EXHIBIT 10.1
------------
EXECUTION COPY
CHATTEM, INC.
1.625% CONVERTIBLE SENIOR NOTES DUE 2014
INDENTURE
DATED AS OF APRIL 11, 2007
U.S. BANK, NATIONAL ASSOCIATION
AS TRUSTEE
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY
REFERENCE..........................1
Section 1.01.
Definitions..............................................1
Section 1.02.
Other Definitions........................................8
Section 1.03.
Trust Indenture Act Provisions...........................9
Section 1.04.
Rules of Construction...................................10
ARTICLE 2 THE
SECURITIES.....................................................10
Section 2.01.
Form
and Dating.........................................10
Section 2.02.
Execution and Authentication............................12
Section 2.03.
Registrar, Paying Agent and Conversion Agent............13
Section 2.04.
Paying Agent to Hold Money in Trust.....................13
Section 2.05. Lists of Holders
of Securities..........................14
Section 2.06.
Transfer and Exchange...................................14
Section 2.07.
Replacement Securities..................................15
Section 2.08.
Outstanding Securities..................................16
Section 2.09.
Treasury Securities.....................................16
Section 2.10.
Temporary Securities....................................16
Section 2.11.
Cancellation............................................17
Section 2.12.
Legend; Additional Transfer and Exchange Requirements...17
Section 2.13.
CUSIP Numbers...........................................21
ARTICLE 3 PURCHASE UPON FUNDAMENTAL
CHANGE...................................21
Section 3.01.
Purchase at Holders' Option upon a Fundamental Change...21
Section 3.02.
Effect of Fundamental Change Purchase Notice............23
Section 3.03.
Deposit of Fundamental Change Purchase Price............24
Section 3.04.
Repayment to The Company................................25
Section 3.05.
Securities Purchased in Part............................25
Section 3.06.
Compliance with Securities Laws upon Purchase of
Securities..............................................25
Section 3.07.
Purchase of Securities in Open Market...................25
ARTICLE 4
CONVERSION.........................................................26
Section 4.01.
Conversion Privilege and Conversion Rate................26
Section 4.02.
Conversion Procedure....................................30
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Section 4.03.
Fractional Shares.......................................31
Section 4.04.
Taxes on Conversion.....................................31
Section 4.05.
Company to Provide Stock................................31
Section 4.06.
Adjustment of Conversion Rate...........................32
Section 4.07.
No
Adjustment...........................................39
Section 4.08.
Notice of Adjustment....................................40
Section 4.09.
Notice of Certain Transactions..........................40
Section 4.10.
Effect of Recapitalization, Reclassification,
Consolidation, Merger or Sale...........................40
Section 4.11.
Trustee's Disclaimer....................................41
Section 4.12.
[Intentionally Omitted].................................41
Section 4.13.
Settlement of Conversion Obligation.....................41
ARTICLE 5
COVENANTS..........................................................42
Section 5.01.
Payment of Securities...................................42
Section 5.02.
SEC
and Other Reports...................................43
Section 5.03.
Compliance Certificates.................................44
Section 5.04.
Further Instruments and Acts............................44
Section 5.05.
Maintenance of Corporate Existence......................44
Section 5.06.
Rule
144A Information Requirement.......................44
Section 5.07.
Stay, Extension and Usury Laws..........................44
Section 5.08.
Payment of Additional Interest..........................45
Section 5.09.
Maintenance of Office or Agency.........................45
ARTICLE 6 CONSOLIDATION AND
MERGER...........................................45
Section 6.01.
Company May Consolidate, Etc., Only on Certain Terms....45
Section 6.02.
Successor Substituted...................................46
ARTICLE 7 DEFAULT AND
REMEDIES...............................................46
Section 7.01.
Events of Default.......................................46
Section 7.02.
Acceleration............................................49
Section 7.03.
Other Remedies..........................................49
Section 7.04.
Waiver of Defaults and Events of Default................49
Section 7.05.
Control by Majority.....................................50
Section 7.06.
Limitations on Suits....................................50
Section 7.07.
Rights of Holders to Receive Payment and to Convert.....50
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Section 7.08.
Collection Suit by Trustee..............................51
Section 7.09.
Trustee May File Proofs of Claim........................51
Section 7.10.
Priorities..............................................51
Section 7.11.
Undertaking for Costs...................................52
ARTICLE 8
TRUSTEE............................................................52
Section 8.01.
Obligations of Trustee..................................52
Section 8.02.
Rights of Trustee.......................................53
Section 8.03.
Individual Rights of Trustee............................55
Section 8.04.
Trustee's Disclaimer....................................55
Section 8.05.
Notice of Default or Events of Default..................55
Section 8.06.
Reports by Trustee to Holders...........................55
Section 8.07.
Compensation and Indemnity..............................56
Section 8.08.
Replacement of Trustee..................................57
Section 8.09.
Successor Trustee by Merger, Etc........................57
Section 8.10.
Eligibility; Disqualification...........................58
Section 8.11.
Preferential Collection of Claims Against Company.......58
ARTICLE 9 SATISFACTION AND DISCHARGE OF
INDENTURE............................58
Section 9.01.
Satisfaction and Discharge of Indenture.................58
Section 9.02.
Application of Trust Money..............................59
Section 9.03.
Repayment to Company....................................59
Section 9.04.
Reinstatement...........................................59
ARTICLE 10 AMENDMENTS; SUPPLEMENTS AND
WAIVERS...............................60
Section 10.01.
Without
Consent of Holders..............................60
Section 10.02.
With
Consent of Holders.................................60
Section 10.03.
Compliance
with Trust Indenture Act.....................61
Section 10.04.
Revocation
and Effect of Consents.......................61
Section 10.05.
Notation
on or Exchange of Securities...................62
Section 10.06.
Trustee to Sign Amendments,
Etc.........................62
Section 10.07.
Effect of
Supplemental Indentures.......................62
ARTICLE 11
MISCELLANEOUS.....................................................62
Section 11.01.
Trust
Indenture Act Controls............................62
Section 11.02.
Notices.................................................62
Section 11.03.
Communications By Holders with Other Holder.............64
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Section 11.04.
Certificate and Opinion as to Conditions Precedent......64
Section 11.05.
Record
Date for Vote or Consent of Holders of
Securities..............................................64
Section 11.06.
Rules by
Trustee, Paying Agent, Registrar and
Conversion Agent........................................65
Section 11.07.
Legal
Holidays..........................................65
Section 11.08.
Governing
Law...........................................65
Section 11.09.
No Adverse
Interpretation of Other Agreements...........65
Section 11.10.
No
Recourse Against Others..............................65
Section 11.11.
No
Security Interest Created............................65
Section 11.12.
Successors..............................................65
Section 11.13.
Multiple
Counterparts...................................65
Section 11.14.
Separability............................................65
Section 11.15.
Table of
Contents, Headings, Etc........................65
Section 11.16.
Calculations In Respect of Securities...................66
Exhibit.....................................................................A-1
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<PAGE>
CROSS REFERENCE TABLE*
TIA
INDENTURE
SECTION
SECTION
-------
-------
Section 310
11.01
310(a)(1)
8.10
(a)(2)
8.10
(a) (3)
N.A.**
(a) (4)
N.A.
