INDENTURE

Exhibit 4.1

 

ALLSCRIPTS HEALTHCARE SOLUTIONS, INC.

 

3.50% Convertible Senior Debentures Due 2024

 

 

INDENTURE

 

Dated as of July 6, 2004

 

 

LASALLE BANK N.A.

 

TRUSTEE

 

Reconciliation and tie between

Trust Indenture Act of 1939 and Indenture

 

 

TABLE OF CONTENTS

 

 

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INDENTURE dated as of July 6, 2004 between ALLSCRIPTS HEALTHCARE SOLUTIONS, INC., a Delaware corporation (the “ Company ”), and LASALLE BANK, N.A., a national banking association (the “ Trustee ”).

 

Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company’s 3.50% Convertible Senior Debentures Due 2024:

 

ARTICLE 1

D EFINITIONS A ND I NCORPORATION B Y R EFERENCE

 

Section 1.01. Definitions .

 

“ 144A Global Security ” means a permanent Global Security in the form of the Security attached hereto as Exhibit A, and that is deposited with and registered in the name of the Depositary, representing Securities sold in reliance on Rule 144A under the Securities Act.

 

“ Additional Shares ” shall have the meaning set forth in Section 10.01(c).

 

“ Adjustment Event ” shall have the meaning set forth in Section 10.04(j).

 

“ Affiliate ” of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, “ control ” when used with respect to any specified person means the power to direct or cause the direction of the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.

 

“ Agent Members ” shall have the meaning set forth in Section 2.12(e)(v).

 

“ Applicable Procedures ” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transaction and as in effect from time to time.

 

“ Board of Directors ” means either the board of directors of the Company or any duly authorized committee of such board.

 

“ Board Resolution ” means a resolution of the Board of Directors.

 

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“ Business Day ” means, with respect to any Security, a day, other than a Saturday or Sunday, that in the City of New York, is not a day on which banking institutions are authorized or required by law, regulation or executive order to close.

 

“ Capital Stock ” for any corporation means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that corporation.

 

“ Cash Amount ” shall have the meaning set forth in Section 10.03(a)(iii).

 

“ Cash Settlement Averaging Period ” means the 20 Trading Day period beginning the Trading Day following the final day of the Conversion Retraction Period; provided that if a Holder elects to convert its Securities and is entitled to Additional Shares, in each case, pursuant to Section 10.01(c), the “Cash Settlement Averaging Period” shall be the five consecutive Trading Days prior to but not including the effective date of the corporate transaction.

 

“ Cash Settlement Notice Period ” shall have the meaning set forth in Section 10.03(a).

 

“ Certificated Securities ” means Securities that are in the form of the Securities attached hereto as Exhibit B.

 

“ Change of Control ” shall have the meaning set forth in Section 3.08.

 

“ Change of Control Repurchase Date ” shall have the meaning set forth in Section 3.08(a).

 

“ Change of Control Repurchase Notice ” shall have the meaning set forth in Section 3.08(c).

 

“ Change of Control Repurchase Price ” shall have the meaning set forth in Section 3.08(a).

 

“ close of business ” means 5 p.m. (New York City time).

 

“ Common Stock ” means the common stock, $0.01 par value per share, of the Company existing on the date of this Indenture or any other shares of Capital Stock of the Company into which such Common Stock shall be reclassified or changed, including, subject to Section 10.05 below, 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 Person, the common stock of such surviving corporation.

 

“ Company ” means the party named as the “ Company ” in the preamble of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors.

 

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“ Company Notice ” means a notice to Holders delivered pursuant to Section 3.07 or Section 3.08.

 

“ Company Request ” or “ Company Order ” means a written request or order signed in the name of the Company by any two Officers.

 

“ Conversion Agent ” shall have the meaning set forth in Section 2.03.

 

“ Conversion Date ” shall have the meaning set forth in Section 10.02(c).

 

“ Conversion Obligation ” shall have the meaning set forth in Section 10.01(a).

 

“ Conversion Price ” as of any date means $1,000 divided by the Conversion Rate as of such date; provided that, for the purposes of Section 10.01(a), following any distribution of Distributed Assets as set forth in Section 10.04(d) or an Extraordinary Cash Dividend as set forth in Section 10.04(e), in each case where an adjustment to the Conversion Rate was not made pursuant to the provisos set forth therein, the Conversion Price shall be adjusted following such distribution by subtracting from the Conversion Price then in effect (x) in the case of a distribution of Distributed Assets, the Fair Market Value of the portion of Distributed Assets so distributed applicable to one share of Common Stock or (y) in the case of an Extraordinary Cash Dividend, the cash so distributed applicable to one share of Common Stock; provided further that if such subtraction produces a number less than $1.00, the Conversion Price shall be $1.00.

 

“ Conversion Rate ” has the meaning set forth in Section 10.02(a) hereof.

 

“ Conversion Retraction Period ” shall have the meaning set forth in Section 10.03(a).

 

“ Conversion Settlement Date ” means the date that is as soon as practicable following (i) the Conversion Date or (ii) if the Company elects to pay cash in lieu of Common Stock pursuant to Section 10.03, the final day of the Cash Settlement Averaging Period, in each case for the delivery of shares of Common Stock or cash, as applicable.

 

“ Conversion Settlement Distribution ” shall have the meaning set forth in Section 10.03(a).

 

“ Corporate Trust Office ” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 135 S. LaSalle Street, Chicago, Illinois 60603 Attention: Corporate and Institutional Trust, or such other address as the Trustee

 

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may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Company).

 

“ Current Market Price ” on any date of determination shall mean the average of the daily Last Reported Sale Prices per share of Common Stock for the first 20 consecutive Trading Days from and including the Ex-Dividend Date with respect to the issuance, distribution, subdivision or combination requiring such computation immediately prior to the date in question. In the event that an issuance, distribution, subdivision, combination or tender or exchange offer to which Section 10.04 applies occurs during the period applicable for calculating the Current Market Price pursuant to the definition in the preceding sentence, the Current Market Price shall be calculated for such period in a manner determined by the Board of Directors to reflect the impact of such issuance, distribution, subdivision, combination or tender or exchange offer on the Last Reported Sale Price of the Common Stock during such period.

 

“ Depositary ” shall have the meaning set forth in Section 2.01(a).

 

“ Designated Subsidiary ” shall mean any existing or future, direct or indirect, Subsidiary of the Company whose assets constitute 15% or more of the total assets of the Company on a consolidated basis.

 

“ Determination Date ” shall have the meaning set forth in Section 10.04(j).

 

“ Distributed Assets ” shall have the meaning set forth in Section 10.04(d).

 

“ Dividend Threshold Amount ” shall have the meaning set forth in Section 10.04(e).

 

“ DTC ” shall have the meaning set forth in Section 2.01(a).

 

“ Event of Default ” shall have the meaning set forth in Section 6.01.

