Integra LifeSciences Holdings Corporation
2 1/2% CONTINGENT CONVERTIBLE SUBORDINATED NOTES DUE 2008
INDENTURE
DATED AS OF SEPTEMBER 29, 2006
WELLS FARGO BANK, N.A.,
AS TRUSTEE
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY
REFERENCE...........................1
Section 1.01
Definitions................................1
Section 1.02
Other Definitions..........................6
Section 1.03
Trust Indenture Act Provisions.............7
Section 1.04
Rules of Construction......................8
ARTICLE II THE
SECURITIES......................................................8
Section 2.01
Form and Dating............................8
Section 2.02
Execution and Authentication..............10
Section 2.03
Registrar, Paying
Agent and Conversion
Agent.....................................11
Section 2.04
Paying Agent to Hold Money in Trust.......12
Section 2.05
Security holder Lists.....................12
Section 2.06
Transfer and Exchange.....................12
Section 2.07
Replacement Securities....................13
Section 2.08
Outstanding Securities....................14
Section 2.09
Treasury Securities.......................14
Section 2.10
Temporary Securities......................15
Section 2.11
Cancellation..............................15
Section 2.12
Legend; Additional Transfer and Exchange
Requirements..............................15
Section 2.13
CUSIP Numbers.............................17
Section 2.14
Tax Treatment.............................17
ARTICLE III REDEMPTION AND
PURCHASES..........................................18
Section 3.01
Redemption By The Company.................18
Section 3.02
Purchase Of Securities At Option Of The
Holder Upon Change In Control.............18
Section 3.03
Effect Of Change In Control Purchase
Notice....................................21
Section 3.04
Deposit Of Change In Control Purchase
Price.....................................21
Section 3.05
Securities Purchased In Part..............22
Section 3.06
Compliance With Securities Laws Upon
Purchase Of Securities....................22
Section 3.07
Repayment To The Company..................22
ARTICLE IV
CONVERSION.........................................................22
Section 4.01
Conversion Privilege......................22
Section 4.02
Payment Upon Conversion...................24
Section 4.03
Conversion Procedure......................26
Section 4.04
Fractional Shares.........................27
Section 4.05
Taxes On Conversion.......................27
Section 4.06
Company To Provide Stock..................27
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Section 4.07
Adjustment Of Conversion Rate.............28
Section 4.08
Make Whole Premium Upon Designated
Event.....................................33
Section 4.09
No Adjustment.............................35
Section 4.10
Adjustment for Tax Purposes...............35
Section 4.11
Notice Of Adjustment......................35
Section 4.12
Notice Of Certain Transactions............35
Section 4.13
Effect Of Reclassification, Consolidation,
Merger Or Sale On Conversion Privilege....36
Section 4.14
Trustee's Disclaimer......................37
Section 4.15
Voluntary Reduction.......................37
ARTICLE V
SUBORDINATION.......................................................37
Section 5.01
Agreement Of Subordination................37
Section 5.02
Payments To Holders.......................38
Section 5.03
Subrogation of Securities.................40
Section 5.04
Authorization To Effect Subordination.....41
Section 5.05
Notice To Trustee.........................42
Section 5.06
Trustee's
Relation To Senior
Indebtedness..............................42
Section 5.07
No Impairment Of Subordination............43
Section 5.08
Certain Conversions Deemed Payment........43
Section 5.09
Article Applicable To Paying Agents.......43
Section 5.10
Senior Indebtedness Entitled To Rely......44
ARTICLE VI
COVENANTS..........................................................44
Section 6.01
Payment Of Securities.....................44
Section 6.02
SEC and Other REPORTS.....................44
Section 6.03
Compliance Certificates...................45
Section 6.04
Further Instruments and Acts..............45
Section 6.05
Maintenance of Corporate Existence........45
Section 6.06
Stay, Extension and Usury Laws............45
ARTICLE VII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE..............46
Section 7.01
Company may Consolidate, etc., only on
Certain Terms.............................46
Section 7.02
Successor Substituted.....................46
ARTICLE VIII DEFAULT AND
REMEDIES.............................................47
Section 8.01
Events of Default.........................47
Section 8.02
Acceleration..............................48
Section 8.03
Other Remedies............................49
Section 8.04
Waiver of Defaults and Events of Default..49
Section 8.05
Control by
Majority.......................49
Section 8.06
Limitations on Suits......................50
Section 8.07
Rights of Holders to Receive Payment and to
Convert...................................50
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Section 8.08
Collection Suit by Trustee................50
Section 8.09
Trustee may File Proofs of Claim..........51
Section 8.10
Priorities................................51
Section 8.11
Undertaking for Costs.....................51
ARTICLE IX
TRUSTEE............................................................52
Section 9.01
Duties of Trustee.........................52
Section 9.02
Rights of Trustee.........................53
Section 9.03
Individual Rights of Trustee..............54
Section 9.04
Trustee's Disclaimer......................54
Section 9.05
Notice of Default or Events of Default....54
Section 9.06
Reports by Trustee to Holders.............54
Section 9.07
Compensation and Indemnity................54
Section 9.08
Replacement of Trustee....................55
Section 9.09
Successor Trustee by Merger, Etc..........56
Section 9.10
Eligibility; Disqualification.............56
Section 9.11
Preferential Collection of Claims against
Company...................................57
ARTICLE X SATISFACTION AND DISCHARGE OF
INDENTURE.............................57
Section 10.01
Satisfaction and Discharge of Indenture...57
Section 10.02
Application of Trust Money................58
Section 10.03
Repayment to Company......................58
Section 10.04
Reinstatement.............................58
ARTICLE XI AMENDMENTS, SUPPLEMENTS AND
WAIVERS................................58
Section 11.01
Without Consent of Holders................58
Section 11.02
With Consent of Holders...................59
Section 11.03
Compliance with Trust Indenture Act.......60
Section 11.04
Revocation and Effect of Consents.........60
Section 11.05
Notation on or Exchange of Securities.....60
Section 11.06
Trustee to Sign Amendments, Etc...........61
Section 11.07
Effect of Supplemental Indentures.........61
ARTICLE XII
MISCELLANEOUS.....................................................61
Section 12.01
Trust Indenture Act Controls..............61
Section 12.02
Notices...................................61
Section 12.03
Communications by Holders with Other
Holders...................................62
Section 12.04
Certificate and Opinions as to Conditions
Precedent.................................62
Section 12.05
Record Date for Vote or Consent of
SecurityHolders...........................63
Section 12.06
Rules by Trustee, Paying Agent, Registrar
and Conversion Agent..
.............63
Section 12.07
Legal Holidays............................63
Section 12.08
Governing
Law.............................63
Section 12.09
No Adverse Interpretation of Other
Agreements................................64
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Section
12.10
No Recourse Against Others................64
Section 12.11
Successors................................64
Section 12.12
Multiple Counterparts.....................64
Section 12.13
Separability..............................64
Section 12.14
Table of Contents, Heading, Etc...........64
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<TABLE>
<CAPTION>
CROSS-REFERENCE TABLE*
TIA SECTION
INDENTURE SECTION
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Section
310(a)(1)....................................... 9.10
(a)(2).......................................... 9.10
(a)(3).......................................... N.A.**
(a)(4).......................................... N.A.
(a)(5).......................................... 9.10
(b)............................................. 9.08; 9.10
(c)............................................. N.A.
Section
311(a).......................................... 9.11
(b)............................................. 9.11
(c)............................................. N.A.
Section
312(a).......................................... 2.05
(b)............................................. 12.03
(c)............................................. N.A.
Section 313(a).................................. 9.06
(b)(1).......................................... N.A.
(b)(2).......................................... 9.06
(c)............................................. 9.06; 12.02
(d)............................................. 9.06
Section
314(a) .. ........
6.02; 6.04; 12.02
(b)............................................. N.A.
(c)(1).......................................... 12.04(a)
(c)(2).......................................... 12.04(a)
(c)(3).......................................... N.A.
(d)............................................. N.A.
(e)............................................. 12.04(b)
(f)............................................. N.A.
Section
315(a).......................................... 9.01(b)
(b)............................................. 9.05; 12.02
(c)............................................. 9.01(a)
(d)............................................. 9.01(c)
(e)............................................. 8.11
Section
316(a)(last sentence)........................... 2.09
(a)(1)(A)....................................... 8.05
(a)(1)(B)....................................... 8.04
(a)(2).......................................... N.A.
(b)............................................. 8.07
(c)............................................. 12.05
Section
317(a)(1)....................................... 8.08
(a)(2).......................................... 8.09
(b)............................................. 2.04
318(c) ......................................... 12.01
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* This Cross-Reference Table shall not, for any purpose, be deemed
a part of
this Indenture.
** N.A. means Not Applicable
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THIS INDENTURE dated as of September 29, 2006 is between
Integra
LifeSciences Holdings Corporation, a corporation duly organized
under the laws
of the State of Delaware (the "Company"), and Wells Fargo Bank,
N.A., a national
banking association organized and existing under the laws of the
United States,
as Trustee (the "Trustee").
Both parties agree as follows for the benefit of the other and for
the
equal and ratable benefit of the Holders of the Company's 2 1/2%
Contingent
Convertible Subordinated Notes due 2008 on the date hereof.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01
Definitions.
"Affiliate" means, with respect to any specified person, 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 person means
the power to
direct the management and policies of such person, directly or
indirectly,
whether through the ownership of voting securities, by contract or
otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent or Conversion Agent.
"Applicable Procedures" means, with respect to any transfer or
exchange
of beneficial ownership interests in a Global Security, the rules
and procedures
of the Depositary, in each case to the extent applicable to such
transfer or
exchange.
"Board of Directors" means either the board of directors of the
Company
or any committee of the Board of Directors authorized to act for it
with respect
to this Indenture.
"Business Day" means each day that is not a Legal Holiday.
