SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
(Mark One)
[X] Quarterly Report Under Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the Quarter Ended April 3, 1994
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from _______________ to
_______________
Commission File Number: 0-11674
LSI LOGIC CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-2712976
(State of Incorporation) (I.R.S. Employer
Identification Number)
1551 McCarthy Boulevard
Milpitas, California 95035
(Address of principal executive offices)
(408) 433-8000
(Registrant's telephone number)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES [x] NO
As of May 3, 1994 there were 50,798,101 shares of registrant's
Common Stock, $.01 par value,outstanding.
LSI LOGIC CORPORATION
Form 10-Q
FOR THE QUARTER ENDED APRIL 3, 1994
INDEX
Page No.
PART I Financial Information
Item 1 Financial Statements
Consolidated Balance Sheets - March 31, 1994 and
December 31, 1993 3
Consolidated Statements of Operations -
Three-Month Periods Ended March 31, 1994 and 1993 4
Consolidated Statements of Cash Flows -
Three-Month Periods Ended March 31, 1994 and 1993 5
Notes to Consolidated Financial Statements 6
Item 2 Management's Discussion and Analysis of Results of
Operations and Financial Condition 9
PART II Other Information
Item 1 Legal Proceedings 13
Item 6 Exhibits and Reports on Form 8-K 13
PART I
Item 1. Financial Statements
LSI LOGIC CORPORATION
CONSOLIDATED BALANCE SHEETS
(In thousands, except per share amount)
(Unaudited)
March 31, December 31,
1994 1993
ASSETS
Cash and cash equivalents $ 273,108 $121,319
Short-term investments 83,792 80,764
Accounts receivable, less
allowance for doubtful accounts
of $2,906 and $2,470 141,193 124,384
Inventories 84,184 69,066
Prepaid expenses and other
current assets 32,268 30,165
Total current assets 614,545 425,698
Property and equipment, at cost
less accumulated depreciation
and amortization 408,294 385,063
Other assets 50,646 41,945
Total assets $1,073,485 $852,706
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable $ 104,266 $ 66,822
Accrued salaries, wages
and benefits 22,462 24,397
Accrued restructuring costs 27,634 29,503
Other accrued liabilities 31,441 28,353
Income taxes payable 20,274 17,079
Current portion of long-term debt,
capital lease obligations and
short-term borrowings 16,528 22,727
Total current liabilities 222,605 188,881
Long-term debt, capital lease
obligations and other long-term
liabilities 396,412 246,314
Deferred income taxes 5,738 6,337
Minority interest in subsidiaries 121,757 118,740
Stockholders' equity:
Preferred shares; 2,000 shares
authorized - -
Common stock; $.01 par value; 73,500
shares authorized; 50,760 and 49,728
shares outstanding 508 497
Additional paid-in capital 279,058 273,933
Accumulated deficit (22,318) (41,673)
Cumulative translation adjustment 69,725 59,677
Total stockholders' equity 326,973 292,434
Total liabilities and
stockholders' equity $1,073,485 $852,706
See accompanying notes to unaudited consolidated financial
statements.
LSI LOGIC CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
(Unaudited)
Three Months Ended
March 31,
1994 1993
Revenues $193,812 $168,929
Costs and expenses:
Cost of revenues 115,387 103,920
Research and development 23,141 18,997
Selling, general and administrative 29,457 29,208
Total costs and expenses 167,985 152,125
Income from operations 25,827 16,804
Interest expense 3,788 2,173
Interest income and other 4,798 1,695
Income before income taxes and
minority interest 26,837 16,326
Provision for income taxes 7,514 4,898
Income before minority interest 19,323 11,428
Minority interest in net income (loss)
of subsidiaries (32) 813
Net income $ 19,355 $ 10,615
Net income per share:
Primary $ .37 $ .22
Fully diluted $ .36
Common share and common share equivalents
used in computing per share amounts:
Primary 51,631 47,452
Fully diluted 57,582
See accompanying notes to unaudited consolidated financial
statements.
LSI LOGIC CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
Three Months Ended
March 31,
1994 1993
Operating activities:
Net income $ 19,355 $ 10,615
Adjustments:
Depreciation and amortization 24,278 15,237
Minority interest in net income
(loss) of subsidiaries (32) 813
Change in accounts receivable (13,794) (4,248)
Change in inventories (12,379) (3,652)
Change in prepaid and other assets (7,566) (200)
Change in accounts payable 35,184 (26,635)
Change in accrued and other liabilities 4,373 11,943
Change in accrued restructuring costs (1,872) (2,133)
Net cash provided by operating activities 47,547 1,740
Investing activities:
Maturities of debt securities
available-for-sale 17,895 -
Sales of debt securities
available-for-sale 1,989 -
Purchases of debt securities
available-for-sale (25,089) -
Change in other investments 2,157 (10,882)
Acquisition of stock from minority
interest holders (5,350) -
Purchases of property and equipment,
net of retirements (24,102) (29,058)
Net cash used in investing activities (32,500) (39,940)
Financing activities:
Borrowings (repayments) of short-term
debt, net - 1,174
Issuance of Convertible Subordinated Notes 143,750 -
Long-term debt borrowings - 31,091
Repayment of long-term debt and
capital lease obligations (10,687) (7,158)
Issuance of common stock 3,736 6,603
Tax benefit from employee stock plans 1,400 -
Net cash provided by financing activities 138,199 31,710
Effect of exchange rate changes on
cash and cash equivalents (1,457) 3,682
Increase (decrease) in cash and
cash equivalents 151,789 (2,808)
Cash and cash equivalents at
beginning of period 121,319 87,103
Cash and cash equivalents at
end of period $273,108 $84,295
Cash paid (refunded) during the period for:
Interest $ 1,633 $ 2,427
Income taxes $ 4,016 $ (79)
See accompanying notes to unaudited consolidated financial
statements.
LSI LOGIC CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
Note 1 - In the opinion of the Company, the accompanying
unaudited consolidated financial statements contain all
adjustments (consisting only of normal recurring adjustments)
necessary to present fairly the financial information included
therein. While the Company believes that the disclosures are
adequate to make the information not misleading, it is
suggested that these financial statements be read in
conjunction with the audited financial statements and
accompanying notes included in the Company's Annual Report to
Stockholders incorporated by reference in the Company's Annual
Report on Form 10-K for the year ended January 2, 1994.
For financial reporting purposes, the Company reports on a 13 or
14 week quarter and a 52 or 53 week year ending on the Sunday
closest to December 31. For presentation purposes, the
consolidated financial statements refer to the quarter's
calendar month end for convenience. The results of operations for
the three month period ended March 31, 1994 is not necessarily
indicative of the results to be expected for the full year.
Note 2 - Effective January 3, 1994, the Company adopted the
Statement of Financial Accounting Standards No. 115 (SFAS 115),
"Accounting for Certain Investments in Debt and Equity
Securities." This statement requires investments in debt and
equity securities to be classified as "held-to-maturity,"
"trading," or "available-for-sale." Investments in debt and
equity securities classified as held-to-maturity are reported
at amortized cost; securities classified as trading are reported
at fair value with unrealized gains and losses included in
earnings; and, securities available-for-sale are reported at
fair value with unrealized gains and losses, net of related
tax, if any, reported as a separate component of stockholders'
equity. Realized gains and losses are based on the book value
of specific securities sold. The cumulative effect as of
January 3, 1994, of adopting SFAS No. 115 is considered to be
immaterial.
Management determines the appropriate classification of debt and
equity securities at the time of purchase and reassesses the
classification at each reporting date. Debt and equity
securities are classified as held-to-maturity when the Company
has the positive intent and ability to hold those securities to
maturity. Debt and equity securities are classified as
available-for-sale when the Company generally has the ability
and intent to hold such securities to maturity, but, in certain
circumstances, may potentially dispose of such securities prior
to their maturity.
Cash and cash equivalents and short-term investments include the
following debt and equity securities at March 31, 1994:
Unrealized Unrealized
Amortized Market Holding Holding
(In thousands) Cost Value Gains Losses
Corporate debt
securities $145,428 $145,428 $ - $ -
Security
repurchase
agreements 49,368 49,368 - -
Foreign corporate
debt securities 13,408 13,395 1 14
State and political
subdivision
securities 6,005 6,005 - -
Held-to-maturity
debt securities 214,209 $214,196 $ 1 $ 14
Other cash
equivalents 34,175
Cash 24,724
Total cash and
cash equivalents $273,108
Corporate debt
securities $ 30,862 $ 30,376 $ 1 $ 487
U.S. government
and agency
securities 19,442 19,949 621 114
State and
political
subdivision
securities 18,471 18,424 - 47
Other debt and
equity securities 8,024 7,969 - 55
Available-for-sale
debt and equity
securities 76,799 $ 76,718 $ 622 $ 703
Other short-term
investments 6,993
Total short-term
investments $ 83,792
All held-to-maturity and available-for-sale debt and equity
investments mature in one year or less.
Note 3 - Balance sheet detail (in thousands):
March 31, December 31,
1994 1993
Inventories:
Raw materials $ 14,307 $ 11,667
Work-in-process 47,731 34,997
Finished goods 22,146 22,402
Total $ 84,184 $ 69,066
Property and equipment:
Property and equipment, at cost $800,097 $750,186
Accumulated depreciation
and amortization (391,803) (365,123)
Property and equipment, net $408,294 $385,063
Property and equipment includes capitalized interest of
approximately $9.1 million (net of $.5 million accumulated
amortization) and $9.6 million at March 31, 1994 and
December 31, 1993, respectively. Property and equipment include
preproduction engineering costs of $27.4 million at March 31,
1994 and December 31, 1993. Accumulated amortization of
preproduction engineering costs was $2 million at March 31, 1994.
There was no accumulated amortization for preproduction
engineering at December 31, 1993.
Note 4 - During the first quarter of 1994 and during 1993, the
Company continued its strategic consolidation of worldwide
operations that were contemplated by the Company's 1992
restructuring. In the first quarter of 1994, the Company
continued phase-down of its older process-technology
manufacturing facility in the U.S. In 1993, the Company sold
certain assets from its discontinued German assembly and test
operation, transferred certain Canadian manufacturing equipment
to its U.S. operations, continued phase-down of its older
process-technology manufacturing facility in the U.S. and began
consolidation of some of its other U.S. manufacturing facilities.
During the third quarter of 1992, the Company recorded a $101.8
million restructuring charge which consisted primarily of
estimated costs associated with consolidations in the Company's
worldwide manufacturing operations, write-down and discontinuance
of certain commodity standard product inventories, severance
costs and other costs. The Company's strategic consolidation
of worldwide manufacturing operations and facilities encompassed
the phase-out and closure of the Company's German assembly and
test operations, the write-down of U.S. manufacturing assets
pertaining to older process technologies which, in certain
instances, had become redundant; and estimated operating losses
attributable to the period of the phase-out and closure of such
operations or the write-down of such assets.
Note 5 - During March 1994, the Company issued $143,750,000 of
5-1/2% Convertible Subordinated Notes (Notes) due 2001. The
Notes are subordinated to all existing and future senior debt,
are convertible at any time after 60 days following issuance
into shares of the Company's common stock at a conversion price
of $24.50 per share, and are redeemable at the option of the
Company, in whole or in part, at any time on or after
March 18, 1997. Each holder of these Notes has the right to
cause the Company to repurchase all of such holder's Notes at
100% of their principal amount plus accrued interest subject to
certain events and circumstances. Interest is payable
semiannually. The proceeds from this offering will be used for
capital expenditures and for general corporate purposes.
Note 6 - The Company's effective tax rate differs from the
statutory rate due to the Company's ability to partially utilize
prior loss carryovers.
Note 7 - Primary income per common share and common equivalent
share is computed using the weighted average number of common
shares outstanding during the respective periods, including
dilutive stock options, as applicable. Fully-dilutive income
per common share and common equivalent share is computed by
adjusting net income and primary shares outstanding for the
potential effect of the conversion of the weighted average
subordinated debentures outstanding during the period.
Fully-dilutive earnings per share computations are based on the
most advantageous (to the security holder) conversion or
exercise rights that become effective within ten years following
the period reported upon.
Item 2. Management's Discussion and Analysis of Results of
Operations and Financial Condition
General
As a participant in the semiconductor industry, the Company
operates in a technologically advanced, rapidly changing and
highly competitive environment. The Company predominately
sells custom products to customers operating in a similar
environment. Accordingly, changes in the circumstances of the
Company's customers may have a greater impact on the Company
than if the Company offered standard products that could be
sold to many purchasers. While the Company cannot predict what
effect these various factors may have on its financial results,
the aggregate effect of these and other factors could result in
significant volatility in the Company's future performance. To
the extent the Company's performance may not satisfy expectations
published by external sources, public reaction could result in a
sudden and significant adverse impact on the market price of the
Company's securities, particularly on a short-term basis.
The Company's future operating results are and will continue to
be subject to quarterly variations based upon a wide variety of
factors, many of which are beyond the Company's control,
including sudden fluctuations in customer requirements, rapid
price declines, unexpected product obsolescence, currency
exchange rate fluctuations and other economic conditions
affecting customer demand and the Company's cost of operations
in one or more of the global markets in which the Company does
business. While the Company attempts to identify and respond
to these conditions in a timely manner, they represent
significant risks to the Company's performance.
While management believes that the discussion and analysis in
this report is adequate for a fair presentation of the
information, management recommends that this discussion and
analysis be read in conjunction with Management's Discussion
and Analysis included in the Company's 1993 Annual Report to
Stockholders incorporated by reference in the Company's Annual
Report on Form 10-K for the year ended January 2, 1994.
Results of Operations
Revenues for the first quarter of 1994 increased 15% to $193.8
million from first quarter 1993 revenues of $168.9 million.
The composition of revenues by major element was as follows:
Three Months Ended
March 31,
1994 1993
Component products 87% 84%
Design and services 13 16
100% 100%
Total component revenues grew 18% to $167.8 million in the first
quarter of 1994 from $142.2 million in the first quarter of
1993. The increase in revenue dollars and the increase in
component revenues as a percentage of total revenues in the
first quarter of 1994 compared to the first quarter of 1993, was
primarily due to increased revenues from application specific
integrated circuit (ASIC) products. Higher ASIC component
revenues were primarily the result of higher average selling
prices and increased unit shipments. Total dollar revenues from
design and services decreased slightly in the first quarter of
1994 compared to the first quarter of 1993.
Key elements of the statements of operations, expressed as a
percentage of revenues, were as follows:
Three Months Ended
March 31,
1994 1993
Gross profit margin 40.5% 38.5%
Research and development expenses 11.9% 11.2%
Selling, general and administrative
expenses 15.2% 17.3%
Income from operations 13.3% 9.9%
Gross profit, as a percentage of revenues, increased during the
first quarter of 1994 over the comparable 1993 period. The
improvement in the gross profit margin is primarily related to
increased product demand for ASIC products, higher average
selling prices, and the increased use of lower cost third-party
subcontractors. A substantial portion of the Company's wafer
manufacturing operations occur at the Japanese affiliate's
manufacturing facilities. Improvements in ASIC gross profit
margins were partially offset by increased operating costs
attributable to the continued strengthening of the Yen in
relation to the U.S. Dollar and amortization of preproduction
engineering as the Japanese affiliate's new submicron wafer
manufacturing facility began volume production in the first
quarter of 1994. Gross profits in the first quarter of 1994 do
not fully reflect the effect of depreciation and other
manufacturing costs attributable to this new facility because a
substantial portion of the inventory manufactured there was in
process at March 31, 1994. The contribution to gross profits
from design and services revenue increased slightly as a
percentage of revenues in the first quarter of 1994 compared to
the same period in 1993. The Company's gross profit margins
are largely dependent upon factory capacity and utilization,
availability of certain raw materials, terms negotiated with
third-party subcontractors, foreign exchange fluctuations and
product mix. Volume production capability is expected to
increase throughout 1994, thereby significantly increasing
factory capacity by the end of 1994. A new wafer fabrication
facility initially operates at higher fixed costs. In the
event that demand for the Company's products does not absorb
this additional capacity at a sufficient rate or delays occur
in the ramp up of the new facility, the Company's gross profit
margins could be negatively impacted in future periods.
Accordingly, gross profit margins for the first quarter of 1994
may not be indicative of expected results for the remainder of
the fiscal year.
Research and development (R&D) expenses for the first quarter of
1994 related primarily to advanced process technology
development and increased approximately $4.1 million or 22% from
the comparable period in 1993. The Company is committed to
technological leadership in the ASIC markets and anticipates
continued investment in R&D at a rate of between 10-12% of
revenues in future periods. The Company's R&D investments are
primarily for the development of advanced manufacturing
processes, enhancements to the Company's design automation
software capability, and development of new advanced products.
Selling, general and administrative (SG&A) expenses remained
essentially flat during the first quarter of 1994 and decreased
as a percentage of revenues compared to the first quarter of 1993
as management continued its cost containment efforts.
In summary, total operating costs and expenses for the first
quarter of 1994 were $168.0 million, a $15.9 million increase
over $152.1 million for the same quarter in 1993. However,
operating income as a percentage of revenues increased to 13.3%
in the first quarter of 1994 from 9.9% for the comparable
quarter in 1993.
Interest expense for the first quarter of 1994 increased by $1.6
million from the comparable 1993 period. The majority of the
increase resulted from discontinued capitalization of interest
upon commencement of volume production by the Japanese
affiliate's new wafer fabrication facility in the first quarter
of 1994. Interest expense is expected to increase in the second
quarter of 1994 as a result of the issuance of $143.8 million of
5-1/2% Convertible Subordinated Notes during March, 1994 (see
additional discussion at Note 5 to the Consolidated Financial
Statements). Interest income and other for the first quarter of
1994 increased $3.1 million in relation to the first quarter of
1993. The majority of this increase is attributable to foreign
exchange gains related to transactions between the U.S. company
and its Japanese affiliates and an intercompany loan between the
U.K. and German affiliates.
The Company recorded a provision for income taxes for the first
quarter of 1994 with an effective rate of 28% compared to a
first quarter 1993 provision of 30%. The decrease in the
effective rate was primarily attributable to changes in the
composition of worldwide earnings.
The decrease in minority interest for the first quarter of 1994
from the comparable quarter in 1993 was attributable to the
composition of earnings and losses among certain of the Company's
international affiliates.
Financial Condition
The Company's cash, cash equivalents and short-term investments
increased $154.8 million during the first quarter of 1994 to
$356.9 million, and working capital increased by $155.1 million
to $391.9 million at March 31, 1994. The increase is primarily
attributable to the issuance of $143.8 million of convertible
subordinated notes in March, 1994, as discussed below.
During the first three months of fiscal 1994, the Company
generated $47.5 million of cash and equivalents from its
operating activities, compared to $1.7 million during the first
three months of 1993. The increased net cash provided from
operations as compared to the comparable 1993 period was
primarily attributable to an increase in accounts payable and
net income before depreciation which was partially offset by
increases in accounts receivable, inventories and other assets.
Effective January 3, 1994, the Company adopted the Statement of
Financial Accounting Standards No. 115 (SFAS 115), "Accounting
for Certain Investments in Debt and Equity Securities." This
statement requires investments in debt and equity securities to
be classified as "held-to-maturity," "trading," or
"available-for-sale." Investments in debt and equity securities
classified as held-to-maturity are reported at amortized cost;
securities classified as trading are reported at fair value with
unrealized gains and losses included in earnings; and,
securities available-for-sale are reported at fair value with
unrealized gains and losses, net of related tax, if any,
reported as a separate component of stockholders' equity.
Realized gains and losses are based on the book value of
specific securities sold. The cumulative effect as of
January 3, 1994, of adopting SFAS No. 115 is considered to be
immaterial. See further discussion in Note 2 of the
Consolidated Financial Statements.
During the first three months of 1994, $32.5 million of cash and
equivalents were used for investing activities compared to $39.9
million during the comparable period of 1993. The primary
investing activities consisted of fixed asset purchases for the
Japanese affiliate's new wafer manufacturing facility in Japan
and the repurchase of LSI Logic K.K. minority owned stock. Net
capital expenditures for the three months ended March 31, 1994
totaled approximately $23.8 million. Management expects net
capital expenditures of approximately $35 million for the second
quarter of 1994.
Financing activities generated $138.2 million of cash and
equivalents during the first quarter of 1994 compared to $31.7
million for the same period of 1993. The Company repaid
Japanese and European debt totaling approximately $10.6 million
during the first quarter of 1994. In addition, the Company
issued $143.8 million of 5 1/2% convertible subordinated notes
due in 2001. The Notes are subordinated to all existing and
future senior debt, are convertible at any time after 60 days
following issuance into shares of the Company's common stock at a
conversion price of $24.50 per share, and are redeemable at the
option of the Company, in whole or in part, at any time on or
after March 18, 1997. Each holder of these Notes has the right
to cause the Company to repurchase all of such holder's Notes at
100% of their principal amount plus accrued interest subject to
certain events and circumstances. Interest is payable
semiannually. The proceeds from this offering will be used for
capital expenditures and for general corporate purposes.
The Company believes that existing liquid resources and funds
generated from operations combined with its ability to borrow
funds will be adequate to meet its operating requirements and
payment of restructuring liabilities in the foreseeable future.
Part II
Item 1 Legal Proceedings
Reference is made to Item 3, Legal Proceedings, of the
Company's Annual Report on Form 10-K for the fiscal year ended
January 2, 1994 for a discussion of certain pending legal
proceedings. The information provided at such reference remains
unchanged.
