated, and such
acceleration has not been rescinded, on or prior to such date (except in the
case of an acceleration resulting from a Default by the Company in the payment
of the Fundamental Change Repurchase Price with respect to such Notes). The
Paying Agent will promptly return to the respective Holders thereof any Physical
Notes held by it during the acceleration of the Notes (except in the case of an
acceleration resulting from a Default by the Company in the payment of the
Fundamental Change Repurchase Price with respect to such Notes), or any
instructions for book-entry transfer of the Notes in compliance with the
procedures of the Depositary shall be deemed to have been cancelled, and, upon
such return or cancellation, as the case may be, the Fundamental Change
Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Section 15.03. Withdrawal of Fundamental Change Repurchase
Notice. (a) A Fundamental Change
Repurchase Notice may be withdrawn (in whole or in part) by means of a written
notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent
in accordance with this Section 15.03 at any time prior to the close of business
on the Business Day immediately preceding the Fundamental Change Repurchase
Date, specifying:
(i) the
principal amount of the Notes with respect to which such notice of withdrawal is
being submitted,
(ii) if
Physical Notes have been issued, the certificate number of the Note in respect
of which such notice of withdrawal is being submitted, and
(iii) the
principal amount, if any, of such Note that remains subject to the original
Fundamental Change Repurchase Notice, which portion must be in principal amounts
of $1,000 or an integral multiple of $1,000;
provided, however, that if the Notes
are Global Notes, the notice must comply with appropriate procedures of the
Depositary.
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Section 15.04. Deposit of Fundamental Change Repurchase Price.
(a) The Company will deposit with
the Trustee (or other Paying Agent appointed by the Company, or if the Company
is acting as its own Paying Agent, set aside, segregate and hold in trust as
provided in Section 4.04) on or prior to 11:00 a.m., New York City time, on the
Fundamental Change Repurchase Date an amount of money sufficient to repurchase
all of the Notes to be repurchased at the appropriate Fundamental Change
Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or
other Paying Agent appointed by the Company), payment for Notes surrendered for
repurchase (and not withdrawn prior to the close of business on the Business Day
immediately preceding the Fundamental Change Repurchase Date) will be made on
the later of (i) the Fundamental Change Repurchase Date with respect to such
Note (provided the Holder has satisfied the conditions in
Section 15.02) and (ii) the time of book-entry transfer or the delivery of such
Note to the Trustee (or other Paying Agent appointed by the Company) by the
Holder thereof in the manner required by Section 15.02 by mailing checks for the
amount payable to the Holders of such Notes entitled thereto as they shall
appear in the Note Register; provided, however, that payments to the Depositary shall be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee. The
Trustee shall, promptly after such payment and upon written demand by the
Company, return to the Company any funds in excess of the Fundamental Change
Repurchase Price.
(b) If by
11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the
Trustee (or other Paying Agent appointed by the Company) holds money sufficient
to make payment on all the Notes or portions thereof that are to be repurchased
on such Fundamental Change Repurchase Date, then, with respect to Notes that
have been properly tendered and not validly withdrawn, (i) such Notes will cease
to be outstanding, (ii) interest will cease to accrue on such Notes (whether or
not book-entry transfer of the Notes has been made or the Notes have been
delivered to the Trustee or Paying Agent) and (iii) all other rights of the
Holders of such Notes will terminate (other than the right to receive the
Fundamental Change Repurchase Price).
(c) Upon
surrender of a Note that is to be repurchased in part pursuant to Section 15.02,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder a new Note in an authorized denomination equal in principal amount to the
unrepurchased portion of the Note surrendered.
Section 15.05. Covenant to Comply with Applicable Laws Upon
Repurchase of Notes. In
connection with any repurchase offer, the Company will, if required:
(a) comply
with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules
under the Exchange Act that may then be applicable;
(b) file a
Schedule TO or any successor or similar schedule required under the Exchange
Act; and
(c) otherwise comply with all federal and state securities laws in connection
with any offer by the Company to repurchase the Notes;
in each case, so as to permit
the rights and obligations under this Article 15 to be exercised in the time and
in the manner specified in this Article 15.
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ARTICLE 16
No Redemption
Section 16.01. No Redemption. The Notes shall not be redeemable by the Company
prior to the Maturity Date, and no sinking fund is provided for the
Notes.