"Capital Stock" or "capital stock" of any Person means any and
all
shares, interests, rights to purchase, warrants, options,
participations or
other equivalents of or interests in (however designated) equity of
such Person,
but excluding any debt securities convertible into such equity.
"Cash" or "cash" means such coin or currency of the United States
as at
anytime of payment is legal tender for the payment of public and
private debts.
"Cash Equivalents" means (i) marketable direct obligations issued
by,
or unconditionally guaranteed by, the United States Government or
issued by any
agency thereof and backed by the full faith and credit of the
United States, in
each case maturing within one year from the date of acquisition
thereof; (ii)
marketable direct obligations issued by any state of the United
States of
America or any political subdivision of any such state of the
United States of
America or any political subdivision of any such state or any
public
instrumentality there of maturing within one year from the date of
acquisition
thereof and, at the time of acquisition, having one of the two
highest ratings
obtainable from either Standard & Poor's Ratings Service or
Moody's Investors
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Service, Inc.; (iii) commercial paper maturing no more than one
year from the
date of acquisition thereof issued by any bank organized under the
laws of the
United States of America or any state thereof or the District of
Columbia or any
U.S. branch of a foreign bank having at the date of acquisition
thereof combined
capital and surplus of not less than $250,000,000; (iv) repurchase
obligations
with a term of not more than seven days for underlying securities
of the types
described in clause (i) above entered into with any bank meeting
the
qualifications specified in clause (iii) above; and (v) money
market funds which
invest substantially all their assets in securities of the types
described in
clauses (i) through (iv) above.
"Certificated Security" means a Security that is in substantially
the
form attached hereto as Exhibit A and that does not include the
information or
the schedule called for by footnotes 1, 3 and 4 thereof.
"Common Stock" means the common stock of the Company, $0.01 par
value,
as it exists on the date of this Indenture and any shares of any
class or
classes of capital stock of the Company resulting from any
reclassification or
reclassifications thereof and which have no preference in respect
of dividends
or of amounts payable in the event of any voluntary or involuntary
liquidation,
dissolution or winding-up of the Company and which are not subject
to redemption
by the Company; provided, however, that if at any time there shall
be more than
one such resulting class, the shares of each such class then so
issuable on
conversion of Securities shall be substantially in the proportion
which the
total number of shares of such class resulting from all such
reclassifications
bears to the total number of shares of all such classes resulting
from all such
reclassifications.
"Company" means the party named as such in the first paragraph of
this
Indenture until a successor replaces it pursuant to the applicable
provisions of
this Indenture, and thereafter "Company" shall mean such successor
Company.
"Continuing Directors" means, as of any date of determination,
any
member of the Board of Directors who (a) was a member of the Board
of Directors
as of the date hereof or (b) was nominated for election or elected
to the Board
of Directors with the approval of a majority of the Continuing
Directors who
were members at the time of the new director's nomination or
election.
"Conversion Price" means, as of any date of determination, the
dollar
amount derived by dividing one thousand dollars ($1,000) by the
Conversion Rate
in effect on such date.
"Conversion Rate" means the rate at which shares of Common Stock
shall
be delivered upon conversion, which rate shall be initially 29.2847
shares of
Common Stock for each $1,000 principal amount of Securities, as
adjusted from
time to time pursuant to the provisions of this Indenture.
"Corporate Trust Office" means the principal office of the Trustee
at
which at any particular time its corporate trust business shall be
administered,
which office at the date of the execution of this Indenture is
located at 213
Court Street, Suite 703, Middletown, CT 06457, Attention: Corporate
Trust
Services or at any other time at such other address as the Trustee
may designate
from time to time by notice to the Company.
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"Default" or "default" means, when used with respect to the
Securities,
any event which is or, after notice or passage of time or both,
would be an
Event of Default.
"Designated Senior Indebtedness" means any particular Senior
Indebtedness of the Company in which the instrument creating or
evidencing the
same or the assumption or guarantee thereof (or any related
agreements or
documents to which the Company is a party) expressly provides that
such Senior
Indebtedness shall be "Designated Senior Indebtedness" for purposes
of this
Indenture (provided that such instrument, agreement or other
document may place
limitations and conditions on the right of such Senior Indebtedness
to exercise
the rights of Designated Senior Indebtedness). If any payment made
to any holder
of any Designated Senior Indebtedness or its Representative with
respect to such
Designated Senior Indebtedness is rescinded or must otherwise be
returned by
such holder or Representative upon the insolvency, bankruptcy or
reorganization
of the Company or otherwise, the reinstated Indebtedness of the
Company arising
as a result of such rescission or return shall constitute
Designated Senior
Indebtedness effective as of the date of such rescission or
return.
"Exchange Act" means the Securities and Exchange Act of 1934,
as
amended, and the rules and regulations promulgated thereunder, as
in effect from
time to time.
"Final Maturity Date" means March 15, 2008.
"GAAP" means generally accepted accounting principles in the
United
States of America as in effect as of the date of this Indenture,
including those
set forth in (1) the opinions and pronouncements of the Accounting
Principles
Board of the American Institute of Certified Public Accountants,
(2) the
statements and pronouncements of the Financial Accounting Standards
Board, (3)
such other statements by such other entity as approved by a
significant segment
of the accounting profession and (4) the rules and regulations of
the SEC
governing the inclusion of financial statements (including pro
forma financial
statements) in registration statements filed under the Securities
Act and
periodic reports required to be filed pursuant to Section 13 of the
Exchange
Act, including opinions and pronouncements in staff accounting
bulletins and
similar written statements from the accounting staff of the
SEC.
"Global Security" means a permanent Global Security that is in
substantially the form attached hereto as Exhibit A and that
includes the
information and schedule called for by footnotes 1, 3 and 4 thereof
and which is
deposited with the Depositary or its custodian and registered in
the name of the
Depositary or its nominee.
"Holder" or "Security holder" means the person in whose name a
Security
is registered on the Primary Registrar's books.
"Indebtedness" means, with respect to any Person, without
duplication,
(a) all indebtedness, obligations and other liabilities (contingent
or
otherwise) of such Person (i) for borrowed money (including
obligations of such
Person in respect of overdrafts, foreign exchange contracts,
currency exchange
agreements, interest rate protection agreements, and any loans or
advances from
banks, whether or not evidenced by notes or similar instruments) or
(ii)
evidenced by credit or loan agreements, bonds, debentures, notes or
similar
instruments (whether or not the recourse of the lender is to the
whole of the
assets of such Person or to only a portion thereof) (other than any
accounts
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payable or other accrued current liability or obligation incurred
in the
ordinary course of business in connection with the obtaining of
materials or
services), (b) all reimbursement obligations and other liabilities
(contingent
or otherwise) of such Person with respect to letters of credit,
bank guarantees
or bankers' acceptances, (c) all obligations and liabilities
(contingent or
otherwise) of such Person (i) in respect of leases of such Person
required, in
conformity with GAAP, to be accounted for as capitalized lease
obligations on
the balance sheet of such Person (as determined by such Person), or
(ii) under
any lease or related document (including a purchase agreement,
conditional sale
or other title retention agreement) in connection with the lease of
real
property or improvements thereon (or any personal property included
as part of
any such lease) which provides that such Person is contractually
obligated to
purchase or cause a third party to purchase the leased property or
pay an agreed
upon residual value of the leased property to the lessor (whether
or not such
lease transaction is characterized as an operating lease or a
capitalized lease
in accordance with GAAP), (d) all obligations (contingent or
otherwise) of such
Person with respect to an interest rate or other swap, cap, floor
or collar
agreement, hedge agreement, forward contract, or other similar
instrument or
agreement or foreign currency hedge, exchange, purchase or similar
instrument or
agreement; (e) all direct or indirect guaranties or similar
agreements by such
Person in respect of, and obligations or liabilities of such Person
to purchase
or otherwise acquire or otherwise assure a creditor against loss in
respect of,
indebtedness, obligations or liabilities of another Person of the
kinds
described in clauses (a) through (d), and (f) any and all
deferrals, renewals,
extensions, refinancings and refundings of, or amendments,
modifications or
supplements to, any indebtedness, obligation or liability of the
kinds described
in clauses (a) through (e); provided, however, that Indebtedness
shall not
include obligations and liabilities of such Person (x) arising from
the honoring
by a bank of other financial institution of a check, draft of
similar instrument
inadvertently drawn against insufficient funds in the ordinary
course of
business, provided such obligations are extinguished within two
Business Days of
their incurrence, (y) resulting from the endorsement of negotiable
instruments
for collection in the ordinary course of business and consistent
with past
business practices and (z) stand-by letters of credit to the
extent
collateralized by Cash or Cash Equivalents.
"Indenture" means this Indenture as amended or supplemented from
time
to time pursuant to the terms of this Indenture.
"Offer to Exchange" means the Company's offer to exchange the
Securities for the Old Notes that was commenced on July 17,
2006.
"Officer" means the Chairman or any Co-Chairman of the Board, any
Vice
Chairman of the Board, the Chief Executive Officer, the President,
any Vice
President, the Chief Financial Officer, the Secretary or any
Assistant Secretary
of the Company.
"Officers' Certificate" means a certificate signed by two
Officers;
provided, however, that for purposes of Sections 4.13 and 6.03,
"Officers'
Certificate" means a certificate signed by the principal executive
officer,
principal financial officer or principal accounting officer of the
Company and
by one other Officer.
"Old Notes" means any of the Company's 2 1/2% Contingent
Convertible
Subordinated Notes due 2008 issued on March 31, 2003.
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"Opinion of Counsel" means a written opinion from legal counsel.
The
counsel may be an employee of or counsel to the Company or the
Trustee.
"Person" or "person" means any individual, corporation,
partnership,
limited liability company, joint venture, association, joint-stock
company,
trust, unincorporated organization, government or any agency or
political
subdivision thereof or any other entity.
"Principal" or "principal" of a debt security, including the
Securities, means the principal of the security plus, when
appropriate, the
premium, if any, on the security.