(a) (5)
8.10
(b)
8.10
(c)
N.A.
Section 311
11.01
311 (a)
8.11
(b)
8.11
(c)
N.A.
Section 312
11.01
312(a)
2.05
(b)
11.03
(c)
11.03
Section 313
11.01
313(a)
8.06(a)
(b)(1)
N.A.
(b)(2)
8.06(a)
(c)
8.06(a)
(d)
8.06(b)
Section 314
11.01
314(a)
5.02(a); 5.03
(b)
N.A.
(c)(1)
2.02; 9.01; 11.04
(c)(2)
9.01; 11.04
(c)(3)
N.A.
(d)
N.A.
(e)
11.04
(f)
N.A.
Section 315
11.01
315(a)
8.01(b)
(b)
8.05
(d)
8.01(c)
(d)(2)
8.01(c)
(d)(3)
8.01(c)
(e)
7.11
Section 316
11.01
316 (a)
7.05; 10.02 (b)
(b)
7.07
(c)
11.05
Section 317
7.08; 7.09; 11.01
Section 318
11.01
* This
Cross-Reference Table shall not, for any purpose, be deemed a part
of
this
Indenture.
** N.A. means
Not Applicable.
<PAGE>
THIS INDENTURE dated as of April 11, 2007 is between Chattem, Inc.,
a
corporation duly organized under the laws of the Tennessee (the
"Company"), and
U.S. Bank, National Association, a national banking association, as
Trustee (the
"Trustee").
In consideration of the purchase of the Securities (as defined
herein)
by the Holders thereof, both parties agree as follows for the
benefit of the
other and for the equal and ratable benefit of the Holders of the
Securities.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Additional Interest" has the meaning specified in the
Registration
Rights Agreement. All references herein to interest accrued or
payable as of any
date shall include any Additional Interest accrued or payable as of
such date as
provided in the Registration Rights Agreement.
"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.
"Aggregate Share Cap" means initially 16.9405 shares of Common
Stock
per $1,000 principal amount of Securities, subject to proportional
adjustment in
the same manner as the Conversion Rate upon the occurrence of any
of the events
described under clauses (1) through (4) of Section 4.06(a).
"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, to the extent applicable to such transfer or
exchange.
"Beneficial Ownership" means the definition such term is given
in
accordance with Rule 13d-3 promulgated by the SEC under the
Exchange Act.
"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 any weekday that is not a day on which
banking
institutions in The City of New York are authorized or obligated to
close.
"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.
<PAGE>
"Cash" or "cash" means such coin or currency of the United States
as at
any time of payment is legal tender for the payment of public and
private debts.
"Certificated Security" means a Security that is in substantially
the
form attached as Exhibit A but that does not include the
information or the
schedule called for by footnote 1 thereof.
"Change of Control" means the occurrence of any of the following
after
the date hereof: (i) the sale, lease, transfer, conveyance or other
disposition
(other than by way of merger or consolidation), in one or a series
of related
transactions, of all or substantially all of the properties and
assets of the
Company and its subsidiaries taken as a whole to any "person" (as
such term is
used in Section 13(d)(3) of the Exchange Act) other than to one or
more of the
Company's wholly-owned subsidiaries; (ii) the adoption of a plan
relating to the
liquidation or dissolution of the Company; (iii) the consummation
of any
transaction (including, without limitation, any merger or
consolidation) the
result of which is that any "person" or "group" (as such terms are
used in
Sections 13(d) and 14(d) of the Exchange Act) becomes the
"beneficial owner" (as
such term is defined in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except
that a person shall be deemed to have "beneficial ownership" of all
securities
that such person has the right to acquire, whether such right is
currently
exercisable or is exercisable only upon the occurrence of a
subsequent
condition), directly or indirectly, of more than 50% of the Voting
Stock of the
Company (measured by voting power rather than number of shares),
other than any
acquisition by the Company, any of the Company's subsidiaries or
any of the
Company's employee benefit plans; (iv) the first day on which a
majority of the
members of the Board of Directors of the Company are not Continuing
Directors;
or (v) the Company consolidates with, or merges with or into, any
Person, or any
Person consolidates with, or merges with or into, the Company, in
any such event
pursuant to a transaction in which any of the outstanding Voting
Stock of the
Company is converted into or exchanged for cash, securities or
other property,
other than any such transaction where the Voting Stock of the
Company
outstanding immediately prior to such transaction is converted into
or exchanged
for Voting Stock of the surviving or transferee Person constituting
a majority
of the outstanding shares of such Voting Stock of such surviving or
transferee
Person (immediately after giving effect to such issuance).
Notwithstanding
anything to the contrary set forth herein, it will not constitute a
Change of
Control if 100% of the consideration for the Common Stock
(excluding cash
payments for fractional shares and cash payments made in respect of
dissenters'
appraisal rights) in the transaction or transactions otherwise
constituting a
Change of Control consists of common stock or American Depositary
Shares
representing shares of common stock, in each case which are traded
on a U.S.
national securities exchange or quoted on an established
automated
over-the-counter trading market in the United States, or which will
be so traded
or quoted when issued or exchanged in connection with the Change of
Control, and
as a result of such transaction or transactions the Securities
become
convertible solely into cash in an amount equal to the lesser of
$1,000 and the
Conversion Value and, if the Conversion Value is greater than
$1,000, payment of
the excess value in the form of such common stock or American
Depositary Shares,
subject to the right to deliver cash in lieu of all or a portion of
such
remaining shares, in substantially the same manner as described
under Section
4.13; provided that, with respect to an entity organized under the
laws of a
jurisdiction outside the United States, such entity has a worldwide
total market
capitalization of its equity securities of at least three times the
market
capitalization of the Company before giving effect to the
consolidation or
merger.
2
<PAGE>
"Closing Price" means on any Trading Day, the reported last sale
price
per share (or if no last sale price is reported, the average of the
bid and ask
prices per share or, if more than one in either case, the average
of the average
bid and the average ask prices per share) on such date reported by
the Nasdaq
Global Select Market or, if the Common Stock (or the applicable
security) is not
traded on the Nasdaq Global Select Market, as reported by the
principal national
or regional securities exchange on which the Common Stock (or such
other
security) is listed. If the Common Stock (or such other security)
is not listed
for trading on a United States national or regional securities
exchange, the
"Closing Price" shall be the last quoted bid price for the Common
Stock (or such
other security) in the over-the-counter market on the relevant date
as reported
by Pink Sheets LLC or similar organization. If the Common Stock (or
such other
security) is not so quoted, the "Closing Price" shall be the
average of the
midpoint of the last bid and ask prices for the Common Stock (or
such other
security) on the relevant date from each of at least three
independent
nationally recognized investment banking firms selected by the
Company for this
purpose.