ARTICLE 17
Miscellaneous Provisions
Section 17.01. Provisions Binding on Companys and Trustees
Successors. All the covenants,
stipulations, promises and agreements of the Company contained in this Indenture
shall bind its successors and assigns whether so expressed or not. All the
agreements of the Trustee contained in this Indenture shall bind its successors
and assigns whether so expressed or not.
Section 17.02. Official Acts by Successor Corporation.
Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by
any board, committee or Officer of the Company shall and may be done and
performed with like force and effect by the like board, committee or officer of
any corporation or other entity that shall at the time be the lawful sole
successor of the Company.
Section 17.03. Addresses for Notices, Etc. Any notice or demand that by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders on the Company shall be deemed to have been sufficiently given or
made, for all purposes if given or served by being deposited postage prepaid by
registered or certified mail in a post office letter box addressed (until
another address is filed by the Company with the Trustee) to Photronics, Inc.,
15 Secor Road, Brookfield, Connecticut 06804, Attention: General Counsel. Any
notice, direction, request or demand hereunder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed to the Corporate Trust Office.
The Trustee, by notice to the
Company, may designate additional or different addresses for subsequent notices
or communications.
The Trustee agrees to accept
and act upon instructions or directions pursuant to this Indenture sent by
unsecured e-mail, pdf, facsimile transmission or other similar unsecured
electronic methods, provided, however, that the Trustee shall have received an
incumbency certificate listing persons designated to give such instructions or
directions and containing specimen signatures of such designated persons, which
such incumbency certificate shall be amended and replaced whenever a person is
to be added or deleted from the listing. If the Issuer elects to give the
Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee in
its discretion elects to act upon such instructions, the Trustees understanding
of such instructions shall be deemed controlling. The Trustee shall not be
liable for any losses, costs or expenses arising directly or indirectly from the
Trustees reliance upon and compliance with such instructions notwithstanding
such instructions conflict or are inconsistent with a subsequent written
instruction. The Issuer agrees to assume all risks arising out of the use of
such electronic methods to submit instructions and directions to the Trustee,
including without limitation the risk of the Trustee acting on unauthorized
instructions, and the risk or interception and misuse by third parties.
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Any notice or communication
mailed to a Holder shall be mailed to it by first class mail, postage prepaid,
at its address as it appears on the Note Register and shall be sufficiently
given to it if so mailed within the time prescribed.
Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives
it.
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 by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Section 17.04. Governing Law. THIS INDENTURE AND EACH NOTE, AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE,
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO PRINCIPALS OF CONFLICT OF LAW THAT WOULD RESULT IN
THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION).
Section 17.05. Evidence of Compliance with Conditions
Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application or demand by the Company to
the Trustee to take any action under any of the provisions of this Indenture,
the Company shall, if requested by the Trustee, furnish to the Trustee an
Officers Certificate stating that such action is permitted by the terms of this
Indenture and the conditions and covenants provided for in the Indenture have
been complied with.
Each Officers Certificate
provided for, by or on behalf of the Company in this Indenture and delivered to
the Trustee with respect to compliance with this Indenture (other than the
Officers Certificates provided for in Section 4.08) shall include (a) a
statement that the Person making such certificate is familiar with the requested
action and this Indenture, including the covenants and conditions related to
such action; (b) a brief statement as to the nature and scope of the examination
or investigation upon which the statement contained in such certificate is
based; (c) a statement that, in the judgment of such person, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed judgment as to whether or not such action is permitted by
this Indenture and the conditions and covenants provided for in the Indenture
have been complied with; and (d) a statement as to whether or not, in the judgment of such Person, such action is
permitted by this Indenture and the conditions and covenants provided for in the
Indenture have been complied with.
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Notwithstanding anything to
the contrary in this Section 17.05, if any provision in this Indenture
specifically provides that the Trustee shall or may receive an Opinion of
Counsel in connection with any action to be taken by the Trustee or the Company
hereunder, the Trustee shall be entitled to, or entitled to request, such
Opinion of Counsel.
Section 17.06. Legal Holidays. In any case where any Interest Payment Date,
Fundamental Change Repurchase Date,
Conversion Date or Maturity Date is not a Business Day, then any action to be
taken on such date need not be taken on such date, but may be taken on the next
succeeding Business Day with the same force and effect as if taken on such date,
and no interest shall accrue in respect of the delay.
