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Title: |
Indenture |
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Entities: |
Cede & Co.; ING Barings LLC; IVAX Corp.; U.S. Bank Trust, NA; UBS Warburg LLC |
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Date: |
2000 |
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Preview shows 85KB of 213KB total |
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$82 |
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#281925 |
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IVAX CORPORATION
and
U.S. BANK TRUST NATIONAL ASSOCIATION
as
Trustee
---------------------------------
INDENTURE
Dated as of May 12, 2000
---------------------------------
$200,000,000 Principal Amount
(Plus Over-allotment Option)
5.5% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2007
================================================================================
================================================================================
{PAGE}
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310 (a)(1).............................................. 7.10
(a)(2).............................................. 7.10
(a)(3).............................................. N.A.
(a)(4).............................................. N.A.
(b)................................................. 7.08; 7.10; 12.02
(c)................................................. N.A.
311 (a)........... ..................................... 7.11
(b)................................................. 7.11
(c)................................................. N.A.
312 (a)................................................. 2.05
(b)................................................. 12.03
(c)................................................. 12.03
313 (a)................................................. 7.06
(b)(1).............................................. N.A.
(b)(2).............................................. 7.06
(c)................................................. 7.06; 12.02
(d)................................................. 7.06
314 (a)................................................. 4.02
(b)................................................. N.A.
(c)(1).............................................. 12.04
(c)(2).............................................. 12.04
(c)(3).............................................. N.A.
(d)................................................. N.A.
(e)................................................. 12.05
(f)................................................. N.A.
315 (a)................................................. 7.01(B)
(b)................................................. 7.05; 12.02
(c)................................................. 7.01(A)
(d)................................................. 7.01(C)
(e)................................................. 6.11
316 (a)(last sentence).................................. 2.09
(a)(1)(A)........................................... 6.05
(a)(1)(B)........................................... 6.04
------------------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture
{PAGE}
(a)(2).............................................. N.A.
(b)................................................. 6.07
317 (a)(1).............................................. 6.08
(a)(2).............................................. 6.09
(b)................................................. 2.04
318 (a)................................................. 12.01
------------------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
I. DEFINITIONS AND INCORPORATION BY REFERENCE
{S} {C} {C}
1.01 Definitions...............................................................................1
1.02 Other Definitions.........................................................................3
1.03 Incorporation by Reference of Trust Indenture Act.........................................4
1.04 Rules of Construction.....................................................................4
II. THE SECURITIES
2.01 Form and Dating...........................................................................5
2.02 Execution and Authentication..............................................................5
2.03 Registrar, Paying Agent and Conversion Agent..............................................6
2.04 Paying Agent to Hold Money in Trust.......................................................7
2.05 Securityholder Lists......................................................................7
2.06 Transfer and Exchange.....................................................................7
2.07 Replacement Securities....................................................................8
2.08 Outstanding Securities....................................................................8
2.09 Securities Held by the Company or an Affiliate............................................8
2.10 Temporary Securities......................................................................9
2.11 Cancellation..............................................................................9
2.12 Defaulted Interest........................................................................9
2.13 CUSIP Numbers.............................................................................9
2.14 Deposit of Moneys.........................................................................9
2.15 Book-Entry Provisions for Global Securities..............................................10
2.16 Special Transfer Provisions..............................................................11
2.17 Restrictive Legends......................................................................14
III. REDEMPTION
3.01 Notices to Trustee.......................................................................14
3.02 Selection of Securities to Be Redeemed...................................................14
3.03 Notice of Redemption.....................................................................14
3.04 Effect of Notice of Redemption...........................................................15
3.05 Deposit of Redemption Price..............................................................16
3.06 Securities Redeemed in Part..............................................................16
3.07 Repurchase at Option of Holder upon a Change in Control..................................16
IV. COVENANTS
4.01 Payment of Securities....................................................................19
4.02 Maintenance of Office or Agency..........................................................19
{/TABLE}
- i -
{PAGE}
{TABLE}
{CAPTION}
Page
----
{S} {C} {C}
4.03 Reports to Holders.......................................................................19
4.04 Compliance Certificate...................................................................20
4.05 Stay, Extension and Usury Laws...........................................................20
4.06 Corporate Existence......................................................................20
4.07 Notice of Default........................................................................21
V. SUCCESSORS
5.01 When Company May Merge, etc..............................................................21
5.02 Successor Substituted....................................................................21
VI. DEFAULTS AND REMEDIES
6.01 Events of Default........................................................................21
6.02 Acceleration.............................................................................23
6.03 Other Remedies...........................................................................23
6.04 Waiver of Past Defaults..................................................................23
6.05 Control by Majority......................................................................23
6.06 Limitation on Suits......................................................................24
6.07 Rights of Holders to Receive Payment.....................................................24
6.08 Collection Suit by Trustee...............................................................24