"Common Stock" means the common stock of the Company, without
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, or, in the event of a merger,
consolidation or other
similar transaction involving the Company that is otherwise
permitted hereunder
in which the Company is not the surviving corporation the common
stock, common
equity interests, ordinary shares or depositary shares or other
certificates
representing common equity interests of such surviving corporation
or its direct
or indirect parent corporation, 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 of the Company who (i) was a
member of such
Board of Directors on the Issue Date or (ii) was nominated for
election or
elected to such Board of Directors with the approval of a majority
of the
Continuing Directors who were members of such Board at the time of
such
nomination or election.
"Conversion Price" per share of Common Stock as of any day means
the
result obtained by dividing (i) $1,000 by (ii) the then applicable
Conversion
Rate, rounded to the nearest cent.
"Conversion Rate" means initially 13.6617 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.
3
<PAGE>
"Conversion Reference Period" means:
(i) for Securities that are converted during the one month
period prior to the Final Maturity Date of the Securities, the
20
consecutive Trading Days preceding and ending on the Final
Maturity
Date, subject to any extension due to a Market Disruption Event;
and
(ii) in all other instances, the 20 consecutive Trading Days
beginning on the third Trading Day following the Conversion
Date.
"Conversion Value" means, for each $1,000 principal amount of
Securities, the average of the Daily Conversion Values for each of
the twenty
consecutive Trading Days of the Conversion Reference Period.
"Corporate Trust Office" means the office of the Trustee at which
at
any particular time the trust created by this Indenture shall be
administered,
which initially will be the office of U.S. Bank, National
Association located at
150 Fourth Avenue North, 2nd Floor, Nashville, Tennessee 37219,
attention:
Corporate Trust Services (Chattem, Inc. 1.625% Convertible Senior
Notes due
2014).
"Daily Conversion Value" means, with respect to any Trading Day,
the
product of (1) the applicable Conversion Rate and (2) the Volume
Weighted
Average Price per share of the Company's Common Stock on such
Trading Day.
"Daily Share Amount" means, for each Trading Day of the
Conversion
Reference Period and for each $1,000 principal amount of Securities
surrendered
for conversion, a number of shares of Common Stock (but in no event
less than
zero) determined by the following formula:
(Volume Weighted Average Price per share Conversion
Rate in effect
of Common Stock for such Trading Day x on the Conversion
Date)
- $1,000
-----------------------------------------------------------------------
Volume
Weighted Average Price per share of Common Stock for such
Trading Day x 20
"Default" means, when used with respect to the Securities, any
event
that is or, after notice or passage of time, or both, would be, an
Event of
Default.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended,
and the rules and regulations promulgated thereunder, as in effect
from time to
time.
"Final Maturity Date" means May 1, 2014.
"Fundamental
Change" means the occurrence of a Change of Control or a
Termination of Trading following the original issuance of the
Securities.
"Fundamental Change Effective Date" means the date on which any
Fundamental Change becomes effective.
4
<PAGE>
"Fundamental Change Purchase Price" of any Security, means 100% of
the
principal amount of the Security to be purchased plus accrued and
unpaid
interest, if any, and Additional Interest, if any, to, but
excluding, the
Fundamental Change Purchase Date.
"GAAP" means generally accepted accounting principles in the
United
States of America as in effect from time to time, 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 Public Company Accounting Oversight Board and
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 Security in global form that is in
substantially the form attached as Exhibit A and that includes the
information
and schedule called for in footnote 1 thereof and which is
deposited with the
Depositary or its custodian and registered in the name of the
Depositary or its
nominee.
"Holder" or "Holder of a Security" means the person in whose name
a
Security is registered on the Registrar's books.
"Indebtedness" means, with respect to any Person, any indebtedness
of
such Person, whether or not contingent, in respect of borrowed
money or
evidenced by bonds, notes, debentures or similar instruments or
letters of
credit (or reimbursement agreements in respect thereof) or banker's
acceptances
or representing capital lease obligations or the balance deferred
and unpaid of
the purchase price of any property or representing any hedging
obligations,
except any such balance that constitutes an accrued expense or
trade payable, if
and to the extent any of the foregoing (other than letters of
credit and hedging
obligations) would appear as a liability upon a balance sheet of
such Person
prepared in accordance with GAAP, as well as all Indebtedness is
assumed by such
Person) and, to the extent not otherwise included, the guarantee by
such Person
of any indebtedness of any other Person. The amount of any
Indebtedness
outstanding as of any date shall be (1) the accreted value thereof,
in the case
of any Indebtedness issued with original issue discount, and (2)
the principal
amount thereof, together with any interest thereon that is more
than 30 days
past due, in the case of any other Indebtedness.
"Indenture" means this Indenture as amended or supplemented from
time
to time pursuant to the terms of this Indenture, including the
provisions of the
TIA that are automatically deemed to be a part of this Indenture by
operation of
the TIA.
"Initial Purchaser" means Merrill Lynch, Pierce, Fenner &
Smith
Incorporated.
"Interest Payment Date" means May 1 and November 1 of each
year,
commencing November 1, 2007.
5
<PAGE>
"Issue Date" of any Security means the date on which the Security
was
originally issued or deemed issued as set forth on the face of the
Security.
"Market
Disruption Event" means the occurrence or existence for more
than one-half hour period in the aggregate on any scheduled Trading
Day for the
Common Stock of any suspension or limitation imposed on trading (by
reason of
movements in price exceeding limits permitted by the Nasdaq Global
Select Market
or otherwise) in the Common Stock or in any options, contracts or
future
contracts relating to the Common Stock, and such suspension or
limitation occurs
or exists at any time before 1:00 p.m., New York City time, on such
day.
"Officer" means the Chairman of the Board, the Chief Executive
Officer,
the President, any Vice President, the Chief Financial Officer, the
Controller,
the Secretary, any Assistant Controller or any Assistant Secretary
of the
Company.
"Officers' Certificate" means a certificate signed on behalf of
the
Company by two Officers; provided, however, that for purposes of
Sections 4.11
and 5.03, "Officers' Certificate" means a certificate signed by (a)
the
principal executive officer, principal financial officer or
principal accounting
officer of the Company and (b) one other Officer.
"Opinion of Counsel" means a written opinion from legal counsel
reasonably acceptable to the Trustee. 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 syndicate or group that would be deemed
to be a
"person" under Section 13(d)(3) of the Exchange Act or any other
entity.
"Principal" or "principal" of a debt security, including the
Securities, means the principal of the debt security plus, when
appropriate, the
premium, if any, on the debt security.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of April 11, 2007, between the Company and the
Initial
Purchaser, as amended from time to time in accordance with its
terms.
"Regular Record Date" means, with respect to each Interest
Payment
Date, April 15 or October 15, as the case may be, next preceding
such Interest
Payment Date.
"Responsible Officer" means, when used with respect to the Trustee,
any
officer within the corporate trust services department of the
Trustee with
direct responsibility for the administration of this Indenture and
also means,
with respect to a particular corporate trust matter, any other
officer to whom
such matter is referred because of such person's knowledge of and
familiarity
with the particular subject.
"Restricted Global Security" means a Global Security that is a
Restricted Security.
"Restricted Security" means a Security required to bear the
restricted
legend set forth in the form of Security annexed as Exhibit A.
6
<PAGE>
"Rule 144" means Rule 144 under the Securities Act or any successor
to
such Rule.