Item 6 Exhibits and Reports on Form 8-K
(a) Exhibits
4.4 Indenture dated March 23, 1994 between LSI Logic
Corporation and The First National Bank of Boston, Trustee,
covering $143,750,000 principal amount of 5-1/2% Convertible
Subordinated Notes due 2001 (including form of Note).
(b) Reports on Form 8-K
Form 8-K dated March 7, 1994, Item 5, Press Release
announcing the Company's intention to raise approximately
$125,000,000 through an offering of convertible subordinated
notes not registered or required to be registered under the
Securities Act of 1933, as amended.
Form 8-K dated March 23, 1994, Item 5, Press Release
announcing the closing of an offering of $143,750,000 in
convertible subordinated notes not registered or required to be
registered under the Securities Act of 1933, as amended.
Signatures
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
LSI LOGIC CORPORATION
(Registrant)
Date: May 18, 1994 By /s/ Albert A. Pimentel
Albert A. Pimentel
Senior Vice President
Finance & Chief Financial
Officer
INDENTURE, dated as of March 23, 1994, between LSI LOGIC
CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware, having its principal office at 1551
McCarthy Boulevard, Milpitas, California 95035 (herein called the
"Company", as more fully set forth in Section 1.1), and THE FIRST
NATIONAL BANK OF BOSTON, a national banking association duly
organized and existing under the laws of the United States (herein
called the "Trustee", as more fully set forth in Section 1.1),
having its principal Corporate Trust Office at Blue Hills Office
Park, 150 Royall Street, Canton, Massachusetts 02021.
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue
of its 5-1/2% Convertible Subordinated Notes due 2001 (herein called
the "Notes") of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the
execution and delivery of this Indenture.
All things necessary to make the Notes, when executed by
the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to
make this Indenture a valid agreement of the Company, in accordance
with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the Notes by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of
the Notes as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(2) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP
prevailing at the time of any relevant computation hereunder;
and
(3) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
"Act", when used with respect to any Holder of a Note,
has the meaning specified in Section 1.3.
"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 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.
"Authenticating Agent" means any Person named as
Authenticating Agent pursuant to Section 6.12.
"Beneficial Owner", when used with respect to Notes
represented by a Global Note, means the Person who is the
beneficial owner of such Notes as reflected on the books of the
Depositary or on the books of a Person maintaining an account with
the Depositary (directly or as or through an indirect participant,
in accordance with the rules of the Depositary).
"Board of Directors" (i) when used with respect to the
definitions of the terms "Change of Control" and "Continuing
Directors" herein, means the board of directors of the Company and
(ii) in all other cases, means either the board of directors of the
Company or any committee of that board empowered to act for it with
respect to this Indenture.
"Board Resolution" means a resolution duly adopted by the
Board of Directors, a copy of which, certified by the Secretary or
an Assistant Secretary of the Company to be in full force and
effect on the date of such certification, shall have been delivered
to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in San Francisco, California, New York, New York or
Canton, Massachusetts are authorized or obligated by law to close.
"Capital Lease" means, as applied to any Person, any
lease of any property (whether real, personal or mixed) by that
Person as lessee which, in conformity with GAAP, is required to be
accounted for as a capital lease on the balance sheet of that
Person.
"Certificated Note" means a Note other than a Global
Note.
"Change in Control" means an event or series of events as
a result of which (i) any "person" or "group" (as such term is used
in Sections 13(d) and 14(d) of the Exchange Act), is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act) of shares representing more than 50% of the combined
voting power of the then outstanding Voting Stock of the Company;
(ii) the Company consolidates with or merges into any other Person,
or conveys, transfers or leases all or substantially all of its
assets to any Person, or any other Person merges into the Company,
and, in the case of any such transaction, the outstanding Common
Stock of the Company is changed or exchanged as a result, unless
the stockholders of the Company immediately before such transaction
own, directly or indirectly immediately following such transaction,
at least 51% of the combined voting power of the outstanding voting
securities of the Person resulting from such transaction in
substantially the same proportion as their ownership of the Voting
Stock immediately before such transaction; or (iii) at any time
Continuing Directors do not constitute a majority of the Board of
Directors of the Company (or, if applicable, a successor
corporation to the Company). Notwithstanding the foregoing, a
Change in Control shall not be deemed to have occurred if either
(x) the Quoted Price of the Common Stock for any five trading days
during the ten trading days immediately preceding the Change in
Control is at least equal to 105% of the Conversion Price in effect
on such day or (y) at least 90% of the consideration (excluding
cash payments for fractional shares) in the transaction or
transactions otherwise constituting the Change in Control consists
of common stock or securities convertible into common stock that
are, or upon issuance will be, traded on a United States national
securities exchange or approved for trading on an established
automated over-the-counter trading market in the United States.
"Closing Date" means March 23, 1994 or such later date on
which the Notes may be delivered pursuant to the Purchase
Agreement.
"Common Stock" means the common stock issuable upon
conversion of Notes which, subject to the provisions of
Section 12.11, includes only shares of the class designated as
Common Stock, par value $0.01 per share, of the Company at the date
of this instrument or shares of any class or classes resulting from
any reclassification or reclassifications thereof and which have no
preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption
by the Company; provided that if at any time there shall be more
than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
"Company" means the corporation named as the "Company" in
the first paragraph of this instrument until a successor
corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Notice" has the meaning specified in
Section 11.5.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by the Chairman
of the Board, the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee.
"Constituent Person" has the meaning specified in
Section 12.11.
"Continuing Director" means at any date a member of the
Board of Directors (i) who was a member of such board on the
Closing Date or (ii) who was nominated or elected by at least a
majority of the directors who were Continuing Directors at the time
of such nomination or election or whose election to the Board of
Directors was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such
nomination or election.
"Conversion Agent" means any Person authorized by the
Company pursuant to Section 10.2 to convert Notes in accordance
with Article Twelve.
"Conversion Price" has the meaning specified in
Section 12.1.
"Corporate Trust Office" means the office of the Trustee
at which at any particular time its corporate trust business shall
be administered (which at the date of this Indenture is located at
the place specified in the first paragraph of this instrument).
"corporation" includes corporations, associations,
companies and business trusts.
"Custodian" means The First National Bank of Boston, as
custodian with respect to the Notes in global form, or any
successor entity thereto.
"Default" shall mean any event that is, or after notice
or passage of time, or both, would be, an Event of Default.
"Default Notice" has the meaning specified in Section
13.1.
"Defaulted Interest" has the meaning specified in
Section 3.7.
"Depositary" means the depositary for the Global Note
named herein or any successor thereto, which is designated by the
Company, until a successor Depositary shall have become so
designated and thereafter "Depositary" shall mean such successor
Depositary. The initial Depositary shall be The Depository Trust
Company, New York, New York. Any Depositary shall be a clearing
agency registered as such under the Exchange Act.
"Designated Event" means a Change of Control or a
Termination of Trading.
"Distributions" has the meaning specified in paragraph
(4) of Section 12.4.
"Distribution Date Market Capitalization" has the meaning
specified in paragraph (4) of Section 12.4.
"Distribution Date Outstanding Stock" has the meaning
specified in paragraph (4) of Section 12.4.
"Dollar" or "$" means a Dollar or other equivalent unit
in such coin or currency of the United States as at the time shall
be legal tender for the payment of public and private debts.
"Event of Default" has the meaning specified in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"Excess Distribution" has the meaning specified in
Section 12.4(4).
"Existing Debentures" has the meaning specified in
Section 5.1.
"Excess Purchase Amount" has the meaning specified in
paragraph (4) of Section 12.4.
"GAAP" means generally accepted accounting principles in
the United States set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant
segment of the accounting profession, which are applicable to the
circumstances as of the date of determination.
"Global Note" means a Note or Notes in global form
representing all or part of the Notes which is executed by the
Company and authenticated and delivered to the Depositary or
pursuant to the Depositary's instructions, all in accordance with
this Indenture and pursuant to a Company Order, which shall be
registered in the name of the Depositary or its nominee and which
shall represent the amount of Notes as specified therein.
"Holder", when used with respect to any Note, means the
Person in whose name the Note is registered in the Register.
"Indebtedness" means, with respect to any Person, (i) any
obligation, contingent or otherwise, of such Person (a) for
borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof),
(b) evidenced by a note, debenture, bond or written instrument
(including a purchase money obligation), (c) for the payment of any
money under a Capital Lease or (d) in respect of letters of credit
(including reimbursement obligations with respect thereto), local
guarantees or bankers' acceptances; (ii) any obligation of others
of the type described in clause (i) above or clause (iii), (iv) or
(v) below assumed by or guaranteed in any manner by such Person or
in effect guaranteed by such Person through an agreement to
purchase, contingent or otherwise (and the obligations of such
Person under any such assumptions, guarantees or other such
arrangements); (iii) any obligation secured by a mortgage, pledge,
lien, encumbrance, charge or adverse claim affecting title or
resulting in an encumbrance to which the property or assets of such
Person are subject, whether or not the obligation secured thereby
shall have been assumed by or shall otherwise be such Person's
legal liability; (iv) to the extent not otherwise included,
obligations of such Person under interest rate and currency swap
agreements, cap, floor and collar agreements, spot and forward
contracts and similar agreements and arrangements; and (v) any and
all deferrals, renewals, extensions and refundings of, or
amendments, modifications or supplements to, any liability of the
kind described in any of the preceding clauses (i), (ii), (iii) or
(iv).
"Indenture" means this instrument as originally executed
or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.
"Institutional Accredited Investor" means an
institutional "accredited investor" as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Maturity", when used with respect to the payment of
principal of any Note, means the date on which the principal of
such Note becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by acceleration, call for
redemption, exercise of a Repurchase Right or otherwise.
"Non-Electing Share" has the meaning specified in
Section 12.11.
"Notes" has the meaning ascribed to it in the first
paragraph under the caption "Recitals of the Company".
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company (and may include employees of
the Company).
"Outstanding", when used with respect to Notes, means, as
of the date of determination, all Notes theretofore authenticated
and delivered under this Indenture, except:
(i) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Notes for the payment or redemption of which money
in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders
of such Notes, provided that if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture; and
(iii) Notes which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other
than any such Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Notes are present at a
meeting of Holders of Notes for quorum purposes or have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, Notes owned by the Company or any Affiliate of
the Company shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected
in relying upon any such determination as to the presence of a
quorum or upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes which the Trustee knows to be
so owned shall be so disregarded. Notes so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not
the Company or any Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company
to pay the principal of (and premium, if any) or interest on any
Notes on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, association, limited liability company, joint-stock
company, trust, estate, unincorporated organization or government
or any agency or political subdivision thereof.
"PORTAL Market" shall mean the Private Offerings, Resales
and Trading through Automated Linkages Market operated by the
National Association of Securities Dealers, Inc. or any successor
thereto.
"Predecessor Note" of any particular Note means every
previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 3.6
in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Note shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.
"Purchase Agreement" means the Purchase Agreement dated
March 16, 1994 between the Company and Lehman Brothers Inc.,
Prudential Securities Incorporated and Montgomery Securities
providing for the purchase of the Notes.
"Purchase Date Market Capitalization" has the meaning
specified in paragraph (4) of Section 12.4.
"Purchase Date Outstanding Stock" has the meaning
specified in paragraph (4) Section 12.4.
"Qualified Institutional Buyer" or "QIB" means a
"qualified institutional buyer" as defined in Rule 144A under the
Securities Act.
"Quoted Price" shall mean, with respect to any day,
(i) the last reported sale price of Common Stock on the New York
Stock Exchange, or (ii) if the Common Stock is not listed on the
New York Stock Exchange but is listed or admitted for trading on
any other national securities exchange, the last sale price, or the
closing bid price if no sale occurred, of such class of stock on
the principal securities exchange on which such class of stock is
listed, or (iii) if not so listed or admitted for trading, the last
reported sale price of Common Stock on the Nasdaq National Market,
or any similar system of automated dissemination of quotations of
securities prices then in common use, if so quoted, or (iv) if not
quoted as described in clause (iii), the mean between the high bid
and low asked quotations for Common Stock as reported by the
National Quotation Bureau Incorporated if at least two securities
dealers have inserted both bid and asked quotations for such class
of stock on at least fifteen of the thirty days. If the Common
Stock is quoted on a national securities or central market system,
in lieu of a market or quotation system described above, the Quoted
Price shall be determined in the manner set forth in clause (iv) of
the preceding sentence if bid and asked quotations are reported but
actual transactions are not, and in the manner set forth in clause
(ii) of the preceding sentence if actual transactions are reported.
"Record Date" means either a Regular Record Date or a
Special Record Date, as the case may be.
"Redemption Date", when used with respect to any Note to
be redeemed means the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price", when used with respect to any Note to
be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Register" and "Registrar" have the respective meanings
specified in Section 3.5.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the March 1 (whether or not a Business
Day) next preceding a March 15 Interest Payment Date and the
September 1 (whether or not a Business Day) next preceding a
September 15 Interest Payment Date.
"Repurchase Date", when used with respect to any Note to
be repurchased means the date fixed for such repurchase by or
pursuant to this Indenture pursuant to Section 11.5.
"Repurchase Right" has the meaning specified in the form
of Note set forth in Section 2.2.
"Responsible Officer", when used with respect to the
Trustee, means any trust officer in the Corporate Trust Office of
the Trustee or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Notes" means the Notes defined as such in
Section 2.5.
"Rights" has the meaning specified in Section 12.4.
"Rights Plan" means the Preferred Shares Purchase
Agreement, dated November 11, 1988, between the Company and The
First National Bank of Boston (as successor to Bank of America, N.T
& S.A.), as amended from time to time.
"Rule 144A Information" has the meaning specified in
Section 10.11.
"Securities" has the meaning specified in paragraph (4)
of Section 12.4.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Senior Debt" means the principal of, premium, if any,
and interest on, rent under, and any other amounts due on or in
connection with any Indebtedness of the Company (including, without
limitation, fees, costs, expenses and any interest accruing after
the filing of a petition initiating any proceeding pursuant to any
bankruptcy law, but only to the extent allowed or permitted to the
holder of such Indebtedness against the bankruptcy or other
insolvency estate of the Company in such proceeding), whether
outstanding on the date of the Indenture or thereafter created,
incurred, assumed, guaranteed or in effect guaranteed by the
Company (including all deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to the
foregoing); provided, however, that Senior Debt does not include
(w) Indebtedness evidenced by the Notes and the Existing
Debentures, (x) Indebtedness of the Company to any subsidiary of
the Company, a majority of the voting stock of which is owned by
the Company except to the extent such Indebtedness is pledged by
such subsidiary as security for any Senior Debt, (y) accounts
payable of the Company to trade creditors arising in the ordinary
course of business, and (z) any particular Indebtedness in which
the instrument creating or evidencing the same or the assumption or
guarantee thereof expressly provides that such Indebtedness shall
not be senior in right of payment to, or is pari passu with, or is
subordinated or junior to, the Notes.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Note or
any installment of interest thereon, means the date specified in
such Note as the fixed date on which the principal of such Note or
such installment of interest is due and payable.
"Subsidiary" of any specified Person shall mean (i) a
corporation a majority of whose capital stock with voting power
under ordinary circumstances, to elect directors is at the time
directly or indirectly owned by such person, or (ii) any other
Person (other than a corporation) in which such Person or such
Person and a subsidiary or subsidiaries of such Person or a
subsidiary or subsidiaries of such Person directly or indirectly,
at the date of determination thereof, has at least majority
ownership.
"Successor Corporation" has the meaning specified in
Section 7.1.
"Termination of Trading" means such time as the Common
Stock (or other common stock into which the Notes are then
convertible) is neither listed for trading on a United States
national securities exchange nor approved for trading on an
established automated over-the-counter trading market in the United
States.
"Transfer Agent" means any Person, which may be the
Company, authorized by the Company to exchange or register the
transfer of Notes.
"Trigger Event" has the meaning specified in paragraph
(4) of Section 12.4.
"Trust Indenture Act" shall mean the Trust Indenture Act
of 1939, as amended, as it was in force at the date of execution of
this Indenture, except as provided in Section 8.4 and 12.11;
provided, however, that in the event the Trust Indenture Act of
1939 is amended after the date hereof, the term "Trust Indenture
Act" shall mean, to the extent required by such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor
Trustee.
"Vice President", when used with respect to the Company,
means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Voting Stock" means the capital stock of a corporation
having voting power to elect directors under ordinary circumstances
(irrespective of whether at the time capital stock of any other
class or classes of capital stock of such corporation shall or
might have voting power upon the occurrence of any contingency).
SECTION 1.2 Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it
is not necessary that all such matters be certified by, or covered
by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon an
Opinion of Counsel, unless such officer knows that the Opinion of
Counsel with respect to the matters upon which such certificate or
opinion is based are erroneous. Any such Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate
or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters
is in the possession of the Company, unless such counsel knows,
that the certificate or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
if requested by the Trustee, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such Counsel all such conditions
precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
SECTION 1.3 Acts of Holders of Notes.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of Notes may be embodied in and
evidenced by (1) one or more instruments of substantially similar
tenor signed by such Holders in person or by agent or proxy duly
appointed in writing, (2) the record of Holders of Notes voting in
favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Notes duly called and held in
accordance with the provisions of Article Nine or (3) a combination
of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are delivered
to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and record (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders of Notes signing such
instrument or instruments and so voting at such meeting. Proof of
execution of any such instrument or of a writing appointing any
such agent or proxy, or of the holding by any Person of a Note,
shall be sufficient for any purpose of this Indenture and (subject
to Section 6.1) conclusive in favor of the Trustee and the Company
if made in the manner provided in this Section. The record of any
meeting of Holders of Notes shall be proved in the manner provided
in Section 9.6.
(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 acknowledgements of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The ownership of Notes shall be
proved by the Register or by a certificate from the Registrar.
(c) 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; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in
this Section.
(d) The principal amount and serial numbers of Notes
held by any Person, and the date of his holding the same, shall be
proved by the Register.
(e) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of the Holders of
any Note shall bind every future Holder of the same Note and the
Holder of every Note 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 Note.
SECTION 1.4 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders of Notes or other
document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
(1) the Trustee by any Holder of Notes or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office, Attention: Corporate Trust
Administration (LSI Logic Corporation Convertible Subordinated
Notes Due 2001), or
(2) the Company by the Trustee or by any Holder of Notes
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing, mailed,
first-class postage prepaid, or telexed or telecopied and
confirmed by mail, first-class postage prepaid, addressed to
it at 1551 McCarthy Boulevard, Milpitas, California, 95035
(Telecopy No.: (408) 433-6896), to the attention of its
General Counsel, with a copy to its Chief Financial Officer,
or at any other address otherwise furnished in writing to the
Trustee by the Company.
Any request, demand, authorization, direction, notice,
consent, election or waiver required or permitted under this
Indenture shall be in the English language.
SECTION 1.5 Notice to Holders of Notes; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of Notes of any event,
such notice shall be sufficiently given to Holders of Notes if
given in writing and mailed, first-class postage prepaid, to each
Holder of a Note affected by such event, at the address of such
Holder as it appears in the Register, not earlier than the earliest
date and not later than the latest date prescribed for the giving
of such notice.
In any case where notice to Holders of Notes is given by
mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder of a Note shall
affect the sufficiency of such notice with respect to other Holders
of Notes. In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice by mail, then such notification to Holders of
Notes as shall be made with the approval of the Trustee shall
constitute a sufficient notification to such Holders for every
purpose hereunder.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.6 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION 1.7 Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed
or not.
SECTION 1.8 Separability Clause.
In case any provision in this Indenture or the Notes
shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 1.9 Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder, the holders of Senior Debt and the
Holders of Notes, any benefit or legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.10 Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION 1.11 Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date, Repurchase Date or Stated Maturity of any Note or the last
day on which a Holder of a Note has a right to convert his Note
shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Notes) payment of principal
(and premium, if any) or interest, or conversion of the Notes, need
not be made on such day, but may be made on the next succeeding
Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Repurchase Date or at the
Stated Maturity or on such last day for conversion, provided, that
in the case that payment is made on such succeeding Business Day,
no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity, as the case may be.
SECTION 1.12 No Security Interest Created.
Nothing in this Indenture or in the Notes, expressed or
implied, shall be construed to create a security interest under the
Uniform Commercial Code or similar legislation, as now or hereafter
enacted and in effect, in any jurisdiction where property of the
Company or its subsidiaries is located.
SECTION 1.13 Trust Indenture Act.
This Indenture is hereby made subject to, and shall be
governed by, the provisions of the Trust Indenture Act required to
be part of and to govern indentures qualified (and required to be
qualified) under the Trust Indenture Act; provided, however, that,
notwithstanding the foregoing, this Indenture and the Notes issued
hereunder shall not be subject to the provisions of subsections
(a)(1), (a)(2) and (a)(3), (c) and (e) of Section 314 of the Trust
Indenture Act as now in effect or as hereafter amended or modified.
ARTICLE 2
FORM OF NOTE
SECTION 2.1 Form Generally.
The Notes shall be in substantially the form set forth in
this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of the Securities Act
and any rules or regulation promulgated thereunder any securities
exchange, the Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder, any securities clearance or
settlement organization, or as may be approved, consistent
herewith, by the officers executing such Notes, as evidenced by
their execution thereof.
The Trustee's and Authenticating Agent's certificates of
authentication shall be in substantially the forms set forth in
Sections 2.3 and 6.12, respectively.
Conversion notices shall be in substantially the form set
forth in Section 2.4.
Assignment notices shall be in substantially the form set
forth in Section 2.6.