6.09 Trustee May File Proofs of Claim.........................................................24
6.10 Priorities...............................................................................25
6.11 Undertaking for Costs....................................................................25
VII. TRUSTEE
7.01 Duties of Trustee........................................................................25
7.02 Rights of Trustee........................................................................26
7.03 Individual Rights of Trustee.............................................................27
7.04 Trustee's Disclaimer.....................................................................27
7.05 Notice of Defaults.......................................................................27
7.06 Reports by Trustee to Holders............................................................27
7.07 Compensation and Indemnity...............................................................28
7.08 Replacement of Trustee...................................................................28
7.09 Successor Trustee by Merger, etc.........................................................29
7.10 Eligibility; Disqualification............................................................29
7.11 Preferential Collection of Claims Against Company........................................29
VIII. DISCHARGE OF INDENTURE
8.01 Termination of Company's Obligations.....................................................30
8.02 Application of Trust Money...............................................................31
8.03 Repayment to Company.....................................................................31
8.04 Reinstatement............................................................................31
{/TABLE}
- ii -
{PAGE}
{TABLE}
{CAPTION}
Page
----
IX. AMENDMENTS
{S} {C} {C}
9.01 Without Consent of Holders...............................................................31
9.02 With Consent of Holders..................................................................32
9.03 Compliance with Trust Indenture Act......................................................33
9.04 Revocation and Effect of Consents........................................................33
9.05 Notation on or Exchange of Securities....................................................33
9.06 Trustee Protected........................................................................33
X. CONVERSION
10.01 Conversion Privilege; Restrictive Legends................................................34
10.02 Conversion Procedure.....................................................................34
10.03 Fractional Shares........................................................................35
10.04 Taxes on Conversion......................................................................35
10.05 Company to Provide Stock.................................................................35
10.06 Adjustment for Changes in Capital Stock..................................................35
10.07 Adjustment for Rights to Purchase Shares Below Market Price..............................36
10.08 Adjustment for Other Distributions.......................................................38
10.09 Voluntary Adjustment.....................................................................39
10.10 Current Market Price.....................................................................39
10.11 When Adjustment May Be Deferred..........................................................40
10.12 When No Adjustment Required..............................................................40
10.13 Notice of Adjustment.....................................................................40
10.14 Notice of Certain Transactions...........................................................40
10.15 Reorganization of the Company............................................................41
10.16 Company Determination Final..............................................................41
10.17 Trustee's Disclaimer.....................................................................41
XI. SUBORDINATION
11.01 Agreement to Subordinate.................................................................41
11.02 Certain Definitions......................................................................42
11.03 Liquidation; Dissolution; Bankruptcy.....................................................42
11.04 Company Not to Make Payments with Respect to Securities in Certain Circumstances.........43
11.05 Acceleration of Securities...............................................................43
11.06 When Distribution Must Be Paid Over......................................................43
11.07 Notice by Company........................................................................44
11.08 Subrogation..............................................................................44
11.09 Relative Rights..........................................................................44
11.10 Subordination May Not Be Impaired by Company.............................................44
11.11 Distribution or Notice to Representative.................................................45
11.12 Rights of Trustee and Paying Agent.......................................................45
11.13 Officers' Certificate....................................................................45
11.14 Obligation of Company Unconditional......................................................45
{/TABLE}
- iii -
{PAGE}
{TABLE}
{CAPTION}
Page
----
{S} {C} {C}
11.15 Not to Prevent Events of Default.........................................................46
11.16 Prohibition on Incurrence of Layered Indebtedness........................................46
XII. MISCELLANEOUS
12.01 Trust Indenture Act Controls.............................................................46
12.02 Notices..................................................................................46
12.03 Communication by Holders with Other Holders..............................................47
12.04 Certificate and Opinion as to Conditions Precedent.......................................47
12.05 Statements Required in Certificate or Opinion............................................48
12.06 Rules by Trustee and Agents..............................................................48
12.07 Legal Holidays...........................................................................48
12.08 No Recourse Against Others...............................................................48
12.09 Duplicate Originals......................................................................49
12.10 Governing Law............................................................................49
12.11 No Adverse Interpretation of Other Agreements............................................49
12.12 Successors...............................................................................49
12.13 Separability.............................................................................49
12.14 Table of Contents, Headings, etc.........................................................49
{/TABLE}
- iv -
{PAGE}
INDENTURE, dated as of May 12, 2000 between IVAX CORPORATION, a Florida
corporation (the "Company"), and U.S. BANK TRUST NATIONAL ASSOCIATION, a
national banking association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's 5.5% Convertible
Senior Subordinated Notes Due 2007 (the "Securities").
I. DEFINITIONS AND INCORPORATION BY REFERENCE
1.01 DEFINITIONS.
"Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
this purpose, "control" shall mean the power to direct the management and
policies of a person through the ownership of securities, by contract or
otherwise.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Board of Directors" means the Board of Directors of the Company or any
committee of the Board 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.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of the Company and all
warrants or options to acquire such capital stock.
"Common Stock" means the Common Stock, par value $0.10 of the Company.