"Rule 144A" means Rule 144A under the Securities Act or any
successor
to such Rule.
"SEC" means the Securities and Exchange Commission.
"Securities" means the up to $100,000,000 aggregate principal
amount of
1.625% Convertible Senior Notes due 2014, 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.
"Significant Subsidiary" means, in respect of any Person, as of
any
date of determination, a Subsidiary of such Person that would
constitute a
"significant subsidiary" as such term is defined under Rule 1-02(w)
of
Regulation S-X under the Securities Act.
"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 entitled (without
regard to the
occurrence of any contingency within the control of such Person to
satisfy) 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.
"Termination of Trading" means the termination (but not the
temporary
suspension) of trading of the Common Stock, which will be deemed to
have
occurred if the Common Stock or other common stock or American
Depositary Shares
or similar instruments into which the Securities are convertible is
neither
listed for trading on a United States national securities exchange
nor approved
for quotation on an established automated over-the-counter
securities market in
the United States or ceases to be traded or quoted in contemplation
of a
delisting or withdrawal of approval.
"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 to
the extent that the Trust Indenture Act or any amendment thereto
expressly
provides for application of the Trust Indenture Act as in effect on
another
date.
"Trading Day" means any day on which (i) there is no Marketing
Disruption Event and (ii) the Nasdaq Global Select Market or, if
the Common
Stock is not listed on the Nasdaq Global Select Market, the
principal national
or regional securities exchange on which the Common Stock is
listed, is open for
trading or, if the Common Stock is not so listed, admitted for
trading or
quoted, any Business Day. A Trading Day only includes those days
that have a
scheduled closing time of 4:00 p.m. (New York City time) or the
then standard
closing time for regular trading on the relevant exchange or
trading system.
7
<PAGE>
"Trading Price" of the Securities on any date of determination
means
the average of the secondary market bid quotations obtained by the
Company for
$1.5 million principal amount of Securities at approximately 3:30
p.m., New York
City time, on such determination date from three nationally
recognized
securities dealers the Company selects; provided that if three such
bids cannot
reasonably be obtained by the Company, but two such bids are
obtained, then the
average of the two bids shall be used, and if only one such bid can
reasonably
be obtained by the Company, that one bid shall be used. If the
Company cannot
reasonably obtain at least one bid for $1.5 million principal
amount of
Securities from a nationally recognized securities dealer, then the
Trading
Price per $1,000 principal amount of Securities will be deemed to
be less than
97% of the product of the Closing Price of the Common Stock and the
Conversion
Rate per $1,000 principal amount of Securities.
"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."
"Volume Weighted Average Price" per share of Common Stock on
any
Trading Day means such price as displayed on Bloomberg (or any
successor
service) page CHTT [equity] VAP 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 price is
not
available, the Volume Weighted Average Price means the market value
per share of
Common Stock on such day as determined by a nationally recognized
independent
investment banking firm retained for this purpose by the
Company.
"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 within
the control of such person to satisfy) to vote in the election of
directors,
managers or trustees thereof.
Section 1.02. Other Definitions.
Term
Defined in Section
----
------------------
"Agent Members"
2.01
"Bankruptcy Law"
7.01
"Business Combination"
4.10
"Cash Percentage"
4.13(b)
"Company Order"
2.02
"Conversion Trigger Price"
4.01
"Conversion Agent"
2.03
"Conversion Date"
4.02
8
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Term
Defined in Section
----
------------------
"Current Market Price"
4.06
"DTC"
2.01
"Depositary"
2.01
"Determination Date"
4.06
"Distributed Securities"
4.06
"Distribution Notice"
4.01
"Event of Default"
7.01
"Expiration Date"
4.06
"Expiration Time"
4.06
"Fundamental Change Company Notice"
3.01
"Fundamental Change Purchase Date"
3.01
"Fundamental Change Purchase Notice"
3.01
"Legal Holiday"
11.07
"Legend"
2.12
"Make Whole Premium"
4.01
"Notice of Default"
7.01
"Paying Agent"
2.03
"Primary Registrar"
2.03
"Purchase Agreement"
2.01
"Purchased Shares"
4.06
"record date"
4.06
"QIB"
2.01
"Receiver"
7.01
"Registrar"
2.03
"Remaining Shares"
4.13
"Rights"
4.06
"Rights Plan"
4.06
"Spinoff Securities"
4.06
"Spinoff Valuation Period"
4.06
"Stock Price"
4.01(j)
"tender offer"
4.06
"Triggering Distribution"
4.06
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. This 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 Holder of a Security;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
9
<PAGE>
"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.
(a) Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) words in the singular include the plural, and words in the
plural include the singular;
(4) provisions apply to successive events and transactions;
(5) the term "merger" includes a statutory share exchange and
the term "merged" has a correlative meaning;
(6) the masculine gender includes the feminine and the neuter;
(7) references to agreements and other instruments include
subsequent amendments thereto; and
(8) all "Article", "Exhibit" and "Section" references are to
Articles, Exhibits and Sections, respectively, of or to this
Indenture
unless otherwise specified herein, and the terms "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 2
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 or automated quotation system rule or
regulation 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. The Securities are being offered and sold by the
Company
pursuant to a Purchase Agreement dated April 4, 2007 (the "Purchase
Agreement")
between the Company and the Initial Purchaser.
10
<PAGE>
(a) Restricted Global Securities. All of the Securities are
initially
being offered and sold to qualified institutional buyers as defined
in Rule 144A
(collectively, "QIBs" or individually, each a "QIB") in reliance
upon a private
placement exemption from registration under the Securities Act and
shall be
issued initially in the form of one or more Restricted 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 Company ("DTC", and such
depositary, or any
successor thereto, being hereinafter referred to as the
"Depositary"), and
registered in the name of its nominee, Cede & Co. (or any
successor thereto),
for the accounts of participants in the Depositary, duly executed
by the Company
and authenticated by the Trustee as hereinafter provided. The
aggregate
principal amount of the Restricted 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 replacements, exchanges, purchases,
redemptions, 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 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 (1) 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 (2)
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 (1) shall be
registered in the name
of the Depositary or its nominee, (2) shall be delivered by the
Trustee to the
Depositary or pursuant to the Depositary's instructions and (3)
shall bear
legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME
11
<PAGE>
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 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."
Section 2.02. Execution and Authentication.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to
$100,000,000
aggregate principal amount except as provided in Sections 2.06 and
2.07.
(b) An Officer shall sign the Securities for the Company by manual
or
facsimile signature. Typographic and other minor errors or defects
in any such
facsimile signature shall not affect the validity or enforceability
of any
Security that has been authenticated and delivered by the
Trustee.
(c) 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.
(d) A Security shall not be valid until an authorized signatory of
the
Trustee by manual signature signs the certificate of authentication
on the
Security. The signature shall be conclusive evidence that the
Security has been
authenticated under this Indenture.
(e) The Trustee shall authenticate and make available for
delivery
Securities for original issue in the aggregate principal amount of
up to
$100,000,000 upon receipt of a written order or orders of the
Company signed by
an Officer 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 Restricted Global Security and
the date on
which each original issue of Securities is to be authenticated.