Restricted Notes shall bear a legend as set forth in
Sections 2.2 and 2.5.
Each Global Note shall have a Schedule of Exchanges,
Conversions, Redemptions, Cancellations and Transfers as set forth
in Section 2.7.
The definitive Notes shall be printed, lithographed or
engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner permitted
by the rules of any securities exchange on which the Notes may be
listed, all as determined by the officers executing such Notes, as
evidenced by such execution.
SECTION 2.2 Forms of Notes.
[FORM OF FACE OF NOTE]
Legend if Note is a Restricted Note:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE NOTE
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES
THAT IT WILL NOT WITHIN THREE YEARS AFTER THE ORIGINAL
ISSUANCE OF THE NOTE EVIDENCED HEREBY RESELL OR OTHERWISE
TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH NOTE EXCEPT (A) TO LSI
LOGIC CORPORATION (THE "COMPANY") OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE FIRST NATIONAL BANK OF BOSTON,
AS TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT, OR (E) IN A
TRANSACTION OF A TYPE OTHER THAN THOSE DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), (C) OR (D) IN CONNECTION WITH
WHICH THE COMPANY SHALL HAVE RECEIVED A LEGAL OPINION, IN
FORM AND SUBSTANCE SATISFACTORY TO IT AND ITS COUNSEL TO
THE EFFECT THAT THE PROPOSED TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT; AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE NOTE
EVIDENCED HEREBY WITHIN THREE YEARS AFTER THE ORIGINAL
ISSUANCE OF SUCH NOTE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE FIRST NATIONAL BANK OF BOSTON, AS
TRUSTEE. IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE
(2)(C), (D) OR (E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE FIRST NATIONAL BANK OF BOSTON,
AS TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS
LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF THREE
YEARS FROM THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED
HEREBY. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANING GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.]
[Legend if Note is a Global Note to be deposited for
securities clearance and settlement through the facilities of
The Depository Trust Company:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
LSI LOGIC CORPORATION
5-1/2% CONVERTIBLE SUBORDINATED NOTE DUE 2001
No. $_______________
LSI LOGIC CORPORATION, a corporation duly organized and
validly existing under the laws of the State of Delaware (herein
called the "Company"), which term includes any successor corpora-
tion under the Indenture referred to on the reverse hereof, for
value received hereby promises to pay to
_________________________________, or registered assigns, the
principal sum of _______________ on March 15, 2001, at the office
or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment shall be legal
tender for the payment of public and private debts, and to pay
interest, semi-annually on March 15 and September 15 of each year
(each an "Interest Payment Date"), commencing September 15, 1994,
on said principal sum at said office or agency, in like coin or
currency, at the rate per annum specified in the title of this
Note, from the March 15 or September 15, as the case may be, next
preceding the date of this Note to which interest has been paid or
duly provided for, unless the date hereof is a date to which
interest has been paid or duly provided for, in which case from the
date of this Note, or unless no interest has been paid or duly
provided for on the Notes, in which case from March 23, 1994, until
payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after any
March 1 or September 1, (each, a "Regular Record Date"), as the
case may be, and before the following March 15 or September 15,
this Note shall bear interest from such March 15 or September 15,
respectively; provided, however, that if the Company shall default
in the payment of interest due on such March 15 or September 15,
then this Note shall bear interest from the next preceding March 15
or September 15 to which interest has been paid or duly provided
for or, if no interest has been paid or duly provided for on such
Note, from March 23, 1994. The interest so payable on any March 15
or September 15 will be paid to the person in whose name this Note
(or one or more Predecessor Notes) is registered at the close of
business on the record date, which shall be the March 1 or
September 1 (whether or not a Business Day) next preceding such
March 15 or September 15, respectively; provided that any such
interest not punctually paid or duly provided for shall be payable
as provided in the Indenture. Interest may, at the option of the
Company, be paid by check mailed to the registered address of such
person; provided that, with respect to any holder of Notes with an
aggregate principal amount equal to or in excess of $5,000,000, at
the request of such holder in writing to the Company, interest on
such holder's Notes shall be paid by wire transfer in New York
Clearing House funds.
[Include for Global Notes - The aggregate principal amount of
the Note in global form represented hereby may from time to time be
reduced or increased to reflect exchanges of a part of this Note in
global form for definitive Notes or exchanges of definitive Notes
for a part of this Note in global form or conversions or
redemptions of a part of this Note in global form or cancellations
of a part of this Note in global form or transfers of definitive
Notes in return for a part of this Note in global form or transfers
of a part of this Note in global form effected by delivery of
definitive Notes, in each case, and in any such case, by means of
notations on the Schedule of Exchanges, Conversions, Redemptions,
Cancellations and Transfers on the last page hereof.
Notwithstanding any provision of this Note to the contrary, (i)
exchanges of a part of this Note in global form for definitive
Notes, (ii) exchanges of definitive Notes for a part of this Note
in global form, (iii) conversions or redemptions of a part of this
Note in global form, (iv) cancellations of a part of this Note in
global form, (v) transfers of definitive Notes in return for a part
of this Note in global form and (vi) transfers of a part of this
Note in global form effected by delivery of definitive Notes may be
effected without the surrendering of this Note in global form,
provided that appropriate notations on the Schedule of Exchanges,
Conversions, Redemptions, Cancellations and Transfers are made by
the Trustee, or the Custodian at the direction of the Trustee, to
reflect the appropriate reduction or increase, as the case may be,
in the aggregate principal amount of this Note in global form
resulting therefrom or as a consequence thereof.]
Reference is made to the further provisions of this Note set
forth on the reverse hereof, including, without limitation,
provisions subordinating the payment of principal of and premium,
if any, and interest on the Notes to the prior payment in full of
all Senior Debt as defined in the Indenture and provisions giving
the holder of this Note the right to convert this Note into Common
Stock of the Company on the terms and subject to the limitations
referred to on the reverse hereof and as more fully specified in
the Indenture. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall be deemed to be a contract made under the laws
of the State of New York, and for all purposes shall be construed
in accordance with and governed by the laws of said State.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have
been manually signed by the Trustee or a duly authorized authenti-
cating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed under its corporate seal.
LSI LOGIC CORPORATION
BY:_______________________________
AUTHORIZED OFFICER
Dated:_____________________________
ATTEST: __________________________________
SECRETARY
[FORM OF REVERSE OF NOTE]
LSI LOGIC CORPORATION
5-1/2% CONVERTIBLE SUBORDINATED NOTE DUE 2001
This Note is one of a duly authorized issue of Notes of the
Company, designated as its 5-1/2% Convertible Subordinated Notes due
2001 (herein called the "Notes"), limited to the aggregate
principal amount of $143,750,000 all issued or to be issued under
and pursuant to an Indenture dated as of March 23, 1994 (herein
called the "Indenture"), between the Company and The First National
Bank of Boston (herein called the "Trustee"), to which Indenture
and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Notes.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of and accrued
interest on all Notes may be declared, and upon said declaration
shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of the Notes at the time
outstanding, evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of
any supplemental indenture or modifying in any manner the rights of
the holders of the Notes; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any
Note, or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof or premium, if any,
thereon, or reduce any amount payable on redemption thereof, change
in a manner adverse to holders the obligation of the Company to
repurchase the Notes at the option of the holders upon the occur-
rence of a Designated Event, subject to the terms of the Indenture,
or impair or affect the right of any Noteholder to institute suit
for the payment thereof, or make the principal thereof or interest
or premium, if any, thereon payable in any coin or currency other
than that provided in the Notes, or modify the provisions of the
Indenture with respect to the subordination of the Notes in a
manner adverse to the Noteholders, or impair the right to convert
the Notes into Common Stock subject to the terms set forth in the
Indenture, including Section 12.11 thereof, without the consent of
the holder of each Note so affected or (ii) reduce the aforesaid
percentage of Notes, the holders of which are required to consent
to any such supplemental indenture, without the consent of the
holders of all Notes then outstanding. It is also provided in the
Indenture that, prior to any declaration accelerating the maturity
of the Notes, the holders of a majority in aggregate principal
amount of the Notes at the time outstanding may on behalf of the
holders of all of the Notes waive any past default or Event of
Default under the Indenture and its consequences except a default
in the payment of interest or any premium on or the principal of
any of the Notes, a failure by the Company to convert any Notes
into Common Stock of the Company or a default in respect of a
covenant or provision of the Indenture which under Article 8
thereof cannot be modified or amended without the consent of the
holders of all Notes then outstanding. Any such consent or waiver
by the holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and
upon all future holders and owners of this Note and any Notes which
may be issued in exchange or substitution hereof, irrespective of
whether or not any notation thereof is made upon this Note or such
other Notes.
The indebtedness evidenced by the Notes is, to the extent and
in the manner provided in the Indenture, expressly subordinate and
subject in right of payment to the prior payment in full of all
Senior Debt of the Company, as defined in the Indenture, whether
outstanding at the date of the Indenture or thereafter incurred,
and this Note is issued subject to the provisions of the Indenture
with respect to such subordination. Each holder of this Note, by
accepting the same, agrees to and shall be bound by such provisions
and authorizes the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination so
provided and appoints the Trustee his attorney in fact for such
purpose.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Note at the
place, at the respective times, at the rate and in the coin or
currency herein prescribed.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months and in the case of an
incomplete month, interest shall be computed on the basis of the
number of days elapsed.
The Notes are issuable in registered form without coupons in
denominations of $250,000 principal amount and integral multiples
of $1,000 in excess thereof. At the office or agency of the
Company referred to on the face hereof, and in the manner and
subject to the limitations provided in the Indenture, without
payment of any service charge but with payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in connection with any registration or exchange of Notes, Notes may
be exchanged for a like aggregate principal amount of Notes of
other authorized denominations.
The Notes will not be redeemable at the option of the Company
prior to March 18, 1997. On or after such date and prior to
maturity the Notes may be redeemed at the option of the Company as
a whole, or from time to time in part in denomination of $250,000
principal amount and integral multiples of $1,000 in excess
thereof, upon mailing a notice of such redemption not less than 30
nor more than 60 days before the date fixed for redemption (the
"Redemption Date") to the holders of Notes at their last registered
addresses, all as provided in the Indenture, at the following
optional redemption prices (expressed as percentages of the
principal amount), together in each case with accrued interest to
the Redemption Date.
If redeemed during the 12-month period beginning March 15:
Year Percentage Year Percentage
1997 102% 1998 101%
and thereafter at 100%; provided that if the Redemption Date is a
March 15 or September 15, then the interest payable on such
Redemption Date shall be paid to the holder of record as of the
next preceding March 1 or September 1, respectively.
Upon the occurrence of a Designated Event, the holder of the
Note shall have the right (the "Repurchase Right"), at the Holder's
option, to require the Company to repurchase the principal amount
of this Note or any portion of such principal amount, which is
$250,000 or an integral multiple of $1,000 in excess thereof
(provided that the principal amount of any portion hereof not so
submitted for repurchase is equal to or in excess of $250,000), on
the date (the "Repurchase Date") that is 45 days after the date of
the Company Notice (as defined below) at a price equal to 100% of
the principal amount of this Note, plus accrued interest, if any,
to the Repurchase Date; provided that if such Repurchase Date is
March 15 or September 15, then the interest payable on such
Repurchase Date shall be paid to the holder of record of the Note
on the next preceding March 1 or September 1, respectively.
Within 30 days after the occurrence of a Designated Event the
Company is obligated to give notice (the "Company Notice") to the
holders of this Note and the Trustee of the occurrence of such
Designated Event and the Repurchase Right arising as a result
thereof. To exercise the Repurchase Right, the holder of this Note
must deliver on or before the 30th day after the date of the
Company Notice irrevocable written notice to the Company (or an
agent designated by the Company for such purpose) and the Trustee
of the holder's exercise of such right together with the Notes with
respect to which the right is being exercised, duly endorsed for
transfer. The submission of such notice together with this Note
pursuant to the exercise of a Repurchase Right will be irrevocable
on the part of the holder (unless the Company fails to repurchase
this Note or such portion hereof on the Repurchase Date) and the
right to convert this Note or such portion hereof will expire upon
such submission.
Subject to the provisions of the Indenture, the holder hereof
has the right, at its option, at any time after 60 days following
the latest date of original issuance of the Notes and prior to the
close of business on March 15, 2001, or, as to all or any portion
hereof called for redemption, prior to the close of business on the
Business Day next preceding the Redemption Date (unless the Company
shall default in payment due upon redemption thereof), to convert
the principal amount hereof or any portion of such principal amount
which is $250,000 or any multiple of $1,000 in excess thereof
(provided that the principal amount of any portion hereof not so
converted is equal to or in excess of $250,000), into that number
of fully paid and non-assessable shares of Common Stock, as said
shares shall be constituted at the date of conversion, obtained by
dividing the principal amount of this Note or the portion hereof to
be converted by the conversion price of $24.50, as adjusted from
time to time as provided in the Indenture, upon surrender of this
Note, together with a conversion notice as provided in the
Indenture, to the Company at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City
of New York, and, unless the shares issuable on conversion are to
be issued in the same name as the holder of this Note, duly
endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the holder or by his
duly authorized attorney. No adjustment in respect of interest or
dividends will be made upon any conversion; provided, however, that
if this Note shall be surrendered for conversion during the period
from the close of business on any record date for the payment of
interest through the close of business on the Business Day next
preceding the following interest payment date, this Note (unless it
or the portion being converted shall have been called for
redemption on a date in such period) must be accompanied by an
amount, in funds acceptable to the Company, equal to the interest
payable on such interest payment date on the principal amount being
converted. No fractional shares will be issued upon any
conversion, but an adjustment in cash will be made, as provided in
the Indenture, in respect of any fraction of a share which would
otherwise be issuable upon the surrender of any Note or Notes for
conversion.
Any Notes called for redemption, unless surrendered for
conversion on or before the close of business on the Redemption
Date, may be deemed to be purchased from the holder of such Notes
at an amount equal to the applicable redemption price, together
with accrued interest to the date fixed for redemption, by one or
more investment bankers or other purchasers who may agree with the
Company to purchase such Notes from the holders thereof and convert
them into Common Stock of the Company and to make payment for such
Notes as aforesaid to the Trustee in trust for such holders.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Company in the Borough of Manhattan,
The City of New York, a new Note or Notes of authorized
denominations for an equal aggregate principal amount will be
issued to the transferee in exchange thereof, subject to the
limitations provided in the Indenture, without charge except for
any tax or other governmental charge imposed in connection
therewith.
The Company, the Trustee, any authenticating agent, any paying
agent, any conversion agent and any Note registrar may deem and
treat the registered holder hereof as the absolute owner of this
Note (whether or not this Note shall be overdue and notwithstanding
any notation of ownership or other writing hereon made by anyone
other than the Company or any Note registrar) for the purpose of
receiving payment hereof, or on account hereof, for the conversion
hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any paying agent nor
any other conversion agent nor any Note registrar shall be affected
by any notice to the contrary. All payments made to or upon the
order of such registered holder shall, to the extent of the sum or
sums paid, satisfy and discharge liability for monies payable on
this Note.
No recourse for the payment of the principal of or any premium
or interest on this Note, or for any claim based hereon or
otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture
or any indenture supplemental thereto or in any Note, or because of
the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof,
expressly waived and released.
Terms used in this Note and defined in the Indenture are used
herein as therein defined.
SECTION 2.3 Form of Trustee's Certificate of
Authentication.
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named
Indenture.
THE FIRST NATIONAL BANK OF BOSTON, as Trustee
By:____________________________
Authorized Signatory
SECTION 2.4 Form of Conversion Notice.
CONVERSION NOTICE
To: LSI Logic Corporation
The undersigned registered owner of this Note hereby
irrevocably exercises the option to convert this Note, or the
portion hereof below designated (which is $250,000 or an integral
multiple of $1,000 in excess thereof and provided that the
principal amount of any portion hereof not so converted is equal to
$250,000 or an integral multiple of $1,000 in excess thereof), into
shares of Common Stock in accordance with the terms of the
Indenture referred to in this Note, together with a check in
payment for any fractional share and any Notes representing any
unconverted principal amount hereof, which shares shall be issued
and delivered to the registered holder hereof unless a different
name has been indicated below. Any amount required to be paid by
the undersigned on account of interest accompanies this Note. If
shares or Notes not converted are to be issued in the name of a
person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto and, if this is a
Restricted Note (as defined in Section 2.5 of the Indenture), the
undersigned is delivering herewith such certificates and other
documents evidencing that the applicable restrictions on transfer
have been complied with.
Date: ____________________
________________________________
Fill in for registration of ________________________________
shares if to be issued, and Signature(s)
Notes if to be delivered,
other than to and in the Signature(s) must be guaranteed
name of the registered holder: by a commercial bank or trust
company or a member firm of a
___________________________ major stock exchange if shares
(Name) of Common Stock are to be
issued, or Notes to be
___________________________ delivered, other than to and in
(Street Address) the name of the registered
holder.
___________________________
(City, State & Zip Code) _______________________________
Please print name and address Signature Guarantee
Principal amount to be converted
__________________________ (if less than all): $___________
Social Security or Other ($250,000 or an integral
Taxpayer Identification Number multiple of $1,000 in excess
thereof)
SECTION 2.5 Legends on Restricted Notes.
During the period beginning on the Closing Date and
ending on the date three years from the Closing Date, subject to
Section 3.5, all Notes issued on the Closing Date pursuant to the
Purchase Agreement, and all Notes issued upon registration of
transfer of, or in exchange for, such Notes, shall be "Restricted
Notes" and shall be subject to the restrictions on transfer
provided in the legend set forth on the face of the forms of Note
in Section 2.2; provided, however, that the term "Restricted Notes"
shall not include (a) Notes which are issued upon transfer of, or
in exchange for, Notes which are not Restricted Notes or (b) Notes
as to which such restrictions on transfer have been terminated in
accordance with Section 3.5. Notes shall bear the legend set forth
on the face of the Note pursuant to Section 2.2 unless such Notes
are not Restricted Notes.
SECTION 2.6 Form of Notice of Assignment.
Each Restricted Note shall contain a notice of assignment
in substantially the form set forth below.
[Form of Notice of Assignment]
LSI LOGIC CORPORATION
5-1/2% CONVERTIBLE SUBORDINATED NOTES DUE 2001
For value received ___________________________________________
hereby sell(s), assign(s) and transfer(s) unto
(Please include social security or other identifying number of assignee)
the within Note, and hereby irrevocably constitutes and appoints
attorney to transfer the said Note on the books of the Company, with full
power of substitution in the premises.
In connection with any transfer of the within Note (or any
issuance of shares of Common Stock upon conversion of the within
Note) occurring prior to the third anniversary of the date of
original issuance of such Note, the undersigned confirms that such
Note (or shares of Common Stock, as the case may be) are being
transferred:
[ ] To LSI Logic Corporation or a subsidiary thereof; or
[ ] To a qualified institutional buyer pursuant to and in
compliance with Rule 144A under the Securities Act of
1933, as amended (the "Securities Act"); or
[ ] To an institutional accredited investor (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act
("Institutional Accredited Investor"); or
[ ] Pursuant to and in compliance with Regulation S under
the Securities Act; or
[ ] In a transaction not described under (a), (b), (c) or (d)
above, pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the
Securities Act.
Unless one of the boxes above is checked and any additional
requirements referred to in this paragraph have been satisfied, the
Trustee will refuse to register any of the within Notes (or such
shares of Common Stock, as the case may be) in the name of any
person other than the registered holder thereof (or hereof). In
the case of any proposed transfer pursuant to (c), (d) or (e), the
holder must furnish the Trustee such other certifications, legal
opinions or other information as it may reasonably require to
confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act. In addition, in the case of a
proposed transfer pursuant to (c) above, the holder must furnish to
the Trustee a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the security
evidenced hereby (which form of letter is available from the
Trustee). In addition, in the case of a proposed transfer pursuant
to (e) above, the holder must furnish to the Company a legal
opinion, in form and substance satisfactory to the Company and its
counsel, that such transaction is pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of
the Securities Act.
Dated: ____________________*
_______________________________
_______________________________
Signature(s)
Signature(s) must be guaranteed
by a commercial bank or trust
company or a member firm of a
major stock exchange
_______________________________
Signature Guarantee
*To be dated the date of presentation or surrender
SECTION 2.7 Form of Schedule of Exchanges, Conversions,
Redemptions, Cancellations and Transfers for Global Notes.
Each Global Note shall have a Schedule of Exchanges,
Conversions, Redemptions, Cancellations and Transfers made a part
thereof in the following form:
SCHEDULE OF EXCHANGES CONVERSIONS,
REDEMPTIONS, CANCELLATIONS, AND TRANSFERS
The following (i) exchanges of a part of this Note in global
form for definitive Notes, (ii) exchanges of definitive Notes for a
part of this Note in global form, (iii) conversions or redemptions
of a part of this Note in global form, (iv) cancellations of a part
of this Note in global form, (v) transfers of definitive Notes in
return for a part of this Note in global form and (vi) transfers of
a part of this Note in global form effected by delivery of
definitive Notes have been made:
Date of
Exchange, Amount of Amount of Principal Amount Signature of
Conversion, decrease in increase in of this Note authorized
Redemption, Principal Amount Principal Amount in global form officer or
Cancellation of this Note of this Note following such Trustee or
or Transfer in global form in global form decrease of increase Custodian
ARTICLE 3
THE NOTES
SECTION 3.1 Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to
$143,750,000 except for securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of
other Notes pursuant to Section 3.4, 3.5, 3.6, 8.5, 11.8 or 12.2.