Section 17.07. No Security Interest Created. Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest under
the Uniform Commercial Code or similar legislation, as now or hereafter enacted
and in effect, in any jurisdiction.
Section 17.08. Benefits of Indenture. Nothing in this Indenture or in the Notes,
expressed or implied, shall give to any Person, other than the parties hereto,
any Paying Agent, any Conversion Agent, any authenticating agent, any Note
Registrar and their successors hereunder or the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 17.09. Table of Contents, Headings, Etc.
The table of contents and the
titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 17.10. Authenticating Agent. The Trustee may appoint an authenticating agent
that shall be authorized to act on its behalf and subject to its direction in
the authentication and delivery of Notes in connection with the original
issuance thereof and transfers and exchanges of Notes hereunder, including under
Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 10.04 and
Section 15.04 as fully to all intents and purposes as though the authenticating
agent had been expressly authorized by this Indenture and those Sections to
authenticate and deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by the authenticating agent shall be deemed
to be authentication and delivery of such Notes by the Trustee and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent shall be deemed to satisfy any requirement hereunder or in
the Notes for the Trustees certificate of authentication. Such authenticating
agent shall at all times be a Person eligible to serve as trustee hereunder
pursuant to Section 7.08.
Any corporation or other
entity into which any authenticating agent may be merged or converted or with
which it may be consolidated, or any corporation or other entity resulting from
any merger, consolidation or conversion to which any authenticating agent shall
be a party, or any corporation or other entity succeeding to the corporate trust
business of any authenticating agent,
shall be the successor of the authenticating agent hereunder, if such successor
corporation or other entity is otherwise eligible under this Section 17.10,
without the execution or filing of any paper or any further act on the part of
the parties hereto or the authenticating agent or such successor corporation or
other entity.
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Any authenticating agent may
at any time resign by giving written notice of resignation to the Trustee and to
the Company. The Trustee may at any time terminate the agency of any
authenticating agent by giving written notice of termination to such
authenticating agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee
may appoint a successor authenticating agent (which may be the Trustee), shall
give written notice of such appointment to the Company and shall mail notice of
such appointment to all Holders as the names and addresses of such Holders
appear on the Note Register.
The Company agrees to pay to
the authenticating agent from time to time reasonable compensation for its
services although the Company may terminate the authenticating agent, if it
determines such agents fees to be unreasonable.
The provisions of Section
7.02, Section 7.03, Section 7.04, Section 8.03 and this Section 17.10 shall be
applicable to any authenticating agent.
If an authenticating agent is
appointed pursuant to this Section 17.10, the Notes may have endorsed thereon,
in addition to the Trustees certificate of authentication, an alternative
certificate of authentication in the following form:
|
, |
as Authenticating Agent,
certifies that this is one of the Notes described
in the within-named
Indenture. |
Section 17.11. Execution in Counterparts. This Indenture may be executed in any number of
counterparts (including facsimile or electronic means such as .pdf), each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
Section 17.12. Severability. In the event any provision of this Indenture or in
the Notes shall be invalid, illegal or unenforceable, then (to the extent
permitted by law) the validity, legality or enforceability of the remaining
provisions shall not in any way be affected or impaired.
Section 17.13. 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 NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
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Section 17.14. Force Majeure. In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood
that the Trustee shall use reasonable efforts that are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.
Section 17.15. Calculations. Except as otherwise provided herein, the Company
shall be responsible for making all calculations called for under the Notes.
These calculations include, but are not limited to, determinations of the Last
Reported Sale Prices of the Common Stock, accrued interest payable on the Notes
and the Conversion Rate of the Notes. The Company shall make all these
calculations in good faith and, absent manifest error, the Companys
calculations shall be final and binding on Holders of Notes. The Company shall
provide a schedule of its calculations to each of the Trustee and the Conversion
Agent, and each of the Trustee and Conversion Agent is entitled to rely
conclusively upon the accuracy of the Companys calculations without independent
verification. The Trustee will forward the Companys calculations to any Holder
of Notes upon the request of that Holder at the sole cost and expense of the
Company.
Section 17.16. No Adverse Interpretation Of Other Agreements.