12
<PAGE>
(f) 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.
(g) 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.
(a) 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.
(b)
The Company shall enter into an appropriate agency agreement
with
any Agent not a party to this Indenture, provided that the Agent
may be an
Affiliate of the Trustee. 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 5.01 and Article 9).
(c) The Company hereby initially designates the Trustee as
Paying
Agent, Registrar, Securities Custodian and Conversion Agent, and
initially
designates the Corporate Trust Office of the Trustee as an office
or agency
where notices and demands to or upon the Company in respect of the
Securities
and this Indenture shall be served.
Section 2.04. Paying Agent to Hold Money in Trust.
Prior to 12:00 p.m. (noon), New York City time, on each due date of
the
payment of principal of, or interest on, any Securities, the
Company shall
deposit with the Paying Agent a sum sufficient to pay such
principal or interest
so becoming due. Subject to Section 9.02, a Paying Agent shall hold
in trust for
the benefit of Holders of Securities or the Trustee all money held
by the Paying
Agent for the payment of principal of, or interest on, the
Securities, and shall
notify the Trustee of any failure by the Company (or any other
obligor on the
Securities) to make any such payment. If the Company or an
Affiliate of the
Company acts as Paying Agent, it shall, before 12:00 p.m. (noon),
New York City
time, on each due date of the principal of, or interest
13
<PAGE>
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. Lists of Holders of Securities.
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
Holders of Securities. If the Trustee is not the Primary Registrar,
the Company
shall furnish to the Trustee on or before each Interest Payment
Date and at such
other times as the Trustee may request in writing, a list in such
form and as of
such date as the Trustee may reasonably require of the names and
addresses of
Holders of Securities.
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,
the Registrar
shall register the transfer or make the exchange as requested;
provided,
however, that every Security presented or surrendered for
registration of
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 the form
of Security attached as Exhibit A hereto, and completed in a manner
satisfactory
to the Registrar and 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; provided that this sentence shall not apply to any
exchange pursuant to
Section 2.10, 2.12(a), 3.06, 4.02(e) or 10.05.
(b) Neither the Company, any Registrar nor the Trustee shall be
required to exchange or register a transfer of (1) any Securities
for a period
of 15 days next preceding mailing of a notice of Securities to be
redeemed, or
(2) any Securities or portions thereof in respect of which a
Fundamental Change
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).
(c) 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.
14
<PAGE>
(d) Any Registrar appointed pursuant to Section 2.03 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.
(e) 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.
(a) If any mutilated Security is surrendered to the Company, a
Registrar or the Trustee, and 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 save 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.
(b) If 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
Company pursuant to Article 3, or converted pursuant to Article 4,
the Company
in its discretion may, instead of issuing a new Security, pay,
purchase or
convert such Security, as the case may be.
(c) 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
as a result of
any Securities, at the request of any Holder, being issued to a
Person other
than such Holder and any other reasonable expenses (including the
reasonable
fees and expenses of the Trustee or the Registrar) in connection
therewith.
(d) 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.
(e) 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 the replacement or payment of mutilated,
destroyed,
lost or stolen Securities.
15
<PAGE>
Section 2.08. Outstanding Securities.
(a) Securities outstanding at any time are all Securities
authenticated
by the Trustee, except for those canceled by it, those purchased
pursuant to
Article 3, those converted pursuant to Article 4, those delivered
to the Trustee
for cancellation or surrendered for transfer or exchange and those
described in
this Section 2.08 as not outstanding.
(b) 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.
(c) If a Paying Agent (other than the Company or an Affiliate of
the
Company) holds in respect of the outstanding Securities on a
Fundamental Change
Purchase Date or the Final Maturity Date money sufficient to pay
the principal
of (including premium, if any), accrued interest and Additional
Interest, if
any, on Securities (or portions thereof) payable on that date, then
on and after
such Fundamental Change Purchase Date or Final Maturity Date, as
the case may
be, such Securities (or portions thereof, as the case may be) shall
cease to be
outstanding and cash interest and Additional Interest, if any, on
them shall
cease to accrue.
(d) 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
relying on any such notice, direction, waiver or consent, only
Securities which
a Trust Officer of the Trustee with responsibility for this
Indenture 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.
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<PAGE>
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee
for
cancellation. 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, purchase, payment or conversion. The Trustee
and no one else
shall cancel, in accordance with its standard procedures, all
Securities
surrendered for transfer, exchange, purchase, payment, conversion
or
cancellation and shall dispose of the cancelled Securities in
accordance with
its customary procedures or deliver the canceled Securities to the
Company.
Section 2.12. Legend; Additional Transfer and Exchange
Requirements.
(a) If
Securities are issued upon the transfer, exchange or
replacement
of Securities subject to restrictions on transfer and bearing the
legends set
forth on the forms of Securities attached 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 neither the Legend nor the
restrictions on
transfer set forth therein are required to ensure that transfers
thereof comply
with the provisions of Rule 144A or Rule 144 under the Securities
Act or that
such Securities are not "restricted" within the meaning of Rule 144
under the
Securities Act; provided that no such evidence need be supplied in
connection
with the sale of such Security pursuant to a registration statement
that is
effective at the time of such sale. Upon (1) provision of such
satisfactory
evidence if requested or (2) notification by the Company to the
Trustee and
Registrar of the sale of such Security pursuant to a registration
statement that
is effective at the time of such sale, the Trustee, at the written
direction of
the Company, shall authenticate and deliver a Security that does
not bear the
Legend. If the Legend is removed from the face of a Security and
the Security is
subsequently held by an Affiliate of the Company, the Legend shall
be
reinstated.
(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.
(c) Subject to Section 2.12(b) and in compliance with Section
2.12(d),
every Security shall be subject to the restrictions on transfer
provided in the
Legend. Whenever any Restricted Security other than a Restricted
Global Security
is presented or surrendered for registration of transfer or in
exchange for a
Security registered in a name other than that of the Holder, such
Security must
be accompanied by a certificate in substantially the form set forth
in Exhibit
A, dated the date of such surrender and signed by the Holder of
such Security,
as to compliance with such restrictions on transfer. The Registrar
shall not be
required to accept for such
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<PAGE>
registration of transfer or exchange any Security not so
accompanied by a
properly completed certificate.
(d) The restrictions imposed by the Legend upon the transferability
of
any Security shall cease and terminate when such Security has been
sold pursuant
to an effective registration statement under the Securities Act or
transferred
in compliance with Rule 144 under the Securities Act (or any
successor provision
thereto) or, if earlier, upon the expiration of the holding period
applicable to
sales thereof under Rule 144(k) under the Securities Act (or any
successor
provision). Any Security as to which such restrictions on transfer
shall have
expired in accordance with their terms or shall have terminated
may, upon a
surrender of such Security for exchange to the Registrar in
accordance with the
provisions of this Section 2.12 (accompanied, in the event that
such
restrictions on transfer have terminated by reason of a transfer in
compliance
with Rule 144 or any successor provision, by, if requested by the
Company or the
Registrar, an Opinion of Counsel reasonably acceptable to the
Company and the
Registrar and addressed to the Company and the Registrar, to the
effect that the
transfer of such Security has been made in compliance with Rule 144
or such
successor provision), be exchanged for a new Security, of like
tenor and
aggregate principal amount, which shall not bear the restrictive
Legend. The
Company shall inform the Trustee of the effective date of any
registration
statement registering the offer and sale of the Securities under
the Securities
Act. The Trustee shall not be liable for any action taken or
omitted to be taken
by it in good faith in accordance with the aforementioned Opinion
of Counsel or
registration statement.