"Company" means the party named as such above until a successor
replaces it pursuant to the applicable provision hereof and thereafter means the
successor.
"Company Request" or "Company Order" means a written request or order
signed on behalf of the Company by its Chairman of the Board, its President or
any Vice President and by its Treasurer or an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.02 or such other address as the Trustee may give
notice of to the Company.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees and
successors.
{PAGE}
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" or "Securityholder" means a person in whose name a Security is
registered on the Registrar's books.
"IAI Global Security" means a permanent Global Security in registered
form representing the aggregate Principal Amount of securities sold to
Institutional Accredited Investors.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Institutional Accredited Investor" means an "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3), or (7) under the Act that is an
institutional investor.
"interest" includes liquidated damages, unless the context otherwise
requires.
"liquidated damages" has the meaning provided in the Registration
Rights Agreement.
"Maturity Date" means May 15, 2007.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Chief Financial Officer, the Treasurer or the Secretary of the
Company.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or an Assistant Secretary of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel who may
be an employee of or counsel for the Company or other counsel reasonably
acceptable to the Trustee.
"person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"QIB" means a "qualified institutional buyer" within the meaning of
Rule 144A under the Act.
"Redemption Price" means, with respect to a Security to be redeemed by
the Company in accordance with Article III, the percentage of the outstanding
principal amount of such Security payable by the Company upon such redemption.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of May 12, 2000 between the Company and the Initial Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" means a permanent Global Security in
registered form representing the aggregate principal amount of Securities sold
in reliance on Regulation S.
- 2 -
{PAGE}
"Repurchase Price" means, with respect to a Security duly tendered for
purchase by the Company in accordance with Section 3.07, 100% of the outstanding
principal amount of such Security so tendered.
"Restricted Security" means a Security 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 Security
constitutes a Restricted Security.
"Rule 144A Global Security" means a permanent Global Security in
registered form representing the aggregate principal amount of Securities sold
in reliance on Rule 144A.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 5.5% Convertible Senior Subordinated Notes Due
2007 issued by the Company pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder" has the meaning given to such term in the Registration
Rights Agreement.
"subsidiary" means (i) a corporation a majority of whose capital stock
with voting power, under ordinary circumstances, to elect directors is at the
time, directly or indirectly, owned by the Company, by one or more subsidiaries
of the Company or by the Company and one or more subsidiaries thereof or (ii)
any other person (other than a corporation) in which the Company, one or more
subsidiaries thereof or the Company and one or more subsidiaries thereof,
directly or indirectly, at the date of determination thereof, have at least
majority ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 9.03.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions hereof and thereafter
means the successor.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
1.02 OTHER DEFINITIONS.
Term Defined in Section
---- ------------------
"Bankruptcy Law".............................. 6.01
"business day"................................ 12.07
"Change in Control"........................... 3.07
"Company Notice".............................. 3.07
- 3 -
{PAGE}
"Conversion Agent"............................ 2.03
"Custodian"................................... 6.01
"Event of Default"............................ 6.01
"Global Security"............................. 2.01
"Incumbent Board"............................. 3.07
"Indebtedness"................................ 11.02
"Initial Purchasers".......................... 2.02
"Legal Holiday"............................... 12.07
"Participants"................................ 2.15
"Paying Agent"................................ 2.03
"permitted dividend amount"................... 10.08
"Physical Securities"......................... 2.01
"Private Placement Legend".................... 2.17
"Registrar"................................... 2.03
"Representative".............................. 11.02
"Repurchase Date"............................. 3.07
"Repurchase Right"............................ 3.07
"Senior Indebtedness"......................... 11.02
"U.S. Government Obligations"................. 8.01
1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder or a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any
successor.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein have the meanings so assigned to them.
1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in effect on the date hereof;
- 4 -
{PAGE}
(iii) "or" is not exclusive;
(iv) words in the singular include the plural and in the
plural include the singular;
(v) provisions apply to successive events and transactions;
and
(vi) "herein", "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
II. THE SECURITIES
2.01 FORM AND DATING.
The Securities and the Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit A, which is incorporated in and
forms a part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Security shall
be dated the date of its authentication.
Securities offered and sold in reliance on Rule 144A, Securities
offered and sold in reliance on Regulation S and Securities offered and sold to
Institutional Accredited Investors shall be issued initially in the form of one
or more Global Securities, substantially in the form set forth in Exhibit A (the
"Global Security"), deposited with the Trustee, as custodian for the Depository,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided and shall bear the legends set forth in Exhibits B-1 and B-2. The
aggregate principal amount of the Global Security may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depository, as hereinafter provided.
Securities issued in exchange for interests in a Global Security
pursuant to Section 2.15 may be issued and Securities offered and sold in
reliance on any other exemption from registration under the Securities Act other
than as described in the preceding paragraph shall be issued in the form of
permanent certificated Securities in registered form in substantially the form
set forth in Exhibit A (the "Physical Securities").
All Notes offered and sold in reliance on Regulation S shall remain in
the form of a Global Security for one year after the issue date for the
Securities.