"Representative" means the (a) indenture trustee or other
trustee,
agent or representative for any Senior Indebtedness or (b) with
respect to any
Senior Indebtedness that does not have any such trustee, agent or
other
representative, (i) in the case of such Senior Indebtedness issued
pursuant to
an agreement providing for voting arrangements as among the holders
or owners of
such Senior Indebtedness, any holder or owner of such Senior
Indebtedness acting
with the consent of the required persons necessary to bind such
holders or
owners of such Senior Indebtedness and (ii) in the case of all
other such Senior
Indebtedness, the holder or owner of such Senior Indebtedness.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 2 1/2% Contingent Convertible Subordinated
Notes
due 2008 or any of them (each, a "Security"), as amended or
supplemented from
time to time, that are issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and
the
rules and regulations promulgated thereunder, as in effect from
time to time.
"Securities Custodian" means the Trustee, as custodian with respect
to
the Securities in global form, or any successor thereto.
"Senior Indebtedness" means the principal of, premium, if any,
interest
(including any interest accruing subsequent to the commencement of
any
bankruptcy or similar proceeding, whether or not a claim for
post-petition
interest is allowed as a claim in any such proceeding) and rent
payable on or in
connection with, and all fees, costs, expenses and other amounts
accrued or due
on or in connection with, Indebtedness of the Company, whether
secured or
unsecured, absolute or contingent, due or to become due,
outstanding on the date
of this Indenture or thereafter created, incurred, assumed,
guaranteed or in
effect guaranteed by the Company (including all deferrals,
renewals, extensions
or refundings of, or amendments, modifications or supplements to,
the
foregoing), unless in the case of any particular Indebtedness the
instrument
creating or evidencing the same or the assumption or guarantee
thereof expressly
provides that such Indebtedness shall not be senior in right of
payment to the
Securities or expressly provides that such Indebtedness is "pari
passu" or
"junior" to the Securities. Notwithstanding the foregoing, the term
Senior
Indebtedness shall not include the Securities and the Old Notes. If
any payment
made to any holder of any Senior Indebtedness or its Representative
with respect
to such Senior Indebtedness is rescinded or must otherwise be
returned by such
holder or Representative upon the insolvency, bankruptcy or
reorganization of
5
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the Company or otherwise, the reinstated Indebtedness of the
Company arising as
a result of such rescission or return shall constitute Senior
Indebtedness
effective as of the date of such rescission or return.
"Subsidiary" means, in respect of any Person, any corporation,
association, 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.
"TIA" means the Trust Indenture Act of 1939, as amended, and the
rules
and regulations thereunder as in effect on the date of this
Indenture, except as
provided in Section 11.03, and except to the extent any amendment
to the Trust
Indenture Act expressly provides for application of the Trust
Indenture Act as
in effect on another date.
"Trading Day" means, with respect to any security, each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any day on
which securities
are not generally traded on the principal exchange or market in
which such
security is traded.
"Trustee" means the party named as such in the first paragraph of
this
Indenture until a successor replaces it in accordance with the
provisions of
this Indenture, and thereafter means the successor.
"Trust Officer" means, with respect to the Trustee, any officer
assigned to the Corporate Trust Office, and also, with respect to a
particular
matter, any other officer to whom such matter is referred because
of such
officer's knowledge of and familiarity with the particular
subject.
"Vice President" when used with respect to the Company or the
Trustee,
means any vice president, whether or not designated by a number or
a word or
words added before or after the title "vice president."
"Voting Stock" of a Person means all classes of Capital Stock or
other
interests (including partnership interests) of such Person then
outstanding and
normally entitled (without regard to the occurrence of any
contingency) to vote
in the election of directors.
<TABLE>
<CAPTION>
Section 1.02 Other
Definitions.
Term
Defined in Section
<s>
<c>
"Agent Members".................................................
2.01(b)
"Bankruptcy Law"................................................
8.01
"Change in Control".............................................
3.02(a)
"Change in Control Purchase Date"...............................
3.02(a)
"Change in Control Purchase Notice".............................
3.02(c)
"Change in Control Purchase Price"..............................
3.02(a)
"Closing Price".................................................
4.07(e)
"Company Order".................................................
2.02
"Conversion Agent"..............................................
2.03
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"Conversion Date"...............................................
4.03
"Conversion Rate"...............................................
4.07
"Conversion Retraction Period" .................................
4.02(f)
"Conversion Value"..............................................
4.01
"Conversion Value Determination Date" ..........................
4.03
"Current Market Price"..........................................
4.07(e)
"Custodian".....................................................
8.01
"Daily Cash Amount" ............................................
4.02(c)
"Daily Conversion Value" .......................................
4.02(g)
"Daily Settlement Amount" ......................................
4.02(c)
"Daily VWAP" ...................................................
4.02(h)
"DTC"...........................................................
2.01
"Depositary"....................................................
2.01
"Designated Event" .............................................
4.08
"Determination Date"............................................
4.07(d)
"Effective Date" ...............................................
4.08
"Event of Default"..............................................
8.01
"Excess Market Price Event" ....................................
4.08
"Expiration Date"...............................................
4.07(d)
"Expiration Time"...............................................
4.07(d)
"Legal Holiday".................................................
12.07
"Legend" .......................................................
2.12
"Make Whole Adjustment" ........................................
4.08
"Net Share Amount"..............................................
4.02(a)
"Net Shares"....................................................
4.02(a)
"NGSM"..........................................................
3.02(a)
"Observation Period" ...........................................
4.02(b)
"Paying Agent"..................................................
2.03
"Payment Blockage Notice".......................................
5.02
"Primary Registrar".............................................
2.03
"Purchased Shares"..............................................
4.07(d)
"Registrar".....................................................
2.03
"Rights Plan"...................................................
4.07(c)
"Stock Price" ..................................................
4.08
"Trading Price".................................................
4.01
"Triggering Distribution".......................................
4.07(d)
"Trigger Event".................................................
4.07(c)
</TABLE>
Section 1.03 Trust
Indenture Act Provisions.
Whenever this Indenture refers to a provision of the TIA, that
provision is incorporated by reference in and made a part of this
Indenture. The
Indenture shall also include those provisions of the TIA required
to be included
herein by the provisions of the Trust Indenture Reform Act of 1990.
The
following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Security holder;
7
<PAGE>
"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
other obligor on
the Securities.
All other terms used in this Indenture that are defined in the
TIA,
defined by TIA reference to another statute or defined by any SEC
rule and not
otherwise defined herein have the meanings assigned to them
therein.
Section 1.04 Rules of
Construction.
Unless the context otherwise requires:
(A) a term has the meaning assigned to it;
(B) an accounting term not otherwise defined has the meaning
assigned
to it in accordance with GAAP;
(C) words in the singular include the plural, and words in the plural
include the singular;
(D) provisions apply to successive events and transactions;
(E) the term "merger"
includes a statutory share exchange and the term
"merged" has a correlative meaning;
(F) the masculine gender includes the feminine and the neuter;
(G) references to agreements and other instruments include subsequent
amendments thereto; and
(H) "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.
ARTICLE II
THE SECURITIES
Section 2.01 Form and
Dating.
The Securities and the Trustee's certificate of authentication
shall be
substantially in the respective forms set forth in Exhibit A, which
Exhibit is
incorporated in and made part of this Indenture. The Securities may
have
notations, legends or endorsements required by law, stock exchange
rule or
usage. The Company shall provide any such notations, legends or
endorsements to
the Trustee in writing. Each Security shall be dated the date of
its
authentication.
(a) Global Securities. All of the Securities shall be issued
initially
in the form of one or more Global Securities, which shall be
deposited on behalf
of the purchasers of the Securities represented thereby with the
Trustee, at its
Corporate Trust Office, as custodian for the depositary, The
Depository Trust
8
<PAGE>
Company ("DTC") (such depositary, or any successor thereto, being
hereinafter
referred to as the "Depositary"), and registered in the name of its
nominee,
Cede & Co., duly executed by the Company and authenticated by
the Trustee as
hereinafter provided. The aggregate principal amount of the Global
Securities
may from time to time be increased or decreased by adjustments made
on the
records of the Securities Custodian as hereinafter provided,
subject in each
case to compliance with the Applicable Procedures.
(b) Global Securities In General. Each Global Security shall
represent
such of the outstanding Securities as shall be specified therein
and each shall
provide that it shall represent the aggregate amount of outstanding
Securities
from time to time endorsed thereon and that the aggregate amount of
outstanding
Securities represented thereby may from time to time be reduced or
increased, as
appropriate, to reflect exchanges, purchases or conversions of such
Securities.
Any adjustment of the aggregate principal amount of a Global
Security to reflect
the amount of any increase or decrease in the amount of outstanding
Securities
represented thereby shall be made by the Trustee in accordance with
instructions
given by the Holder thereof as required by Section 2.12 hereof and
shall be made
on the records of the Trustee and the Depositary.
Members of, or participants in, the Depositary ("Agent Members")
shall
have no rights under this Indenture with respect to any Global
Security held on
their behalf by the Depositary or under the Global Security, and
the Depositary
(including, for this purpose, its nominee) may be treated by the
Company, the
Trustee and any agent of the Company or the Trustee as the absolute
owner and
Holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (A) prevent
the
Company, the Trustee or any agent of the Company or the Trustee
from giving
effect to any written certification, proxy or other authorization
furnished by
the Depositary or (B) impair, as between the Depositary and its
Agent Members,
the operation of customary practices governing the exercise of the
rights of a
Holder of any Security.