 

“ Ex-Dividend Date ” means (1) when used with respect to any issuance or distribution, the first date on which a sale of shares of the Common Stock, regular way, on the relevant exchange or in the relevant market for the Common Stock, does not automatically transfer the right to receive such issuance or distribution from the seller of the Common Stock to its buyer, and (2) when used with respect to any subdivision or combination of shares of Common Stock, the first date on which the Common Stock trades, regular way, on such exchange or in such market after the time at which such subdivision or combination becomes effective.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

“ Expiration Time ” shall have the meaning set forth in Section 10.04(f).

 

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“ Extraordinary Cash Dividend ” shall have the meaning set forth in Section 10.04(e).

 

“ Fair Market Value ”, or “ fair market value ” shall mean the amount which a willing buyer would pay a willing seller in an arm’s-length transaction.

 

“ Final Notice Date ” shall have the meaning set forth in Section 10.03(a).

 

“ Fiscal Quarter ” shall have the meaning set forth in Section 10.01(a)(i).

 

“ Global Securities ” means Securities that are in the form of the Securities attached hereto as Exhibit A, and that are registered in the register of Securities in the name of a Depositary or a nominee thereof, and to the extent that such Securities are required to bear the Legend required by Section 2.06(f), such Securities will be in the form of a 144A Global Security.

 

“ Holder ” or “ Securityholder ” means a person in whose name a Security is registered on the Registrar’s books.

 

“ Indenture ” means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof, including the provisions of the TIA that are deemed to be a part hereof.

 

“ Interest ” means interest payable on each Security pursuant to Section 1 of the Securities.

 

“ Interest Payment Date ” means July 15 and January 15 of each year, commencing January 15, 2005.

 

“ Interest Record Date ” means July 1 and January 1 of each year.

 

“ 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.

 

“ Last Reported Sale Price ” means, with respect to the Common Stock on any day, the closing sale price per share of the Common Stock on such day (or if no closing sale price is reported, the average of the reported closing bid and ask prices or, if there is more than one bid or ask price, the average of the average bid and the average ask prices) as reported in composite transactions for the principal United States securities exchange on which the Common Stock is listed, or if the Common Stock is not listed on a United States national or regional securities exchange, as reported by the National Association of Securities Dealers Automated Quotation System or by the National Quotation Bureau Incorporated.

 

“ Legal Holiday ” shall have the meaning set forth in Section 12.08.

 

“ Legend ” has the meaning set forth in Section 2.06(f).

 

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“ Liquidated Damages ” means the interest that is payable by the Company pursuant to the Registration Rights Agreement upon a Registration Default (as defined in such agreement).

 

“ Liquidated Damages Notice ” shall have the meaning set forth in Section 4.07.

 

“ Measurement Period ” shall have the meaning set forth in Section 10.01(a)(ii).

 

“ nonelecting share ” shall have the meaning set forth in Section 10.05.

 

“ Notice of Conversion ” shall have the meaning set forth in Section 10.02(b).

 

“ Notice of Default ” shall have the meaning set forth in Section 6.01.

 

“ NYSE ” means the New York Stock Exchange, Inc.

 

“ Officer ” means the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the President, the Treasurer, any Vice President, the Secretary or any Assistant Secretary of the Company.

 

“ Officers’ Certificate ” means a written certificate containing the information specified in Sections 12.04 and 12.05, signed in the name of the Company by any two Officers, and delivered to the Trustee. An Officers’ Certificate given pursuant to Section 4.03 shall be signed by an authorized financial or accounting Officer of the Company but need not contain the information specified in Sections 12.04 and 12.05.

 

“ Opinion of Counsel ” means a written opinion containing the information specified in Sections 12.04 and 12.05, from legal counsel. The counsel may be an employee of, or counsel to, the Company.

 

“ Paying Agent ” shall have the meaning set forth in Section 2.03.

 

“ Person ” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof.

 

“ Predecessor Security ” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 hereof in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

 

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“ Purchase Agreement ” means the Purchase Agreement dated June 29, 2004 between the Company and Banc of America Securities LLC, as representative of the initial purchasers named therein.

 

“ Purchased Shares ” shall have the meaning set forth in Section 10.04(f)(i).

 

“ QIBs ” shall have the meaning set forth in Section 2.01(a).

 

“ Record Date ” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).

 

“ Redemption Date ” means the date specified in a notice of redemption on which the Securities may be redeemed in accordance with the terms of the Securities and this Indenture.

 

“ Redemption Price ” or “ redemption price ” shall have the meaning set forth in Section 3.01.

 

“ Registrar ” shall have the meaning set forth in Section 2.03.

 

“ Registration Rights Agreement ” means the Registration Rights Agreement, dated the date hereof, between the Company, on the one hand, and Banc of America Securities LLC, as representative of the several initial purchasers under the Purchase Agreement, on the other.

 

“ Repurchase Date ” shall have the meaning set forth in Section 3.07.

 

“ Repurchase Notice ” shall have the meaning set forth in Section 3.07(j)(i).

 

“ Repurchase Price ” shall have the meaning set forth in Section 3.07.

 

“ Responsible Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant treasurer, trust officer or any other officer associated with the corporate trust department of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

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“ Restricted Security ” means a Security required to bear the Legend.

 

“ Rule 144A ” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.

 

“ Rule 144A Information ” shall have the meaning set forth in Section 4.06.

 

“ SEC ” means the Securities and Exchange Commission.

 

“ Securities ” means any of the Company’s 3.50% Convertible Senior Debentures Due 2024, as amended or supplemented from time to time, issued under this Indenture.

 

“ Securities Act ” means the Securities Act of 1933, as amended.

 

“ Securityholder ” or “ Holder ” means a person in whose name a Security is registered on the Registrar’s books.

 

“ Stated Maturity ” means, with respect to any Security, July 15, 2024.

 

“ Stock Price ” means the price per share of Common Stock paid in connection with a corporate transaction pursuant to which Additional Shares are issuable as set forth in Section 10.01(c) hereof, which shall be equal to (i) if holders of Common Stock receive only cash in such corporate transaction, the cash amount paid per share of Common Stock and (ii) in all other cases, the average of the Last Reported Sale Prices of Common Stock on the five Trading Days up to but not including the effective date of such transaction.

 

“ Subsidiary ” means any person of which at least a majority of the outstanding Voting Stock shall at the time directly or indirectly be owned or controlled by the Company or by one or more Subsidiaries or by the Company and one or more Subsidiaries.

 

“ TIA ” means the Trust Indenture Act of 1939 as in effect on the date of this Indenture, provided, however , that in the event the TIA is amended after such date, TIA means, to the extent required by any such amendment, the TIA as so amended.