2.02 EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
- 5 -
{PAGE}
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
Upon a written order of the Company signed by two Officers or by an
Officer and an Assistant Treasurer of the Company, the Trustee shall
authenticate Securities for original issue in the principal amount of
$200,000,000 and such additional principal amounts, if any, as shall be
determined pursuant to the next sentence of this Section 2.02. Upon receipt by
the Trustee of an Officers' Certificate stating that the Initial Purchasers have
elected to purchase from the Company a specified principal amount of additional
Securities, not to exceed $50,000,000, pursuant to Section l of the Purchase
Agreement dated as of May 8, 2000, between the Company, as issuer, and UBS
Warburg LLC and ING Barings LLC, as initial purchasers (the "Initial
Purchasers"), the Trustee shall authenticate and deliver such specified
principal amount of additional Securities to or upon the written order of the
Company signed as provided in the immediately preceding sentence. Such Officers'
Certificate must be received by the Trustee not later than June 8, 2000, at
least two full business days prior to the proposed date for delivery of such
additional Securities. The aggregate principal amount of Securities outstanding
at any time may not exceed $250,000,000 except as provided in Section 2.07.
Upon a written order of the Company signed by two Officers or by an
Officer and an Assistant Treasurer of the Company, the Trustee shall
authenticate Securities not bearing the Private Placement Legend to be issued to
the transferee when sold pursuant to an effective registration statement under
the Securities Act as set forth in Section 2.16(D).
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 principal amount and any integral
multiple thereof.
2.03 REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency where Securities may be presented for payment ("Paying Agent") and an
office or agency where Securities may be presented for conversion ("Conversion
Agent"). The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may appoint or change one or more
co-registrars, one or more additional paying agents and one or more additional
conversion agents without notice and may act in any such capacity on its own
behalf. The term "Registrar" includes any co-registrar; the term "Paying Agent"
includes any additional paying agent; the term "Conversion Agent" includes any
additional conversion agent.
- 6 -
{PAGE}
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent,
the Trustee shall act as such.
The Company initially appoints the Trustee as Paying Agent, Registrar
and Conversion Agent.
2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all moneys held by the Paying Agent for the
payment of principal of or interest on the Securities, and shall notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent shall have no further liability for the money. If the Company acts
as Paying Agent, it shall segregate and hold as a separate trust fund all money
held by it as Paying Agent.
2.05 SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each interest payment date and at such other times
as the Trustee may request in writing a list, in such form and as of such date
as the Trustee may reasonably require, of the names and addresses of
Securityholders.
2.06 TRANSFER AND EXCHANGE.
Where Securities are presented to the Registrar with a request to
register their transfer or to exchange them for an equal principal amount of
Securities of other authorized denominations, the Registrar shall register the
transfer or make the exchange if its requirements for such transaction are met.
To permit registrations of transfer and exchanges, the Trustee shall
authenticate Securities at the Registrar's request. The Company or the Trustee,
as the case may be, shall not be required (a) to issue, authenticate, register
the transfer of or exchange any Security during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of the
Securities selected for redemption under Section 3.03 and ending at the close of
business on the day of such mailing, or (b) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of Securities being redeemed in part.
No service charge shall be made for any registration of transfer,
exchange or conversion of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer, registration of
- 7 -
{PAGE}
transfer or exchange of Securities, other than exchanges pursuant to Sections
2.10, 3.06, 9.05 or 10.02 not involving any transfer.
2.07 REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been
mutilated, lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security if the Trustee's requirements
are met and, in the case of a mutilated Security, such mutilated Security is
surrendered to the Trustee. In the case of lost, destroyed or wrongfully taken
Securities, if required by the Trustee, an indemnity bond must be provided by
the Holder that is sufficient in the judgment of the Trustee to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced. The Trustee may charge for its expenses in replacing a
Security.
In case any such mutilated, lost, destroyed or wrongfully taken
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security when due.
Every replacement Security is an additional obligation of the Company
only as provided in Section 2.08.
2.08 OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those converted, those cancelled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the Company or
one of its subsidiaries or Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it, or a court
holds, that the replaced Security is held by a protected purchaser.
If the Paying Agent (other than the Company) holds on a redemption date
or maturity date money sufficient to pay Securities payable on that date, then
on and after that date, such Securities shall be deemed to be no longer
outstanding and interest on them shall cease to accrue.
2.09 SECURITIES HELD BY THE COMPANY OR AN AFFILIATE.
In determining whether the Holders of the required aggregate principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or a subsidiary or an Affiliate shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded.
- 8 -
{PAGE}
2.10 TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
2.11 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, Paying Agent and Conversion Agent shall forward to
the Trustee any Securities surrendered to them for registration of transfer,
exchange, payment or conversion. The Trustee shall cancel all Securities
surrendered for registration of transfer, exchange, payment, conversion or
cancellation and the Trustee shall destroy cancelled Securities and deliver a
certificate of any such destruction to the Company. The Company may not issue
new Securities to replace Securities that it has paid or delivered to the
Trustee for cancellation or that any Securityholder has converted pursuant to
Article X.