As used in Sections 2.12(c) and (d), the term "transfer"
encompasses
any sale, pledge, transfer, hypothecation or other disposition of
any Security.
(e) The provisions below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary or a nominee
thereof
and delivered to such Depositary or a nominee thereof or
custodian
therefor, and each such Global Security shall constitute a
single
Security for purposes of this Indenture.
(2) 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, and no transfer of a Global
Security in
whole or in part shall be 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
after receiving such notice or becoming aware that the Depositary
has
ceased to be a "clearing agency," or (B) an Event of Default
has
occurred and is continuing with respect to the Securities. Any
Global
Security exchanged pursuant to subclause (A) above shall be so
exchanged in whole and not in part, and any Global Security
exchanged
pursuant to subclause (B) 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
18
<PAGE>
thereof shall be a Global Security; provided further 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.
(3) 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.
(4) Subject to clause (6) of this Section 2.12(e), 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.
(5) In the event of the occurrence of any of the events
specified in clause (2) of this Section 2.12(e), the Company
will
promptly make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered form,
without
interest coupons.
(6) 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 may be, 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 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.
(7) At such time as all interests in a Global Security have
been converted, canceled or exchanged for Securities in
certificated
form, such Global Security shall, upon receipt thereof, be
cancelled by
the Trustee in accordance with standing procedures and
instructions
existing between the Depositary and the Securities Custodian,
subject
to Section 2.11 of this Indenture. At any time prior to such
cancellation, if any interest in a
19
<PAGE>
Global Security is converted, canceled or exchanged for Securities
in
certificated form, the principal amount of such Global Security
shall,
in accordance with the standing procedures and instructions
existing
between the Depositary and the Securities Custodian, be
appropriately
reduced, and an endorsement shall be made on such Global Security,
by
the Trustee or the Securities Custodian, at the direction of
the
Trustee, to reflect such reduction.
(f) Until the expiration of the holding period applicable to
sales
thereof under Rule 144(k) under the Securities Act (or any
successor provision
thereto), any stock certificate representing Common Stock issued
upon conversion
of any Security shall bear a legend in substantially the following
form, unless
such Common Stock has been sold pursuant to a registration
statement that has
been declared effective under the Securities Act (and which
continues to be
effective at the time of such transfer) or transferred in
compliance with Rule
144 under the Securities Act (or any successor provision thereto),
or such
Common Stock has been issued upon conversion of Securities that
have been
transferred pursuant to a registration statement that has been
declared
effective under the Securities Act or pursuant to Rule 144 under
the Securities
Act (or any successor provision thereto), or unless otherwise
agreed by the
Company in writing with written notice thereof to the transfer
agent:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS,
AND, ACCORDINGLY, MAY NOT BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION UNDER
THE SECURITIES ACT.
BY ITS ACQUISITION HEREOF, THE HOLDER AGREES TO OFFER, SELL OR
OTHERWISE
TRANSFER THE COMMON STOCK EVIDENCED HEREBY PRIOR TO THE DATE THAT
IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE
ON WHICH
CHATTEM INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF
THE COMMON STOCK EVIDENCED HEREBY (OR ANY PREDECESSOR OF THE COMMON
STOCK
EVIDENCED HEREBY) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY
(A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION
STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (C)
PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRANSFER AGENT'S
RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) PRIOR TO
THE RESALE
RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS CERTIFICATE IS COMPLETED
AND DELIVERED
BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND WILL BE
REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
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<PAGE>
Any such Common Stock as to which such restrictions on transfer
shall
have expired in accordance with their terms or as to which the
conditions for
removal of the foregoing legend set forth therein have been
satisfied may, upon
surrender of the certificates representing such shares of Common
Stock for
exchange in accordance with the procedures of the transfer agent
for the Common
Stock, be exchanged for a new certificate or certificates for a
like number of
shares of Common Stock, which shall not bear the restrictive legend
required by
this section.
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.
ARTICLE 3
PURCHASE UPON FUNDAMENTAL CHANGE
Section 3.01. Purchase at Holders' Option upon a Fundamental
Change.
(a) If a Fundamental Change occurs prior to the Final Maturity
Date,
each Holder of a Security shall have the right, at the option of
the Holder, to
require the Company to repurchase for cash all or any portion of
the Securities
of such Holder equal to $1,000 principal amount (or an integral
multiple
thereof) at the Fundamental Change Purchase Price, on the date (the
"Fundamental
Change Purchase Date") specified by the Company pursuant to
subsection 3.01(b)
that is not less than 30 days nor more than 45 days after the
Fundamental Change
Effective Date.
(b) As promptly as practicable following the date when the
Company
publicly announces a Fundamental Change but in no event less than
10 Trading
Days prior to the anticipated Fundamental Change Effective Date,
the Company
shall mail a written notice of the Fundamental Change and of the
resulting
repurchase right to the Trustee, Paying Agent and to each Holder
(and to
beneficial owners as required by applicable law) (the "Fundamental
Change
Company Notice"). The Fundamental Change Company Notice shall
include the form
of a Fundamental Change Purchase Notice to be completed by the
Holder and shall
state:
(1) the events causing such Fundamental Change;
(2) the date (or expected date) of such Fundamental Change;
(3) the last date by which the Fundamental Change Purchase
Notice must be delivered to elect the repurchase option pursuant
to
this Section 3.01;
(4) the Fundamental Change Purchase Date;
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<PAGE>
(5) the Fundamental Change Purchase Price;
(6) the Holder's right to require the Company to purchase the
Securities;
(7) the name and address of each Paying Agent and Conversion
Agent;
(8) the then effective Conversion Rate and any adjustments to
the Conversion Rate resulting from such Fundamental Change;
(9) the procedures that the Holder must follow to exercise
rights under Article 4 and that Securities as to which a
Fundamental
Change Purchase Notice has been given may be converted into
Common
Stock pursuant to Article 4 of this Indenture only to the extent
that
the Fundamental Change Purchase Notice has been withdrawn in
accordance
with the terms of this Indenture;
(10) the procedures that the Holder must follow to exercise
rights under this Section 3.01;
(11) the procedures for withdrawing a Fundamental Change
Purchase Notice;
(12) that, unless the Company fails to pay such Fundamental
Change Purchase Price, Securities covered by any Fundamental
Change
Purchase Notice will cease to be outstanding and interest and
Additional Interest, if any, will cease to accrue on and after
the
Fundamental Change Purchase Date; and
(13) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Fundamental
Change Company
Notice in the Company's name and at the Company's expense; provided
that, in all
cases, the text of such Fundamental Change Company Notice shall be
prepared by
the Company. 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
Applicable Procedures relating to the purchase of Global
Securities.