 

“ Trading Day ” means a day during which trading in securities generally occurs on the principal United States securities exchange on which the Common Stock then is listed or, if the Common Stock is not listed on a national or regional securities exchange, on the National Association of Securities Dealers Automated Quotation System or, if the Common Stock is not quoted on the National Association of Securities Dealers Automated Quotation System, on the principal other market on which the Common Stock is then traded or quoted.

 

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“ Trading Price ” of the Securities on any Trading Day means the average of the secondary market bid quotations per Security obtained by the Trustee for $1,000,000 principal amount of the Securities at approximately 3:30 p.m., New York City time, on such Trading Day from three independent nationally recognized securities dealers the Company selects, provided that if at least three such bids cannot reasonably be obtained by the Trustee, 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 Trustee, that one bid shall be used. If the Trustee cannot reasonably obtain at least one bid for $1,000,000 principal amount of the Securities from a nationally recognized securities dealer on such Trading Day, then the Trading Price per $1,000 principal amount of the Securities will be deemed to be less than 98% of the Last Reported Sale Price on such Trading Day multiplied by the Conversion Rate then in effect.

 

“ Trigger Event ” shall have the meaning set forth in Section 10.04(d).

 

“ Trustee ” means the party named as the “ Trustee ” in the preamble of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors.

 

“ Voting Stock ” of a person means Capital Stock of such person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

 

Section 1.02 . Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:

 

“ Commission ” means the SEC.

 

“ indenture securities ” means the Securities.

 

“ indenture security holder ” means a Securityholder.

 

“ indenture to be qualified ” means this Indenture.

 

“ indenture trustee ” or “ institutional trustee ” means the Trustee.

 

“ obligor ” on the indenture securities means the Company.

 

All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions.

 

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Section 1.03 . Rules of Construction. Unless the context otherwise requires:

 

(a) a term has the meaning assigned to it;

 

(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles as in effect from time to time;

 

(c) “ or ” is not exclusive;

 

(d) “ including ” means including, without limitation; and

 

(e) words in the singular include the plural, and words in the plural include the singular.

 

Section 1.04. Acts of Holders .

 

(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company, as described in Section 12.02. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.

 

(b) The fact and date of the execution by any person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to such officer the execution thereof. Where such execution is by a signer acting in a capacity other than such signer’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

 

(c) The principal amount and serial number of any Security and the ownership of Securities shall be proved by the register for the Securities.

 

(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder

 

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of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

 

(e) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.

 

ARTICLE 2

T HE S ECURITIES

 

Section 2.01 . Form and Dating. The Securities and the Trustee’s certificate of authentication shall be substantially in the form of Exhibits A and B, which are a part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage ( provided that any such notation, legend or endorsement required by usage is in a form acceptable to the Company). The Company shall provide any such notations, legends or endorsements to the Trustee in writing. Each Security shall be dated the date of its authentication.

 

(a) 144A Global Securities . Securities offered and sold within the United States to qualified institutional buyers as defined in Rule 144A (“ QIBs ”) in reliance on Rule 144A shall be issued, initially in the form of a 144A Global Security, which shall be deposited with the Trustee at its Corporate Trust Office, as custodian for the Depositary (as defined below) and registered in the name of The Depository Trust Company (“ DTC ”) or the nominee thereof (DTC, or any successor thereto, and any such nominee being hereinafter referred to as the “ Depositary ”), duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the 144A Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.

 

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(b) Global Securities in General . Each Global Security shall represent such of the outstanding Securities as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions, repurchases and conversions.

 

Any adjustment of the aggregate principal amount of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.12 hereof and shall be made on the records of the Trustee and the Depositary.

 

(c) Book-Entry Provisions . This Section 2.01(c) shall apply only to Global Securities deposited with or on behalf of the Depositary.

 

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 (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or held by the Trustee pursuant to the Depositary’s instructions and (c) shall be substantially in the form of Exhibit A attached hereto.

 

(d) Certificated Securities . Securities not issued as interests in the Global Securities will be issued in certificated form substantially in the form of Exhibit B attached hereto.

 

Section 2.02 . Execution and Authentication. The Securities shall be executed on behalf of the Company by two Officers. The signature of the two Officers on the Securities may be manual or facsimile.

 

Securities bearing the manual or facsimile signatures of individuals who were, at the time of the execution of the Securities, Officers shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of authentication of such Securities.

 

No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.

 

The Trustee shall authenticate and deliver the Securities for original issue in an aggregate principal amount of up to $75,000,000 (up to $82,500,000 aggregate principal amount if the initial purchasers’ option set forth in the Purchase Agreement is exercised in full) upon one or more Company Orders

 

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without any further action by the Company (other than as contemplated in Section 12.04 and Section 12.05 hereof). The aggregate principal amount of the Securities due at the Stated Maturity thereof outstanding at any time may not exceed the amount set forth in the foregoing sentence.

 

The Securities shall be issued only in registered form without coupons and only in denominations of $1,000 of principal amount and any integral multiple of $1,000.

 

Section 2.03 . Registrar, Paying Agent and Conversion Agent. The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (“ Registrar ”), an office or agency where Securities may be presented for purchase or payment (“ Paying Agent ”) and an office or agency where Securities may be presented for conversion (“ Conversion Agent ”). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may have one or more co-registrars, one or more additional paying agents and one or more additional conversion agents. The term Paying Agent includes any additional paying agent, including any named pursuant to Section 4.05. The term Conversion Agent includes any additional conversion agent, including any named pursuant to Section 4.05.

 

The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent, Conversion Agent, or co-registrar (in each case, if such Registrar, agent or co-registrar is a Person other than 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 such agent. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company or any Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar, Conversion Agent or co-registrar.

 

The Company initially appoints the Trustee as Registrar, Conversion Agent and Paying Agent in connection with the Securities.

 

Section 2.04 . Paying Agent to Hold Money and Securities in Trust. Except as otherwise provided herein, on or prior to each due date of payments in respect of any Security, the Company shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on the due date) or shares of Common Stock sufficient to make such payments when so becoming due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money and shares of Common Stock held by the Paying Agent for the making of payments in respect of the Securities and shall notify the Trustee of any default by the Company in making any such payment. At any time during the continuance of any such default, the Paying Agent shall, upon the written request of the Trustee, forthwith pay to the Trustee all money and shares

 

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of Common Stock so held in trust. If the Company, a Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall segregate the money and shares of Common Stock held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money and shares of Common Stock held by it to the Trustee and to account for any funds and Common Stock disbursed by it. Upon doing so, the Paying Agent shall have no further liability for the money or shares of Common Stock.

 

Section 2.05 . Securityholder Lists. The Trustee shall preserve the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not the Registrar, the Company shall cause to be furnished to the Trustee at least semiannually on July 1 and January 1 a listing of Securityholders dated within 15 days of the date on which the list is furnished and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Securityholders.

 

Section 2.06. Transfer and Exchange .