(c) Book Entry Provisions. The Company shall execute and the
Trustee
shall, in accordance with this Section 2.01(c), authenticate and
deliver
initially one or more Global Securities that (i) shall be
registered in the name
of the Depositary, (ii) shall be delivered by the Trustee to the
Depositary or
pursuant to the Depositary's instructions and (iii) shall bear
legends
substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO INTEGRA LIFESCIENCES HOLDINGS
CORPORATION (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 THE
DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN
9
<PAGE>
INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND
UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM,
THIS SECURITY
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF
1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE
DISCOUNT AND
THE ISSUE DATE OF THIS SECURITY IS MARCH 31, 2003. IN ADDITION,
THIS SECURITY IS
SUBJECT TO UNITED STATES FEDERAL INCOME TAX REGULATIONS GOVERNING
CONTINGENT
PAYMENT DEBT INSTRUMENTS. UNDER SUCH REGULATIONS, THE COMPARABLE
YIELD OF THIS
SECURITY IS 9.702% (WHICH WILL BE TREATED AS THE YIELD FOR UNITED
STATES FEDERAL
INCOME TAX PURPOSES), COMPOUNDED SEMIANNUALLY.
THE COMPANY AGREES, AND BY ACCEPTING A BENEFICIAL OWNERSHIP
INTEREST IN THIS
SECURITY EACH HOLDER OF THIS SECURITY WILL BE DEEMED TO HAVE
AGREED, FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES, TO TREAT THIS SECURITY AS A
"CONTINGENT
PAYMENT DEBT INSTRUMENT" AND TO BE BOUND BY THE COMPANY'S
APPLICATION OF THE
TREASURY REGULATIONS THAT GOVERN CONTINGENT PAYMENT DEBT
INSTRUMENTS, INCLUDING
THE COMPANY'S DETERMINATION (1) OF THE PROJECTED PAYMENT SCHEDULE
AND (2) THAT
THE RATE AT WHICH INTEREST WILL BE DEEMED TO ACCRUE FOR UNITED
STATES FEDERAL
INCOME TAX PURPOSES WILL BE 9.702% COMPOUNDED SEMI-ANNUALLY. THE
COMPANY AGREES
TO PROVIDE PROMPTLY TO THE HOLDER OF THIS SECURITY, UPON WRITTEN
REQUEST, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE PRICE, YIELD TO MATURITY,
AND PROJECTED
PAYMENT SCHEDULE. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE
COMPANY AT THE
FOLLOWING ADDRESS: INTEGRA LIFESCIENCES HOLDINGS CORPORATION, 311
ENTERPRISE
DRIVE, PLAINSBORO, NEW JERSEY 08536, ATTENTION: INVESTOR
RELATIONS."
Section 2.02 Execution
and Authentication.
An Officer shall sign the Securities for the Company by manual
or
facsimile signature attested by the manual or facsimile signature
of the
Secretary or an Assistant Secretary of the Company. Typographic and
other minor
errors or defects in any such facsimile signature shall not affect
the validity
or enforceability of any Security which has been authenticated and
delivered by
the Trustee.
10
<PAGE>
If an Officer whose signature is on a Security no longer holds
that
office at the time the Trustee authenticates the Security, the
Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of
the
Trustee manually signs the certificate of authentication on the
Security. The
signature shall be conclusive evidence that the Security has been
authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities for original issue in the aggregate principal amount of
up to
$120,000,000 upon receipt of a written order or orders of the
Company signed by
two Officers of the Company (a "Company Order"). The Company Order
shall specify
the amount of Securities to be authenticated, shall provide that
all such
Securities will be represented by a Global Security and the date on
which each
original issue of Securities is to be authenticated. The aggregate
principal
amount of Securities outstanding at any time may not exceed
$120,000,000 except
as provided in Section 2.07.
The Trustee shall act as the initial authenticating agent.
Thereafter,
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 shall have the same rights as an Agent to deal
with the
Company or an Affiliate of the Company.
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.
Section 2.03 Registrar,
Paying Agent and Conversion Agent.
The Company shall maintain one or more offices or agencies
where
Securities may be presented for registration of transfer or for
exchange (each,
a "Registrar"), one or more offices or agencies where Securities
may be
presented for payment (each, a "Paying Agent"), one or more offices
or agencies
where Securities may be presented for conversion (each, a
"Conversion Agent")
and one or more offices or agencies where notices and demands to or
upon the
Company in respect of the Securities and this Indenture may be
served. The
Company will at all times maintain a Paying Agent, Conversion
Agent, Registrar
and an office or agency where notices and demands to or upon the
Company in
respect of the Securities and this Indenture may be served in the
Borough of
Manhattan, The City of New York. One of the Registrars (the
"Primary Registrar")
shall keep a register of the Securities and of their transfer and
exchange.
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,
Conversion Agent or
agent for service of notices and demands in any place required by
this
Indenture, or fails to give the foregoing notice, the Trustee shall
act as such.
The Company or any Affiliate of the Company may act as Paying Agent
(except for
the purposes of Section 6.01 and Article 10).
The Company reserves the right to:
11
<PAGE>
(a) vary or terminate the appointment of the Registrar, Paying
Agent or
Conversion Agent,
(b) appoint additional Paying Agents or Conversion Agents, and
(c) approve any change in the office through which any Registrar or
any
Paying Agent or Conversion Agent acts.
The Company hereby initially designates the Trustee as Paying
Agent,
Registrar, Custodian and Conversion Agent, and each of the
Corporate Trust
Office of the Trustee and the office or agency of the Trustee, one
such office
or agency of the Company for each of the aforesaid purposes.
Section 2.04 Paying
Agent to Hold Money in Trust.
Prior to 11:00 a.m., New York City time, on each due date of
the
principal of or interest, if any (including contingent interest, if
any), on any
Securities, the Company shall deposit with a Paying Agent a sum
sufficient to
pay such principal or interest, if any (including contingent
interest, if any),
so becoming due. Subject to Section 5.02, a Paying Agent shall hold
in trust for
the benefit of Security holders or the Trustee all money held by
the Paying
Agent for the payment of principal of or interest, if any
(including contingent
interest, if any), on the Securities, and shall notify the Trustee
of any
default by the Company (or any other obligor on the Securities) in
making any
such payment. If the Company or an Affiliate of the Company acts as
Paying
Agent, it shall, before 11:00 a.m., New York City time, on each due
date of the
principal of or interest on any Securities, segregate the money and
hold it as a
separate trust fund. The Company at any time may require a Paying
Agent to pay
all money held by it to the Trustee, and the Trustee may at any
time during the
continuance of any default, upon written request to a Paying Agent,
require such
Paying Agent to pay forthwith to the Trustee all sums so held in
trust by such
Paying Agent. Upon doing so, the Paying Agent (other than the
Company) shall
have no further liability for the money.
Section 2.05 Security
holder 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
Security holders. If the Trustee is not the Primary Registrar, the
Company shall
furnish to the Trustee on or before each semiannual 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 Security holders.
Section 2.06 Transfer
and Exchange.
(a) Subject to compliance with any applicable additional
requirements
contained in Section 2.12, when a Security is presented to a
Registrar with a
request to register a transfer thereof or to exchange such Security
for an equal
principal amount of Securities of other authorized denominations
(if any), the
Registrar shall register the transfer or make the exchange as
requested;
provided, however, that every Security presented or surrendered for
registration
of
12
<PAGE>
transfer or exchange shall be duly endorsed or accompanied by an
assignment form
and, if applicable, a transfer certificate each in the form
included in Exhibit
A, and in form satisfactory to the Registrar duly executed by the
Holder thereof
or its attorney duly authorized in writing. To permit registration
of transfers
and exchanges, upon surrender of any Security for registration of
transfer or
exchange at an office or agency maintained pursuant to Section
2.03, the Company
shall execute and the Trustee shall authenticate Securities of a
like aggregate
principal amount at the Registrar's request. Any exchange or
transfer shall be
without charge, except that the Company or the Registrar may
require payment of
a sum sufficient to cover any tax or other governmental charge that
may be
imposed in relation thereto, and provided, that this sentence shall
not apply to
any exchange pursuant to Section 2.10, 2.12(a), 3.05, 4.03 (last
paragraph) or
11.05.
Neither the Company, any Registrar nor the Trustee shall be
required to
exchange or register a transfer of any Securities or portions
thereof in respect
of which a Change in Control Purchase Notice has been delivered and
not
withdrawn by the Holder thereof (except, in the case of the
purchase of a
Security in part, the portion thereof not to be purchased).
All Securities issued upon any transfer or exchange of Securities
shall
be valid obligations of the Company, evidencing the same debt and
entitled to
the same benefits under this Indenture, as the Securities
surrendered upon such
transfer or exchange.
(b) Any Registrar appointed pursuant to Section 2.03 hereof
shall
provide to the Trustee such information as the Trustee may
reasonably require in
connection with the delivery by such Registrar of Securities upon
transfer or
exchange of Securities.
(c) The Trustee shall have no obligation or duty to monitor,
determine
or inquire as to compliance with any restrictions on transfer
imposed under this
Indenture or under applicable law with respect to any transfer of
any interest
in any Security (including any transfers between or among Agent
Members or other
beneficial owners of interests in any Global Security) other than
to require
delivery of such certificates and other documentation or evidence
as are
expressly required by, and to do so if and when expressly required
by the terms
of, this Indenture, and to examine the same to determine
substantial compliance
as to form with the express requirements hereof.
Section 2.07
Replacement Securities.
If any mutilated Security is surrendered to the Company, a
Registrar or
the Trustee, or the Company, a Registrar and the Trustee receive
evidence to
their satisfaction of the destruction, loss or theft of any
Security, and there
is delivered to the Company, the applicable Registrar and the
Trustee such
security or indemnity as will be required by them to hold each of
them harmless,
then, in the absence of notice to the Company, such Registrar or
the Trustee
that such Security has been acquired by a bona fide purchaser, the
Company shall
execute, and upon its written request the Trustee shall
authenticate and
deliver, in exchange for any such mutilated Security or in lieu of
any such
destroyed, lost or stolen Security, a new Security of like tenor
and principal
amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has
become or is about to become due and payable, or is about to be
purchased by the
13
<PAGE>
Company pursuant to Article 3, the Company in its discretion may,
instead of
issuing a new Security, pay or purchase such Security, as the case
may be.