2.12 DEFAULTED INTEREST.
If and to the extent the Company defaults in a payment of interest on
the Securities, it shall pay the defaulted interest in any lawful manner plus,
to the extent not prohibited by applicable statute or case law, interest payable
on the defaulted interest at the rate provided in the Securities. It may pay the
defaulted interest to the persons who are Securityholders on a subsequent
special record date. The Company shall fix such record date and payment date. At
least 15 days before the record date, the Company shall mail to Securityholders
a notice that states the record date, payment date and amount of interest to be
paid.
2.13 CUSIP NUMBERS.
The Company in issuing the Securities may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided, however, that no
representation is hereby deemed to be made by the Trustee as to the correctness
or accuracy of the CUSIP numbers printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities. The Company shall promptly notify the Trustee of any change in
the CUSIP number.
2.14 DEPOSIT OF MONEYS.
Prior to 11:00 a.m., New York City time, on each interest payment date,
maturity date, redemption date and Repurchase Date, the Company shall have
deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments, if any, due on such interest payment date, maturity date,
redemption date and Repurchase Date, as the case may be, in a timely manner
which permits the Paying Agent to remit payment to the Holders on such interest
payment date, maturity date, redemption date and Repurchase Date, as the case
may be.
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2.15 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(A) The Global Securities initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Section 2.17.
Members of, or participants in, the Depository ("Participants") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Security, and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and Participants, the operation of customary practices governing the exercise of
the rights of a Holder of any Security.
(B) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section 2.16. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for any Global Security and a successor Depository is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a written request from
the Depository to issue Physical Securities.
(C) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Security to beneficial owners pursuant to
Section 2.15(B), the Registrar shall (if one or more Physical Securities are to
be issued) reflect on its books and records the date and a decrease in the
aggregate principal amount of such Global Security in an amount equal to the
aggregate initial aggregate principal amount of the beneficial interest in the
Global Security to be transferred, and the Company shall execute and the Trustee
shall authenticate and deliver, one or more Physical Securities of authorized
denominations in an aggregate principal amount equal to the aggregate principal
amount of the beneficial interest in the Global Security so transferred.
(D) In connection with the transfer of a Global Security in its
entirety to beneficial owners pursuant to Section 2.15(B), such Global Security
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall upon written instructions from the
Company authenticate and deliver, to each beneficial owner identified by the
Depository in exchange for its beneficial interest in such Global Security, an
equal aggregate principal amount of Physical Securities of authorized
denominations.
(E) Any Physical Security constituting a Restricted Security delivered
in exchange for an interest in a Global Security pursuant to Section 2.15(B) or
(C) shall, except as otherwise provided by Section 2.16, bear the Private
Placement Legend (as defined).
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(F) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
2.16 SPECIAL TRANSFER PROVISIONS.
(A) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Restricted Security to any
Institutional Accredited Investor which is not a QIB or to any Non-U.S. Person:
(i) The Registrar shall register the transfer of any
Restricted Security, whether or not such Security bears the Private
Placement Legend, if (x) the requested transfer is after the second
anniversary of the issue date for the Securities; provided, however,
that neither the Company nor any Affiliate of the Company has held any
beneficial interest in such Security, or portion thereof, at any time
on or prior to the second anniversary of the issue date for the
Securities or (y)(1) in the case of a transfer to an Institutional
Accredited Investor which is not a QIB (excluding Non-U.S. Persons),
the proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto and any legal opinions
and certifications required thereby and (2) in the case of a transfer
to a Non-U.S. Person, the proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit D hereto;
(ii) if the proposed transferee is a Participant and the Notes
to be transferred consist of Physical Securities which after transfer
are to be evidenced by an interest in the Global Security, upon receipt
by the Registrar of (x) written instructions given in accordance with
the Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above, the
Registrar shall register the transfer and reflect on its books and
records the date and an increase in the aggregate principal amount of
the Global Security in an amount equal to the aggregate principal
amount of Physical Securities to be transferred, and the Trustee shall
cancel the Physical Securities so transferred; and
(iii) if the proposed transferor is a Participant seeking to
transfer an interest in the Rule 144A Global Security, upon receipt by
the Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above, the
Registrar shall register the transfer and reflect on its books and
records the date and (A) a decrease in the aggregate principal amount
of the Rule 144A Global Security in an amount equal to the aggregate
principal amount of the Securities to be transferred and (B) an
increase in the aggregate principal amount of the Regulation S Global
Security or the IAI Global Security, as the case may be, in an amount
equal to the aggregate principal amount of the Securities to be
transferred.