 

(a) Subject to Section 2.12 hereof, upon surrender for registration of transfer of any Security, together with a written instrument of transfer satisfactory to the Registrar duly executed by the Securityholder or such Securityholder’s attorney duly authorized in writing, at the office or agency of the Company designated as Registrar or co-registrar pursuant to Section 2.03, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denomination or denominations, of a like aggregate principal amount. The Company shall not charge a service charge for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges that may be imposed in connection with the transfer or exchange of the Securities from the Securityholder requesting such transfer or exchange.

 

At the option of the Holder, Securities may be exchanged for other Securities of any authorized denomination or denominations, of a like aggregate principal amount upon surrender of the Securities to be exchanged, together with a written instrument of transfer satisfactory to the Registrar duly executed by the Securityholder or such Securityholder’s attorney duly authorized in writing, at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

The Company shall not be required to make, and the Registrar need not register, transfers or exchanges of Securities selected for redemption (except, in the case of Securities to be redeemed in part, the portion thereof not to be redeemed) or any Securities in respect of which a Repurchase Notice or Change of Control Repurchase Notice has been given and not withdrawn by the Holder

 

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thereof in accordance with the terms of this Indenture (except, in the case of Securities to be purchased in part, the portion thereof not to be purchased) or any Securities for a period of 15 days before the mailing of a notice of redemption of Securities to be redeemed.

 

(b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole or in part, shall be made only in accordance with Section 2.12 and this Section 2.06(b). Transfers of a Global Security shall be limited to transfers of such Global Security in whole or in part, to the Depositary, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.

 

(c) Successive registrations and registrations of transfers and exchanges as aforesaid may be made from time to time as desired, and each such registration shall be noted on the register for the Securities.

 

(d) Any Registrar appointed pursuant to Section 2.03 hereof shall provide to the Trustee such information as the Trustee may reasonably require in connection with the delivery by such Registrar of Securities upon transfer or exchange of Securities.

 

(e) No Registrar shall be required to make registrations of transfer or exchange of Securities during any periods designated in the text of the Securities or in this Indenture as periods during which such registration of transfers and exchanges need not be made.

 

(f) 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 Security attached hereto as Exhibits A and B setting forth such restrictions (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 each of the Company and the Trustee, and the Registrar (if not the same Person as the Trustee) such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Trustee (if not the same Person as the Trustee), 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. Upon (i) provision of such satisfactory evidence, or (ii) 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 the Company or an Affiliate of the Company, the Legend shall be reinstated.

 

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Section 2.07 . Replacement Securities. If (a) any mutilated Security is surrendered to the Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company 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 certificate number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, or is about to be purchased by the Company pursuant to Article 3 hereof, the Company in its discretion may, instead of issuing a new Security, pay or purchase such Security, as the case may be.

 

Upon the issuance of any new Securities under this Section 2.07, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

Every new Security issued pursuant to this Section 2.07 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.

 

The provisions of this Section 2.07 are 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.

 

Section 2.08 . Outstanding Securities; Determinations of Holders’ Action. Securities outstanding at any time are all the Securities authenticated by the Trustee except for those cancelled by it, those paid pursuant to Section 2.07, those delivered to it for cancellation and those described in this Section 2.08 as not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate thereof holds the Security; provided, however , that in determining whether the Holders of the requisite principal amount of Securities have given or concurred in any request, demand, authorization, direction, notice, consent, waiver, or other Act hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other act, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall

 

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be so disregarded. Subject to the foregoing, only Securities outstanding at the time of such determination shall be considered in any such determination (including, without limitation, determinations pursuant to Articles 6 and 9).

 

If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.

 

If the Paying Agent holds, in accordance with this Indenture, on a Redemption Date, or on the Business Day immediately following a Repurchase Date or a Change of Control Repurchase Date, or on Stated Maturity, money or securities, if permitted hereunder, sufficient to pay Securities payable on that date, then immediately after such Redemption Date, Repurchase Date, Change of Control Repurchase Date or Stated Maturity, as the case may be, such Securities shall cease to be outstanding and Interest and Liquidated Damages, if any, on such Securities shall cease to accrue; provided , that if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made.

 

If a Security is converted in accordance with Article 10, then from and after the time of conversion on the date of conversion, such Security shall cease to be outstanding and Interest and Liquidated Damages, if any, shall cease to accrue on such Security.

 

Section 2.09 . Temporary Securities. Pending the preparation of definitive Securities, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities.

 

If temporary Securities are issued, the Company will cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company designated for such purpose pursuant to Section 2.03, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations. Until so exchanged the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities.

 

Section 2.10 . Cancellation. All Securities surrendered for payment, purchase by the Company pursuant to Article 3, conversion, redemption or

 

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registration of transfer or exchange shall, if surrendered to any person other than the Trustee, the Registrar or the Paying Agent, as the case may be, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. The Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation or that any Holder has converted pursuant to Article 10. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with the Trustee’s customary procedure.

 

Section 2.11 . Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of the principal amount of the Security or any portion thereof, or the payment of any Redemption Price, Repurchase Price or Change of Control Repurchase Price in respect thereof, and Interest or Liquidated Damages thereon, for the purpose of conversion and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

Section 2.12. Global Securities .

 

(a) Notwithstanding any other provisions of this Indenture or the Securities, (A) transfers of a Global Security, in whole or in part, shall be made only in accordance with Section 2.06 and Section 2.12(a)(i), (B) transfers of a beneficial interest in a Global Security for a Certificated Security shall comply with Section 2.06, Section 2.12(a)(ii) and Section 2.12(e)(i), and (C) transfers of a Certificated Security shall comply with Section 2.06, Section 2.12(a)(iii) and Section 2.12(a)(iv).

 

(i) Transfer of Global Security . 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 this clause 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. Nothing in this Section 2.12(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Security effected in accordance with the other provisions of this Section 2.12(a).

 

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(ii) Restrictions on Transfer of a Beneficial Interest in a Global Security for a Certificated Security . A beneficial interest in a Global Security may not be exchanged for a Certificated Security except upon satisfaction of the requirements set forth below and in Section 2.12(e)(i) below. Upon receipt by the Trustee of a transfer of a beneficial interest in a Global Security in accordance with Applicable Procedures for a Certificated Security in the form satisfactory to the Trustee, together with:

 

(A) so long as the Securities are Restricted Securities, certification in the form set forth in Exhibit C;

 

(B) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Security to reflect a decrease in the aggregate principal amount of the Securities represented by the Global Security, such instructions to contain information regarding the Depositary account to be credited with such decrease; and

 

(C) if the Company or the Trustee so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the Legend,

 

then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of the Securities represented by the Global Security to be decreased by the aggregate principal amount of the Certificated Security to be issued, shall issue such Certificated Security and shall debit or cause to be debited to the account of the person specified in such instructions a beneficial interest in the Global Security equal to the principal amount of the Certificated Security so issued.