Other than the Notes and any
supplemental indenture hereto, this Indenture may not be used to interpret any
other indenture, loan or debt agreement of the Company or any of its
Subsidiaries or of any other Person. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
Section 17.17. FATCA. In order to comply with applicable tax laws, rules and regulations
(inclusive of directives, guidelines and interpretations promulgated by
competent authorities) in effect from time to time (Applicable Law), the
Company agrees (i) to provide to the Trustee, upon its reasonable request, tax
information about Holders or the transactions contemplated hereby (including any
modification to the terms of such transactions) so the Trustee can determine
whether it has tax related obligations under Applicable Law and (ii) that the
Trustee shall be entitled to make any withholding or deduction from payments
under this Indenture to the extent necessary to comply with Applicable Law for
which the Trustee shall not have any liability. The terms of this section shall
survive the termination of this Indenture.
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intentionally left blank]
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IN WITNESS WHEREOF, the
parties hereto have caused this Indenture to be duly executed as of the date
first written above.
Photronics, Inc. |
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By: |
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Name: |
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Title: |
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The Bank of New York Mellon Trust |
Company,
N.A., as Trustee |
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EXHIBIT A
FORM OF FACE OF NOTE
[INCLUDE FOLLOWING LEGEND IF
A GLOBAL NOTE]
[UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
[INCLUDE FOLLOWING LEGEND ON
ORIGINALLY ISSUED PHYSICAL NOTES AND
ON ANY RESTRICTED SECURITY]
[THIS SECURITY AND THE COMMON
STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY
ACCOUNT FOR WHICH IT IS ACTING IS EITHER A QUALIFIED INSTITUTIONAL BUYER
(WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) OR AN ACCREDITED
INVESTOR (WITHIN THE MEANING OF REGULATION D UNDER THE SECURITIES ACT) AND THAT
IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE BENEFIT OF
THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS
SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE TIME THIS SECURITY IS
EXCHANGED FOR AN INTEREST IN A GLOBAL NOTE, EXCEPT:
(A) TO PHOTRONICS, INC. (THE
COMPANY) OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
A-1
(C) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
OR
(D) PURSUANT TO AN EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.]
A-2
Photronics, Inc.
3.25% Convertible Senior
Note due 2019
No.
[__] |
[Initially]1
$[_________] |
CUSIP No. [___]
Photronics, Inc., a
corporation duly organized and validly existing under the laws of the State of
Connecticut (the Company, which term
includes any successor corporation or other entity under the Indenture referred
to on the reverse hereof), for value received hereby promises to pay to [CEDE
& CO.]2 [_______]3, or registered assigns, the
principal sum [as set forth in the Schedule of Exchanges of Notes attached
hereto]4 [of $[_______]]5, which amount, taken together
with the principal amounts of all other outstanding Notes, shall not, unless
permitted by the Indenture, exceed $57,500,000 in aggregate at any time, in
accordance with the rules and procedures of the Depositary, on January 22, 2015,
and interest thereon as set forth below. Capitalized terms used herein but not
defined herein have the meanings ascribed to such terms in the Indenture dated
January 22, 2015 by and between the Company and The Bank of New York Mellon
Trust Company, N.A.
This Note shall bear interest
at the rate of 3.25% per year from January 22, 2015, or from the most recent
date to which interest had been paid or provided for to, but excluding, the next
scheduled Interest Payment Date until April 1, 2019. Accrued interest on this
Note shall be computed on the basis of a 360-day year composed of twelve 30-day
months. Interest is payable semi-annually in arrears on each October 1 and April
1, commencing on April 1, 2015, to Holders of record at the close of business on
the preceding September 15 and March 15 (whether or not such day is a Business
Day), respectively. Additional Interest will be payable as set forth in Section
6.03 of the within-mentioned Indenture, and any reference to interest on, or in
respect of, any Note therein shall be deemed to include Additional Interest if,
in such context, Additional Interest is, was or would be payable pursuant to
Section 6.03 and any express mention of the payment of Additional Interest in
any provision therein shall not be construed as excluding Additional Interest in
those provisions thereof where such express mention is not made.
Any Defaulted Amounts shall
accrue interest per annum at the rate borne by the Notes, subject to the
enforceability thereof under applicable law, from, and including, the relevant
payment date to, but excluding, the date on which such Defaulted Amounts shall
have been paid by the Company, at its election, in accordance with Section
2.03(c) of the Indenture.