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(B) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Restricted Security to
a QIB:
(i) the Registrar shall register the transfer of any
Restricted Security, whether or not such Security bears the Private
Placement Legend, if (x) the requested transfer is after the second
anniversary of the issue date for the Securities; provided, however,
that neither the Company nor any Affiliate of the Company has held any
beneficial interest in such Security, or portion thereof, at any time
on or prior to the second anniversary of the issue date for the
Securities or (y) such transfer is being made by a proposed transferor
who has checked the box provided for on the form of Security stating,
or has otherwise advised the Company and the Registrar in writing, that
the sale has been made in compliance with the provisions of Rule 144A
to a transferee who has signed the certification provided for on the
form of Security stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Security for its own
account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within
the meaning of Rule 144A, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as it has requested pursuant to
Rule 144A or has determined not to request such information and that it
is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A;
(ii) if the proposed transferee is a Participant and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the Global Security,
upon receipt by the Registrar of written instructions given in
accordance with the Depository's and Registrar's procedures, the
Registrar shall register the transfer and reflect on its books and
records the date and an increase in the principal amount of the Global
Security in an amount equal to the principal amount of Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred; and
(iii) if the proposed transferor is a Participant seeking to
transfer an interest in the Regulation S Global Security or the IAI
Global Security, upon receipt by the Registrar of written instructions
given in accordance with the Depository's and the Registrar's
procedures, the Registrar shall register the transfer and reflect on
its books and records the date and (A) a decrease in the aggregate
principal amount of the Regulation S Global Security or the IAI Global
Security, as the case may be, in an amount equal to the aggregate
principal amount of the Securities to be transferred and (B) an
increase in the aggregate principal amount of the Rule 144A Global
Security in an amount equal to the aggregate principal amount of the
Securities to be transferred.
(C) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred except as a
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whole by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository.
(D) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar or co-Registrar shall
deliver only Securities that bear the Private Placement Legend unless (i) the
requested transfer is after the second anniversary of the issue date for the
Securities (provided, however, that neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Security, or portion thereof,
at any time prior to or on the second anniversary of the issue date) for the
Securities, (ii) there is delivered to the Trustee an Opinion of Counsel
reasonably satisfactory to the Company to the effect that neither such legend
nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act or (iii) such Security has
been sold pursuant to an effective registration statement under the Securities
Act and the Holder selling such Securities has delivered to the Registrar or
co-Registrar a notice in the form of Exhibit E hereto. Upon the effectiveness of
the Shelf Registration Statement (as defined in the Registration Rights
Agreement) the Company shall deliver to the Trustee a notice of effectiveness, a
Security or Securities, an authentication order in accordance with Section 2.02
and an opinion of counsel in the form of Exhibit F hereto and, if required by
the Depository, the Company shall deliver to the Depository a letter of
representations in a form reasonably acceptable to the Depository.
(E) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
(F) Transfers of Securities Held by Affiliates. Any certificate (i)
evidencing a Security that has been transferred to an Affiliate of the Company
within two years after the issue date for the Securities, as evidenced by a
notation on the Assignment Form for such transfer or in the representation
letter delivered in respect thereof or (ii) evidencing a Security that has been
acquired from an Affiliate (other than by an Affiliate) in a transaction or a
chain of transactions not involving any public offering, shall, until two years
after the last date on which either the Company or any Affiliate of the Company
was an owner of such Security, in each case, bear the Private Placement Legend,
unless otherwise agreed by the Company (with written notice thereof to the
Trustee).
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2.17 RESTRICTIVE LEGENDS.
Each Global Security and Physical Security that constitutes a
Restricted Security shall bear the legend (the "Private Placement Legend") as
set forth in Exhibit B-1 on the face thereof until after the second anniversary
of the later of (i) the issue date for the Securities and (ii) the last date on
which the Company or any Affiliate of the Company was the owner of such Security
(or any predecessor security) (or such shorter period of time as permitted by
Rule 144(k) under the Securities Act or any successor provision thereunder) (or
such longer period of time as may be required under the Securities Act or
applicable state securities laws in the opinion of counsel for the Company,
unless otherwise agreed by the Company and the Holder thereof).
Each Global Security shall also bear the legend as set forth in Exhibit
B-2.
III. REDEMPTION
3.01 NOTICES TO TRUSTEE.
If the Company wants to redeem Securities pursuant to paragraph 6 of
the Securities, it shall notify the Trustee at least 30 days prior to the
redemption date (unless a shorter notice period shall be satisfactory to the
Trustee) of the redemption date and the aggregate principal amount of Securities
to be redeemed. If the Company wants to credit against any such redemption
Securities it has not previously delivered to the Trustee for cancellation
(other than Securities repurchased pursuant to Section 3.07), it shall deliver
the Securities with the notice.
3.02 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed in compliance with the requirements of the
principal exchange or market, if any, on which the Securities are listed, or, if
the Securities are not so listed, on either a pro rata basis or by lot or such
other method as the Trustee shall deem fair and equitable. The Trustee shall
make the selection from Securities outstanding not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000 principal amount.