 

(iii) Transfer and Exchange of Certificated Securities . When Certificated Securities are presented to the Registrar with a request:

 

(y) to register the transfer of such Certificated Securities; or

 

(z) to exchange such Certificated Securities for an equal principal amount of Certificated Securities of other authorized denominations,

 

the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however , that the Certificated Securities surrendered for transfer or exchange:

 

(A) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and

 

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(B) so long as such Securities are Restricted Securities, such Securities are being transferred or exchanged pursuant to an effective registration statement under the Securities Act or pursuant to clause (1), (2) or (3) below, and are accompanied by the following additional information and documents, as applicable:

 

(1) if such Certificated Securities are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or

 

(2) if such Certificated Securities are being transferred to the Company, a certification to that effect; or

 

(3) if such Certificated Securities are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit C, if applicable) and (ii) if the Company or the Trustee so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the Legend.

 

(iv) Restrictions on Transfer of a Certificated Security for a Beneficial Interest in a Global Security. A Certificated Security may not be exchanged for a beneficial interest in a Global Security except upon satisfaction of the requirements set forth below.

 

Upon receipt by the Trustee of a Certificated Security, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:

 

(A) so long as the Securities are Restricted Securities, certification, in the form set forth in Exhibit C, that such Certificated Security (1) is being transferred to a QIB in accordance with Rule 144A under the Securities Act or (2) is being transferred pursuant to and in compliance with Rule 144 under the Securities Act; and

 

(B) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Security to reflect an increase

 

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in the aggregate principal amount of the Securities represented by the Global Security, such instructions to contain information regarding the Depositary account to be credited with such increase, then the Trustee shall cancel such Certificated Security and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Securities represented by the Global Security to be increased by the aggregate principal amount of the Certificated Security to be exchanged, and shall credit or cause to be credited to the account of the person specified in such instructions a beneficial interest in the Global Security equal to the principal amount of the Certificated Security so cancelled. If no Global Securities are then outstanding, the Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officers’ Certificate, a new Global Security in the appropriate principal amount.

 

(b) Subject to Section 2.12(c), every Security shall be subject to the restrictions on transfer provided in the Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Security is presented or surrendered for registration of transfer or for 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 C, 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 registration of transfer or exchange any Security not so accompanied by a properly completed certificate.

 

(c) 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 an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company and the Trustee, addressed to the Company and the Trustee and in form acceptable to the Company and the Trustee, 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,

 

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which shall not bear the restrictive Legend. The Company shall inform the Trustee of the effective date of any registration statement registering 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.

 

(d) As used in the preceding two paragraphs of this Section 2.12, the term “ transfer ” encompasses any sale, pledge, transfer, loan, hypothecation, or other disposition of any Security.

 

(e) The provisions of clauses (i), (ii), (iii), (iv) and (v) of this Section 2.12(e) shall apply only to Global Securities:

 

(i) Notwithstanding any other provisions of this Indenture or the Securities, a Global Security shall not be exchanged in whole or in part for a Security registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Security may be exchanged for Securities registered in the names of any person designated by the Depositary in the event that (A) the Depositary has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security, and a successor Depositary is not appointed by the Company within 90 days, (B) at any time, the Company, in its sole discretion but to the extent permitted by the Depositary, determines not to have Securities represented by Global Securities, or (C) upon a request by or on behalf of the Depositary, a beneficial interest in a Global Security may be exchanged for a security in registered form in accordance with the Depositary’s procedures. Any Global Security exchanged pursuant to clause (A) above shall be so exchanged in whole and not in part, and any Global Security exchanged pursuant to clause (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 thereof shall be a Global Security; provided that any such Security so issued that is registered in the name of a person other than the Depositary or a nominee thereof shall not be a Global Security.

 

(ii) Securities issued in exchange for a Global Security or any portion thereof shall be issued in definitive, fully registered form, 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 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

 

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means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Security issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.

 

(iii) Subject to the provisions of clause (v) of this Section 2.12(e), the registered Holder may grant proxies and otherwise authorize any person, including Agent Members (as defined below) and persons that may hold interests through Agent Members, to take any action which a holder is entitled to take under this Indenture or the Securities.

 

(iv) In the event of the occurrence of any of the events specified in clause (i) of this Section 2.12(e), the Company will promptly notify the Trustee and make available to the Trustee a reasonable supply of Certificated Securities in definitive, fully registered form.

 

(v) Neither any members of, or participants in, the Depositary (collectively, the “ 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; provided that an owner of a beneficial interest in a Global Security may directly enforce against the Company, without any proxy, comment, solicitation, waiver or any participation of the Depositary, its right to exchange such beneficial interest for a Security in registered form pursuant to Section 2.12(e)(i) above. Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or (B) impair, as between the Depositary, its Agent Members and any other person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a holder of any Security.

 

Section 2.13 . CUSIP Numbers. The Company may issue the Securities with one or more “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that 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 redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the CUSIP numbers.

 

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Section 2.14 . [RESERVED]

 

Section 2.15 . [RESERVED]

 

ARTICLE 3

R EDEMPTION AND R EPURCHASES

 

Section 3.01 . Company’s Right to Redeem; Notices to Trustee. Prior to July 20, 2009, the Securities will not be redeemable at the Company’s option. Beginning on July 20, 2009, the Company, at its option, may redeem the Securities for cash at any time as a whole, or from time to time in part, at a redemption price (the “ Redemption Price ”) equal to 100% of the principal amount of the Securities redeemed plus accrued and unpaid Interest and accrued and unpaid Liquidated Damages, if any, on the Securities redeemed to (but excluding) the Redemption Date; provided that if the Redemption Date falls after an Interest Record Date and on or prior to the related Interest Payment Date, the Redemption Price shall only be 100% of the principal amount of Securities to be redeemed and the Company shall pay such accrued and unpaid Interest to the record holder of the Securities on such Interest Record Date. If the Company elects to redeem Securities, it shall notify the Trustee in writing of the Redemption Date, the Conversion Rate, the principal amount of Securities to be redeemed and the Redemption Price.

 

The Company shall give the notice to the Trustee provided for in this Section 3.01 by a Company Order, at least 30 days but not more than 60 days before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee).

 

Section 3.02 . Selection of Securities to be Redeemed. If less than all of the Securities are to be redeemed, unless the procedures of the Depositary provide otherwise, the Trustee shall select the Securities to be redeemed by lot, on a pro rata basis or by another method the Trustee considers fair and appropriate (so long as such method is not prohibited by the rules of any stock exchange on which the Securities are then listed). Subject to the previous sentence, the Trustee shall make the selection within five Business Days after it receives the notice provided for in Section 3.01 from outstanding Securities not previously called for redemption. The Trustee may select for redemption portions of the principal amount of Securities that have denominations larger than $1,000.