Upon the issuance of any new Securities under this Section 2.07,
the
Company may require the payment of a sum sufficient to cover any
tax or other
governmental charge that may be imposed in relation thereto and any
other
reasonable expenses (including the reasonable fees and expenses of
the Trustee
or the Registrar) in connection therewith.
Every new Security issued pursuant to this Section 2.07 in lieu of
any
mutilated, destroyed, lost or stolen Security shall constitute an
original
additional contractual obligation of the Company, whether or not
the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable
by anyone,
and shall be entitled to all benefits of this Indenture equally
and
proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section 2.07 are (to the extent lawful)
exclusive and shall preclude (to the extent lawful) all other
rights and
remedies with respect to there placement or payment of mutilated,
destroyed,
lost or stolen Securities.
Section 2.08
Outstanding Securities.
Securities outstanding at any time are all Securities authenticated
by
the Trustee, except for those canceled by it, those converted
pursuant to
Article 4, those delivered to it for cancellation or surrendered
for transfer or
exchange and those described in this Section 2.08 as not
outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to
be
outstanding unless the Company receives proof satisfactory to it
that the
replaced Security is held by a bona fide purchaser.
If a Paying Agent (other than the Company or an Affiliate of
the
Company) holds on a Change in Control Purchase Date or the Final
Maturity Date
money sufficient to pay the principal of (including premium, if
any) and accrued
interest (including contingent interest, if any) on Securities (or
portions
thereof) in respect of which a Change in Control Purchase Notice
has been
delivered and not withdrawn payable on that date, then on and after
such Change
in Control Purchase Date or the Final Maturity Date, as the case
may be, such
Securities (or portions thereof, as the case may be) shall cease to
be
outstanding and interest on them (including contingent interest, if
any) shall
cease to accrue.
Subject to the restrictions contained in Section 2.09, a Security
does
not cease to be outstanding because the Company or an Affiliate of
the Company
holds the Security.
Section 2.09 Treasury
Securities.
In determining whether the Holders of the required principal amount
of
Securities have concurred in any notice, direction, waiver or
consent,
Securities owned by the Company or any other obligor on the
Securities or by any
Affiliate of the Company or of such other obligor shall be
disregarded, except
that, for purposes of determining whether the Trustee shall be
protected in
14
<PAGE>
relying on any such notice, direction, waiver or consent, only
Securities which
a Trust Officer of the Trustee actually knows are so owned shall be
so
disregarded. Securities so owned which have been pledged in good
faith shall not
be disregarded if the pledgee establishes to the satisfaction of
the Trustee the
pledgee's right so to act with respect to the Securities and that
the pledgee is
not the Company or any other obligor on the Securities or any
Affiliate of the
Company or of such other obligor.
Section 2.10 Temporary
Securities.
Until definitive Securities are ready for delivery, the Company
may
prepare and execute, and, upon receipt of a Company Order, the
Trustee shall
authenticate and deliver, temporary Securities. Temporary
Securities shall be
substantially in the form of definitive Securities but may have
variations that
the Company with the consent of the Trustee considers appropriate
for temporary
Securities. Without unreasonable delay, the Company shall prepare
and the
Trustee shall authenticate and deliver definitive Securities in
exchange for
temporary Securities.
Section 2.11
Cancellation.
The Company at any time may deliver Securities to the Trustee
for
cancellation. Any Securities surrendered for cancellation may not
be reissued or
resold and will be promptly canceled. The Registrar, the Paying
Agent and the
Conversion Agent shall forward to the Trustee or its agent any
Securities
surrendered to them for transfer, exchange, payment or conversion.
The Trustee
and no one else shall cancel promptly, in accordance with its
standard
procedures, all Securities surrendered for transfer, exchange,
payment,
conversion or cancellation and shall deliver copies of the canceled
Securities
to the Company. All Securities which are purchased or otherwise
acquired by the
Company or any of its Subsidiaries prior to the Final Maturity Date
may, to the
extent permitted by law, be reissued or resold or the Company may,
at its
option, deliver any such Securities to the Trustee for
cancellation.
Section 2.12 Legend;
Additional Transfer and Exchange Requirements.
(a) If Securities are issued upon the transfer, exchange or
replacement
of Securities bearing the legend set forth on the forms of
Securities attached
hereto as Exhibit A (collectively, the "Legend"), or if a request
is made to
remove the Legend on a Security, the Securities so issued shall
bear the Legend,
or the Legend shall not be removed, as the case may be, unless
there is
delivered to the Company and the Registrar such satisfactory
evidence, which
shall include an opinion of counsel if requested by the Company or
such
Registrar, as may be reasonably required by the Company and the
Registrar, that
the Legend is not required.
(b) A Global Security may not be transferred, in whole or in part,
to
any Person other than the Depositary or a nominee or any successor
thereof, and
no such transfer to any such other Person may be registered;
provided that the
foregoing shall not prohibit any transfer of a Security that is
issued in
exchange for a Global Security but is not itself a Global Security.
No transfer
of a Security to any Person shall be effective under this Indenture
or the
Securities unless and until such Security has been registered in
the name of
such Person. Notwithstanding any other provisions of this Indenture
or the
Securities, transfers of a Global Security, in whole or in part,
shall be made
only in accordance with this Section 2.12.
15
<PAGE>
(c) The provisions
of clauses (i), (ii),
(iii) and (iv) below shall
apply only to Global Securities:
(i) Notwithstanding any other provisions of this Indenture or
the
Securities, a Global Security shall not be exchanged in whole or in
part for a
Security registered in the name of any Person other than the
Depositary or one
or more nominees thereof, provided that a Global Security may be
exchanged for
Securities registered in the names of any person designated by the
Depositary in
the event that (A) the Depositary has notified the Company that it
is unwilling
or unable to continue as Depositary for such Global Security or
such Depositary
has ceased to be a "clearing agency" registered under the Exchange
Act, and a
successor Depositary is not appointed by the Company within 90
days, (B) the
Company has provided the Depositary with written notice that it has
decided to
discontinue use of the system of book-entry transfer through the
Depositary or
any successor Depositary or (C) an Event of Default has occurred
and is
continuing with respect to the Securities. Any Global Security
exchanged
pursuant to clauses (A) or (B) above shall be so exchanged in whole
and not in
part, and any Global Security exchanged pursuant to clause (C)
above may be
exchanged in whole or from time to time in part as directed by the
Depositary.
Any Security issued in exchange for a Global Security or any
portion thereof
shall be a Global Security; provided that any such Security so
issued that is
registered in the name of a Person other than the Depositary or a
nominee
thereof shall not be a Global Security.
(ii) Securities issued in exchange for a Global Security or any
portion
thereof shall be issued in definitive, fully registered form,
without interest
coupons, shall have an aggregate principal amount equal to that of
such Global
Security or portion thereof to be so exchanged, shall be registered
in such
names and be in such authorized denominations as the Depositary
shall designate
and shall bear the applicable legends provided for herein. Any
Global Security
to be exchanged in whole shall be surrendered by the Depositary to
the Trustee,
as Registrar. With regard to any Global Security to be exchanged in
part, either
such Global Security shall be so surrendered for exchange or, if
the Trustee is
acting as custodian for the Depositary or its nominee with respect
to such
Global Security, the principal amount thereof shall be reduced, by
an amount
equal to the portion thereof to be so exchanged, by means of an
appropriate
adjustment made on the records of the Trustee. Upon any such
surrender or
adjustment, the Trustee shall authenticate and deliver the Security
issuable on
such exchange to or upon the order of the Depositary or an
authorized
representative thereof.
(iii) Subject to the provisions of clause (v) below, the
registered
Holder may grant proxies and otherwise authorize any Person,
including Agent
Members and persons that may hold interests through Agent Members,
to take any
action which a Holder is entitled to take under this Indenture or
the
Securities.
(iv) In the event of the occurrence of any of the events
specified in
clause (i) above, the
Company will
promptly make available to the Trustee a
reasonable supply of
Certificated
Securities in definitive, fully registered
form, without interest coupons.
(v) Neither Agent Members nor any other Persons on whose behalf
Agent
Members may act shall have any rights under this Indenture with
respect to any
Global Security registered in the name of the Depositary or any
nominee thereof,
or under any such Global Security, and the Depositary or such
nominee, as the
case
16
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may be, maybe treated by the Company, the Trustee and any agent of
the Company
or the Trustee as the absolute owner and holder of such 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 Depositary or such nominee, as the case may be, or impair, as
between the
Depositary, its Agent Members and any other person on whose behalf
an Agent
Member may act, the operation of customary practices of such
Persons governing
the exercise of the rights of a Holder of any Security.
Section 2.13 CUSIP
Numbers.
The Company in issuing the Securities may use one or more
"CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP"
numbers in notices of purchase as a convenience to 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 Securities or as contained in
any notice
of a purchase and that reliance may be placed only on the other
identification
numbers printed on the Securities, and any such purchase shall not
be affected
by any defect in or omission of such numbers. The Company will
promptly notify
the Trustee of any change in the "CUSIP" numbers.
Section 2.14 Tax
Treatment.
The Company agrees, and by acceptance of beneficial ownership
interests
in the Securities each beneficial owner of the Securities will be
deemed to have
agreed, for United States federal income tax purposes,
(a) to treat the exchange of Old Notes for Securities pursuant to
the
Offer to Exchange as not constituting a "significant modification"
of the terms
of the Old Notes and to treat the Securities as a continuation of
the Old Notes;
(b) to treat the Securities as "contingent payment debt
instruments"
and to be bound by the Company's application of the Treasury
regulations that
govern contingent payment debt instruments, including the
Company's
determination (1) of the projected payment schedule and (2) that
the rate at
which interest will be deemed to accrue for federal income tax
purposes will be
9.702% compounded semi-annually; and
(c) to treat the delivery of Common Stock or cash (including
cash
delivered in lieu of a fractional share of Common Stock) to a
Holder of a
Security upon conversion of such Security, as a contingent payment
(in an amount
equal to the sum of the fair market value of such Common Stock and
any cash
received (as determined in good faith by the Board of Directors of
the Company))
under Treasury Regulation section 1.1275-4(b).