Securities and portions of them it selects shall be in amounts of $1,000
principal amount or whole multiples of $1,000 principal amount. The Trustee
shall promptly notify the Company in writing of the Securities selected for
redemption and the principal amount thereof to be redeemed. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
The Registrar need not transfer or exchange any Securities selected for
redemption. Also, the Registrar need not transfer or exchange any Securities for
a period of 15 days before selecting Securities to be redeemed.
3.03 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail by first-class mail a notice of redemption to each Holder
whose Securities are to be redeemed.
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The notice shall identify the Securities and the aggregate principal
amount thereof to be redeemed and shall state:
(i) the redemption date;
(ii) the Redemption Price, plus the amount of accrued and
unpaid interest to be paid on the Securities called for redemption;
(iii) the then current conversion rate and conversion price;
(iv) the name and address of the Paying Agent and Conversion
Agent;
(v) the date on which the right to convert the principal of
the Securities called for redemption will terminate and the place or
places where such Securities may be surrendered for conversion;
(vi) that Holders who want to convert Securities must satisfy
the requirements in Article X;
(vii) the paragraph of the Securities pursuant to which the
Securities are to be redeemed;
(viii) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(ix) that interest on Securities called for redemption ceases
to accrue on and after the redemption date; and
(x) the CUSIP number of the Securities.
The date on which the right to convert the principal of the Securities
called for redemption will terminate shall be at the close of business on the
date that is five business days prior to the redemption date.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; provided that the
form and content of such notice shall be prepared by the Company.
3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date at the Redemption Price plus
accrued and unpaid interest to the date of redemption, and, on and after such
date (unless the Company shall default in the payment of the Redemption Price),
such Securities shall cease to bear interest. Upon surrender to the Paying
Agent, such Securities shall be paid at the Redemption Price plus accrued
interest to the redemption date, unless the redemption date is an interest
payment date, in which case the accrued interest will be paid in the ordinary
course.
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3.05 DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the
Paying Agent money in funds immediately available on the redemption date
sufficient to pay the Redemption Price of and accrued interest on all Securities
to be redeemed on that date. The Paying Agent shall return to the Company, as
soon as practicable, any money not required for that purpose.
3.06 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company
shall execute and the Trustee shall authenticate for the Holder a new Security
or Securities in an aggregate principal amount equal to the unredeemed portion
of the Security surrendered.
If any Security selected for partial redemption is converted in part,
the converted portion of such Security shall be deemed (so far as may be) to be
the portion selected for redemption.
3.07 REPURCHASE AT OPTION OF HOLDER UPON A CHANGE IN CONTROL.
Upon any Change in Control (as defined below) with respect to the
Company, each Holder of Securities shall have the right (the "Repurchase
Right"), at the Holder's option, to require the Company to repurchase all of
such Holder's Securities, or a portion thereof which is $1,000 or any integral
multiple thereof, on the date (the "Repurchase Date") that is 45 days after the
date of the Company Notice (as defined below) at the Repurchase Price set forth
in the Securities, plus accrued and unpaid interest, if any, to the Repurchase
Date.
Within 30 days after the occurrence of a Change in Control, the Company
is obligated to mail to all Holders of record of the Securities a notice (the
"Company Notice") of the occurrence of such Change in Control and the Repurchase
Right arising as a result thereof. The Company shall deliver a copy of the
Company Notice to the Trustee and shall cause a copy of such notice to be
published at the Company's expense in THE NEW YORK TIMES and THE WALL STREET
JOURNAL or another newspaper of national circulation. To exercise the Repurchase
Right, a Holder of Securities must deliver on or before the 30th day after the
date of the Company Notice irrevocable written notice to the Company (or an
agent designated by the Company for such purpose) and the Trustee of the
Holder's exercise of such right together with the Securities with respect to
which the right is being exercised, duly endorsed for transfer.
Each Company Notice shall state:
(i) the Repurchase Date;
(ii) the date by which the Repurchase Right must be exercised;
(iii) the Repurchase Price, plus the amount of accrued
interest to be paid on the Securities called for redemption;
(iv) a description of the procedure which a Holder must follow
to exercise a Repurchase Right;
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(v) that the Securities are to be surrendered for payment of
the Repurchase Price;
(vi) that exercise of the Repurchase Right is irrevocable, and
Holders who elect to exercise the Repurchase Right will forfeit the
right to convert Securities submitted for repurchase;
(vii) the then existing conversion rate and conversion price
for conversion of Securities and the place or places where such
Securities may be surrendered for conversion; and
(viii) the CUSIP number of the Securities.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a Repurchase Right.
In the event any Holder exercises its Repurchase Right, such Holder's
conversion right will terminate upon receipt of the written notice of exercise
of such Repurchase Right.
To exercise a Repurchase Right a Holder shall deliver to the Company
(if it is acting as its own Paying Agent) or to a Paying Agent designated by the
Company for such purpose in the Company Notice within the period set forth in
the second paragraph of this Section 3.07, (i) the Option of Holder to Elect
Purchase Notice on the back of the Securities with respect to which the
Repurchase Right is being exercised, duly completed and signed, with appropriate
signature guarantee, and (ii) such Securities with respect to which the
Repurchase Right is being exercised, duly endorsed for transfer to the Company,
and the Holder of such Securities shall be entitled to receive from the Company
(if it is acting as its own Paying Agent) or such Paying Agent a nontransferable
receipt of deposit evidencing such deposit.