 

Securities and portions of Securities that the Trustee selects shall be in principal amounts of $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption. The Trustee shall notify the Company promptly of the Securities or portions of the Securities to be redeemed.

 

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If any Security selected for partial redemption is converted in part pursuant to Section 10.01(a)(iii) before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities that have been converted during a selection of Securities to be redeemed may be treated by the Trustee as outstanding for the purpose of such selection.

 

Section 3.03 . Notice of Redemption. At least 30 days but not more than 60 days before a Redemption Date, the Company shall mail a notice of redemption by first-class mail, postage prepaid, to each Holder of Securities to be redeemed.

 

The notice shall identify the Securities to be redeemed and shall state:

 

(a) the Redemption Date;

 

(b) the Redemption Price;

 

(c) the Conversion Rate;

 

(d) the name and address of the Paying Agent and the Conversion Agent;

 

(e) that Securities called for redemption may be converted at any time before the close of business on the Business Day prior to the Redemption Date;

 

(f) that Securities called for redemption and not converted will be redeemed on the Redemption Date;

 

(g) that Holders who want to convert their Securities must satisfy the requirements set forth in the Securities;

 

(h) that Securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;

 

(i) if fewer than all of the outstanding Securities are to be redeemed, the certificate numbers, if any, and principal amounts of the particular Securities to be redeemed;

 

(j) that, unless the Company defaults in making payment of such Redemption Price, Interest and Liquidated Damages, if any, on Securities called for redemption will cease to accrue on and after the Redemption Date; and

 

(k) the CUSIP number(s) of the Securities.

 

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At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense, provided that the Company makes such request at least seven Business Days prior to the date by which such notice of redemption must be given to Holders in accordance with this Section 3.03 and the text of such notice is completed by the Company.

 

Section 3.04 . Effect of Notice of Redemption. Once notice of redemption is given, Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price stated in the notice (except for Securities which are converted in accordance with the terms of this Indenture) and from and after such date (unless the Company shall default in the payment of the Redemption Price) any accrued and unpaid Interest and Liquidated Damages, if any, on such Securities shall cease to bear Interest. Upon surrender to the Paying Agent, such Securities shall be paid at the Redemption Price.

 

Section 3.05 . Deposit of Redemption Price. Prior to 10:00 a.m. (New York City time), on the Redemption Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of them is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of all Securities to be redeemed on that date other than Securities or portions of Securities called for redemption which on or prior thereto have been delivered by the Company to the Trustee for cancellation or have been converted. The Paying Agent shall as promptly as practicable return to the Company any money not required for that purpose because of conversion of Securities pursuant to Article 10. If such money is then held by the Company in trust and is not required for such purpose it shall be discharged from such trust.

 

Section 3.06 . Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Security in an authorized denomination equal in principal amount to the unredeemed portion of the Security surrendered.

 

Section 3.07 . Repurchase of Securities by the Company at Option of the Holder. Securities shall be purchased by the Company at the option of the Holder on July 15, 2009, July 15, 2014 and July 15, 2019 (each, a “ Repurchase Date ”), at a purchase price in cash equal to 100% of the principal amount of those Securities, plus any accrued and unpaid Interest and accrued and unpaid Liquidated Damages, if any, on those Securities, to (but excluding) such Repurchase Date (the “ Repurchase Price ”); provided that if any such Repurchase Date falls after an Interest Record Payment Date and on or prior to the related Interest Payment Date, the Repurchase Price shall only be 100% of the principal amount of those Securities and the Company shall pay such accrued and unpaid Interest to the record holder of the Securities on such Interest Record Date. Not later than 25 Business Days prior to any Repurchase Date, the Company shall mail a Company Notice by first class mail to the Trustee and to each Holder (and

 

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to beneficial owners as required by applicable law). The Company Notice shall include a form of Repurchase Notice to be completed by a Holder and shall state:

 

(a) the Repurchase Price and the Conversion Rate;

 

(b) the name and address of the Paying Agent and the Conversion Agent;

 

(c) that Securities as to which a Repurchase Notice has been given may be converted if they are otherwise convertible only in accordance with Article 10 hereof and the terms of the Securities if the applicable Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;

 

(d) that Securities must be surrendered to the Paying Agent to collect payment;

 

(e) that the Repurchase Price for any Security as to which a Repurchase Notice has been given and not withdrawn will be paid promptly following the later of the Business Day immediately following the Repurchase Date and the time of surrender of such Security as described in (d);

 

(f) the procedures the Holder must follow to exercise its put rights under this Section 3.07 and a brief description of those rights;

 

(g) briefly, the conversion rights, if any, with respect to the Securities;

 

(h) the procedures for withdrawing a Repurchase Notice;

 

(i) that, unless the Company defaults in making payment on Securities for which a Repurchase Notice has been submitted, Interest or Liquidated Damages, if any, on such Securities will cease to accrue on and immediately after the Repurchase Date; and

 

(j) the CUSIP number of the Securities.

 

At the Company’s request, the Trustee shall give such Company Notice in the Company’s name and at the Company’s expense; provided, however , that, in all cases, the text of such Company Notice shall be prepared by the Company.

 

Purchases of Securities hereunder shall be made, at the option of the Holder thereof, upon:

 

(i) delivery to the Paying Agent by the Holder of a written notice of repurchase (a “ Repurchase Notice ”) during the period beginning at any time from the opening of business on the date that is 20 Business Days prior to the relevant Repurchase Date until the close of business on the Repurchase Date stating:

 

(A) the certificate number of the Security which the Holder will deliver to be purchased or the appropriate Depositary procedures if Certificated Securities have not been issued for such Security,

 

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(B) the portion of the principal amount of the Security which the Holder will deliver to be purchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000, and

 

(C) that such Security shall be purchased by the Company as of the Repurchase Date pursuant to the terms and conditions specified in Section 5 of the Securities and in this Indenture; and

 

(ii) delivery of such Security to the Paying Agent at any time after delivery of the Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price therefor; provided, however , that such Repurchase Price shall be so paid pursuant to this Section 3.07 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice.

 

The Company shall purchase from the Holder thereof, pursuant to this Section 3.07, 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.

 

Any purchase by the Company contemplated pursuant to the provisions of this Section 3.07 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Business Day immediately following the Repurchase Date and the time of delivery of the Security.

 

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Notice contemplated by this Section 3.07 shall have the right to withdraw such Repurchase Notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.09.

 

The Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase Notice or written notice of withdrawal thereof.

 

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Section 3.08. Repurchase of Securities at Option of the Holder upon a Change of Control .