The Holders of the Securities may obtain the amount of original
issue
discount, issue price, yield to maturity, and projected payment
schedule by
submitting written requests to the Company at Integra LifeSciences
Holdings
Corporation, 311 Enterprise Drive, Plainsboro, New Jersey 08536,
Attention:
Investor Relations.
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ARTICLE III
REDEMPTION AND PURCHASES
Section 3.01 Redemption
By The Company.
The Securities may not be redeemed by the Company prior to the
Final
Maturity Date.
Section 3.02 Purchase
Of Securities At Option Of The Holder Upon Change In
Control.
(a) If at any time that Securities remain outstanding there shall
occur
a Change in Control, Securities shall be purchased by the Company
at the option
of the Holders, in whole or in part, as of the date that is 30
Business Days
after the occurrence of the Change in Control (the "Change in
Control Purchase
Date") at a purchase price in cash equal to 100% of the principal
amount of the
Securities, together with accrued and unpaid interest (including
contingent
interest, if any) to, but excluding, the Change in Control Purchase
Date (the
"Change in Control Purchase Price"), subject to satisfaction by or
on behalf of
any Holder of the requirements set forth in subsection (c) of this
Section 3.02.
A "Change in Control" shall be deemed to have occurred if any of
the
following occurs after the date hereof:
(1) any "person" (as such term is defined below) becomes the
"beneficial owner"(as defined below), directly or indirectly,
through a
purchase, merger or other acquisition transaction or series of
transactions, of
shares of Voting Stock of the Company entitling the person to
exercise 50% or
more of the total voting power of all outstanding classes of Voting
Stock of the
Company, other than an acquisition by the Company, any of its
Subsidiaries or
any of its employee benefit plans;
(2) the Company merges or consolidates with or into any Person,
any Person consolidates with or merges with or into the Company, or
the Company
conveys, sells, transfers or leases all or substantially all of the
assets of
the Company to another Person other than to one or more of the
Company's
wholly-owned subsidiaries, other than pursuant to a transaction in
which the
Persons that "beneficially owned" (as defined below), directly or
indirectly,
shares of Voting Stock of the Company immediately prior to such
transaction have
the entitlement to exercise, directly or indirectly, shares of
Voting Stock of
the continuing or surviving Person in such transaction representing
50% or more
of the total voting power of all outstanding classes of Voting
Stock entitled to
vote generally in the election of directors of such continuing or
surviving
Person immediately after such transaction; or
(3) the first day on which a majority of the members of the
board
of directors of the Company are not Continuing Directors.
For the purpose of the definition of "Change in Control," (i)
"person" has the
meaning given such term under Section 13(d) of the Exchange Act or
any successor
provision to such provision and includes any syndicate or group
which would be
deemed to be a "person" under Section 13(d)(3) of the Exchange Act,
and (ii) a
"beneficial owner" shall be determined in accordance with Rule
13d-3 under the
Exchange Act, as in effect on the date of this Indenture.
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Notwithstanding anything to the contrary set forth in this
Section
3.02, a Change in Control will not be deemed to have occurred if
either:
(1) the Closing Price (determined in accordance with Section
4.07(d) of this Indenture) of the Common Stock for any five Trading
Days within
(i) the period of ten consecutive Trading Days ending immediately
after the
later of the Change in Control or the public announcement of the
Change in
Control, in the case of a Change in Control relating to an
acquisition of
Capital Stock, or (ii) the period of ten consecutive Trading Days
ending
immediately before the Change in Control, in the case of a Change
in Control
relating to a merger, consolidation or asset sale, equals or
exceeds 110% of the
Conversion Price in effect on each of those Trading Days; or
(2) at least 90% of the consideration, excluding cash payments
for
fractional shares and cash payments made pursuant to dissenters'
appraisal
rights, in a merger or consolidation otherwise constituting a
Change in Control
consists of shares of common stock, depository receipts or other
certificates
representing common equity interests traded on a national
securities exchange,
or will be so traded or quoted immediately following such merger
or
consolidation, and as a result of such merger or consolidation the
Securities
become convertible solely into the following for each $1,000
principal amount of
Securities being converted, subject to the right to elect to pay
the Net Share
Amount in cash: (1) cash equal to the sum of the Daily Cash
Amounts, and (2) Net
Shares of the entity surviving such merger, consolidation or
acquisition with a
value equal to the Net Share Amount, in each case as calculated for
each of the
15 Trading Days during the related Observation Period (it being
understood that
the term "Common Stock" for the purpose of the defined terms used
in this clause
shall refer to the equity consideration payable to Holders of
Common Stock in
connection with a Change in Control).
Any event satisfying clause (1) shall constitute an "Excess
Market
Price Event."
(b) Within 10 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of the Change in
Control to the
Trustee and to each Holder (and to beneficial owners as required by
applicable
law). The notice shall include the form of a Change in Control
Purchase Notice
to be completed by the Holder and shall state:
(i) the date of such Change in Control and, briefly, the events
causing
such Change in Control;
(ii) the date by which the Change in Control Purchase Notice pursuant
to this Section 3.02 must be given;
(iii) the Change in Control Purchase Date;
(iv) the Change in Control Purchase Price;
(v) the Holder's right to require the Company to purchase the
Securities;
(vi) briefly, the conversion rights of the Securities;
19
<PAGE>
(vii) the name and address of each Paying Agent and Conversion
Agent;
(viii) the Conversion
Price and the Conversion Rate and, in each case,
any adjustments thereto;
(ix) that Securities as to which a Change in Control Purchase
Notice
has been given may be converted into cash or, if applicable, shares
of Common
Stock pursuant to Article 4 of this Indenture only to the extent
that the Change
in Control Purchase Notice has been withdrawn in accordance with
the terms of
this Indenture;
(x) the procedures that the Holder must follow to exercise rights
under
this Section 3.02;
(xi) the procedures
for withdrawing a Change in Control Purchase
Notice, including a form of notice of withdrawal; and
(xii) that the Holder must satisfy the requirements set forth in the
Securities in order to convert the Securities.
If any of the Securities is in the form of a Global Security, then
the
Company shall modify such notice to the extent necessary to accord
with the
procedures of the Depositary applicable to the repurchase of Global
Securities.
(c) A Holder may exercise its rights specified in subsection (a)
of
this Section 3.02 upon delivery of a written notice (which shall be
in
substantially the form included in Exhibit A hereto and which may
be delivered
by letter, overnight courier, hand delivery, facsimile transmission
or in any
other written form and, in the case of Global Securities, maybe
delivered
electronically or by other means in accordance with the
Depositary's customary
procedures) of the exercise of such rights (a "Change in Control
Purchase
Notice") to any Paying Agent at any time prior to the close of
business on the
second Business Day next preceding the Change in Control Purchase
Date.
The delivery of such Security to any Paying Agent (together with
all
necessary endorsements) at the office of such Paying Agent shall be
a condition
to the receipt by the Holder of the Change in Control Purchase
Price therefor.
The Company shall purchase from the Holder thereof, pursuant to
this
Section 3.02, a portion of a Security if the principal amount of
such portion is
$1,000 or an integral multiple of $1,000. Provisions of the
Indenture that apply
to the purchase of all of a Security pursuant to Sections 3.02
through 3.07 also
apply to the purchase of such portion of such Security.
Notwithstanding anything herein to the contrary, any Holder
delivering
to a Paying Agent the Change in Control Purchase Notice
contemplated by this
subsection (c) shall have the right to withdraw such Change in
Control Purchase
Notice in whole or in a portion thereof that is a principal amount
of $1,000 or
in an integral multiple thereof at any time prior to the close of
business on
the second Business Day next preceding the Change in Control
Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in
accordance
with Section 3.03.
20
<PAGE>
A Paying Agent shall promptly notify the Company of the receipt by
it
of any Change in Control Purchase Notice or written withdrawal
thereof.
Anything herein to the contrary notwithstanding, in the case of
Global
Securities, any Change in Control Purchase Notice may be delivered
or withdrawn
and such Securities may be surrendered or delivered for purchase in
accordance
with the Applicable Procedures as in effect from time to time.
Section 3.03 Effect Of
Change In Control Purchase Notice.
Upon receipt by any Paying Agent of the Change in Control
Purchase
Notice specified in Section 3.02(c), the Holder of the Security in
respect of
which such Change in Control Purchase Notice was given shall
(unless such Change
in Control Purchase Notice is withdrawn as specified below)
thereafter be
entitled to receive the Change in Control Purchase Price with
respect to such
Security. Such Change in Control Purchase Price shall be paid to
such Holder
promptly following the later of (a) the Change in Control Purchase
Date with
respect to such Security (provided the conditions in Section
3.02(c) have been
satisfied) and (b) the time of delivery of such Security to a
Paying Agent by
the Holder thereof in the manner required by Section 3.02(c).
Securities in
respect of which a Change in Control Purchase Notice has been given
by the
Holder thereof may not be converted into shares of Common Stock
pursuant to
Article 4 on or after the date of the delivery of such Change in
Control
Purchase Notice unless such Change in Control Purchase Notice has
first been
validly withdrawn.
A Change in Control Purchase Notice may be withdrawn by means of
a
written notice (which may be delivered by mail, overnight courier,
hand
delivery, facsimile transmission or in any other written form and,
in the case
of Global Securities, may be delivered electronically or by other
means in
accordance with the Depositary's customary procedures) of
withdrawal delivered
by the Holder to a Paying Agent at any time prior to the close of
business on
the second Business Day immediately preceding the Change in Control
Purchase
Date, specifying the principal amount of the Security or portion
thereof (which
must be a principal amount of $1,000 or an integral multiple of
$1,000 in excess
thereof) with respect to which such notice of withdrawal is being
submitted.