The Notes shall be known and designated as the "5-1/2%
Convertible Subordinated Notes due 2001" of the Company. Their
Stated Maturity shall be March 15, 2001 and they shall bear
interest from March 23, 1994 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
payable semi-annually in arrears on March 15 and September 15, in
each year, commencing September 15, 1994, at the rate of 5-1/2% per
annum until the principal thereof is paid or made available for
payment.
The principal of (and premium, if any) and interest on
the Notes shall be payable as provided in the form of Notes set
forth in Section 2.2 .
The Notes shall be redeemable at the option of the
Company, and shall have a Repurchase Right exercisable at the
option of Holders, as provided in the form of Note set forth in
Section 2.2 and in Article 11.
The Notes shall be convertible as provided in Article 12.
The Notes shall be subordinated in right of payment to
Senior Debt of the Company as provided in Article 13.
SECTION 3.2 Denominations.
The Notes shall be issuable only in fully registered
form, without coupons, in minimum denominations of $250,000 and
integral multiples of $1,000 in excess thereof.
SECTION 3.3 Execution, Authentication, Delivery and
Dating.
The Notes shall be executed on behalf of the Company by
its Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents, under a facsimile of its
corporate seal reproduced thereon attested by its Secretary or one
of its Assistant Secretaries. Any such signature may be manual or
facsimile.
Notes bearing the manual or facsimile signature of
individuals who were at any time the proper officers of the Company
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 Notes or did not hold such
offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed
by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Notes,
and the Trustee in accordance with such Company Order shall
authenticate and deliver such Notes as in this Indenture provided
and not otherwise.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this
Indenture, or be valid or obligatory for any purpose, unless there
appears on such Note a certificate of authentication substantially
in the form provided for herein executed by or on behalf of the
Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note
has been duly authenticated and delivered hereunder.
SECTION 3.4 Global Notes.
So long as the Notes are eligible for book-entry
settlement with the Depositary, or unless otherwise required by
law, all Notes to be traded on the PORTAL Market shall be
represented by a Global Note. The transfer and exchange of
beneficial interests in such Global Note, which does not involve
the issuance of a Certificated Note, shall be effected through the
Depositary (but not the Trustee or the Custodian) in accordance
with this Indenture (including the restrictions on transfer set
forth herein) and the procedures of the Depositary therefor.
Neither the Trustee nor the Custodian (in such respective
capacities) will have any responsibility for the transfer and
exchange of beneficial interests in such Global Note that does not
involve the issuance of a Certificated Note.
At any time at the request of a Beneficial Owner of a
Global Note, such Beneficial Owner shall be entitled to obtain a
Certificated Note upon written request to the Trustee and the
Custodian in accordance with the standing instructions and
procedures existing between the Depositary and the Custodian for
the issuance thereof. Upon receipt of any such request, the
Trustee or the Custodian, at the direction of the Trustee, will
cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Custodian, the aggregate
principal amount of the Global Note to be reduced and, following
such reduction, the Company will execute, and the Trustee will
authenticate and deliver to such Beneficial Owner (or its nominee),
a Certificated Note or Notes in the appropriate authorized aggre-
gate principal amount in the name of such Beneficial Owner (or its
nominee) and bearing such restrictive legends as may be required by
this Indenture.
Any transfer of a beneficial interest in a Global Note
which cannot be effected through book-entry settlement must be
effected by the delivery to the transferee (or its nominee) of a
Certificated Note or Notes registered in the name of the transferee
(or its nominee) on the books maintained by the Trustee. With
respect to any such transfer, the Trustee or the Custodian, at the
direction of the Trustee, will cause, in accordance with the
standing instructions and procedures existing between the
Depositary and the Custodian, the aggregate principal amount of the
Global Note to be reduced and, following such reduction, the
Company will execute and the Trustee will authenticate and deliver
to the transferee (or such transferee's nominee, as the case may
be), a Note or Notes in the appropriate aggregate principal amount
in the name of such transferee (or its nominee) and bearing such
restrictive legends as may be required by this Indenture. In
connection with any such transfer, the Trustee or the Custodian, at
the direction of the Trustee, may request such representations and
agreements relating to the restrictions on transfer of such Note or
Notes from such transferee (or such transferee's nominee) as the
Trustee (or the Custodian) may reasonably require.
So long as the Notes are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer
of a Certificated Note to a Qualified Institutional Buyer in
accordance with Rule 144A under the Securities Act, unless
otherwise requested by the transferor, and upon receipt of the
Certificated Note or Notes being so transferred, together with a
certification from the transferor that the transferee is a
Qualified Institutional Buyer (or other evidence satisfactory to
the Trustee), the Trustee shall cancel such Certificated Note or
Notes and cause, or direct the Custodian to cause, in accordance
with the standing instructions and procedures existing between the
Depositary and the Custodian, the aggregate principal amount of the
Global Note to be increased accordingly.
Any Global Note may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be
required by the Custodian, the Depositary or by the National
Association of Securities Dealers, Inc. in order for the Notes to
be tradeable on the PORTAL Market or as may be required for the
Notes to be tradeable on any other market developed for trading of
securities pursuant to Rule 144A or required to comply with any
applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Notes may be
listed or traded or to conform with any usage with respect thereto,
or to indicate any special limitations or restrictions to which any
particular Notes are subject.
Notwithstanding any other provision of this Section or
Section 3.5, unless and until it is exchanged in whole or in part
for Certificated Notes, a Global Note representing all or a portion
of the Notes may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.
The Trustee shall deal with the Depositary and its
participants as representatives of the Beneficial Owners of a
Global Note for purposes of exercising the rights of the Holders
hereunder and the rights of the Beneficial Owners of a Global Note
shall be limited to those established by law and agreement between
such Beneficial Owners and the Depositary and its participants.
Inconsistent requests and directions from, and votes of, such
representatives shall not be deemed to be inconsistent if they are
made with respect to different Beneficial Owners.
If at any time the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary or if at any
time the Depositary shall no longer be registered or in good
standing under the Exchange Act or other applicable statute or
regulation, and the Company shall not have appointed a successor
Depositary within 90 days, then the Company shall execute, and upon
Company Order the Trustee shall authenticate and deliver to the
Persons specified by the Depositary, Certificated Notes, in an
aggregate principal amount equal to the principal amount of the
Global Note or Global Notes, in exchange for such Global Note or
Global Notes.
At such time as all interests in a Global Note have been
redeemed, converted, repurchased or canceled, such Global Note
shall be, upon receipt thereof, canceled by the Trustee in
accordance with standing procedures and instructions existing
between the Depositary and the Custodian. At any time prior to
such cancellation, if any interest in a Global Note is exchanged
for Certificated Notes, redeemed, converted, repurchased, canceled,
or transferred to a transferee who receives Certificated Notes
therefor or any Certificated Note is exchanged or transferred for
part of a Global Note, the principal amount of such Global Note
shall, in accordance with the standing procedures and instructions
existing between the Depositary and the Custodian, be reduced or
increased, as the case may be, and an endorsement shall be made on
such Global Note, by the Trustee or the Custodian, at the direction
of the Trustee, to reflect such reduction or increase.
SECTION 3.5 Registration, Registration of Transfer and
Exchange; Restrictions on Transfer.
The Company shall cause to be maintained a register
(the "Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. The Trustee is hereby
appointed initial "Registrar" for the purpose of registering Notes
and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note
at an office or agency of the Company designated pursuant to
Section 10.2 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any
authorized denominations and of a like aggregate principal amount
and bearing such restrictive legends as may be required by this
Indenture (including Section 2.5).
All Notes issued upon any registration of transfer or
exchange of Notes shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Notes surrendered upon such registration of
transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the
Trustee or the Registrar) be duly endorsed by, or be accompanied by
a written instrument of transfer in form satisfactory to the
Company, the Trustee and the Registrar duly executed by, the Holder
thereof or his attorney duly authorized in writing.
Every Restricted Note shall be subject to the
restrictions on transfer provided in the legend required to be set
forth on the face of each Restricted Note pursuant to Section 2.5,
unless such restrictions on transfer shall be waived by the written
consent of the Company, and the Holder of each Restricted Note, by
such Holder's acceptance thereof, agrees to be bound by such
restrictions on transfer. Whenever any Restricted Note is
presented or surrendered for registration of transfer or for
exchange for a Note registered in a name other than that of the
Holder, (i) the notice of assignment set forth in Section 2.6 must
be properly completed, dated the date of such surrender and signed
by the Holder of such Restricted Note, and (ii) the Holder of such
Restricted Note shall deliver, prior to such transfer, any other
documents required by the Trustee, the Company or the Company's
counsel pursuant to such notice of assignment, including in the
case of any proposed transfer by a Holder to an Institutional
Accredited Investor, a letter signed by such Institutional
Accredited Investor substantially in the form of Exhibit A relating
to certain representations and agreements regarding restrictions on
transfer of such Restricted Note. Neither the Trustee nor any
Transfer Agent shall be required to accept for such registration of
transfer or exchange any Restricted Note if such conditions in the
two preceding sentence have not been satisfied. Notwithstanding
the preceding three sentences, any transfer of an interest in any
Global Note by a QIB to a QIB through the facilities of The
Depository Trust Company or any other United States securities
clearance and settlement organization may be effected without
delivery of any additional notices or documents to the Trustee, any
Transfer Agent, the Company or the Company's counsel, provided that
such transfer does not require a change in the name (other than to
another nominee of The Depository Trust Company or such other
securities clearance and settlement organization) in which such
Note is then registered with the Registrar. The restrictions
imposed by this Section 3.5 and Section 2.5 upon the
transferability of any particular Restricted Note shall cease and
terminate upon the earlier of (i) the sale of such Restricted Note
pursuant to an effective registration statement under the
Securities Act and (ii) the expiration of three years after the
Closing Date. The Company shall promptly inform the Trustee in
writing of the effective date of any registration statement
registering the Notes under the Securities Act. Any Note as to
which such restrictions on transfer have expired in accordance with
their terms or have been otherwise terminated may, upon surrender
of such Note for exchange to the Trustee in accordance with the
provisions of this Section 3.5, be exchanged for a new Note, of
like tenor and aggregate principal amount, which shall not bear the
restrictive legend required by Section 2.5. The Trustee shall not
be liable for any action taken or omitted to be taken by it in good
faith in accordance with this paragraph.
As used in the preceding paragraph, the term "transfer"
encompasses any sale, transfer or other disposition of any
securities referred to herein.
No service charge shall be made to any Holder for any
registration of transfer or exchange of Notes, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 3.4, 8.5, 11.8 or 12.2 not involving any
transfer.
In the event of a redemption in part, the Company will
not be required (i) to register the transfer of or exchange Notes
for a period of 15 days immediately preceding the date notice is
given identifying the serial numbers of the Notes called for such
redemption; or (ii) to register the transfer of or exchange any
such Note, or portion thereof, called for redemption.
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Note of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there be delivered to the Company and the Trustee
(1) evidence to their satisfaction of the destruction,
loss or theft of any Note, and
(2) such security or indemnity as may be required by
them to save each of them and any agent of either of them
harmless,
then, in the absence of notice to the Company or the Trustee that
such Note has been acquired by a bona fide purchaser, the Company
shall execute and upon request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new
Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Note has become or is about to become due and payable, the Company
in its discretion, but subject to any conversion rights, may,
instead of issuing a new Note, pay such Note, upon satisfaction of
the condition set forth in the preceding paragraph.
Upon the issuance of any new Note under this Section, 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 Note issued pursuant to this Section in lieu of
any destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and such new Note shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section 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 Notes.
SECTION 3.7 Payment of Interest, Interest Rights
Preserved.
Interest on any Note which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be
paid to the person in whose name that Note (or one or more
Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue
of having been such Holder, and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in clause
(1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Notes (or
their respective Predecessor Notes) are registered at the
close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid (by airmail in the case of any
notice sent to an address outside the United States), to each
Holder of Notes at the address of such Holder as it appears in
the Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may
be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner
of payment shall be deemed reasonable and practicable by the
Trustee.
Subject to the foregoing provisions of this Section,
each Note delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Note shall
carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Note.
Except as provided below, in the case of any Note which
is converted, interest accrued with respect to such Note to the
date of conversion of such Note shall not be payable upon such
conversion. In the case of any Note which is converted after any
Regular Record Date and on or prior to the next succeeding Interest
Payment Date, interest on the principal amount of such Note shall
be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or
duly provided for) shall be paid to the Person in whose name that
Note (or one or more Predecessor Notes) is registered at the close
of business on such Regular Record Date. In the case of any Note
converted on an Interest Payment Date, interest on the principal
amount of such Note shall be paid on such Interest Payment Date to
the registered Holder of such Note on the immediately preceding
Regular Record Date.
SECTION 3.8 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name any Note is
registered as the owner of such Note for the purpose of receiving
payment of principal of (and premium, if any) and (subject to
Section 3.7) interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and
notwithstanding any notice of ownership or writing thereon, or any
notice of previous loss or theft or other interest therein.
The Depositary shall be deemed to be the owner of any
Global Note for all purposes, including receipt of notices to
Noteholders and payment of principal of, and premium, if any and
interest on the Notes. None of the Company, the Trustee (in its
capacity as Trustee), any paying agent or the Note registrar (or
co-registrar) will have any responsibility for any aspect of the
records relating to or payments made on account of beneficial
interests of a Note for maintaining, supervising or reviewing any
records relating to the Beneficial Ownership thereof; provided,
however, that the foregoing shall not apply to the Trustee or any
other person acting in its capacity as Custodian.
SECTION 3.9 Cancellation.
All Notes surrendered for payment, redemption,
repurchase, conversion, registration of transfer or exchange shall,
if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Notes so delivered shall be canceled promptly
by the Trustee and shall not be reissued. Unless the Trustee is
instructed otherwise by the Company, all canceled Notes and any
certificates in connection therewith held by the Trustee shall be
delivered to the Company.
SECTION 3.10 Computation of Interest.
Interest shall be calculated on the basis of a 360-day
year. Whenever it is necessary to compute an amount of interest in
respect of any Note for a period of less than a full year, such
interest shall be calculated on the basis of a 360-day year
consisting of 12 months of 30 days each and, in the case of an
incomplete month, the number of days elapsed.
SECTION 3.11 Temporary Notes.
Pending the preparation of definitive Notes, the Company
may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Notes in
lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Notes may determine, as evidenced by their execution
of such Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After
the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary
Notes at any office or agency of the Company designated pursuant to
Section 10.2, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as
definitive Notes.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect
(except as to any surviving rights of conversion, registration of
transfer or exchange or replacement of Notes herein expressly
provided for), and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Notes theretofore authenticated and
delivered (other than (i) Notes which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.6 and (ii) Notes for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.3), have been delivered
to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the
Trustee for cancellation (other than Notes referred to in
clause (i) or (ii) of clause (1)(A) above)
(i) have become due and payable, or
(ii) will have become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Company;
and the Company, in the case of clause (i), (ii) or (iii)
above, has deposited or caused to be deposited with the
Trustee as trust funds (immediately available to the
Holders in the case of clause (i)) in trust for the
purpose an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such
deposit (in the case of Notes which have become due and
payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 6.7 shall survive and, if money shall have been deposited
with the Trustee pursuant to clause (1)(B) of this Section, the
obligations of the Trustee under Section 4.2 and the last paragraph
of Section 10.3 shall survive. Funds held in trust pursuant to
this Section are not subject to the provisions of Article 13.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 10.3, all money deposited with the Trustee pursuant to
Section 4.1 shall be held in trust and applied by it, in accordance
with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been
deposited with the Trustee.
All moneys deposited with the Trustee pursuant to
Section 4.1 (and held by it or any Paying Agent) for the payment of
Notes subsequently converted (other than amounts payable as
interest on any Note so converted as provided in Section 3.7) shall
be returned to the Company upon Company Request.
ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", where used herein, means any one of
the following events (whatever the reason for such Event of Default
and whether it shall be occasioned by the provisions of Article 13
or be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(1) there shall be a failure by the Company to pay when
due the principal of, or premium, if any, on any of the Notes at
the Stated Maturity, upon redemption or exercise of a Repurchase
Right or otherwise; or
(2) there shall be a failure by the Company to pay an
installment of interest on any of the Notes for 30 days after the
date when due; or
(3) the Company shall fail to perform or observe any
other term, covenant or agreement contained in the Notes or this
Indenture for a period of 90 days after written notice of such
failure, requiring the Company to remedy the same, shall have been
given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Notes; or
(4) if any event of default shall have occurred under
the Company's existing 6-1/4% Convertible Subordinated Notes due 2002
(the "Existing Debentures") or the indenture governing such
Existing Debentures, which such event of default shall have
resulted in the acceleration of principal of the Existing
Debentures; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
United States federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable United States federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case
or proceeding under any applicable United States federal or state
bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Company to the entry of a decree
or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable United States federal or
state bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company, or the filing by the Company of a
petition or answer or consent seeking reorganization or relief
under any applicable United States federal or state law, or the
consent by the Company to the filing of such petition or to the
appointment of or the taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property,
or the making by the Company of an assignment for the benefit of
creditors, or the admission by the Company in writing of its
inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any
such action.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default specified in Section 5.1(5) or
5.1(6) occurs and is continuing, then automatically the principal
of all the Notes and the interest thereon shall become immediately
due and payable. If any other Event of Default occurs and is
continuing, then and in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Notes
may declare the Notes to be due and payable immediately at their
principal amount together with accrued interest, by a notice in
writing to the Company (and to the Trustee if given by the
Holders), and upon any such declaration such principal amount and
accrued interest shall become immediately due and payable.
At any time after an acceleration and before a judgment
or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Notes, by written
notice to the Company and the Trustee, may rescind and annul such
acceleration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Notes (other than
interest which would have been due solely as a result of the
declaration of acceleration of the maturity of any Notes),
(B) the principal of (and premium, if any, on) any
Notes which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Notes,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest (other than interest which
would have been due solely as a result of the declaration of
acceleration of the maturity of any Notes), at the rate borne by
the Notes, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of
the principal of and interest on Notes which have become due solely
by such acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission or annulment shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on
any Note when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Note at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Notes, the whole amount then due and
payable on such Notes for principal (and premium, if any) and
interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and
premium, if any) and on any overdue interest, at the rate borne by
the Notes, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the
Company, wherever situated.
If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Notes by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any
other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or
the property of the Company or its creditors, the Trustee
(irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Notes and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders of Notes allowed in such judicial
proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claim and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder of Notes to make
such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the
Holders of Notes, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept, or adopt on behalf of
any Holder of a Note, any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of
the claim of any Holder of a Note in any such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Notes.
All rights of action and claims under this Indenture or
the Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by
the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Notes in respect
of which judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Subject to Article 13, any money collected by the Trustee
pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if
any) or interest, upon presentation of the Notes and the notation
thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.7;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest on the
Notes in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Notes for
principal (and premium, if any) and interest, respectively; and
THIRD: Any remaining amounts shall be repaid to the
Company.
SECTION 5.7 Limitation on Suit.
No Holder of any Note shall have any right to institute
any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Notes shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to
obtain or seek to obtain priority or preference over any other of
such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit
of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest and To Convert.
Notwithstanding any other provision in this Indenture,
the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium,
if any) and (subject to Section 3.7) interest on such Note on the
Stated Maturity expressed in such Note (or, in the case of
redemption or exercise of a Repurchase Right, on the Redemption
Date) and to convert such Note in accordance with Article 12, and
to institute suit for the enforcement of any such payment and right
to convert, and such rights shall not be impaired without the
consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Note has instituted any
proceeding to enforce any right or remedy under this Indenture and
such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders of Notes shall
be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Notes in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders
of Notes is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of
any Note to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or any acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders of Notes may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by
the Holders of Notes, as the case may be.
SECTION 5.12 Control by Holders of Notes.
The Holders of a majority in principal amount of the
Outstanding Notes shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the
Trustee, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture or expose the Trustee to
personal liability, or be unduly prejudicial to the Holders not
joining therein, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Default.
The Holders, either (a) through the written consent of
not less than a majority in aggregate principal amount of the
Outstanding Notes, or (b) by the adoption of a resolution, at a
meeting of Holders of the Outstanding Notes at which a quorum is
present, by the Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes, may on behalf of the
Holders of all the Notes waive any past default hereunder and its
consequences, except a default (1) in the payment of the principal
of (or premium, if any) or interest on any Note or (2) in respect
of a covenant or provision hereof which under Article 8 cannot be
modified or amended without the consent of the Holders of each
Outstanding Note affected.
Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of
any Note by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted
by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable
attorneys fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Notes, or to any suit
instituted by any Holder of any Note for the enforcement of the
payment of the principal of (or premium, if any) or interest on any
Note on or after the Stated Maturity expressed in such Note (or, in
the case of redemption or exercise of a Repurchase Right, on or
after the Redemption Date) or for the enforcement of the right to
convert any Note in accordance with Article 12.
SECTION 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim to take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements to this
Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own wilful misconduct,
except that
(1) this paragraph (c) shall not be construed to
limit the effect of paragraph (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding Notes
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate
indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.2 Notice of Defaults.
Within 90 days after the occurrence of any Default, the
Trustee shall give notice to Holders pursuant to Section 1.5
hereof, unless such Default shall have been cured or waived;
provided, however, that, except in the case of a Default in the
payment of the principal of (or premium, if any) or interest on any
Note, the Trustee shall be protected in withholding such notice if
and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of
the Holders.
SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
ci the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
Officers' Certificate, other certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order and any resolution of
the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(4) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the
Holders of Notes pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by
agent or attorney;
(7) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(8) the Trustee shall not be deemed to have notice
or actual knowledge of any Event of Default (other than
an Event of Default described in Section 5.1(1) or (2))
unless a Responsible Officer of the Trustee shall have
actual knowledge thereof or unless written notice thereof
is received by the Trustee at its Corporate Trust Office
from Holders of not less than 25% in principal amount of
the Outstanding Notes; and
(9) subject to Section 6.1, the Trustee shall not
be liable for any action taken or omitted to be taken by
it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
SECTION 6.4 Not Responsible for Recitals or Issuance of
Notes.
The recitals contained herein and in the Notes (except
the Trustee's and Authenticating Agent's certificates of
authentication) shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes. The Trustee shall
not be accountable for the use or application by the Company of
Notes or the proceeds thereof.
SECTION 6.5 May Hold Notes, Act as Trustee Under Other
Indentures.
The Trustee, any Paying Agent, any Transfer Agent, any
Conversion Agent, any Registrar, any Custodian or any other agent
of the Company or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Notes and may
otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Transfer Agent, Conversion
Agent, Registrar, Custodian or such other agent.
The Trustee may become and act as trustee under other
indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are
outstanding in the same manner as if it were not Trustee.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise expressly agreed with
the Company.
SECTION 6.7 Compensation and Indemnification of Trustee
and Its Prior Claims.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable
compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and
the Company covenants and agrees to pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it in accordance with
any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and
of all agents and other persons not regularly in its employ),
except to the extent that any such expense, disbursement or advance
is due to its negligence or bad faith. The Company also covenants
to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred by it, arising out of or in
connection with the acceptance or administration of this Indenture
or the trusts hereunder or the performance of its duties hereunder,
including the costs and expenses of defending itself against or
investigating any claim of liability in the premises, except to the
extent that any such loss, liability or expense was due to the
Trustee's negligence or bad faith. The obligations of the Company
under this Section 6.7 to compensate and indemnify the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and
shall survive the satisfaction and discharge of this Indenture.
Such additional indebtedness shall be a senior claim to that of the
Notes upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders
of particular Notes, and the Notes are hereby subordinated to such
senior claim. "Trustee" for purposes of this Section 6.7 shall
include any predecessor Trustee, but the negligence or bad faith of
any Trustee shall not affect the indemnification of any other
Trustee.
SECTION 6.8 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a corporation eligible under the Trust Indenture Act (to
the extent the provisions of the Trust Indenture Act are deemed
incorporated herein by reference or applicable hereto pursuant to
Section 1.13) to act as such and (together with any Person directly
or indirectly controlling the Trustee) a combined capital and
surplus of at least $25,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of a supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this
Article.
SECTION 6.9 Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of
Section 6.10.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by
a successor Trustee required by Section 6.10 shall not have been
delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Notes,
delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall cease to be eligible under
Section 6.8 and shall fail to resign after written
request therefor by the Company or by any Holder of a
Note who has been a bona fide Holder of a Note for at
least six months, or
(2) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case (i) the Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 5.14, any Holder of
a Note who has been a bona fide Holder of a Note for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee and shall comply with the
applicable requirements of Section 6.10. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Notes
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of
Section 6.10, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders
of Notes and accepted appointment in the manner required by
Section 6.10, any Holder of a Note who has been a bona fide Holder
of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a successor
Trustee to the Holders of Notes in the manner provided in
Section 1.5. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 6.10 Acceptance of Appointment By Successor.
Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
eligible under this Article.
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise eligible under this Article, without
the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes.
SECTION 6.12 Authenticating Agent.
The Trustee may appoint an authenticating agent or agents
with respect to the Notes which shall be authorized to act on
behalf of the Trustee to authenticate Notes issued upon exchange,
registration of transfer, partial redemption thereof or
substitution pursuant to this Indenture. Notes so authenticated
shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the
Trustee hereunder and every reference herein to the authentication
and delivery of Notes by the Trustee or the Trustee's certificate
of authentication shall be deemed to include authentication and
delivery on behalf of the Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Trustee by
an authenticating agent. Each authenticating agent shall at all
times be a bank or trust company authorized by law to act as an
authenticating agent, having a combined capital and surplus of not
less than $5,000,000 and subject to supervision or examination by a
duly constituted banking authority. (If such authenticating agent
publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority,
then for the purposes of this Section 6.12, the combined capital
and surplus of such authenticating agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report
of condition so published.) If at any time an authenticating agent
shall cease to be eligible in accordance with the provisions of
this Section 6.12, such authenticating agent shall resign
immediately in the manner and with the effect specified in this
Section 6.12.
Any corporation into which an authenticating agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which such authenticating agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust
business of an authenticating agent, shall continue to be an
authenticating agent, provided such corporation shall be otherwise
eligible under this Section 6.12, without the execution or filing
of any paper or any further act on the part of the Trustee or the
authenticating agent.
An authenticating agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an authenticating
agent by giving written notice thereof to such authenticating agent
and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such authenticating
agent shall cease to be eligible in accordance with the provisions
of this Section 6.12, the Trustee may appoint a successor
authenticating agent which shall be acceptable to the Company. Any
successor authenticating agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent. No successor
authenticating agent shall be appointed unless eligible under the
provisions of this Section 6.12.
The Trustee agrees to pay to each authenticating agent
from time to time reasonable compensation for its services under
this Section 6.12, and the Trustee shall be entitled to be
reimbursed by the Company for such payments.
If an authenticating agent is appointed with respect to
the Notes pursuant to this Section 6.12, the Notes may have
endorsed thereon, in addition to or in lieu of the Trustee's
certification of authentication, an alternate certificate of
authentication in the following form:
This is one of the Notes referred to in the
within-mentioned Indenture:
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By [Authenticating Agent], as
Authenticating Agent
By______________________________
Authorized Signatory
SECTION 6.13 Conflicting Interest of Trustee.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act and there
exists an Event of Default hereunder (exclusive of any period of
grace or requirement of notice), the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided
by, and subject to, the provisions of the Trust Indenture Act and
this Indenture.
ARTICLE 7
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1 Company May Consolidate, Etc., Only on
Certain Terms.
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease all or substantially all
of its properties and assets to any Person, unless:
(1) in the event that the Company shall consolidate
with or merge into another Person or convey, transfer or
lease all or substantially all of its properties and
assets to any Person, the Person formed by such
consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which
leases, all or substantially all of the properties and
assets of the Company shall be a corporation organized
and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia
and the (I) successor corporation formed by such
consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made (the
"Successor Corporation") (other than the case of a merger
in which the Company is the Successor Corporation), shall
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest on
all the Notes and the performance of every covenant of
this Indenture on the part of the Company to be performed
or observed and (II) the Successor Corporation shall
have, by an indenture supplemental hereto, executed and
delivered to the Trustee, provided for (A) conversion
rights in accordance with Section 12.11 to the extent
required by such Section and (B) modifications to rights
of Holders to cause the repurchase of Notes upon a
Designated Event in accordance with Section 11.10 to the
extent required by such Section; and
(2) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture complies with this Article and
that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 7.2 Successor Corporation Substituted.
Upon any consolidation or merger by the Company with or
into any other corporation or any conveyance, transfer or lease all
or substantially all of the properties and assets of the Company to
any Person, in accordance with Section 7.1, the Successor
Corporation shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture
with the same effect as if such Successor Corporation had been
named as the Company herein, and thereafter, except in the case of
a lease to another Person, the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and
the Notes.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Holders of Notes.
Without the consent of any Holders of Notes, the Company,
when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, for any of the following purposes:
(1) to make provision with respect to the conversion
rights of the Holders of Notes pursuant to the requirements of
Section 12.11; or
(2) subject to Article 13, to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Notes,
any property or assets; or
(3) to modify the restrictive legend set forth on the
face of the form of Note in Section 2.2 or modify the forms of
certificates and notices set forth in Sections 2.3, 2.4, 2.6,
2.7 and 6.12; provided, however, that any such modification
shall not adversely affect the interest of the Holders of the
Notes in any material respect; or
(4) to make further provision for the establishment or
administration of a book-entry system, in which Holders would
have the option to participate, for the clearance and
settlement of transactions in Notes originally issued in
certificated form; or
(5) to evidence the succession of another corporation to
the Company, or successive successions, and the assumption by
the Successor Corporation of the covenants, agreements and
obligations of the Company pursuant to Article 7;
(6) to add to the covenants of the Company such further
covenants, restrictions or conditions as the Board of
Directors and the Trustee shall consider to be for the benefit
of the Holders of Notes, and to make the occurrence, or the
occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default or
an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein
set forth; provided, however, that in respect of any such
additional covenant, restriction or condition such supple-
mental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default; or
(7) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental
indenture or to make such other provisions in regard to
matters or questions arising under this Indenture which shall
not materially adversely affect the interests of the Holders
of the Notes; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Notes; or
(9) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to effect
the qualifications of this Indenture under the Trust Indenture
Act (if applicable), or under any similar federal statute
hereafter enacted (if applicable).
The Trustee is hereby authorized to join with the Company
in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer and
assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any supple-
mental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 8.2 Supplemental Indentures with Consent of
Noteholders.
With the consent of the holders of not less than a
majority in aggregate principal amount of the Notes at the time
outstanding, the Company, when authorized by the resolutions of the
Board of Directors, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or
any supplemental indenture or of modifying in any manner the rights
of the holders of the Notes; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any
Note, or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof or premium, if any,
thereon, or reduce any amount payable on redemption thereof,
adversely affect the obligation of the Company to redeem the Notes
at the option of the holder upon the occurrence of a Designated
Event subject to the terms set forth herein, including
Section 11.10, or impair or affect the right of any Noteholder to
institute suit for the payment thereof, or make the principal
thereof or interest or premium, if any, thereon payable in any coin
or currency other than that provided in the Notes, or modify the
provisions of this Indenture with respect to the subordination of
the Notes in a manner adverse to the Noteholders, or impair the
right to convert the Notes into Common Stock subject to the terms
set forth herein, including Section 12.11, without the consent of
the holder of each Note so affected, or (ii) reduce the aforesaid
percentage of Notes, the Holders of which are required to consent
to any such supplemental indenture, without the consent of the
Holders of all Notes then outstanding.
Upon the request of the Company, accompanied by the Board
resolutions authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the
consent of Noteholders as aforesaid, the Trustee shall join with
the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated
to, enter into such supplemental indenture.
It shall not be necessary for any Act of Holders of Notes
under this Section 8.2 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
SECTION 8.3 Execution of Supplemental Indentures.
In executing or accepting the additional trusts created
by any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture.
SECTION 8.4 Effect of Supplemental Indentures.
Any supplemental indenture executed pursuant to the
provisions of this Article 8 shall comply with the Trust Indenture
Act, as then in effect, if (after giving effect by Section 1.13)
such supplemental indenture is then required to so comply. Upon
the execution of any supplemental indenture pursuant to the
provisions of this Article 8, this Indenture shall be and be deemed
to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the
holders of Notes shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 8.5 Reference in Notes to Supplemental
Indentures.
Notes authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may bear a
notation in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company shall so
determine, new Notes so modified as to conform, in the opinion of
the Company and the Trustee, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Notes.
ARTICLE 9
MEETINGS OF HOLDERS OF NOTES
SECTION 9.1 Purposes for Which Meetings May Be Called.
A meeting of Holders of Notes may be called at any time
and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
made, given or taken by Holders of Notes or authorized under
applicable law.
SECTION 9.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Notes for any purpose specified in Section 9.1, to be
held at such time and at such place in New York, New York, San
Francisco, California or Milpitas, California as the Trustee shall
determine. Notice of every meeting of Holders of Notes, setting
forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given, in
the manner provided in Section 1.5, not less than 10 nor more than
90 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of
the Outstanding Notes shall have requested the Trustee to call a
meeting of the Holders of Notes for any purpose specified in
Section 9.1, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee
shall not proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Notes in the amount
specified, as the case may be, may determine the time and the place
in New York, New York, San Francisco, California or Milpitas,
California for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) of
this Section.
SECTION 9.3 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Notes, a Person shall be (a) a Holder of one or more Outstanding
Notes, or (b) a Person appointed by an instrument in writing as
proxy for a Holder or Holders of one or more Outstanding Notes by
such Holder or Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 9.4 Quorum; Action.
The Persons entitled to vote a majority in principal
amount of the Outstanding Notes shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any
such meeting, the meeting shall, if convened at the request of
Holders of Notes, be dissolved. In any other case, the meeting may
be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for a period not
less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in
Section 9.2(a), except that such notice shall be given not less
than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage of the principal
amount of the Outstanding Notes which shall constitute a quorum.
SECTION 9.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Notes in regard to
proof of the holding of Notes and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the
holding of Notes shall be proved in the manner specified in
Section 1.3 and the appointment of any proxy shall be proved in the
manner specified in Section 1.3. Such regulations may provide that
written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in
Section 1.3 or other proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman (which may be the Trustee) of the
meeting, unless the meeting shall have been called by the Company
or by Holders of Notes as provided in Section 9.2(b), in which case
the Company or the Holders of Notes calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Notes represented at the
meeting.
(c) At any meeting each Holder of a Note or proxy shall
be entitled to one vote for each $1,000 principal amount of Notes
held or represented by him; provided, however, that no vote shall
be cast or counted at any meeting in respect of any Note challenged
as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Note or proxy.
(d) Any meeting of Holders of Notes duly called pursuant
to Section 9.2 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Notes represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 9.6 Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Notes shall be by written ballots on which shall be
subscribed the signatures of the Holders of Notes or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the
proceedings of each meeting of Holders of Notes shall be prepared
by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote
by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in
Section 9.2 and, if applicable, Section 9.4. The record shall show
the principal amount of the Notes voting in favor or against any
resolution. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting
and one such copy shall be delivered to the Company and another to
the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters
therein stated.
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of
(and premium, if any) and interest on the Notes in accordance with
the terms of the Notes and this Indenture.
SECTION 10.2 Maintenance of Offices or Agencies.
The Company hereby appoints the Corporate Trust Office of
the Trustee as its initial Paying Agent, Conversion Agent and
Transfer Agent, and the office of BancBoston Trust Company of New
York, an Affiliate of the Trustee, at 55 Broadway, New York, New
York 10006, as its initial Paying Agent, Conversion Agent and
Transfer Agent in the Borough of Manhattan, The City of New York,
where Notes may be presented or surrendered for payment, where
Notes may be surrendered for registration of transfer or exchange,
where Notes may be surrendered for conversion, and where notices
and demands to or upon the Company in respect of the Notes and this
Indenture may be served.
The Company may at any time and from time to time vary or
terminate the appointment of any such agent or appoint any
additional agents for any or all of such purposes; provided,
however, that until all of the Notes have been delivered to the
Trustee for cancellation, or moneys sufficient to pay the principal
of and premium, if any, and interest on the Notes have been made
available for payment and either paid or returned to the Company
pursuant to the provisions of Section 10.3, the Company will
maintain in the Borough of Manhattan, The City of New York, an
office or agency where Notes may be presented or surrendered for
payment, where Notes may be surrendered for registration of
transfer or exchange, where Notes may be surrendered for conversion
and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee, and notice to the Holders in
accordance with Section 1.5, of the appointment or termination of
any such agents and of the location and any change in the location
of any such office or agency.
If at any time the Company shall fail to maintain any
such required office or agency in the Borough of Manhattan, The
City of New York, or shall fail to furnish the Trustee with the
address thereof, presentations and surrenders may be made and
notices and demands may be served on and Notes may be surrendered
for conversion to the Corporate Trust Office of the Trustee.
SECTION 10.3 Money for Note Payments To Be Held in
Trust.
If the Company shall act as a Paying Agent, it will, on
or before each due date of the principal of (and premium, if any)
or interest on any of the Notes, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and the Company will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Notes, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of any failure so to act.
The Company will cause each Paying Agent other than the
Trustee or an Affiliate of the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Notes
in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company in the making of any payment of principal (and
premium, if any) or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by
such Paying Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest on any Note and
remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, subject to applicable
abandoned property and escheat laws, or (if then held by the
Company) shall be discharged from such trust; and the Holder of
such Note appertaining thereto shall thereafter, as an unsecured
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that (i) the Trustee or
such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published
in a newspaper of general circulation in the County of New York
customarily published on each Business Day in the English language,
notice that such money remains unclaimed and that after a date
specified in such notice, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 10.4 Corporate Existence.
Subject to Article 7, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Company
determines that the preservation thereof is no longer desirable in
the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the
Holders.
SECTION 10.5 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Section 10.4, if
before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Notes shall, by Act
of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision
or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 10.6 Delivery of Certain Information.
At any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, upon the request of a Holder or
Beneficial Owner of a Note, the Company will promptly furnish or
cause to be furnished Rule 144A Information (as defined below) to
such Holder, to such Beneficial Owner or to a prospective purchaser
designated by such Holder or Beneficial Owner, as the case may be,
in order to permit compliance by such Holder or Beneficial Owner
with Rule 144A under the Securities Act in connection with the
resale of such Note by such Holder or Beneficial Owner; provided,
however, the Company shall not be required to furnish such
information in connection with any request made on or after the
date which is three years from the date such Note (or any
predecessor Note) was acquired from the Company; and provided,
further, however, the Company shall not be required to furnish such
information at any time to a prospective purchaser located outside
the United States who is not a "U.S. person" within the meaning of
Regulation S under the Securities Act if such Note may then be sold
to such prospective purchaser in accordance with Rule 904 under the
Securities Act (or any successor provision thereto). "Rule 144A
Information" shall be such information as is specified pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto).
ARTICLE 11
REDEMPTION OF NOTES AND REPURCHASE RIGHT OF HOLDERS
SECTION 11.1 Right of Redemption and Repurchase Right of
Holders.
The Notes may be redeemed at the election of the Company,
or repurchased at the option of a Holder subsequent to the
occurrence of a Designated Event, subject to the conditions, at the
times and at the prices specified in the form of Notes set forth in
Section 2.2, together with accrued interest to the Redemption Date
or the Repurchase Date, as the case may be.
SECTION 11.2 Applicability of Article.
Redemption of Notes at the election of the Company or
otherwise or repurchase of Notes by the Company at the option of
Holders subsequent to the occurrence of a Designated Event, as
permitted or required by any provision of the Notes or this
Indenture, shall be made in accordance with such provision and this
Article.
SECTION 11.3 Election To Redeem; Notice to Trustee.
The election of the Company to redeem any Notes shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company of all of the Notes, the Company shall, at
least 30 but not more than 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee of such Redemption Date. In
case of any redemption at the election of the Company of less than
all the Notes, the Company shall (at least 10 days prior to the
date the Trustee will be requested to give notice of the redemption
unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal
amount of Notes to be redeemed.
SECTION 11.4 Selection by Trustee of Notes To Be
Redeemed.
If less than all the Notes are to be redeemed, the
particular Notes to be redeemed shall be selected by the Trustee,
at least 10 days prior to the date the Trustee will be requested to
give notice of the redemption from the Outstanding Notes not
previously called for redemption, by lot, pro rata or in such
manner as the Trustee may deem to be fair and appropriate. Partial
redemption must be in an amount not less than $1,000,000 aggregate
principal amount of Notes. Such method of selection may provide
for the selection for redemption of portions (in amounts equal to
$250,000 or an integral multiple of $1,000 in excess thereof) of
the principal amount of Notes of a denomination larger than
$250,000 (provided that the principal amount of any portion of a
Note not so redeemed is equal to or in excess of $250,000).
If any Note selected for partial redemption is converted
in part before termination of the conversion right with respect to
the portion of the Note so selected, the converted portion of such
Note shall be deemed to be the portion selected for redemption.
Notes which have been converted during a selection of Notes to be
redeemed may be treated by the Trustee as Outstanding for the
purpose of such selection.
The Trustee shall promptly notify the Company and each
Registrar in writing of the Notes selected for redemption and, in
the case of any Notes selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Notes shall relate, in the case of any Notes redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Notes which has been or is to be redeemed.
SECTION 11.5 Notice of Redemption or Designated Event.
(a) Notice of redemption shall be given in the manner
provided in Section 1.5 to the Holders of Notes to be redeemed.
Notice shall be given not less than 30 nor more than 60 days prior
to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, and accrued interest, if any,
(3) if less than all the Outstanding Notes are to be
redeemed, the aggregate principal amount of Notes to be redeemed
and the aggregate principal amount of Notes which will be
outstanding after such partial redemption,
(4) that on the Redemption Date the Redemption Price,
and accrued interest, if any, will become due and payable upon each
such Note to be redeemed, and that interest thereon shall cease to
accrue on and after said date,
(5) the Conversion Price, the date on which the right to
convert the principal of the Notes to be redeemed will terminate
and the places where such Notes may be surrendered for conversion,
and
(6) the place or places where the Notes to be redeemed
are to be surrendered for payment of the Redemption Price and
accrued interest, if any.
In case of a partial redemption, the notice given shall
specify the last date on which exchanges or registration of
transfers of Notes may be made pursuant to Section 3.5 and shall
specify the serial numbers of the Notes or portions thereof (in
amounts equal to $250,000 or integral multiples of $1,000 in excess
thereof, provided that the principal amount of any portion not so
redeemed shall be equal to or in excess of $250,000) called for
redemption.
Notice of redemption of Notes to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name of and at the expense
of the Company.