 

(a) If a Change of Control occurs (subject to certain exceptions set forth below), Securities not previously purchased or redeemed by the Company shall be purchased by the Company, at the option of the Holder thereof, at a purchase price equal to 100% of the principal amount of those Securities, plus any accrued and unpaid Interest and accrued and unpaid Liquidated Damages, if any, on those Securities (the “ Change of Control Repurchase Price ”) to, but not including, the date that is 30 days following the date of the notice of a Change of Control delivered by the Company pursuant to Section 3.08(b) (the “ Change of Control Repurchase Date ”), subject to satisfaction by or on behalf of the Holder of the requirements set forth in Section 3.08(c). If the Change of Control Repurchase Date falls after an Interest Record Date and on or prior to the related Interest Payment Date, the Change of Control Repurchase Price shall be only 100% of the principal amount of those Securities and the Company shall pay such accrued and unpaid Interest to the record holder of the Securities on such Interest Payment Date.

 

A “ Change of Control ” will be deemed to have occurred at such time after the original issuance of the Securities when any of the following has occurred:

 

(i) the acquisition by any Person, including any syndicate or group deemed to be a “ person ” under Section 13(d)(3) of the Exchange Act of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchase, merger or other acquisition transactions, of shares of the Capital Stock of the Company entitling that Person to exercise 50% or more of the total voting power of all shares of the Capital Stock of the Company entitled to vote generally in elections of directors, other than any acquisition by the Company, any Subsidiary of the Company, or any of the employee benefit plans of the Company (except that any of those Persons shall be deemed to have beneficial ownership of all securities it has the right to acquire, whether the right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition);

 

(ii) during any period of two consecutive years, individuals who at the beginning of such period constituted the board of directors (together with any new directors whose election by the board of directors or whose nomination for election by stockholders of the Company was approved by a vote of a majority of the board of directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the board of directors then in office; or

 

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(iii) the Company consolidates or merges with or into any other Person (other than one or more Subsidiaries of the Company), any merger of another Person (other than one or more Subsidiaries of the Company) into the Company, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the properties and assets of the Company to another Person (other than one or more Subsidiaries of the Company), other than: (A) any transaction pursuant to which holders of shares of the Capital Stock of the Company immediately prior to the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of Capital Stock of the Company entitled to vote generally in elections of directors of the continuing or surviving Person immediately after giving effect to such issuance, or (B) any merger, share exchange, transfer of assets or similar transaction solely for the purpose of changing the jurisdiction of incorporation or form of organization of the Company and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock, if at all, solely into shares of common stock, ordinary shares or American Depositary Shares or other equity interests of the surviving Person or a direct or indirect parent of the surviving Person.

 

For the purposes of this Section 3.08(a), (x) whether a person is a “ beneficial owner ” shall be determined in accordance with Rule 13d-3 under the Exchange Act and (y) the term “ person ” includes any syndicate or group that would be deemed to be a “ person ” under Section 13(d)(3) of the Exchange Act.

 

Notwithstanding the foregoing, the Company shall not be required to purchase Securities of Holders upon a Change of Control pursuant to this Section 3.08(a) if 90% or more of the consideration received by stockholders of the Company in the transaction or transactions (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) constituting a Change of Control consists of shares of common stock traded or to be traded immediately following a Change of Control on a national securities exchange or the Nasdaq National Market or that will be so traded or quoted when issued or exchanged in connection with a Change in Control, and, as a result of the transaction or transactions, the Securities become convertible into that common stock (and any rights attached thereto).

 

(b) No later than 30 days after the occurrence of a Change of Control that is not subject to the exception set forth in Section 3.08(a), the Company shall mail a Company Notice of the Change of Control by first class mail to the Trustee and to each Holder (and to beneficial owners as required by applicable law). The Company Notice shall include a form of Change of Control Repurchase Notice to be completed by the Holder and shall state:

 

(i) briefly, the events causing the Change of Control and the date of such Change of Control;

 

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(ii) the date by which the Change of Control Repurchase Notice pursuant to this Section 3.08 must be delivered to the Paying Agent in order for a Holder to exercise the repurchase rights;

 

(iii) the Change of Control Repurchase Date;

 

(iv) the Change of Control Repurchase Price;

 

(v) the name and address of the Paying Agent and the Conversion Agent;

 

(vi) the Conversion Rate;

 

(vii) that the Securities as to which a Change of Control Repurchase Notice has been given may be converted if they are otherwise convertible pursuant to Article 10 hereof only if the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;

 

(viii) that the Securities must be surrendered to the Paying Agent to collect payment;

 

(ix) that the Change of Control Repurchase Price for any Security as to which a Change of Control Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Business Day immediately following the Change of Control Repurchase Date and the time of surrender of such Security as described in clause (viii);

 

(x) briefly, the procedures the Holder must follow to exercise rights under this Section 3.08;

 

(xi) briefly, the conversion rights, if any, on the Securities;

 

(xii) the procedures for withdrawing a Change of Control Repurchase Notice;

 

(xiii) that, unless the Company defaults in making payment of such Change of Control Repurchase Price, Interest and Liquidated Damages, if any, on Securities surrendered for purchase by the Company will cease to accrue on and immediately after the Change of Control Repurchase Date; and

 

(xiv) the CUSIP number(s) of the Securities.

 

At the Company’s request, the Trustee shall give such Company Notice in the Company’s name and at the Company’s expense; provided, however , that, in all cases, the text of such Company Notice shall be prepared by the Company.

 

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(c) A Holder may exercise its rights specified in this Section 3.08 upon delivery of a written notice of purchase (a “ Change of Control Repurchase Notice ”) to the Paying Agent at any time on or prior to the close of business on the Business Day immediately preceding the Change of Control Repurchase Date stating:

 

(i) the certificate number of the Security which the Holder will deliver to be purchased or the appropriate Depositary procedures if Certificated Securities have not been issued;

 

(ii) 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

 

(iii) that such Security shall be purchased pursuant to the terms and conditions specified in the Securities and in this Indenture.

 

The delivery of such Security to the Paying Agent with the Change of Control Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor; provided, however , that such Change of Control Repurchase Price shall be so paid pursuant to this Section 3.08 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change of Control Repurchase Notice.

 

The Company shall purchase from the Holder thereof, pursuant to this Section 3.08, 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.

 

Any purchase by the Company contemplated pursuant to the provisions of this Section 3.08 shall be consummated by the delivery of the Change of Control Repurchase Price to be received by the Holder on the Business Day immediately following the Change of Control Repurchase Date.

 

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change of Control Repurchase Notice contemplated by this Section 3.08(c) shall have the right to withdraw such Change of Control Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.09.

 

The Paying Agent shall promptly notify the Company of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof.

 

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The Company will not be required to make a Change of Control offer upon a Change of Control if a third party makes the Change of Control offer in the manner, at the times and otherwise in compliance with the requirements set forth herein applicable to a Change of Control offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control offer.

 

Section 3.09. Effect of Repurchase Notice or Change of Control Repurchase Notice .