Section 3.04 Deposit Of
Change In Control Purchase Price.
On or before 11:00 a.m. New York City time on the Change in
Control
Purchase Date, the Company shall deposit with the Trustee or with a
Paying Agent
(other than the Company or an Affiliate of the Company) an amount
of money (in
immediately available funds if deposited on such Change in Control
Purchase
Date) sufficient to pay the aggregate Change in Control Purchase
Price of all
the Securities or portions thereof that are to be purchased as of
such Change in
Control Purchase Date. The manner in which the deposit required by
this Section
3.04 is made by the Company shall be at the option of the Company,
provided that
such deposit shall be made in a manner such that the Trustee or a
Paying Agent
shall have immediately available funds on the Change in Control
Purchase Date.
If a Paying Agent holds, in accordance with the terms hereof,
money
sufficient to pay the Change in Control Purchase Price of any
Security for which
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<PAGE>
a Change in Control Purchase Notice has been tendered and not
withdrawn in
accordance with this Indenture then, on the Change in Control
Purchase Date,
such Security will cease to be outstanding and the rights of the
Holder in
respect thereof shall terminate (other than the right to receive
the Change in
Control Purchase Price as aforesaid). The Company shall publicly
announce the
principal amount of Securities purchased as a result of such Change
in Control
on or as soon as practicable after the Change in Control Purchase
Date.
Section 3.05 Securities
Purchased In Part.
Any Security that is to be purchased only in part shall be
surrendered
at the office of a Paying Agent, and promptly after the Change in
Control
Purchase Date the Company shall execute and the Trustee shall
authenticate and
deliver to the Holder of such Security, without service charge, a
new Security
or Securities, of such authorized denomination or denominations as
may be
requested by such Holder, in aggregate principal amount equal to,
and in
exchange for, the portion of the principal amount of the Security
so surrendered
that is not purchased.
Section 3.06 Compliance
With Securities Laws Upon Purchase Of Securities.
In connection with any offer to purchase or purchase of
Securities
under Section 3.02, the Company shall (a) comply with Rule 13e-4
and Rule 14e-1
(or any successor to either such Rule), if applicable, under the
Exchange Act,
(b) file the related Schedule TO (or any successor or similar
schedule, form or
report) if required under the Exchange Act, and (c)otherwise comply
with all
federal and state securities laws in connection with such offer to
purchase or
purchase of Securities, all so as to permit the rights of the
Holders and
obligations of the Company under Sections 3.02 through 3.05 to be
exercised in
the time and in the manner specified therein.
Section 3.07 Repayment
To The Company.
To the extent that the aggregate amount of cash deposited by
the
Company pursuant to Section 3.04 exceeds the aggregate Change in
Control
Purchase Price together with interest, if any (including contingent
interest, if
any), thereon of the Securities or portions thereof that the
Company is
obligated to purchase, then promptly after the Change in Control
Purchase Date
the Trustee or a Paying Agent, as the case may be, shall return any
such excess
cash to the Company.
ARTICLE IV
CONVERSION
Section 4.01 Conversion
Privilege.
Subject to the further provisions of this Article 4 and paragraph 7
of
the Securities, a Holder of a Security may convert the principal
amount of such
Security (or any portion thereof equal to $1,000 or any integral
multiple of
$1,000 in excess thereof) into cash and, if applicable, shares of
Common Stock
at any time prior to the close of business on the Final Maturity
Date, at the
Conversion Rate then in effect, if:
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(a) the Closing Price of the Common Stock on the Trading Day
immediately preceding the Conversion Date was 110% or more of the
Conversion
Price of such Security on such Trading Day;
(b) the Company distributes to Holders of Common Stock rights
entitling
them to purchase Common Stock at less than the Closing Price of the
Common Stock
on the last Trading Day preceding the declaration for such
distribution;
(c) the Company distributes to Holders of Common Stock assets,
debt,
securities or certain rights to purchase the Company's securities,
which
distribution has a per share value as determined by the Board of
Directors
exceeding 10% of the Closing Price of the Common Stock for the last
Trading Day
preceding the declaration for such distribution; or
(d) the Company becomes a party to a consolidation, merger or sale
of
all or substantially all of the Company's assets or a Change in
Control occurs
pursuant to which the Common Stock would be converted into cash,
stock or other
property unless all of the consideration, excluding cash payments
for fractional
shares and cash payments made pursuant to dissenters' appraisal
rights, in a
merger or consolidation otherwise constituting a Change in Control
consists of
shares of common stock, depository receipts or other certificates
representing
common equity interests traded on a national securities exchange,
or will be so
traded immediately following such merger or consolidation, and as a
result of
such merger or consolidation the Securities become convertible
solely into the
following for each $1,000 principal amount of Securities being
converted,
subject to the right to elect to pay the Net Share Amount in cash:
(1) cash
equal to the sum of the Daily Cash Amounts, and (2) Net Shares of
the entity
surviving such merger, consolidation or acquisition with a value
equal to the
Net Share Amount, in each case as calculated for each of the 15
Trading Days
during the related Observation Period (it being understood that the
term "Common
Stock" for the purpose of the defined terms used in this clause
shall refer to
the equity consideration payable to Holders of Common Stock in
connection with
such a transaction).
In the case of Sections 4.01(b) and 4.01(c) above, the Company
must
notify Holders at least 20 days prior to the ex-dividend date for
such
distribution, provided, however, that the Company shall not be
required to
notify any Holder that otherwise participates in such distribution
without
conversion. Once the Company has given such notice, if applicable,
Holders may
surrender their Securities for conversion at any time until the
earlier of the
close of business on the Business Day prior to the ex-dividend date
or the
Company's announcement that such distribution will not take
place.
A Holder of a Security may also convert the principal amount of
such
Security (or any portion thereof equal to $1,000 or any integral
multiple of
$1,000 in excess thereof) into cash and, if applicable, shares of
Common Stock
if, at any time prior to the Final Maturity Date after any five (5)
consecutive
Trading Day period, the average Trading Prices for the Securities
for that five
(5) Trading Day period was less than 97% of the average Conversion
Value for the
Securities during that period; however, a Holder may not convert a
Security
pursuant to this clause (b) if, at the time of the calculation, the
Closing
Price of shares of Common Stock is between the then current
Conversion Price on
the Securities and 110% of the then current Conversion Price of the
Securities.
23
<PAGE>
The "Conversion Value" per $1,000 principal amount of Securities is
on
any given day equal to the product of (i) the Closing Price of the
Common Stock
on such day and (ii) the Conversion Rate on such date.
The "Trading Price" of the Securities on any Trading Day means
the
average of the secondary market bid quotations per $1,000 principal
amount of
Securities obtained by the Company for $2,500,000 principal amount
of the
Securities at approximately 3:30 p.m., New York City time, on such
Trading Day
from three independent nationally recognized securities dealers the
Company
selects, provided that if at least three such bids cannot
reasonably be obtained
by the Company, but two such bids can be obtained, then the average
of the two
bids shall be used, and if only one such bid can reasonably be
obtained by the
Company, this one bid shall be used. If the Company cannot
reasonably obtain at
least one bid for $2,500,000 principal amount of the Securities
from a
nationally recognized securities dealer or in the Company's
reasonable judgment,
the bid quotations are not indicative of the secondary market value
of the
Securities, then the Trading Price of the Securities will be deemed
to be less
than 97% or 103%, as the case may be, of the Conversion Value for
the Securities
on such Trading Day. The Conversion Agent shall have no obligation
to determine
the Trading Price of the Securities.
If a Security is submitted or presented for purchase pursuant
to
Article 3, the Holder's conversion right shall terminate at the
close of
business on the Business Day immediately preceding the Change in
Control
Purchase Date for such Security or such earlier date as the Holder
presents such
Security for purchase (unless the Company shall default in making
the Change in
Control Purchase Price payment when due, in which case the
conversion right
shall terminate at the close of business on the date such default
is cured and
such Security is purchased).
Provisions of this Indenture that apply to conversion of all of
a
Security also apply to conversion of a portion of a Security.
A Security in respect of which a Holder has delivered a Change
in
Control Purchase Notice pursuant to Section 3.02(c) exercising the
option of
such Holder to require the Company to purchase such Security may be
converted,
as provided in Section 4.01 of this Article 4, only if such Change
in Control
Purchase Notice is withdrawn by a written notice of withdrawal
delivered to a
Paying Agent prior to the close of business on the second Business
Day
immediately preceding the Change in Control Purchase Date in
accordance with
Section 3.03.
A Holder of Securities is not entitled to any rights of a holder
of
Common Stock until such Holder has converted its Securities to
Common Stock, and
only to the extent such Securities are deemed to have been
converted into Common
Stock pursuant to this Article 4.
Section 4.02 Payment
Upon Conversion.
(a) Upon conversion of a Holder's Security, the Company shall
deliver,
through the Conversion Agent, the following to such Holder for each
$1,000
principal amount of Securities being converted, subject to the
Company's right
to elect to pay the Net Share Amount in cash: (1) cash equal to the
sum of the
Daily Cash Amounts, and (2) shares ("Net Shares") of Common Stock,
if any, with
a value equal to the sum of the Daily Share Amounts (the "Net Share
Amount"), in
each
24
<PAGE>
case for each of the 15 Trading Days during the related Observation
Period. The
Company shall deliver the foregoing on the third Trading Day
immediately
following the last day of the related Observation Period.
(b) The "Observation Period" with respect to any Security
converted
means the 15 consecutive Trading-Day period beginning on and
including the third
Trading Day after a Holder delivers a conversion notice to the
Conversion Agent
or, if the Company has elected to pay the Net Share Amount in cash,
the Trading
Day after the last day of the Conversion Retraction Period.