(c) A Holder may exercise its rights specified in Section 3.01(a)
upon
delivery of a written notice (which shall be in substantially the
form set forth
in the form of Security attached as Exhibit A under the heading
"Fundamental
Change Purchase Notice" 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, may be delivered electronically or by
other means in
accordance with the Depositary's Applicable Procedures) of the
exercise of such
rights (a "Fundamental Change Purchase Notice") to the Company or
any Paying
Agent at any time prior to the close of business on the Business
Day next
preceding the Fundamental Change Purchase Date, subject to
extension to comply
with applicable law.
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<PAGE>
(1) The Fundamental Change Purchase Notice shall state: (A)
the certificate number (if such Security is held other than in
global
form) of the Security which the Holder will deliver to be
purchased
(or, if the Security is held in global form, any other items
required
to comply with the Applicable Procedures), (B) the portion of
the
principal amount of the Security which the Holder will deliver to
be
purchased, which portion must be $1,000 or an integral multiple
of
$1,000 and (C) that such Security shall be purchased as of the
Fundamental Change Purchase Date pursuant to the terms and
conditions
specified in the Securities and in this Indenture.
(2) The delivery of a Security for which a Fundamental Change
Purchase Notice
has been timely delivered to any Paying Agent and not
validly withdrawn prior to, on or after the Fundamental Change
Purchase
Notice (together with all necessary endorsements) at the office of
such
Paying Agent shall be a condition to the receipt by the Holder of
the
Fundamental Change Purchase Price therefor.
(3) The Company shall only be obliged to purchase, pursuant to
this Section 3.01, a portion of a Security if the principal amount
of
such portion is $1,000 or an integral multiple of $1,000
(provisions of
this Indenture that apply to the purchase of all of a Security
also
apply to the purchase of such portion of such Security).
(4)
Notwithstanding anything herein to the contrary, any
Holder delivering to a Paying Agent the Fundamental Change
Purchase
Notice contemplated by this Section 3.01(c) shall have the right
to
withdraw such Fundamental Change 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
Business Day prior to the Fundamental Change Purchase Date by
delivery
of a written notice of withdrawal to the Paying Agent in
accordance
with Section 3.02.
(5) A Paying Agent shall promptly notify the Company of the
receipt by it of any Fundamental Change Purchase Notice or
written
withdrawal thereof.
(6) Anything herein to the contrary notwithstanding, in the
case of Global Securities, any Fundamental Change 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 3.02. Effect of Fundamental Change Purchase Notice.
(a) Upon receipt by any Paying Agent of a properly completed
Fundamental Change Purchase Notice from a Holder, the Holder of the
Security in
respect of which such Fundamental Change Purchase Notice was given
shall (unless
such Fundamental Change Purchase Notice is withdrawn as specified
in Section
3.02(b)) thereafter be entitled to receive the Fundamental Change
Purchase Price
with respect to such Security, subject to the occurrence of an
absence of an
Event of Default, or a continuation thereof (other than a Default
in the payment
of the Fundamental Change Purchase Price). Such Fundamental Change
Purchase
Price shall be paid to such Holder promptly following the later of
(1) the
Fundamental Change Purchase Date (provided that the conditions in
Section 3.01
have been satisfied) and (2) the time of delivery of
23
<PAGE>
such Security to a Paying Agent by the Holder thereof in the manner
required by
Section 3.01(c). Securities in respect of which a Fundamental
Change 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
Fundamental Change Purchase Notice unless such Fundamental Change
Purchase
Notice has first been validly withdrawn in accordance with Section
3.02(b) with
respect to the Securities to be converted.
(b) A Fundamental Change 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 Applicable Procedures) of withdrawal delivered
by the Holder
to a Paying Agent at any time prior to the close of business on the
Business Day
immediately prior to the Fundamental Change Purchase Date,
specifying (1) if
certificated Securities have been issued, the certificate number of
the Security
being withdrawn in whole or in withdrawable part (or if the
Securities are not
certificated, such written notice must comply with the Applicable
Procedures),
(2) 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,
and (3) the
portion of the principal amount of the Security that will remain
subject to the
Fundamental Change Purchase Notice, which portion must be a
principal amount of
$1,000 or an integral multiple thereof.
Section 3.03. Deposit of Fundamental Change Purchase Price.
(a) On or before 10:00 a.m., New York City time, on the
applicable
Fundamental Change Purchase Date, the Company shall deposit with
the Trustee or
with a Paying Agent (or if the Company or an Affiliate of the
Company is acting
as the Paying Agent, shall segregate and hold in trust as provided
in Section
2.04) an amount of money (in immediately available funds),
sufficient to pay the
aggregate Fundamental Change Purchase Price of all the Securities
or portions
thereof that are to be purchased as of such Fundamental Change
Purchase Date.
(b) If a Paying Agent or the Trustee holds, in accordance with
the
terms hereof, money sufficient to pay the Fundamental Change
Purchase Price of
any Security for which a Fundamental Change Purchase Notice has
been tendered
and not withdrawn in accordance with this Indenture then, on
immediately after
the applicable Fundamental Change Purchase Date, such Security will
cease to be
outstanding, whether or not the Security is delivered to the Paying
Agent or the
Trustee, and interest and Additional Interest, if any, shall cease
to accrue,
and the rights of the Holder in respect of the Security shall
terminate (other
than the right to receive the Fundamental Change Purchase Price as
aforesaid).
The Company shall publicly announce the principal amount of
Securities
repurchased on or as soon as practicable after the Fundamental
Change Purchase
Date.
(c) The Paying Agent will promptly return to the respective
Holders
thereof any Securities with respect to which a Fundamental Change
Purchase
Notice has been withdrawn in compliance with this Indenture.
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<PAGE>
(d) If a Fundamental Change Purchase Date falls after a Regular
Record
Date and on or before the related Interest Payment Date, then
interest on the
Securities payable on such Interest Payment Date will be payable to
the Holders
in whose names the Securities are registered at the close of
business on such
Regular Record Date.
Section 3.04. Repayment to The Company.
To the extent that the aggregate amount of cash deposited by
the
Company pursuant to Section 3.03 exceeds the aggregate Fundamental
Change
Purchase Price of the Securities or portions thereof that the
Company is
obligated to purchase, then promptly after the Fundamental Change
Purchase Date
the Trustee or a Paying Agent, as the case may be, shall return any
such excess
cash to the Company.
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 Fundamental
Change
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 (which must be equal to $1,000 principal
amount or any
integral thereof), 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 of Securities under
Section
3.01, the Company shall (a) comply with Rule 13e-4 and Rule 14e-1
(or any
successor to either such Rule), and any other tender offer rules,
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 3.01
through 3.04
to be exercised in the time and in the manner specified therein. To
the extent
that compliance with any such laws, rules and regulations would
result in a
conflict with any of the terms hereof, this Indenture is hereby
modified to the
extent required for the Company to comply with such laws, rules and
regulations.
Section 3.07. Purchase of Securities in Open Market.