The Company shall pay the
principal of and interest on this Note, so long as such Note is a Global Note,
in immediately available funds to the Depositary or its nominee, as the case may
be, as the registered Holder of such Note. As provided in and subject to the
provisions of the Indenture, the Company shall
pay the principal of any Notes (other than Notes that are Global Notes) at the
office or agency designated by the Company for that purpose. The Company has
initially designated the Trustee as its Paying Agent and Note Registrar in
respect of the Notes and its agency in New York, New York as a place where Notes
may be presented for payment or for registration of transfer.
____________________
1 Include if a global note.
2 Include if a
global note.
3 Include if a physical note.
4
Include if a global note.
5 Include if a physical note.
A-3
Reference is made to the
further provisions of this Note set forth on the reverse hereof, including,
without limitation, provisions giving the Holder of this Note the right to
convert this Note into shares of Common Stock on the terms and subject to the
limitations set forth in the Indenture. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note, and any claim,
controversy or dispute arising under or related to this Note, shall be construed
in accordance with and governed by the laws of the State of New York (without
regard to principles of conflict of laws that would result in the application of
the laws of any other jurisdiction).
In the case of any conflict
between this Note and the Indenture, the provisions of the Indenture shall
control and govern.
This Note shall not be valid
or become obligatory for any purpose until the certificate of authentication
hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.
[Remainder of page
intentionally left blank]
A-4
IN WITNESS WHEREOF, the
Company has caused this Note to be duly executed.
Photronics, Inc. |
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By: |
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Name: |
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Title: |
Dated:
TRUSTEES
CERTIFICATE OF AUTHENTICATION
The Bank of New York Mellon Trust Company, N.A. as
Trustee, certifies that this is one of the Notes described in the within-named
Indenture.
A-5
FORM OF REVERSE OF NOTE
Photronics, Inc.
3.25% Convertible Senior
Note due 2019
This Note is one of a duly
authorized issue of Notes of the Company, designated as its 3.25% Convertible
Senior Notes due 2019 (the Notes), limited to the
aggregate principal amount of $57,500,000 all issued or to be issued under and
pursuant to an Indenture dated as of January 22, 2015 (the Indenture), between the Company and The Bank of New York Mellon Trust Company,
N.A. (the Trustee), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Conversion Agent, the Company and the Holders of the Notes.
Additional Notes may be issued in an unlimited aggregate principal amount,
subject to certain conditions specified in the Indenture.
In case an Event of Default,
as defined in the Indenture, shall have occurred and be continuing, the
principal of, and interest on, all Notes may be declared, by either the Trustee
or Holders of at least 25% in aggregate principal amount of Notes then
outstanding, and upon said declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions and certain exceptions set
forth in the Indenture.
Subject to the terms and
conditions of the Indenture, the Company will make all payments and deliveries
in respect of the Fundamental Change Repurchase Price and the principal amount
on the Maturity Date, as the case may be, to the Holder who surrenders a Note to
a Paying Agent to collect such payments in respect of the Note. The Company will
pay cash amounts in money of the United States that at the time of payment is
legal tender for payment of public and private debts.
The Indenture contains
provisions permitting the Company and the Trustee in certain circumstances,
without the consent of the Holders of the Notes, and in certain other
circumstances, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding, evidenced as in
the Indenture provided, to execute supplemental indentures modifying the terms
of the Indenture and the Notes as described therein. It is also provided in the
Indenture that, subject to certain exceptions, the Holders of a majority in
aggregate principal amount of the Notes at the time outstanding may on behalf of
the Holders of all of the Notes waive any past Default or Event of Default under
the Indenture and its consequences.
No reference herein to the
Indenture and no provision of this Note or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal (including the Fundamental Change Repurchase Price, if
applicable) of and accrued and unpaid interest on this Note at the place, at the
respective times, at the rate and in the lawful money herein prescribed.
The Notes are issuable in
registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof. At the office or agency of the Company referred to
on the face hereof, and in the manner and subject to the limitations provided in
the Indenture, Notes may be exchanged
for a like aggregate principal amount of Notes of other authorized
denominations, without payment of any service charge but, if required by the
Company or Trustee, with payment of a sum sufficient to cover any transfer or
similar tax that may be imposed in connection therewith as a result of the name
of the Holder of the new Notes issued upon such exchange of Notes being
different from the name of the Holder of the old Notes surrendered for such
exchange.