(c) The "Daily
Settlement Amount,"
for each of the 15
Trading Days
during the Observation Period, shall consist of:
(i)
cash (the
"Daily Cash Amount") equal to the lesser of
$66.67 and the Daily Conversion Value relating to such day; and
(ii) if such Daily Conversion Value exceeds $66.67, a number
of
shares of Common Stock with a value (the "Daily Share Amount")
equal to
(A)
the difference between such Daily Conversion Value and $66.67,
divided
by
(B) the Daily VWAP for such day.
(d) Instead of delivering shares of Common Stock in satisfaction of
the
Company's obligation to deliver the Net Share Amount upon
conversion of Notes,
the Company may elect to deliver an additional amount of cash. The
amount shall
equal to the Net Share Amount.
(e) The Company will inform the Holders through the Trustee if
it
chooses to satisfy its obligation to deliver the Net Share Amount
upon
conversion with additional cash no later than two Trading Days
following the
Conversion Date.
If the Company does not give any notice within the time
periods described as to how it intends to settle, it will satisfy
its obligation
to deliver the Net Share Amount only in shares of Common Stock (and
cash in lieu
of fractional shares in the manner set forth in Section 4.04). The
Company will
treat in the same manner all Holders converting on the same Trading
Day. Subject
to the foregoing, the Company will not, however, have any
obligation to settle
its conversion obligations arising on different Trading Days in the
same manner.
For Holders converting on any Trading Day, the Company may choose
to settle the
Net Share Amount in cash and shares of Common Stock only and for
Holders
converting on another Trading Day, choose to settle exclusively in
cash.
(f) If the Company elects to satisfy any portion of its obligation
to
deliver the Net Share Amount in cash (other than cash in lieu of
fractional
shares), Holders may retract their conversion notice at any time
during the
three Trading Day period (the "Conversion Retraction Period")
beginning on the
Trading Day after the Company has notified the Trustee of its
method of
settlement.
(g) The "Daily Conversion Value" means, for each of the 15
consecutive
Trading Days during the Observation Period, one-fifteenth (1/15) of
the product
of (1) Conversion Rate on such day and (2) the Daily VWAP of Common
Stock (or
the value
25
<PAGE>
of the Securities into which Common Stock has been converted) for
such day.
(h) The "Daily VWAP" for the Common Stock means, for each of the
15
consecutive Trading Days during the Observation Period, the per
share
volume-weighted average price as displayed under the heading
"Bloomberg VWAP" on
Bloomberg page IART (equity) AQR in respect of the period from 9:30
a.m. to 4:00
p.m. (New York City time) on such Trading Day (or if such
volume-weighted
average price is unavailable, the market value of one share of
Common Stock on
such Trading Day as the Board of Directors determines in good faith
using a
volume-weighted method, which determination shall be
conclusive).
Section 4.03 Conversion
Procedure
To convert a Security, a Holder must (a) complete and manually sign
the
conversion notice on the back of the Security and deliver such
notice to a
Conversion Agent, (b) surrender the Security to a Conversion Agent,
(c) furnish
appropriate endorsements and transfer documents if required by a
Registrar or a
Conversion Agent, and (d) pay any transfer or similar tax, if
required to be
paid by such Holder under Section 4.05. The date on which the
Holder satisfies
all of those requirements is the "Conversion Date." As soon as
reasonably
practicable after the Conversion Value Determination Date, the
Company shall
deliver to the Holder through a Conversion Agent cash equal to the
sum of the
Daily Cash Amounts and the Net Share Amount for each of the Trading
Days during
the related Observation Period, and cash in lieu of any fractional
shares
pursuant to Section 4.04. The "Conversion Value Determination Date"
means the
date that is the last day of the Observation Period. Anything
herein to the
contrary notwithstanding, in the case of Global Securities,
conversion notices
may be delivered and such Securities may be surrendered for
conversion in
accordance with the Applicable Procedures as in effect from time to
time.
The person in whose name the Common Stock certificate is
registered
shall be deemed to be a stockholder of record on the Conversion
Date; provided,
however, that no surrender of a Security on any date when the stock
transfer
books of the Company shall be closed shall be effective to
constitute the person
or persons entitled to receive the shares of Common Stock upon such
conversion
as the record holder or holders of such shares of Common Stock on
such date, but
such surrender shall be effective to constitute the person or
persons entitled
to receive such shares of Common Stock as the record holder or
holders thereof
for all purposes at the close of business on the next succeeding
day on which
such stock transfer books are open; provided, further, that such
conversion
shall be at the Conversion Rate in effect on the Conversion Date as
if the stock
transfer books of the Company had not been closed. Upon conversion
of a
Security, such person shall no longer be a Holder of such Security.
No payment
or adjustment will be made for dividends or distributions on shares
of Common
Stock issued upon conversion of a Security.
Securities so surrendered for conversion (in whole or in part)
during
the period from the close of business on any regular record date to
the opening
of business on the next succeeding interest payment date (excluding
Securities
or portions thereof presented for purchase upon a Change in Control
on a Change
in Control Purchase Date during the period beginning at the close
of business on
a regular record date and ending at the opening of business on the
first
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Business Day after the next succeeding interest payment date, or if
such
interest payment date is not a Business Day, the second such
Business Day) shall
also be accompanied by payment in funds acceptable to the Company
of an amount
equal to the interest payable on such interest payment date on the
principal
amount of such Security then being converted, and such interest
shall be payable
to such registered Holder notwithstanding the conversion of such
Security,
subject to the provisions of this Indenture relating to the payment
of defaulted
interest by the Company. However, if a Holder submits Securities
for conversion
between the record date for the final interest payment and the
opening of
business on the Final Maturity Date, such Holder will not be
required to pay
funds equal to the interest (including contingent interest, if any)
payable on
the Final Maturity Date. Except as otherwise provided in this
Section 4.03, no
payment or adjustment will be made for accrued interest (including
contingent
interest, if any) on a converted Security. If the Company defaults
in the
payment of interest payable on such interest payment date, the
Company shall
promptly repay such funds to such Holder.
Nothing in this Section shall affect the right of a Holder in
whose
name any Security is registered at the close of business on a
record date to
receive the interest (including contingent interest, if any)
payable on such
Security on the related interest payment date in accordance with
the terms of
this Indenture and the Securities. If a Holder converts more than
one Security
at the same time, cash or, if applicable, the number of shares of
Common Stock
issuable upon the conversion shall be based on the aggregate
principal amount of
Securities converted.
Upon surrender of a Security that is converted in part, the
Company
shall execute, and the Trustee shall authenticate and deliver to
the Holder, a
new Security equal in principal amount to the unconverted portion
of the
Security surrendered.
Section 4.04 Fractional
Shares.
The Company will not issue fractional shares of Common Stock
upon
conversion of Securities. In lieu thereof, the Company will pay an
amount in
cash for the current market value of the fractional shares based on
the Closing
Price of the Common Stock on the last day of the applicable
Observation Period.
At the Company's option, it may issue one share of Common Stock
instead of
paying cash in lieu of fractional shares.
Section 4.05 Taxes On
Conversion.
If a Holder converts a Security, the Company shall pay any
documentary,
stamp or similar issue or transfer tax due on the issue of shares
of Common
Stock upon such conversion. However, the Holder shall pay any such
tax which is
due because the Holder requests the shares to be issued in a name
other than the
Holder's name. The Conversion Agent may refuse to deliver the
certificate
representing the Common Stock being issued in a name other than the
Holder's
name until the Conversion Agent receives a sum sufficient to pay
any tax which
will be due because the shares are to be issued in a name other
than the
Holder's name. Nothing herein shall preclude any tax withholding
required by law
or regulation.
Section 4.06 Company To
Provide Stock.
The Company shall, prior to issuance of any Securities hereunder,
and
from time to time as may be necessary, reserve, out of its
authorized but
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unissued Common Stock, a sufficient number of shares of Common
Stock to permit
the conversion of all outstanding Securities into shares of Common
Stock.
All shares of Common Stock delivered upon conversion of the
Securities
shall be newly issued shares, shall be duly authorized, validly
issued, fully
paid and nonassessable and shall be free from preemptive rights and
free of any
lien or adverse claim.
The Company will endeavor promptly to comply with all federal and
state
securities laws regulating the offer and delivery of shares of
Common Stock upon
conversion of Securities, if any, and will list or cause to have
quoted such
shares of Common Stock on each national securities exchange or on
the NGSM or
other over-the-counter market or such other market on which the
Common Stock is
then listed or quoted; provided, however, that if rules of such
automated
quotation system or exchange permit the Company to defer the
listing of such
Common Stock until (a) the first conversion of the Notes into cash
or, if
applicable, shares of Common Stock in accordance with the
provisions of this
Indenture or (b) such other time, the Company covenants to list
such Common
Stock issuable upon conversion of the Notes in accordance with the
requirements
of such automated quotation system or exchange at such time.
Section 4.07 Adjustment
Of Conversion Rate
The conversion rate as stated in paragraph 7 of the Securities
(the
"Conversion Rate") shall be adjusted from time to time by the
Company as
follows:
(a) In case the Company shall (i) pay a dividend on its Common
Stock in
shares of Common Stock, (ii) make a distribution on its Common
Stock in shares
of Common Stock, (iii)subdivide its outstanding Common Stock into a
greater
number of shares, or (iv) combine its outstanding Common Stock into
a smaller
number of shares, the Conversion Rate in effect immediately prior
thereto shall
be adjusted by multiplying the Conversion Rate in effect
immediately prior to
close of business on the record date or effective date, as
applicable, of such
dividend, distribution, subdivision or combination by the number of
shares of
Common Stock which a person who owns only one share of Common Stock
immediately
before the record date or effective date, as applicable, of such
dividend,
distribution, subdivision or combination and who is entitled to
participate in
such dividend, distribution, subdivision or combination woul