 

(a) Payment of the Repurchase Price or the Change of Control Repurchase Price for a Security for which a Repurchase Notice or a Change of Control Repurchase Notice, as the case may be, has been delivered and not withdrawn in accordance with Section 3.09(b) or Section 3.09(c), as the case may be, is conditioned upon book-entry transfer or delivery of the Security, together with necessary endorsements, to the Paying Agent, or any other office of the Paying Agent, at any time after delivery of the Repurchase Notice or the Change of Control Repurchase Notice, as the case may be. The Company shall pay the Repurchase Price or the Change of Control Repurchase Price to the Paying Agent promptly following the later of the Repurchase Date or the Change of Control Repurchase Date or the time of book-entry transfer or delivery of the purchased Securities. If the Paying Agent holds money or securities sufficient to pay the Repurchase Price or the Change of Control Repurchase Price on the Business Day immediately following the Repurchase Date or the Change of Control Repurchase Date, then:

 

(i) the purchased Securities will cease to be outstanding and interest and Liquidated Damages, if any, will cease to accrue, and

 

(ii) all other rights of the Holders of such purchased Securities will terminate (other than the right to receive the Repurchase Price or the Change of Control Repurchase Price upon delivery or transfer of such purchased Securities),

 

in each case, whether or not book-entry transfer of the purchased Securities is made or whether or not the purchased Securities are delivered to the Paying Agent.

 

Securities in respect of which a Repurchase Notice or Change of Control Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article 10 hereof on or after the date of the delivery of such Repurchase Notice or Change of Control Repurchase Notice unless such Repurchase Notice or Change of Control Repurchase Notice has first been validly withdrawn in accordance with Section 3.09(b) or Section 3.09(c).

 

(b) A Repurchase Notice or Change of Control Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent in accordance with the Repurchase Notice or Change of

 

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Control Repurchase Notice, as the case may be, at any time prior to the close of business on the Repurchase Date or prior to the Business Day immediately preceding the Change of Control Repurchase Date, as the case may be, specifying:

 

(i) the certificate number of the Security in respect of which such notice of withdrawal is being submitted or the appropriate Depositary procedures if Certificated Securities have not been issued for such Security,

 

(ii) the principal amount of the Security with respect to which such notice of withdrawal is being submitted, and

 

(iii) the principal amount, if any, of such Security which remains subject to the original Repurchase Notice or Change of Control Repurchase Notice, as the case may be, and which has been or will be delivered for purchase by the Company.

 

(c) There shall be no purchase of any Securities pursuant to Section 3.07 or 3.08 if there has occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Securities, of the required Repurchase Notice or Change of Control Repurchase Notice, as the case may be) and is continuing an Event of Default (other than a default that is cured by the payment of the Repurchase Price or Change of Control Repurchase Price, as the case may be, with respect to such Securities). The Paying Agent will promptly return to the respective Holders thereof any Securities (x) with respect to which a Repurchase Notice or Change of Control Repurchase Notice, as the case may be, has been withdrawn in compliance with this Indenture, or (y) held by it during the continuance of an Event of Default (other than a default that is cured by the payment of the Repurchase Price or Change of Control Repurchase Price, as the case may be, with respect to such Securities) in which case, upon such return, the Repurchase Notice or Change of Control Repurchase Notice with respect thereto shall be deemed to have been withdrawn.

 

Section 3.10 . Deposit of Repurchase Price or Change of Control Repurchase Price. Prior to 10:00 a.m. (local time in the City of New York) on the Business Day immediately following the Repurchase Date or on the Change of Control Repurchase Date, as the case may be, the Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an amount of cash in immediately available funds sufficient to pay the aggregate Repurchase Price or Change of Control Repurchase Price, as the case may be, of all the Securities or portions thereof which are to be purchased as of the Repurchase Date or Change of Control Repurchase Date, as the case may be.

 

Section 3.11 . Securities Purchased in Part. Any Certificated Security which is to be purchased only in part shall be surrendered at the office of the

 

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Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing) and 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 any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Security so surrendered which is not purchased.

 

Section 3.12 . Covenant to Comply with Securities Laws upon Purchase of Securities. When complying with the provisions of Section 3.07 or 3.08 hereof the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 (or any other tender offer rules or successor provisions) under the Exchange Act, (ii) file Schedule TO (or any other required schedule or successor schedule, form or report) under the Exchange Act, and (iii) otherwise comply with all Federal and state securities laws so as to permit the rights and obligations under Sections 3.07 and 3.08 to be exercised in the time and in the manner specified in Sections 3.07 and 3.08.

 

Section 3.13 . Repayment to the Company. The Trustee and the Paying Agent shall return to the Company any cash that remains unclaimed as provided in Section 12 of the Securities, together with interest, if any, thereon (subject to the provisions of Section 7.01(f)), held by them for the payment of the Repurchase Price or Change of Control Repurchase Price, as the case may be; provided, however, that to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.10 exceeds the aggregate Repurchase Price or Change of Control Repurchase Price, as the case may be, of the Securities or portions thereof which the Company is obligated to purchase as of the Repurchase Date or Change of Control Repurchase Date, as the case may be, then, unless otherwise agreed in writing with the Company, promptly after the Business Day following the Repurchase Date or Change of Control Repurchase Date, as the case may be, the Trustee shall return any such excess to the Company together with interest thereon (subject to the provisions of Section 7.01(f)).

 

ARTICLE 4

C OVENANTS

 

Section 4.01 . Payment of Securities. The Company shall promptly make all payments in respect of the Securities on the dates and in the manner provided in the Securities or pursuant to this Indenture. Any amounts of cash in immediately available funds or shares of Common Stock to be given to the Trustee or Paying Agent, shall be deposited with the Trustee or Paying Agent by 10:00 a.m., New York City time, by the Company. The principal amount of, and Interest and Liquidated Damages, if any, on the Securities, and the Redemption Price, Repurchase Price and the Change of Control Repurchase Price shall be

 

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considered paid on the applicable date due if on such date (or, in the case of a Repurchase Price or a Change of Control Repurchase Price, on the Business Day immediately following the applicable Purchase Date or Change of Control Repurchase Date, as the case may be) the Trustee or the Paying Agent holds, in accordance with this Indenture, cash or securities, if permitted hereunder, sufficient to pay all such amounts then due.

 

Section 4.02 . SEC and Other Reports. The Company shall file with the Trustee, within 15 days after it files such annual and quarterly reports, information, documents and other reports with the SEC, copies of its annual report and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act; provided that any such reports, information or documents filed with the SEC pursuant to its Electronic Data and Gathering Analysis and Retrieval System shall be deemed to be filed with the Trustee. The Company shall comply with the other provisions of TIA Section 314(a). Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely conclusively on Officers’ Certificates).

 

Section 4.03 . Compliance Certificate. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending December 31, 2004) an Officers’ Certificate, stating whet