A-6
The Notes are not subject to
redemption through the operation of any sinking fund or otherwise.
Upon the occurrence of a
Fundamental Change, the Holder has the right, at such Holders option, to
require the Company to repurchase for cash all of such Holders Notes or any
portion thereof (in principal amounts of $1,000 or integral multiples thereof)
on the Fundamental Change Repurchase Date at a price equal to the Fundamental
Change Repurchase Price.
Subject to the provisions of
the Indenture, the Holder hereof has the right, at its option, during certain
periods and upon the occurrence of certain conditions specified in the
Indenture, prior to the close of business on the second Scheduled Trading Day
immediately preceding the Maturity Date, to convert any Notes or portion thereof
that is $1,000 or an integral multiple thereof, into shares of Common Stock at
the Conversion Rate specified in the Indenture, as adjusted from time to time as
provided in the Indenture.
Terms used in this Note and
defined in the Indenture are used herein as therein defined.
A-7
ABBREVIATIONS
The following abbreviations,
when used in the inscription of the face of this Note, shall be construed as
though they were written out in full according to applicable laws or
regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform
Gifts to Minors Act
CUST = Custodian
TEN ENT = as tenants by the
entireties
JT TEN = joint tenants with
right of survivorship and not as tenants in common
Additional abbreviations may
also be used though not in the above list.
A-8
SCHEDULE
A6
SCHEDULE OF EXCHANGES OF
NOTES
Photronics, Inc.
3.25% Convertible Senior
Notes due 2019
The initial principal amount
of this Global Note is $[__]. The following increases or decreases in this
Global Note have been made:
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Principal
Amount |
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Signature
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Amount
of |
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Amount
of |
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of this
Global Note |
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authorized |
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decrease
in |
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increase
in |
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following
such |
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signatory
of |
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Principal
Amount |
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Principal
Amount |
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decrease
or |
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Trustee
or |
Date of Exchange |
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of this Global Note |
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of this Global Note |
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increase |
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Custodian |
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____________________
6 Include if a
global note.
A-9
ATTACHMENT 1
FORM OF NOTICE OF CONVERSION
To: Photronics, Inc.
The undersigned registered
owner of this Note hereby irrevocably exercises the option to convert this Note,
or the portion hereof (that is $1,000 principal amount or an integral multiple
thereof) below designated, into shares of Common Stock in accordance with the
terms of the Indenture referred to in this Note, and directs that any cash
payable and any shares of Common Stock issuable and deliverable upon such
conversion, together with any cash for any fractional share, and any Notes
representing any unconverted principal amount hereof, be issued and delivered to
the registered Holder hereof unless a different name has been indicated below.
If any shares of Common Stock or any portion of this Note not converted are to
be issued in the name of a Person other than the undersigned, the undersigned
will pay all transfer or similar taxes in accordance with Section 14.02(d) of
the Indenture. Any amount required to be paid to the undersigned on account of
interest accompanies this Note.
Dated: |
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Signature(s) |
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Signature
Guarantee |
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Signature(s) must be guaranteed by an eligible
Guarantor Institution (banks, stock brokers, savings and loan associations
and credit unions) with membership in an approved signature guarantee
medallion program pursuant to Securities and Exchange Commission Rule
17Ad-15 if shares of Common Stock are to be issued, or Notes are to be
delivered, other than to and in the name of the registered holder.
Fill in for registration
of shares if to be issued, and Notes if to be delivered, other than to and
in the name of the registered holder: |
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1
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(Name) |
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(Street
Address) |
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(City, State and
Zip Code) |
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Please print name
and address |
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Principal amount to be converted
(if less than all): $______,000
NOTICE: The above
signature(s) of the Holder(s) hereof must correspond with the name as
written upon the face of the Note in every particular without alteration
or enlargement or any change whatever. |
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Social Security
or Other Taxpayer Identification Number |
2
ATTACHMENT 2
FORM OF FUNDAMENTAL CHANGE
REPURCHASE NOTICE
To: Photronics, Inc.
The undersigned registered
owner of this Note hereby acknowledges receipt of a notice from Photronics, Inc.