(b) In case a Designated Event shall have occurred, the
Company shall give notice (the "Company Notice") of such Designated
Event and the Repurchase Right arising as a result thereof in the
manner provided in Section 1.5 to the Holders and the Trustee
within thirty days following such occurrence; provided that the
Trustee shall not be deemed to have notice of such Designated Event
until the date notice of such Designated Event is actually received
by the Trustee. The notice shall set forth details regarding the
right of the Holders to require the Company to purchase all of
their Notes on the Repurchase Date, which date shall be the forty-
fifth day following the date of the Company Notice or, if not a
Business Day, the next following Business Day, and the place at
which Notes are to be presented and surrendered for purchase, and
shall state that interest accrued to the Repurchase Date will be
paid as specified in said notice (except if the Repurchase Date
shall be an Interest Payment Date) and that from and after said
Repurchase Date interest thereon shall cease to accrue with respect
to any Notes presented and surrendered for purchase. Any Holder of
Notes intending to exercise its Repurchase Right shall deliver
irrevocable written notice of such intention to the Trustee and the
Company (or an agent designated by the Company for such purpose),
and shall concurrently present and surrender its Notes in proper
form for purchase by the Company, on or before the close of
business on the thirtieth day after the date of the Company Notice.
The notice of exercise of a Repurchase Right shall specify the name
of such Holder and shall identify the Notes (or the principal
amount of portions thereof) that are to be so purchased and their
aggregate principal amount. No such notice shall be deemed to have
been delivered, and no such Notes shall be deemed to have been
presented and surrendered, until such notice and Notes are actually
received by the Company or its designated agent. The Repurchase
Right shall terminate as of the close of business on the thirtieth
day after the date of the Company Notice and the Company shall not
be obligated to purchase any Notes presented and surrendered from
and after such termination date.
SECTION 11.6 Deposit of Redemption Price and Repurchase
Price.
(a) On or before the Redemption Date or the Repurchase
Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.3) an amount
of money sufficient to pay the Redemption Price or Repurchase Price
of, and (except if the Redemption Date or the Repurchase Date shall
be an Interest Payment Date) accrued interest on, all the Notes
which are to be redeemed on that date other than any Notes called
for redemption on that date which have been converted prior to the
date of such deposit.
If any Note called for redemption is converted, any money
deposited with the Trustee or with a Paying Agent or so segregated
and held in trust for the redemption of such Note shall (subject to
any right of the Holder of such Note or any Predecessor Note to
receive interest as provided in the last paragraph of Section 3.7)
be paid to the Company on Company Request or, if then held by the
Company, shall be discharged from such trust.
(b) Notwithstanding anything to the contrary in this
Indenture, if the giving of the notice of the occurrence of a
Designated Event and the Repurchase Right arising therefrom shall
have been completed as provided in Section 11.5(b), or if provision
satisfactory to the Trustee for the giving of such notice shall
have been made, and if the Company shall have deposited with the
Trustee or with any Paying Agent (other than the Company) funds
sufficient to purchase the Notes or portions thereof as to which
such Repurchase Right has been exercised in accordance with Section
11.5(b), at the applicable purchase price, together with interest
accrued to the Repurchase Date, then all obligations of the Company
in respect of such Notes or portions thereof shall cease and be
discharged, and the Holders of such Notes shall thereafter be
restricted exclusively to such funds for any and all claims of
whatsoever nature on their part under this Indenture, or in respect
of such Notes.
SECTION 11.7 Notes Payable on Redemption Date and
Repurchase Date.
(a) Notice of redemption having been given as aforesaid,
the Notes so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified and from
and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Notes
shall cease to bear interest. Upon surrender of any such Note for
redemption in accordance with said notice, such Note shall be paid
by the Company at the Redemption Price together with accrued
interest to the Redemption Date; provided, however, that the
installments of interest on Notes whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of
such Notes, or one or more Predecessor Notes, registered as such on
the relevant Record Date according to their terms and the
provisions of Section 3.7.
If any Note called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium,
if any) shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Note.
(b) With respect to each Note which has been presented
and surrendered and as to which notice has been given to the
Company of the Holder's intention to exercise its Repurchase Right
in accordance with Section 11.5(b), such Note shall become due and
payable on the Repurchase Date. Upon presentation and surrender of
each Note in accordance with this Article 11, such Note shall be
purchased by the Company at the purchase price therefor, together
with interest accrued thereon to the Repurchase Date. Interest on
any Note with respect to which a Holder has exercised its
Repurchase Right shall cease to accrue from and after the
Repurchase Date (unless the Company shall default in the payment of
any such Note at the purchase price, together with interest accrued
thereon to the Repurchase Date); provided, however, that the
installments of interest on Notes whose Stated Maturity is on or
prior to the Repurchase Date shall be payable to the Holders of
such Notes, or one or more Predecessor Notes, registered as such on
the relevant Record Date according to their terms and the
provisions of Section 3.7.
SECTION 11.8 Notes Redeemed or Repurchased in Part.
Any Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for
that purpose pursuant to Section 10.2 (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 his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note, without
service charge, a new Note or Notes of any authorized denomination
as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the
Note so surrendered.
Upon presentation and surrender of any Note which is to
be purchased in part only, upon its purchase, the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder thereof, without service charge, a new Note or Notes in
authorized denominations in aggregate principal amount equal to the
portion of the Note not purchased.
SECTION 11.9 Conversion Arrangement on Call for
Redemption.
In connection with any redemption of Notes, the Company
may arrange for the purchase and conversion of any Notes by an
agreement with one or more investment bankers or other purchasers
to purchase such Notes by paying to the Trustee in trust for the
Noteholders, on or before the date fixed for redemption, an amount
not less than the applicable redemption price, together with
interest accrued to the date fixed for redemption, of such Notes.
Notwithstanding anything to the contrary contained in this
Article 11, the obligation of the Company to pay the redemption
price of such Notes, together with interest accrued to the date
fixed for redemption, shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such purchasers.
If such an agreement is entered into, a copy of which will be filed
with the Trustee prior to the date fixed for redemption, any Notes
not duly surrendered for conversion by the holders thereof may, at
the option of the Company, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such holders and
(notwithstanding anything to the contrary contained in Article 12)
surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the date fixed for
redemption (and the right to convert any such Notes shall be deemed
to have been extended through such time), subject to payment of the
above amount as aforesaid. At the direction of the Company, the
Trustee shall hold and dispose of any such amount paid to it in the
same manner as it would monies deposited with it by the Company for
the redemption of Notes. Without the Trustee's prior written
consent, no arrangement between the Company and such purchasers for
the purchase and conversion of any Notes shall increase or
otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in this Indenture, and the
Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and
conversion of any Notes between the Company and such purchasers to
which the Trustee has not consented in writing, including the costs
and expenses incurred by the Trustee in the defense of any claim or
liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
SECTION 11.10 Provision in Case of Certain
Consolidations, Mergers or Conveyances of Assets.
In case of any consolidation, merger, conveyance,
transfer or lease to which Section 12.11 applies, in which the
Common Stock of the Company is changed or exchanged as a result
into the right to receive securities, cash or other property which
includes shares of common stock of the Company or another Person
that are, or upon issuance will be, traded on a United States
national securities exchange or approved for trading on an
established automated over-the-counter trading market in the United
States and such shares constitute at the time such change or
exchange becomes effective in excess of 50% of the aggregate fair
market value of such securities, cash and other property (as
determined by the Company, which determination shall be conclusive
and binding), then the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the
case may be, shall execute and deliver to the Trustee a
supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental
indenture if, after giving effect to Section 1.13, such
supplemental indenture is then required to so comply) modifying the
provisions of this Indenture relating to the right of Holders of
Notes to cause the Company to purchase Notes following a Designated
Event, including the applicable provisions of this Article 11 and
the definitions of Designated Event, Change of Control and
Termination of Trading, as appropriate, as determined in the good
faith by the Company (which determination shall be conclusive and
binding), to make such provisions apply to such common stock and
the issuer thereof if different from the Company and Common Stock
of the Company (in lieu of the Company and the Common Stock of the
Company).
ARTICLE 12
CONVERSION OF NOTES
SECTION 12.1 Conversion Privilege and Conversion Price.
Subject to and upon compliance with the provisions of
this Article, at the option of the Holder thereof, any Note or any
portion of the principal amount thereof (in an amount equal to
$250,000 or an integral multiple of $1,000 in excess thereof,
provided that the principal amount of any portion not so converted
shall be equal to or in excess of $250,000) may be converted at the
principal amount thereof, or of such portion thereof, into that
number of duly authorized, fully paid and nonassessable shares of
Common Stock, obtained by dividing such principal amount of the
Note or portion thereof surrendered for conversion by the
Conversion Price, determined as hereinafter provided, in effect at
the time of conversion. Such conversion right shall commence, with
respect to all Notes, 60 days following the Closing Date and expire
at the close of business on March 15, 2001. In case a Note or
portion thereof is called for redemption, such conversion right in
respect of the Note or the portion so called, shall expire at the
close of business on the Business Day next preceding the Redemption
Date, unless the Company defaults in making the payment due upon
redemption. In the case of a Designated Event for which the Holder
exercises its Repurchase Right with respect to a Note or portion
thereof, such conversion right in respect of the Note or portion
thereof shall expire upon receipt by the Company or the Trustee of
the written notice of exercise of such Repurchase Right. A holder
of Notes is not entitled to any rights of a holder of Common Stock
until such holder has converted his Notes to Common Stock and only
to the extent such Notes are deemed to have been converted to
Common Stock under this Article 12.
The price at which shares of Common Stock shall be
delivered upon conversion (herein called the "Conversion Price")
shall be initially $24.50 per share of Common Stock. The
Conversion Price shall be adjusted in certain instances as provided
in paragraphs (1), (2), (3), (4) and (6) of Section 12.4.
SECTION 12.2 Exercise of Conversion Privilege.
In order to exercise the conversion privilege with
respect to any Note, the holder of any such Note to be converted in
whole or in part shall surrender such Note, duly endorsed, at an
office or agency maintained by the Company for such purpose
pursuant to Section 10.2, accompanied by the funds, if any,
required by this Section 12.2, and shall give written notice of
conversion in the form provided on the Notes (or such other notice
which is acceptable to the Company) to such office or agency that
the holder elects to convert such Note or the portion thereof
specified in said notice. Such notice shall also state the name or
names (with address) in which the certificate or certificates for
shares of Common Stock which shall be issuable on such conversion
shall be issued, and shall be accompanied by transfer taxes, if
required pursuant to Section 12.8. Each such Note surrendered for
conversion shall, unless the shares issuable on conversion are to
be issued in the same name as the registration of such Note, be
duly endorsed by, or be accompanied by instruments of transfer in
form satisfactory to the Company duly executed by, the holder or
his duly authorized attorney.
Except as provided below, no payments or adjustments in
respect of any interest accrued to the date of conversion on Notes
surrendered for conversion or any dividends on the Common Stock
issued on conversion which were declared for payment to holders of
Common Stock of record as of a date prior to the date of conversion
shall be made by the Company upon conversion. In the case of any
Note which is converted after any Regular Record Date and on or
prior to the next succeeding Interest Payment Date, interest on the
principal amount of such Note shall be payable on such Interest
Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid
to the Person in whose name that Note (or one or more Predecessor
Notes) is registered at the close of business on such Regular
Record Date. Notes surrendered for conversion during the period
from the close of business on any Regular Record Date to the
opening of business on the next succeeding Interest Payment Date
(except in the case of Notes or portions thereof called for
redemption on a Redemption Date within such period) shall be
accompanied by payment in New York Clearing House funds or other
funds acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of
Notes being surrendered for conversion. A Note converted on an
Interest Payment Date need not be accompanied by the payment
referred to in the preceding sentence, and the interest on the
principal amount of such Note will be paid on such Interest Payment
Date to the registered holder of such Note on the immediately
preceding Regular Record Date.
As promptly as practicable after satisfaction of the
requirements for conversion set forth above, subject to compliance
with any restrictions on transfer if shares of Common Stock
issuable on conversion are to be issued in a name other than that
of the Noteholder (as if such transfer were a transfer of the Note
or Notes (or portion thereof) so converted), the Company shall
issue and shall deliver to such holder at the office or agency
maintained by the Company for such purpose pursuant to
Section 10.2, a certificate or certificates for the number of full
shares of Common Stock issuable upon the conversion of such Note or
portion thereof in accordance with the provisions of this Article
and a check or cash in respect of any fractional interest in
respect of a share of Common Stock arising upon such conversion, as
provided in Section 12.3. In case any Note of a denomination
greater than $250,000 shall be surrendered for partial conversion,
and subject to Section 2.2, the Company shall execute and the
Trustee shall authenticate and deliver to the holder of the Note so
surrendered, without charge to him, a new Note or Notes in
authorized denominations in an aggregate principal amount equal to
the unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected as
to any such Note (or portion thereof) on the date on which the
requirements set forth above in this Section 12.2 have been satis-
fied as to such Note (or portion thereof), and the person in whose
name any certificate or certificates for shares of Common Stock
shall be issuable upon such conversion shall be deemed to have
become on said date the holder of record of the shares represented
thereby; provided, however, that any such surrender on any date
when the stock transfer books of the Company shall be closed shall
constitute the person in whose name the certificates are to be
issued as the record holder thereof for all purposes on the next
succeeding day on which such stock transfer books are open, but
such conversion shall be at the Conversion Price in effect on the
date upon which such Note shall be surrendered.
All shares of Common Stock delivered upon such conversion
within the three years following the Closing Date shall bear a
restrictive legend substantially in the form set forth below and
shall be subject to the restrictions on transfer provided in such
legend:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. THE HOLDER THEREOF AGREES THAT UNTIL
THE EXPIRATION OF THREE YEARS AFTER THE ORIGINAL ISSUANCE
OF THE NOTE UPON THE CONVERSION OF WHICH THE COMMON STOCK
EVIDENCED HEREBY WAS ISSUED, (1) IT WILL NOT RESELL OR
OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED HEREBY
EXCEPT (A) TO LSI LOGIC CORPORATION (THE "COMPANY") OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A,
(C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) THAT PRIOR TO SUCH
TRANSFER, FURNISHES TO THE FIRST NATIONAL BANK OF BOSTON,
AS TRANSFER AGENT, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE COMMON STOCK EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
SUCH TRANSFER AGENT), (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (E)
IN A TRANSACTION OF A TYPE OTHER THAN THOSE DESCRIBED IN
THE FOREGOING CLAUSES (A), (B), (C) OR (D) IN CONNECTION
WITH WHICH THE COMPANY SHALL HAVE RECEIVED A LEGAL
OPINION, IN FORM AND SUBSTANCE SATISFACTORY TO IT AND ITS
COUNSEL, TO THE EFFECT THAT THE PROPOSED TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT; (2) PRIOR TO ANY SUCH TRANSFER
PURSUANT TO CLAUSE (1)(C), (D) OR (E) ABOVE, IT WILL
FURNISH TO THE FIRST NATIONAL BANK OF BOSTON, AS TRANSFER
AGENT, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (3)
IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED
AFTER THE EXPIRATION OF THREE YEARS FROM THE ORIGINAL
ISSUANCE OF THE NOTE UPON THE CONVERSION OF WHICH THE
COMMON STOCK EVIDENCED HEREBY WAS ISSUED. AS USED
HEREIN, THE TERMS "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
If shares of Common Stock to be issued upon conversion of
a Restricted Note within three years after the Closing Date, are to
be registered in a name other than that of the Holder of such
Restricted Note, the notice of assignment set forth in Section 2.6
set forth on such Restricted Note must be properly completed, dated
the date of such surrender and signed by the Holder of such
Restricted Note. Neither the Trustee nor any Conversion Agent,
Registrar or Transfer Agent shall be required to register in a name
other than that of the Holder shares of Common Stock or Notes
issued upon conversion of any such Restricted Note for which such
notice of assignment has not been properly completed.
SECTION 12.3 Fractions of Shares.
No fractional shares of Common Stock shall be issued upon
any conversion of any Note or Notes. If more than one Note shall
be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal
amount of the Notes (or specified portions thereof) so surrendered.
Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Note or Notes (or
specified portions thereof), the Company shall pay a cash
adjustment in respect of such fraction (calculated to the nearest
one-100th of a share) in an amount equal to the same fraction of
the Quoted Price of the Common Stock as of the trading day before
the date of conversion.
SECTION 12.4 Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustments from
time to time as follows:
(1) In case at any time after the Closing Date, the
Company shall pay or make a dividend or other
distribution on Common Stock of the Company in shares of
its Common Stock, the Conversion Price in effect at the
opening of business on the day following the date fixed
for the determination of stockholders entitled to receive
such dividend or other distribution shall be adjusted so
that the same shall equal the price determined by
multiplying such Conversion Price by a fraction of which
the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date
fixed for such determination and the denominator shall be
the sum of such number of shares and the total number of
shares constituting such dividend or other distribution,
such reduction to become effective immediately after the
opening of business on the day following the date fixed
for such determination. In the event that any such
dividend or other distribution is not paid or made, the
Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if the
date fixed for the determination of stockholders entitled
to receive such dividend or other distribution had not
been fixed.
(2) In case at any time after the Closing Date, the
Company shall issue rights or warrants to all holders of
its outstanding shares of Common Stock entitling them
(for a period expiring within 45 days after the date
fixed for determination of stockholders entitled to
receive such rights or warrants) to subscribe for or
purchase shares of Common Stock at a price per share less
than the current market price per share (determined as
provided in paragraph (5) of this Section) on the record
date fixed for determination of stockholders entitled to
receive such rights or warrants, the Conversion Price
shall be adjusted so that the same shall equal the price
obtained by multiplying the Conversion Price in effect at
the opening of business on the date after such record
date by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close
of business on such record date plus the number of shares
which the aggregate offering price of the total number of
shares so offered would purchase at such current market
price, and of which the denominator shall be the number
of shares of Common Stock outstanding on the close of
business on such record date plus the total number of
additional shares of Common Stock so offered for
subscription or purchase. Such adjustment shall become
effective immediately after the opening of business on
the day following such record date. To the extent that
shares of Common Stock are not delivered after the
expiration or termination of such rights or warrants, the
Conversion Price shall be readjusted to the Conversion
Price which would then be in effect had the adjustments
made upon the issuance of such rights or warrants been
made on the basis of delivery of only the number of
shares of Common Stock actually delivered. In the event
that such rights or warrants are not so issued, the
Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if the
record date fixed for the determination of stockholders
entitled to receive such rights or warrants had not been
fixed. In determining whether any rights or warrants
entitle the holders to subscribe for or purchase shares
of Common Stock at less than such current market price,
and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account
any consideration received for such rights or warrants,
the value of such consideration, if other than cash, to
be determined by the Board of Directors whose
determination shall be conclusive.
(3) In case at any time after the Closing Date,
outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on
the day following the day upon which such subdivision
becomes effective shall be proportionately reduced, and,
conversely, in case at any time after the Closing Date,
outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the
Conversion Price in effect at the opening of business on
the day following the day upon which such combination
become effective shall be proportionately increased, such
reduction or increase, as the case may be, to become
effective immediately after the opening of business on
the day following the day upon which such subdivision or
combination becomes effective.
(4) In case at any time after the Closing Date, (X)
the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock any rights or warrants
to subscribe for or purchase any securities of the
Company or any evidence of indebtedness or other
securities of the Company or cash or other assets (other
than (a) Common Stock, (b) any regular quarterly dividend
payable solely in cash out of retained earnings of the
Company that may from time to time be fixed by the Board
of Directors, (c) any rights or warrants referred to in
paragraph (2) of this Section and (d) any securities,
cash or assets distributed upon a merger or consolidation
or other event to which Section 12.11 applies), or (Y)
the Company or any of its Subsidiaries shall purchase
shares of Common Stock and the price per share of Common
Stock paid by the Company or its Subsidiary, as the case
may be, exceeds the Quoted Price determined as of the
earlier of the date the Company enters into a binding
contract for the purchase of such shares or the date such
purchase is consummated, where, in the case of a
distribution to which the preceding clause (X) applies,
the fair market value of such distribution, or, in the
case of a purchase of Common Stock to which the preceding
clause (Y) applies, the fair market value of the
aggregate consideration paid in excess of the applicable
Quoted Price, in either such case, combined with the sum
of (x) the aggregate fair market value of other
distributions of the type described in the preceding
clause (X) paid within the twelve (12) months preceding
the date of payment of such distribution or the purchase
of such shares of Common Stock, as the case may be
(excluding any such distributions (or portions thereof)
in respect of which an adjustment pursuant to this
paragraph (4) previously has been made), and (y) the
aggregate amount of any amounts previously paid for the
purchase of Common Stock in excess of the applicable
Quoted Price of a type described in the preceding clause
(Y) within the twelve (12) months preceding the date of
payment of such distribution or the purchase of such
shares of Common Stock, as the case may be (excluding any
such payments (or portions thereof) in respect of which
an adjustment pursuant to this paragraph (4) of this
Section previously has been made), exceeds, in the case
of a distribution of the type described in the preceding
clause (X), 15% of the Distribution Date Market
Capitalization on the date fixed for determining the
stockholders entitled to receive such distribution (the
amount of any such excess, herein an "Excess
Distribution"), and in the case of the purchase of shares
of Common Stock at a per share price of in excess of the
applicable Quoted Price to which the preceding clause (Y)
applies, exceeds 15% of the Purchase Date Market
Capitalization (the amount of any such excess, herein an
"Excess Purchase Amount") then, and in each such case,
the Conversion Price shall be adjusted as set forth in
this paragraph (4). For purposes of this paragraph (4),
the term "Distribution Date Market Capitalization" means,
with reference to any date fixed for determining the
holders of Common Stock entitled to any distribution to
which clause (X) above applies, the product of the number
of shares of Common Stock outstanding at the open of
business on such date and the current market price per
share of Common Stock on such date (determined as
provided in paragraph (5) of this Section). For purposes
of this paragraph (4), the term "Purchase Date Market
Capitalization" means, with reference to any date on
which the purchase of shares of Common Stock by the
Company or any of its Subsidiaries is consummated to
which clause (Y) above applies, the product of the number
of shares of Common Stock outstanding (including any
shares being purchased by the Company or any of its
Subsidiaries on such date) at the open of business on
such date and the current market price per share of
Common Stock on such date (determined as provided in
paragraph (5) of this Section).