The
Company (a) on or prior to the date that is two years from the
latest issuance of any Securities and in accordance with Section
2.11, shall
surrender any Security purchased by the Company pursuant to this
Article 3 to
the Trustee for cancellation, and (b) after such date and in
accordance with
Section 2.11, may surrender such Security to the Trustee for
cancellation. Any
securities surrendered to the Trustee for cancellation may not be
reissued or
resold by the Company and will be canceled promptly in accordance
with Section
2.11. The Company may repurchase Securities in the open market, by
tender at any
price or by negotiated transactions and such Securities may be
reissued or
resold, to the extent permitted by applicable law, or may be
surrendered to the
Trustee for cancellation.
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<PAGE>
ARTICLE 4
CONVERSION
Section 4.01. Conversion Privilege and Conversion Rate.
(a) Subject to the obligation and the right of the Company to pay
some
or all of the conversion consideration in cash in accordance with
Section 4.13,
and upon compliance with the provisions of this Article 4, at the
option of the
Holder thereof, any Security or portion thereof that is an integral
multiple of
$1,000 principal amount may be converted into fully paid and
nonassessable
shares (calculated as to each conversion to the nearest 1/100th of
a share) of
Common Stock prior to the close of business on the Business Day
immediately
preceding the Final Maturity Date or such earlier date set forth in
this Article
4, unless previously purchased by the Company at the Holder's
option upon the
occurrence of a Fundamental Change, at the Conversion Rate in
effect at such
time, determined as hereinafter provided and subject to the
adjustments
described below, only under the following circumstances:
(1) during any fiscal quarter beginning after August 31, 2007,
and only during such fiscal quarter, if, as of the last day of
the
immediately preceding fiscal quarter, the Closing Price per share
of
the Common Stock for at least 20 Trading Days in the period of the
30
consecutive Trading Days ending on the last Trading Day of such
preceding calendar quarter was more than 130% of the Conversion
Price
(the "Conversion Trigger Price");
(2) if the Company distributes to all holders of Common Stock
rights (including rights under a shareholder rights agreement)
or
warrants entitling them to purchase, for a period expiring within
45
days of the date of issuance, Common Stock at less than the
Current
Market Price of the Common Stock on the day of issuance;
(3) if the Company distributes to all holders of Common Stock,
assets, debt securities or rights to purchase the Company's
securities,
which distribution has a per share value exceeding 15% of the
average
of the Closing Prices of the Common Stock for the five
consecutive
Trading Days ending on the date immediately preceding the first
public
announcement of such distribution;
(4) if a Fundamental Change occurs;
(5) at any
time during the one month period beginning on April
1, 2014 and ending at the close of business on the Business Day
immediately preceding the Final Maturity Date; or
(6) prior to April 1, 2014, during any five Business Day
period after any five consecutive Trading Day period in which
the
Trading Price per $1,000 principal amount of Securities, as
determined
following a request by a Holder in accordance with the
procedures
described below in
Section 4.01(e)(ii), for each day of that period was
less than 97% of the product of the Closing Price of the Common
Stock
and the then applicable Conversion Rate.
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(b)
In the case of a distribution contemplated by clauses (2) and
(3)
of Section 4.01(a), the Company shall notify Holders and Trustee at
least 20
days prior to the ex-dividend date for such distribution (the
"Distribution
Notice"); provided that if the Company distributes rights pursuant
to a
shareholder rights agreement, it will notify the Holders of the
Securities on
the Business Day after the Company is required to give notice
generally to its
shareholders pursuant to such shareholder rights agreement if such
date is less
than 20 days prior to the date of such distribution. Once the
Company has given
the Distribution Notice, Holders may surrender their Securities for
conversion
at any time until the earlier of the close of business on the last
Business Day
preceding the ex-dividend date or the Company's announcement that
such
distribution will not take place. Notwithstanding the provisions of
clauses (2)
and (3) of Section 4.01(a), Holders may not convert the Securities
if the
Holders will be entitled to participate in such distribution on an
as converted
basis. The Company will provide written notice to the Conversion
Agent as soon
as reasonably practicable of any anticipated or actual event or
transaction that
will cause or causes the Securities to become convertible pursuant
to clauses
(2) or (3) of Section 4.01(a).
(c) [Intentionally Omitted]
(d) In the case of a transaction contemplated by clause (4) of
section
4.01(a), the Company will notify the Holders and Trustee at least
10 Trading
Days prior to the anticipated Fundamental Change Effective Date of
any
Fundamental Change. Holders may surrender Securities for conversion
at any time
beginning 10 Trading Days before the anticipated Fundamental Change
Effective
Date of a Fundamental Change and until the last Trading Day
preceding the
Fundamental Change Purchase Date.
(e) (i) For each fiscal quarter of the Company, beginning with
the
fiscal quarter ending August 31, 2007, the Company will determine,
on the first
Business Day following the last Trading Day of such fiscal quarter,
whether the
Securities are convertible pursuant to clause (1) of Section
4.01(a), and, if
so, will notify the Trustee in writing. Upon request of the
Conversion Agent,
the Company shall provide, or cause to be provided to, the
Conversion Agent the
Closing Price per share of Common Stock for the 30 consecutive
Trading Days
ending on the last Trading Day of the preceding fiscal quarter.
(ii) The Company shall have no obligation to determine the
Trading Price of the Securities and whether the Securities are
convertible pursuant to clause (6) of Section 4.01(a) unless a
Holder
of Securities provides the Company with reasonable evidence that
the
Trading Price per $1,000 principal amount of Securities would be
less
than 97% of the product of the Closing Price of the Common Stock
and
the Conversion Rate per $1,000 principal amount of Securities. At
such
time, the Company shall determine the Trading Price of the
Securities
beginning on the next Trading Day and on each successive Trading
Day
until the Trading Price per $1,000 principal amount of the
Securities
is greater than 97% of the product of the Closing Price of the
Common
Stock and the Conversion Rate per $1,000 principal amount of
the
Securities.
(f) The conversion rights pursuant to this Article 4 shall commence
on
the initial issuance date of the Securities and expire at the close
of business
on the Business Day immediately preceding the Final Maturity Date,
but shall be
exercisable only during the time
27
<PAGE>
periods specified with respect to each circumstance pursuant to
which the
Securities become convertible, subject, in the case of conversion
of any Global
Security, to any Applicable Procedures. If a Security is
convertible as a result
of a Fundamental Change, such conversion right shall commence and
terminate as
set forth in Section 4.01(d). Securities in respect of which a
Fundamental
Change Purchase Notice has been delivered may not be surrendered
for conversion
pursuant to this Article 4 prior to a valid withdrawal of such
Fundamental
Change Notice in accordance with the provisions of Article 3.
(g) Provisions of this Indenture that apply to conversion of all of
a
Security also apply to conversion of a portion of a Security.
(h) A Holder of Securities is not entitled to any rights of a
holder of
Common Stock until such Holder has converted its Securities into
Common Stock,
and only to the extent such Securities are deemed to have been
converted into
Common Stock pursuant to this Article 4.
(i) The Conversion Rate shall be adjusted in certain instances
as
provided in Section 4.01(j) and Section 4.06.
(j)