In the event a Repurchase Right shall be exercised in accordance with
the terms hereof, the Company shall pay or cause to be paid the applicable
Repurchase Price (plus accrued and unpaid interest) with respect to the
Securities as to which the Repurchase Right shall have been exercised to the
Holder on the Repurchase Date.
On or prior to a Repurchase Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust in accordance with Section 2.04) an amount of
money (to be available on the Repurchase Date) sufficient to pay the Repurchase
Price (plus accrued and unpaid interest) of all of the Securities which are to
be repurchased on that date.
Both the Company Notice and the notice of the Holder to the Company
having been given as specified in this Section 3.07, the Securities so to be
repurchased shall, on the Repurchase Date, become due and payable at the
Repurchase Price applicable thereto (plus accrued and unpaid interest) and from
and after such date (unless the Company shall default in the payment of the
Repurchase Price) such Securities shall cease to bear interest. Upon surrender
of any such Security for repurchase in accordance with said notice, such
Security shall be paid by the Company at the Repurchase Price (plus accrued and
unpaid interest).
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If any Security shall not be paid upon surrender thereof for
repurchase, the principal shall, until paid, bear interest from the Repurchase
Date at the rate borne by such Security on the principal amount of such
Security.
Any Security which is to be submitted for repurchase only in part shall
be delivered pursuant to this Section 3.07 (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by the Holder thereof
or its attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and make available for delivery to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, of the same tenor and in
aggregate principal amount equal to the portion of such Security not submitted
for repurchase.
Notwithstanding anything herein to the contrary, if the option granted
to Securityholders to require the redemption of the Securities upon the
occurrence of a Change in Control is determined to constitute a tender offer,
the Company will comply with all applicable tender offer rules, including Rules
13e-4 and 14e-1 under the Exchange Act, upon the occurrence of a Change in
Control.
As used in this Section 3.07 of the Indenture and in the Security:
A "Change in Control" of the Company means:
(i) the acquisition by any person, entity or "group" within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act
(excluding, for this purpose, the Company or its subsidiaries, or any
employee benefit plan of the Company or its subsidiaries which acquires
beneficial ownership of voting securities of the Company or any current
affiliate of IVAX whose beneficial ownership does not in the future
exceed 45% of IVAX' outstanding Common Stock) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of shares of Common Stock sufficient to elect a majority of directors;
(ii) persons who, as of the date of this Indenture, constitute
the Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors, provided that
any person becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
person were a member of the Incumbent Board;
(iii) approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to
which persons who were the stockholders of the Company immediately
prior to such reorganization, merger or consolidation do not,
immediately thereafter, beneficially own shares sufficient to elect a
majority of directors in the election of directors of the reorganized,
merged or consolidated company; or
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(iv) a liquidation or dissolution of the Company (other than
pursuant to the United States Bankruptcy Code) or the conveyance,
transfer or leasing of all or substantially all of the assets of the
Company to any person.
IV. COVENANTS
4.01 PAYMENT OF SECURITIES.
The Company shall pay all amounts due with respect to the Securities on
the dates and in the manner provided in the Securities. All such amounts shall
be considered paid on the date due if the Paying Agent holds (or, if the Company
is acting as Paying Agent, if the Company has segregated and holds in trust in
accordance with Section 2.04) on that date money sufficient to pay the amount
then due with respect to the Securities.
The Company shall pay interest on any overdue amount (including, to the
extent permitted by applicable law, overdue interest) at the rate borne by the
Securities.
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 (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-Registrar) where Securities may be surrendered
for registration of transfer or exchange or conversion and where notices and
demands to or upon the Company in respect of the Securities 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 of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as an agency of the Company in accordance with Section 2.03.
The Company also shall comply with the provisions of TIA ss. 314(a).
4.03 REPORTS TO HOLDERS.
(A) The Company (at its own expense) will deliver to the Trustee within
15 days after the filing of the same with the Commission, copies of the
quarterly and annual reports and of the
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information, documents and other reports, if any, which the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
(B) Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, for so long
as any Securities remain outstanding the Company will promptly provide the
information required by Rule 144A(d)(4) to any Holder that so requests.
(C) In addition, if and when this Indenture becomes subject to the TIA,
the Company will file a copy of all such information with the Commission for
public availability (unless the Commission will not accept such a filing) and
make such information available to investors who request it in writing. The
Company will also comply with the other provisions of TIA ss. 314(a).
4.04 COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company an Officers' Certificate stating whether or
not the signers know of any Default or Event of Default by the Company in
performing any of its obligations under this Indenture or the Securities. If
they do know of any such Default or Event of Default, the certificate shall
describe the Default or Event of Default and its status.
4.05 STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will 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 wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
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