In case of a distribution resulting in an Excess
Distribution, the Conversion Price shall be adjusted so
that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately
prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such
distribution by a fraction of which (A) the numerator
shall be the current market price per share (determined
as provided in paragraph (5) of this Section) of the
Common Stock on the date fixed for such determination
less the amount obtained by dividing (i) the amount of
the Excess Distribution by (ii) the number of shares of
Common Stock outstanding at the close of business on the
date fixed for such determination and (B) the denominator
shall be such current market price per share of the
Common Stock, such adjustment to become effective
immediately prior to the opening of business on the day
following the date fixed for the determination of
stockholders entitled to receive such distribution.
In the case of the consummation of a purchase of
Common Stock resulting in an Excess Purchase Amount,
immediately prior to the opening of business on the day
after the date of the consummation of such purchase of
Common Stock, the Conversion Price shall be adjusted so
that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately
prior to close of business on the date of the
consummation of such purchase of Common Stock by a
fraction of which (A) the numerator shall be the current
market price of the Common Stock on the date of the
consummation of such purchase of Common Stock less the
amount obtained by dividing (i) the amount of the Excess
Purchase Amount by (ii) the number of shares of Common
Stock outstanding at the open of business on such date
and (B) the denominator shall be the current market price
of the Common Stock on the date of the consummation of
such purchase of Common Stock, such adjustment to become
effective immediately prior to the opening of business on
the day following the date of the consummation of such
purchase of Common Stock.
In the event that any dividend or distribution which
was counted in calculating an Excess Distribution Amount
or Excess Purchase Amount for which an adjustment to the
Conversion Price was made is not paid or made, the
Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such
dividend or distribution had not been declared.
For purposes of this paragraph (4), the fair market
value of any dividend or distribution or consideration
paid or payable for the purchase of Common Stock, in each
case, other than any portion thereof in cash, shall be
determined by the Board of Directors, whose determination
shall be conclusive.
Rights or warrants distributed by the Company to all
holders of Common Stock entitling the holders thereof to
subscribe for or purchase shares of the Company's capital
stock (either initially or under certain circumstances),
which rights or warrants, until the occurrence of a
specified event or events ("Trigger Event"): (i) are
deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also
issued in respect of future issuances of Common Stock,
shall be deemed not to have been distributed for purposes
of this paragraph (4) (and no adjustment to the
Conversion Price under this paragraph (4) will be
required) until the occurrence of the earliest Trigger
Event. If such right or warrant (including the Rights)
is subject to successive Trigger Events, upon the
satisfaction of each of which such right or warrant shall
become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the
occurrence of each such Trigger Event shall be deemed to
be such date of issuance and record date with respect to
a new right or warrant (and a termination or expiration
of the existing right or warrant without exercise by the
holder thereof) (so that, by way of illustration and not
limitation, the dates of issuance of any Rights shall be
deemed to be the dates on which such Rights become
exercisable to purchase capital stock of the Company, and
not the date on which such Rights may be issued, or may
become evidenced by separate certificates, if such Rights
are not then so exercisable). In addition, in the event
of any distribution of rights or warrants, or any Trigger
Event with respect thereto (including the Rights), that
was counted for purposes of calculating an Excess
Distribution Amount or Excess Purchase Amount for which
an adjustment to the Conversion Price under this
paragraph (4), (1) in the case of any such rights or
warrants which shall all have been redeemed or
repurchased without exercise by any holders thereof, the
Conversion Price shall be readjusted upon such final
redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as
though it were a cash distribution, equal to the per
share redemption or repurchase price received by a
holders of Common Stock with respect to such rights or
warrants (assuming such holder had retained such rights
or warrants), made to all holders of Common Stock as of
the date of such redemption or repurchase, and (2) in the
case of such rights or warrants (including the Rights)
which shall have expired or been terminated without
exercise by holders thereof, the Conversion Price shall
be readjusted as if only those rights and warrants which
remain unexpired or not terminated or which had been
exercised prior to expiration or termination had been
issued. Notwithstanding the foregoing, in lieu of any
adjustments with respect to the Rights, the Company may
amend the Rights Plan to provide that upon conversion of
the Note the Noteholders will receive, in addition to the
Common Stock issuable upon such conversion, the Rights
which would have attached to such shares of Common Stock
if the Rights had not become separated from the Common
Stock pursuant to the provisions of the Rights Plan.
Notwithstanding any provision of this Section 12.4,
rights, warrants, evidences of indebtedness, other
securities, cash or other assets shall be deemed not to
have been distributed and any such distributions shall
not be counted for purposes of calculating Excess
Distribution Amounts and Excess Purchase Amounts under
this paragraph (4), if the Company makes proper provision
so that each Holder who converts such Note (or any
portion thereof) after the date fixed for determination
of stockholders entitled to receive such distribution
shall be entitled to receive upon such conversion, in
addition to the shares of Common Stock issuable upon such
conversion, the amount and kind of such distributions
that such Holder would have been entitled to receive if
such Holder had, immediately prior to such determination
date, converted such Note into Common Stock; provided
that, with respect to any rights, warrants or other
securities ("Securities") that are convertible,
exchangeable or exercisable, the foregoing provision
shall only apply to the extent (and so long as) the
Securities receivable upon conversion of such Note would
be convertible, exchangeable or exercisable, as
applicable, without any loss of rights or privileges, for
a period of at least 60 days following conversion of such
Note.
For purposes of this Section 12.4, any dividend or
distribution to which this paragraph (4) is applicable
that also includes shares of Common Stock, or rights or
warrants to subscribe for or purchase shares of Common
Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of
indebtedness, assets or shares of capital stock other
than such shares of Common Stock or rights or warrants to
which paragraph (2) of this Section applies (and any
Conversion Price reduction required by paragraph (4) with
respect to such dividend or distribution shall then be
made) immediately followed by (2) a dividend or
distribution of such shares of Common Stock or such
rights or warrants (and any further Conversion Price
reduction required by paragraphs (1) and (2) of this
Section with respect to such dividend or distribution
shall then be made, except (A) the record date of such
dividend or distribution shall be substituted as "the
date fixed for the determination of stockholders entitled
to receive such dividend or other distribution", "the
date fixed for such determination", "the record date
fixed for determination of stockholders entitled to
receive such rights or warrants" and "such record date"
within the meaning of paragraphs (1) and (2) of this
Section and (B) any shares of Common Stock included in
such dividend or distribution shall not be deemed
"outstanding at the close of business on the date fixed
for such determination" within the meaning of paragraph
(1) of this Section).
(5) For the purpose of any computation under
paragraphs (2) and (4) of this Section, the current
market price per share of Common Stock on any date shall
be deemed to be the average of the daily Quoted Prices
per share of Common Stock for the five consecutive
Business Days selected by the Company commencing not more
than 20 Business Days before the day in question.
(6) In addition to the adjustments in the
Conversion Price required by paragraphs (1), (2), (3) and
(4) of this Section, the Company may, but shall not be
obligated to, make such adjustments in the Conversion
Price as it considers to be advisable in order that any
event treated for United States federal income tax
purposes as a dividend of stock or stock rights shall not
be taxable to the holders of Common Stock; provided,
however, that nothing in this Indenture shall be
construed as requiring the Company to pay any amount of
taxes, with respect to any amount that is treated for
United States federal income tax purposes as a dividend
of stock or stock rights as a result of any adjustment of
Conversion Price described in this Section 12.4.
To the extent permitted by applicable law, the
Company from time to time may reduce the Conversion Price
by any amount for any period of time if the period is at
least 20 days, the reduction is irrevocable during the
period and the Board of Directors shall have made a
determination that such reduction would be in the best
interests of the Company, which determination shall be
conclusive and described in a Board Resolution. Whenever
the Conversion Price is reduced pursuant to the preceding
sentence, the Company shall mail to all Holders a notice
in accordance with Section 1.5 of the reduction at least
15 days prior to the date the reduced Conversion Price
takes effect, and such notice shall state the reduced
Conversion Price and the period it will be in effect.
(7) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase
or decrease of at least one percent (1%) in such price;
provided, however, that any adjustments which by reason
of this paragraph (7) are not required to be made shall
be carried forward and taken into account in any
subsequent adjustment. All calculations under this
Article shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
No adjustment need be made for a change in the par
value or no par value of the Common Stock.
For the purposes of this Section 12.4, the number of
shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of
Common Stock. The Company will not pay any dividend or
make any distribution on shares of Common Stock held in
the treasury of the Company.
SECTION 12.5 Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein
provided:
(1) the Company shall compute the adjusted
Conversion Price in accordance with Section 12.4 and
shall prepare an Officers' Certificate signed by the
Treasurer, Chief Financial Officer or General Counsel of
the Company setting forth the adjusted Conversion Price
and showing in reasonable detail the facts upon which
such adjustment is based, and such Officers' Certificate
shall forthwith promptly be filed with the Trustee and
with each Conversion Agent; and
(2) other than in the case of an adjustment
pursuant to the second paragraph of paragraph (6) of
Section 12.4 for which the notice required by such
paragraph has been provided, a notice stating that the
Conversion Price has been adjusted and setting forth the
adjusted Conversion Price shall forthwith be required,
and such notice shall be provided by the Company to all
Holders in accordance with Section 1.5.
Neither the Trustee nor any Conversion Agent shall be
under any duty or responsibility with respect to any such Officers'
Certificate, except to exhibit the same to any Holder of Notes
desiring inspection thereof at its office during normal business
hours.
SECTION 12.6 Notice of Certain Corporate Action.
If:
(1) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise
than in cash out of its capital surplus or the
consolidated retained earnings of the Company; or
(2) the Company shall authorize the granting to the
holders of its Common Stock of rights or warrants to
subscribe for or purchase any shares of capital stock of
any class or of any other rights; or
(3) there shall occur any reclassification of the
Common Stock of the Company (other than a subdivision or
combination of its outstanding shares of Common Stock),
or of any consolidation or merger to which the Company is
a party and for which approval of any shareholders of the
Company is required, or of the conveyance, transfer or
lease of all or substantially all of the assets of the
Company; or
(4) there shall occur the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Notes pursuant to
Section 10.2, and shall cause to be provided to all Holders in
accordance with Section 1.5, at least 20 days (or 10 days in any
case specified in clause (1) or (2) above) prior to the applicable
record or effective date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of
such dividend, distribution, rights or warrants, or, if a record is
not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution, rights or
warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, conveyance, transfer,
lease, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, conveyance,
transfer, lease, dissolution, liquidation or winding up.
SECTION 12.7 Company to Reserve Common Stock.
The Company shall at all times reserve and keep
available, free from preemptive rights, out of its authorized but
unissued Common Stock, for the purpose of effecting the conversion
of Notes, the full number of shares of fully paid and nonassessable
Common Stock then issuable upon the conversion of all Outstanding
Notes.
SECTION 12.8 Taxes on Conversions.
Except as provided in the next sentence, the Company will
pay any and all taxes and duties that may be payable in respect of
the issue or delivery of shares of Common Stock on conversion of
Notes pursuant hereto (excluding any tax liability arising from (i)
the payment of cash in lieu of fractional shares, (ii) any payment
of interest on the Notes made to the Holder subsequent to the date
of conversion or (iii) any adjustment to the Conversion Price). A
Holder delivering a Note for conversion shall be liable for and
will be required to pay any tax or duty which may be payable in
respect of any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that of the Holder of
the Note or Notes to be converted, and no such issue or delivery
shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax or duty, or has
established to the satisfaction of the Company that such tax or
duty has been paid.
SECTION 12.9 Covenant as to Common Stock.
The Company covenants that all shares of Common Stock
which may be issued upon conversion of Notes will upon issue be
fully paid and nonassessable and, except as provided in
Section 12.8, the Company will pay all taxes, liens and charges
with respect to the issue thereof.
SECTION 12.10 Cancellation of Converted Notes.
All Notes delivered for conversion shall be delivered to
the Trustee to be canceled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 3.9.
SECTION 12.11 Provision in Case of Consolidation, Merger
or Conveyance of Assets.
In case of (i) any reclassification or change of
outstanding shares of Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination or a
distribution to which Section 12.4(1) or (2) apply), or (ii) any
consolidation of the Company with, or merger of the Company into,
any other Person, any merger of another Person into the Company
(other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company) or any conveyance, transfer or lease
of all or substantially all of the assets of the Company as a
result of which holders of Common Stock shall be entitled to
receive stock, securities or other property or assets with respect
to, or in exchange for, Common Stock, then the Company or the
Person formed by such consolidation or resulting from such merger
or which acquires such assets, as the case may be, shall execute
and deliver to the Trustee a supplemental indenture (which shall
comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture if, after giving effect to
Section 1.13, such supplemental indenture is then required to so
comply) providing that the Holder of each Note then outstanding
shall have the right thereafter, during the period such Note shall
be convertible as specified in Section 12.1, to convert such Note
only into the kind and amount of securities, cash and other
property receivable upon such reclassification, change,
consolidation, merger, conveyance, transfer or lease by a holder of
the number of shares of Common Stock of the Company into which such
Note might have been converted immediately prior to such
reclassification, change, consolidation, merger, conveyance,
transfer or lease, assuming such holder of Common Stock of the
Company (A) is not a Person with which the Company consolidated or
into which the Company merged or which merged into the Company or
to which such conveyance, transfer or lease was made, as the case
may be ("Constituent Person"), or an Affiliate of a Constituent
Person and (B) failed to exercise his rights of election, if any,
as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, transfer or
lease (provided that if the kind or amount of securities, cash and
other property receivable upon such consolidation, merger,
conveyance, transfer or lease is not the same for each share of
Common Stock of the Company held immediately prior to such
consolidation, merger, conveyance, transfer or lease by others than
a Constituent Person or an Affiliate thereof and in respect of
which such rights of election shall not have been exercised
("Non-Electing Share"), then for the purpose of this Section the
kind and amount of securities, cash and other property receivable
upon such consolidation, merger, conveyance, transfer or lease by
the holders of each Non-Electing Share shall be deemed to be the
kind and amount so receivable per share by a plurality of the
Non-Electing Shares), and assuming, if such reclassification,
change, consolidation, merger, conveyance, transfer or lease is
prior to sixty (60) days after the Closing Date, that the Notes
were convertible at the time of such reclassification, change,
consolidation, merger, conveyance, transfer or lease at the initial
Conversion Price specified in Section 12.1 as adjusted from the
Closing Date to such time pursuant to paragraphs (1), (2), (3), (4)
and (6) of Section 12.4. Such supplemental indenture shall provide
for adjustments which, for events subsequent to the effective date
of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers,
conveyances, transfers or leases. The Trustee shall not be under
any responsibility to determine the correctness of any provisions
contained in any such supplemental indenture relating either to the
kind or amount of shares of stock or other securities or property
or cash receivable by Holders of Notes upon the conversion of their
Notes after any such reclassification, change, consolidation,
merger, conveyance, transfer or lease or to any such adjustment,
but may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, an Opinion
of Counsel with respect thereto, which the Company shall cause to
be furnished to the Trustee upon request.
If this Section 12.11 applies to any event of occurrence,
Section 12.4 shall not apply.
SECTION 12.12 Responsibility of Trustee for Conversion
Provisions.
The Trustee, subject to the provisions of Section 6.1,
and any Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Notes to determine whether any
facts exist which may require any adjustment of the Conversion
Price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee, subject to the provisions of
Section 6.1, nor any Conversion Agent shall be accountable with
respect to the validity or value (or the kind or amount) of any
Common Stock, or of any other securities or property, which may at
any time be issued or delivered upon the conversion of any Note;
and it or they do not make any representation with respect thereto.
Neither the Trustee, subject to the provisions of Section 6.1, nor
any Conversion Agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver
any shares of stock or share certificates or other securities or
property upon the surrender of any Note for the purpose of
conversion; and the Trustee, subject to the provisions of
Section 6.1, and any Conversion Agent shall not be responsible or
liable for any failure of the Company to comply with any of the
covenants of the Company contained in this Article.
SECTION 12.13 General Considerations.
Whenever successive adjustments to the Conversion Price
are called for pursuant to this Article 12, such adjustments shall
be made to the conversion price adjustments set forth in
Section 12.4 (and related provisions) as may be necessary or
appropriate to effectuate the intent of this Article and to avoid
unjust or inequitable results as determined in good faith by the
Board of Directors.
ARTICLE 13
SUBORDINATION
SECTION 13.1 Notes Subordinated to Senior Debt.
The Company covenants and agrees, and each Holder of
Notes, by his acceptance thereof, likewise covenants and agrees,
that the indebtedness represented by the Notes and the payment of
the principal of (and premium, if any) and interest on each and all
of the Notes is hereby expressly subordinate and junior, to the
extent and in the manner hereinafter set forth, in right of payment
to the prior payment in full of all Senior Debt.
(a) In the event of any distribution of assets of the
Company upon any dissolution, winding up, liquidation or
reorganization of the Company, whether in bankruptcy, insolvency,
reorganization or receivership proceedings or upon an assignment
for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise, then the holders of
all Senior Debt shall first be entitled to receive payment of the
full amount due thereon in respect of principal (and premium, if
any) and interest, or provision shall be made for such amount in
money or money's worth, before the Holders of any of the Notes are
entitled to receive any payment or distribution of any character,
whether in cash, securities or other property, on account of the
principal of (or premium, if any) or interest on the indebtedness
evidenced by the Notes.
(b) In the event of any default in payment of the
principal of or premium, if any, or interest on rent under, or any
other payment obligation under any Senior Debt beyond any
applicable grace period with respect thereto, then, unless and
until all such payments due in respect of such Senior Debt have
been paid in full or such default shall have been cured or waived
or shall have ceased to exist, no payment shall be made by the
Company with respect to the principal of, premium, if any, or
interest on the Notes or to acquire any of the Notes (including any
repurchase pursuant to the exercise of the Repurchase Right).
(c) In the event (i) any event of default with respect
to any Senior Debt shall have occurred and be continuing permitting
the holders of such Senior Debt (or a trustee or other
representative on behalf of the holders thereof) to declare such
Senior Debt due and payable prior to the date on which it would
otherwise have become due and payable, upon written notice thereof
to the Company and the Trustee by any Holders of Senior Debt (or a
trustee or other representative on behalf of the holders thereof)
(the "Default Notice"), unless and until such event of default
shall have been cured or waived or shall have ceased to exist and
such acceleration shall have been rescinded or annulled, or
(ii) any judicial proceeding shall be pending with respect to any
such default in payment or event of default, then no payment shall
be made by the Company, directly or indirectly, with respect to
principal of, premium, if any, or interest on the Notes (including
any repurchase pursuant to the exercise of the Repurchase Right)
provided, however, that clause (i) of this paragraph shall not
prevent the making of any such payment by the Company with respect
to the Notes for more than 179 days after a Default Notice shall
have been received by the Trustee unless the Senior Debt in respect
of which such event of default exists has been declared due and
payable in its entirety in which case no such payment may be made
until such acceleration has been rescinded or annulled or such
Senior Debt has been paid in full. Notwithstanding the foregoing,
no event of default which existed or was continuing on the date of
any Default Notice shall be made the basis for the giving of a
second Default Notice; provided, further, however, that only one
such Default Notice may be given in any 365 day period.
(d) If the maturity of the Notes is accelerated, no
payment may be made on the Notes until all amounts due or to become
due on Senior Debt has been paid or until such acceleration has
been cured or waived.
(e) In the event that, notwithstanding the foregoing
provisions of Sections 13.1 (a), (b), (c) and (d), any payment on
account of principal of or interest on the Notes shall be made by
or on behalf of the Company and received by the Trustee, by any
Holder or by any Paying Agent (or, if the Company is acting as its
own Paying Agent, money for any such payment shall be segregated
and held in trust), at a time when such payment is not permitted by
any of such provisions, then, unless and until all Senior Debt is
paid in full with money or money's worth, or provision thereof
shall have been made satisfactory to the holders thereof, or such
payment is otherwise permitted to be made by the provisions of each
of Sections 13.1(a), 13.1(b), 13.1(c) and 13.1(d) (subject, in each
case, to the provisions of Section 13.7), such payment on account
of principal of or interest on the Notes shall be held in trust for
the benefit of, and shall be immediately paid over to, the holders
of Senior Debt or their representative or representatives or the
trustee or trustees under any indenture under which any instruments
evidencing any of the Senior Debt may have been issued, as their
interests may appear.
Regardless of anything to the contrary herein, nothing
shall prevent (a) any payment by the Company or the Trustee to
Holders of amounts in connection with a redemption of Notes if (i)
notice of such redemption has been given pursuant to Section 11.5
prior to the receipt by the Trustee of written notice as aforesaid,
and (ii) such notice of redemption is given not earlier than 75
days before the Redemption Date, or (b) any payment by the Trustee
to the Holders of amounts deposited with it pursuant to Sections
4.1 and 4.2.