(the Company) as to the occurrence of a Fundamental Change
with respect to the Company and specifying the Fundamental Change Repurchase
Date and requests and instructs the Company to pay to the registered holder
hereof in accordance with the applicable provisions of the Indenture referred to
in this Note (1) the entire principal amount of this Note, or the portion
thereof (that is $1,000 principal amount or an integral multiple thereof) below
designated, and (2) if such Fundamental Change Repurchase Date does not fall
during the period after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, accrued and unpaid interest, if any,
thereon to, but excluding, such Fundamental Change Repurchase Date.
In the case of Physical Notes,
the certificate numbers of the Notes to be repurchased are as set forth below:
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Signature(s) |
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Social Security
or Other Taxpayer |
Identification
Number |
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Principal amount
to be repaid (if less than all): |
$______,000
NOTICE: The above
signature(s) of the Holder(s) hereof must correspond with the name as
written upon the face of the Note in every particular without alteration
or enlargement or any change whatever.
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1
ATTACHMENT 3
FORM OF ASSIGNMENT AND
TRANSFER
For value received
____________________________ hereby sell(s), assign(s) and transfer(s) unto
_________________ (Please insert social security or Taxpayer Identification
Number of assignee) the within Note, and hereby irrevocably constitutes and
appoints _____________________ attorney to transfer the said Note on the books
of the Company, with full power of substitution in the premises.
In connection with any
transfer of the within Physical Note occurring prior to the time such Physical
Note is exchanged for an interest in a Global Note, the undersigned confirms
that such Note is being transferred:
□ To Photronics, Inc. or a subsidiary thereof; or
□ Pursuant to a registration statement that has
become or been declared effective under the Securities Act of 1933, as amended;
or
□ Pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended; or
□ Pursuant to and in compliance with Rule 144 under
the Securities Act of 1933, as amended, or any other available exemption from
the registration requirements of the Securities Act of 1933, as amended.
1
Dated: |
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Signature(s) |
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Signature
Guarantee |
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Signature(s) must be guaranteed by an
eligible Guarantor Institution
(banks, stock brokers, savings and loan associations and credit unions)
with membership in an approved signature guarantee medallion program
pursuant to Securities and Exchange Commission Rule 17Ad-15 if Notes are
to be delivered, other than to and in the name of the registered holder.
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NOTICE: The signature on the
assignment must correspond with the name as written upon the face of the Note in
every particular without alteration or enlargement or any change
whatever.
2
EXHIBIT B
FORM OF CERTIFICATE OF
EXCHANGE
Photronics, Inc.
[
]
[
]
[
]
The Bank of New York Mellon Trust Company, N.A.
525 William Penn Place, 38th Floor
Pittsburg, PA 15259
Attention: Corporate Trust Administration
Re: 3.25% Convertible Senior Notes due
2019
Reference is hereby made to
the Indenture, dated as of January 22, 2015 (the Indenture), among Photronics, Inc., as issuer (the Company), and The Bank of New York Mellon Trust Company, N.A., as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
__________________________,
(the Owner) owns and proposes to exchange Notes represented
by temporary Physical Notes bearing the restrictive legend set forth in Section
2.05(c) of the Indenture, in the principal amount of $____________, for
beneficial interests in a Global Note not bearing such restrictive legend, in
the principal amount of $_________. (the Exchange). In connection
with the Exchange, the Owner hereby certifies that it has caused the Company to
deliver on its behalf to the Trustee the temporary Physical Notes to be
exchanged in the Exchange and that:
(i) it is a qualified
institutional buyer (as defined in Rule 144A under the Securities Act) or an
accredited investor (as defined in Rule 501 under the Securities Act); and
(ii) it is not an affiliate of
the Company, and, during the three months preceding the date hereof, has not
been an affiliate of the Company, within the meaning of Rule 144 under the
Securities Act.
This certificate and the
statements contained herein are made for your benefit and the benefit of the
Company.
[signature page follows]
B-1
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[Insert Name of
Owner] |
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By: |
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Name: |
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Title: |
Dated: |
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Signature
Guarantee |
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Signature(s) must
be guaranteed by an eligible Guarantor Institution (banks, stock brokers,
savings and loan associations and credit unions) with membership in an
approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-15 if Notes are to be delivered, other than
to and in the name of the registered
holder. |
B-2
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