SECTION 13.2 Subrogation.
Subject to the payment in full of all Senior Debt to
which the indebtedness evidenced by the Notes is in the
circumstances subordinated as provided in Section 13.1, the Holders
of the Notes (together with the holders of any other indebtedness
of the Company which is subordinate in right of payment to the
payment in full of all Senior Debt, which is not subordinate in
right of payment to the Notes and which by its terms grants such
right of subrogation to the holders thereof) shall be subrogated to
the rights of the holders of such Senior Debt to receive payments
or distributions of cash, property or securities of the Company
applicable to such Senior Debt until all amounts owing on the Notes
shall be paid in full, and, as between the Company, its creditors
other than holders of such Senior Debt, and the Holders of the
Notes, no such payment or distribution made to the holders of
Senior Debt by virtue of this Article which otherwise would have
been made to the Holders of the Notes shall be deemed to be a
payment by the Company on account of such Senior Debt, it being
understood that the provisions of this Article are and are intended
solely for the purpose of defining the relative rights of the
Holders of the Notes, on the one hand, and the holders of Senior
Debt, on the other hand.
SECTION 13.3 Obligation of Company Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior
Debt, and the Holders of the Notes, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the
Notes the principal of (and premium, if any) and interest on the
Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the
relative rights of the Holders of the Notes and creditors of the
Company other than the holders of Senior Debt, nor shall anything
herein or therein prevent the Trustee or the Holder of any Note
from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt in respect of
cash, property or securities of the Company received upon the
exercise of any such remedy.
SECTION 13.4 Modification of Terms of Senior Debt.
Any renewal or extension of the time of payment of any
Senior Debt or the exercise by the holders of Senior Debt of any of
their rights under any instrument creating or evidencing Senior
Debt, including without limitation the waiver of default
thereunder, may be made or done all without notice to or assent
from the Holders of the Notes or the Trustee.
No compromise, alteration, amendment, modification,
extension, renewal or other change of, or waiver, consent or other
action in respect of, any liability or obligation under or in
respect of, or of any of the terms, covenants or conditions of any
indenture or other instrument under which any Senior Debt is
outstanding or of such Senior Debt, whether or not such release is
in accordance with the provisions of any applicable document, shall
in any way alter or affect any of the provisions of this Article or
of the Notes relating to the subordination thereof.
SECTION 13.5 Payments on Notes Permitted.
Nothing contained in this Article or elsewhere in this
Indenture, or in any of the Notes, shall affect the obligation of
the Company to make, or prevent the Company from making, payments
of the principal of, or premium, if any, or interest on the Notes
in accordance with the provisions hereof and thereof, or shall
prevent the Trustee or any Paying Agent from applying any moneys
deposited with it hereunder to the payment of the principal of, or
premium, if any, or interest on the Notes, in each case except as
otherwise provided in this Article.
SECTION 13.6 Effectuation of Subordination by Trustee.
Each Holder of Notes, by his acceptance thereof,
authorizes and directs the Trustee in his behalf to take such
action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the
Notes shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction in which any such dissolution,
winding up, liquidation or reorganization proceeding affecting the
affairs of the Company is pending or upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of
creditors, liquidating trustee or agent or other Person making any
payment or distribution, delivered to the Trustee or to the Holders
of the Notes, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, and as to other
facts pertinent to the right of such Persons under this Article,
and if such evidence is not furnished, the Trustee may defer any
payment to such Persons pending judicial determination as to the
right of such Persons to receive such payment.
SECTION 13.7 Knowledge of Trustee.
Notwithstanding the provisions of this Article or any
other provisions of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any Senior Debt, of any
default in payment of principal, premium (if any) or interest on
any Senior Debt, or of any facts which would prohibit the making of
any payment of moneys to or by the Trustee, or the taking of any
other action by the Trustee, unless and until a Responsible Officer
of the Trustee having responsibility for the administration of the
trust established by this Indenture shall have received written
notice thereof from the Company, any Holder of Notes, any Paying or
Conversion Agent of the Company or the holder or representative of
any class of Senior Debt, and, prior to the receipt of any such
written notice, the Trustee shall be entitled in all respects to
assume that no such default or facts exist; provided, however, that
unless on the third Business Day prior to the date upon which by
the terms hereof any such moneys may become payable for any purpose
(other than a payment under Article 11) the Trustee shall have
received the notice provided for in this Section 13.7, then,
anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys
and apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be
received by it on or after such date.
SECTION 13.8 Trustee's Relation to Senior Debt.
The Trustee shall be entitled to all the rights set forth
in this Article with respect to any Senior Debt at the time held by
it, to the same extent as any other holder of Senior Debt and
nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Nothing in this Article shall apply to claims of or
payments to the Trustee under or pursuant to Section 6.7.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no
implied covenants or obligations with respect to the holders of
Senior Debt shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and the Trustee shall not be liable to any
holder of Senior Debt if it shall pay over or deliver to Holders,
the Company or any other Person moneys or assets to which any
holder of Senior Debt shall be entitled by virtue of this Article
or otherwise.
SECTION 13.9 Rights of Holders of Senior Debt Not
Impaired.
No right of any present or future holder of any Senior
Debt to enforce the subordination herein shall at any time or in
any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any noncompliance by the Company with
the terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof any such holder may have or be otherwise
charged with.
This instrument may be executed in any number of
counterparts, each of which when so executed shall be deemed to be
an original, but all such counterparts shall together constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
LSI LOGIC CORPORATION
By
Albert A. Pimentel
Senior Vice President -- Finance
and Chief Financial Officer
Attest:
By
David Sanders
Vice President, General Counsel
& Secretary
THE FIRST NATIONAL BANK OF BOSTON
By
Name:
Title:
Attest:
By
Name:
Title:
Exhibit A
FORM OF PURCHASER LETTER FOR
INSTITUTIONAL ACCREDITED INVESTORS
LSI Logic Corporation
1551 McCarthy Boulevard
Milpitas, California 95035
The First National Bank of Boston
150 Royal Street
Canton, Massachusetts 02021
Attn: Corporate Trust Department (LSI Logic
Corporation -- Convertible Subordinated
Notes due 2001)
Dear Ladies and Gentlemen:
We are delivering this letter in connection with the
acquisition of one or more of the 5-1/2% Convertible Subordinated
Notes due 2001 (the "Notes") of LSI Logic Corporation (the
"Company"), which are convertible into shares of the Company's
Common Stock, $.01 par value (the "Common Stock").
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of
Rule 501(a)(1), (2) or (3) under the Securities Act of 1933 (the
"Securities Act") or an entity in which all of the equity owners
are accredited investors within the meaning of Rule 501(a)(1),
(2) or (3) under the Securities Act (an "Institutional Accredited
Investor");
(ii)(A) any purchase of Notes by us will be for our own
account or for the account of one or more other Institutional
Accredited Investors or as fiduciary for the account of one or
more trusts, each of which is an "accredited investor" within the
meaning of Rule 501(a)(7) under the Securities Act and for each
of which we exercise sole investment discretion or (B) we are
"bank", within the meaning of Section 3(a)(2) of the Securities
Act, or a "savings and loan association" or other institution
described in Section 3(a)(5)(A) of the Securities Act that is
acquiring Notes as fiduciary for the account or one or more
institutions for which we exercise sole investment discretion;
(iii) in the event that we purchase any Notes, we will
acquire Notes having a minimum principal amount of not less than
$250,000 for our own account or for any separate account for
which we are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and
risks of purchasing Notes;
(v) we are not acquiring Notes with a view to distribution
thereof or with any present intention of offering or selling
Notes or the Common Stock issuable upon conversion thereof,
except as permitted below; provided that the disposition of our
property and property of any accounts for which are acting as
fiduciary shall remain at all times within our control; and
We understand that the Notes and the shares of Common Stock
issuable upon conversion thereof (collectively, the "Securities")
have not been and will not be registered under the Securities Act
or any applicable state securities laws, and we agree, on our own
behalf and on behalf of each account for which we acquire any
Securities, that if in the future we decide to resell or
otherwise transfer such Securities, such Securities may be resold
or otherwise transferred only (a) to the Company or any
subsidiary thereof, (b) inside the United States to a person who
is a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act) in a transaction meeting the
requirements of Rule 144A, (c) inside the United States to an
Institutional Accredited Investor that, prior to such transfer,
furnishes to the trustee (or transfer agent, as the case may be)
for such Securities a signed letter containing certain
representations and agreements relating to the restrictions on
transfer of such Securities (the form of which letter can be
obtained from such trustee, or transfer agent, as the case may
be), (d) outside the United States in a transaction meeting the
requirements of Rule 904 under the Securities Act or (e) in a
transaction of a type other than those described in the foregoing
clauses (a), (b), (c) or (d) in connection with which the Company
shall have received a legal opinion, in form and substance
satisfactory to it and its counsel, to the effect that the
proposed transfer is being made pursuant to an exemption from or
in a transaction not subject to, the registration statement
requirements of the Securities Act. We agree that any such
transfer of Securities referred to in this paragraph shall be in
accordance with applicable securities laws of any State of the
United States or any other applicable jurisdiction and in
accordance with the legends set forth on the Securities. We
further agree to provide any person purchasing any of the
Securities from us a notice advising such purchaser that resales
of such securities are restricted as stated herein. We
understand that the registrar and transfer agent for the
Securities will not be required to accept for registration of
transfer any Securities, except upon presentation of evidence
satisfactory to the Company that the foregoing restrictions on
transfer have been complied with. We further understand that any
Securities will be in the form of definitive physical
certificates and that such certificates will bear a legend
(unless the sale of the Securities has been registered under the
Securities Act) reflecting the substance of this paragraph.
We acknowledge that the Company, others and you will rely
upon our confirmations, acknowledgement and agreements set forth
herein, and we agree to notify you promptly in writing if any of
our representations or warranties herein ceases to be accurate
and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(Name of Purchaser)
By:
Name:
Title:
Address:
Exhibit B
FORM OF LEGEND FOR RESTRICTED
COMMON STOCK
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF
U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
THE HOLDER THEREOF AGREES THAT UNTIL THE EXPIRATION OF THREE
YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTE UPON THE
CONVERSION OF WHICH THE COMMON STOCK EVIDENCED HEREBY WAS
ISSUED, (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE
COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO LSI LOGIC
CORPORATION (THE "COMPANY") OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
COMPLIANCE WITH RULE 144A, (C) INSIDE THE UNITED STATES TO
AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) THAT
PRIOR TO SUCH TRANSFER, FURNISHES TO THE FIRST NATIONAL BANK
OF BOSTON, AS TRANSFER AGENT, A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE COMMON STOCK EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRANSFER AGENT), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (E) IN A
TRANSACTION OF A TYPE OTHER THAN THOSE DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), (C) OR (D) IN CONNECTION WITH
WHICH THE COMPANY SHALL HAVE RECEIVED A LEGAL OPINION, IN
FORM AND SUBSTANCE SATISFACTORY TO IT AND ITS COUNSEL, TO
THE EFFECT THAT THE PROPOSED TRANSFER IS BEING MADE PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; (2)
PRIOR TO ANY SUCH TRANSFER PURSUANT TO CLAUSE (1)(C), (D) OR
(E) ABOVE, IT WILL FURNISH TO THE FIRST NATIONAL BANK OF
BOSTON, AS TRANSFER AGENT, SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (3)
IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED
AFTER THE EXPIRATION OF THREE YEARS FROM THE ORIGINAL
ISSUANCE OF THE NOTE UPON THE CONVERSION OF WHICH THE COMMON
STOCK EVIDENCED HEREBY WAS ISSUED. AS USED HEREIN, THE
TERMS "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
LSI LOGIC CORPORATION,
ISSUER
AND
THE FIRST NATIONAL BANK OF BOSTON,
TRUSTEE
INDENTURE
Dated as of March 23, 1994
$143,750,000
5-1/2% CONVERTIBLE SUBORDINATED NOTES
DUE 2001
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION. . . . . . . . . . 1
SECTION 1.1 Definitions. . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Form of Documents Delivered to Trustee . . . . . 12
SECTION 1.3 Acts of Holders of Notes . . . . . . . . . . . . 13
SECTION 1.4 Notices, Etc., to Trustee and Company. . . . . . 14
SECTION 1.5 Notice to Holders of Notes; Waiver . . . . . . . 15
SECTION 1.6 Effect of Headings and Table of Contents . . . . 15
SECTION 1.7 Successors and Assigns . . . . . . . . . . . . . 15
SECTION 1.8 Separability Clause. . . . . . . . . . . . . . . 16
SECTION 1.9 Benefits of Indenture. . . . . . . . . . . . . . 16
SECTION 1.10 Governing Law. . . . . . . . . . . . . . . . . . 16
SECTION 1.11 Legal Holidays . . . . . . . . . . . . . . . . . 16
SECTION 1.12 No Security Interest Created . . . . . . . . . . 16
SECTION 1.13 Trust Indenture Act. . . . . . . . . . . . . . . 16
ARTICLE 2
FORM OF NOTE . . . . . . . . . . . . 17
SECTION 2.1 Form Generally . . . . . . . . . . . . . . . . . 17
SECTION 2.2 Forms of Notes . . . . . . . . . . . . . . . . . 18
SECTION 2.3 Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . 29
SECTION 2.4 Form of Conversion Notice. . . . . . . . . . . . 30
SECTION 2.5 Legends on Restricted Notes. . . . . . . . . . . 31
SECTION 2.6 Form of Notice of Assignment . . . . . . . . . . 31
SECTION 2.7 Form of Schedule of Exchanges, Conversions,
Redemptions, Cancellations and Transfers for Global
Notes. . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 3
THE NOTES. . . . . . . . . . . . . 34
SECTION 3.1 Title and Terms. . . . . . . . . . . . . . . . . 34
SECTION 3.2 Denominations. . . . . . . . . . . . . . . . . . 34
SECTION 3.3 Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.4 Global Notes . . . . . . . . . . . . . . . . . . 35
SECTION 3.5 Registration, Registration of Transfer and
Exchange; Restrictions on Transfer . . . . . . . 38
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Notes . . . 40
SECTION 3.7 Payment of Interest, Interest Rights
Preserved. . . . . . . . . . . . . . . . . . . . 41
SECTION 3.8 Persons Deemed Owners. . . . . . . . . . . . . . 43
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . 43
SECTION 3.10 Computation of Interest. . . . . . . . . . . . . 43
SECTION 3.11 Temporary Notes. . . . . . . . . . . . . . . . . 43
ARTICLE 4
SATISFACTION AND DISCHARGE. . . . . . . . . 44
SECTION 4.1 Satisfaction and Discharge of Indenture. . . . . 44
SECTION 4.2 Application of Trust Money . . . . . . . . . . . 45
ARTICLE 5
REMEDIES . . . . . . . . . . . . . 46
SECTION 5.1 Events of Default. . . . . . . . . . . . . . . . 46
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . 47
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . 48
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . 49
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Notes . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.6 Application of Money Collected . . . . . . . . . 50
SECTION 5.7 Limitation on Suit . . . . . . . . . . . . . . . 51
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest and To Convert . 51
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . 52
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . 52
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . 52
SECTION 5.12 Control by Holders of Notes. . . . . . . . . . . 52
SECTION 5.13 Waiver of Past Default . . . . . . . . . . . . . 53
SECTION 5.14 Undertaking for Costs. . . . . . . . . . . . . . 53
SECTION 5.15 Waiver of Stay or Extension Laws . . . . . . . . 54
ARTICLE 6
THE TRUSTEE . . . . . . . . . . . . 54
SECTION 6.1 Certain Duties and Responsibilities. . . . . . . 54
SECTION 6.2 Notice of Defaults . . . . . . . . . . . . . . . 55
SECTION 6.3 Certain Rights of Trustee. . . . . . . . . . . . 56
SECTION 6.4 Not Responsible for Recitals or Issuance of
Notes. . . . . . . . . . . . . . . . . . . . . . 57
SECTION 6.5 May Hold Notes, Act as Trustee Under Other
Indentures . . . . . . . . . . . . . . . . . . . 57
SECTION 6.6 Money Held in Trust. . . . . . . . . . . . . . . 58
SECTION 6.7 Compensation and Indemnification of Trustee
and Its Prior Claims . . . . . . . . . . . . . . 58
SECTION 6.8 Corporate Trustee Required; Eligibility. . . . . 59
SECTION 6.9 Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . 59
SECTION 6.10 Acceptance of Appointment By Successor . . . . . 60
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . 61
SECTION 6.12 Authenticating Agent . . . . . . . . . . . . . . 61
SECTION 6.13 Conflicting Interest of Trustee. . . . . . . . . 63
ARTICLE 7
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . 63
SECTION 7.1 Company May Consolidate, Etc., Only on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.2 Successor Corporation Substituted. . . . . . . . 64
ARTICLE 8
SUPPLEMENTAL INDENTURES . . . . . . . . . 64
SECTION 8.1 Supplemental Indentures Without Consent of
Holders of Notes . . . . . . . . . . . . . . . . 64
SECTION 8.2 Supplemental Indentures with Consent of
Noteholders. . . . . . . . . . . . . . . . . . . 66
SECTION 8.3 Execution of Supplemental Indentures . . . . . . 67
SECTION 8.4 Effect of Supplemental Indentures. . . . . . . . 67
SECTION 8.5 Reference in Notes to Supplemental Indentures. . 68
ARTICLE 9
MEETINGS OF HOLDERS OF NOTES
SECTION 9.1 Purposes for Which Meetings May Be Called. . . . 68
SECTION 9.2 Call, Notice and Place of Meetings . . . . . . . 68
SECTION 9.3 Persons Entitled to Vote at Meetings . . . . . . 69
SECTION 9.4 Quorum; Action . . . . . . . . . . . . . . . . . 69
SECTION 9.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings. . . . . . . . . . . . . 69
SECTION 9.6 Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . . . 70
ARTICLE 10
COVENANTS. . . . . . . . . . . . . 71
SECTION 10.1 Payment of Principal, Premium and Interest . . . 71
SECTION 10.2 Maintenance of Offices or Agencies . . . . . . . 71
SECTION 10.3 Money for Note Payments To Be Held in Trust. . . 72
SECTION 10.4 Corporate Existence. . . . . . . . . . . . . . . 73
SECTION 10.5 Waiver of Certain Covenants. . . . . . . . . . . 74
SECTION 10.6 Delivery of Certain Information. . . . . . . . . 74
ARTICLE 11
REDEMPTION OF NOTES AND REPURCHASE RIGHT OF HOLDERS . . 75
SECTION 11.1 Right of Redemption and Repurchase Right of
Holders. . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.2 Applicability of Article . . . . . . . . . . . . 75
SECTION 11.3 Election To Redeem; Notice to Trustee. . . . . . 75
SECTION 11.4 Selection by Trustee of Notes To Be Redeemed . . 75
SECTION 11.5 Notice of Redemption or Designated Event . . . . 76
SECTION 11.6 Deposit of Redemption Price and Repurchase
Price. . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.7 Notes Payable on Redemption Date and
Repurchase Date. . . . . . . . . . . . . . . . . 79
SECTION 11.8 Notes Redeemed or Repurchased in Part. . . . . . 79
SECTION 11.9 Conversion Arrangement on Call for Redemption. . 80
SECTION 11.10 Provision in Case of Certain Consolidations,
Mergers or Conveyances of Assets. . . . . . . . 81
ARTICLE 12
CONVERSION OF NOTES . . . . . . . . . . 81
SECTION 12.1 Conversion Privilege and Conversion Price . . . 81
SECTION 12.2 Exercise of Conversion Privilege. . . . . . . . 82
SECTION 12.3 Fractions of Shares . . . . . . . . . . . . . . 85
SECTION 12.4 Adjustment of Conversion Price. . . . . . . . . 86
SECTION 12.5 Notice of Adjustments of Conversion Price . . . 94
SECTION 12.6 Notice of Certain Corporate Action. . . . . . . 94
SECTION 12.7 Company to Reserve Common Stock . . . . . . . . 95
SECTION 12.8 Taxes on Conversions. . . . . . . . . . . . . . 95
SECTION 12.9 Covenant as to Common Stock . . . . . . . . . . 96
SECTION 12.10 Cancellation of Converted Notes . . . . . . . . 96
SECTION 12.11 Provision in Case of Consolidation, Merger or
Conveyance of Assets. . . . . . . . . . . . . . 96
SECTION 12.12 Responsibility of Trustee for Conversion
Provisions. . . . . . . . . . . . . . . . . . . 98
SECTION 12.13 General Considerations. . . . . . . . . . . . . 98
ARTICLE 13
SUBORDINATION. . . . . . . . . . . . 99
SECTION 13.1 Notes Subordinated to Senior Debt . . . . . . . 99
SECTION 13.2 Subrogation . . . . . . . . . . . . . . . . . .101
SECTION 13.3 Obligation of Company Unconditional . . . . . .101
SECTION 13.4 Modification of Terms of Senior Debt. . . . . .102
SECTION 13.5 Payments on Notes Permitted . . . . . . . . . .102
SECTION 13.6 Effectuation of Subordination by Trustee. . . .102
SECTION 13.7 Knowledge of Trustee. . . . . . . . . . . . . .103
SECTION 13.8 Trustee's Relation to Senior Debt . . . . . . .103
SECTION 13.9 Rights of Holders of Senior Debt Not
Impaired. . . . . . . . . . . . . . . . . . . .104
Exhibit A - Form of Purchaser Letter for Institutional
Accredited Investors
Exhibit B - Form of Legend for Restricted Common Stock
